Rottenbury by his tutor Wren v Rottenbury

10 The heads of damage which were not the subject of agreement were care from the date of the mediation to the date of judgment, future care and fund management. They are considered separately hereunder.

Care from 13 December 2005 to the date of judgment 11 This head of damage need not detain the Court as the defendant concedes the plaintiff's entitlement to recover compensation for gratuitous attendant care services at the maximum rate prescribed by s 128 of the Act for the period 13 December 2005 to the date of this judgment and does not dispute the need or cost of commercial care provided for the plaintiff by the motor vehicle insurer for that period.

Life expectancy 12 In order to calculate damages for future care and fund management it is necessary to determine the plaintiff's life expectancy. There was a dispute as to this issue. 13 Consequent upon the decision in Zhang v Golden Eagle International Trading Pty Limited ((2006) NSWCA 25) it is appropriate, in considering life expectancy prior to any discounting factors, that consideration be had to the prospective life tables. The Australian Bureau of Statistics ("ABS") is the appropriate reference source. An appeal to the High Court from the decision in Zhang was heard on 15 December 2006 and judgment is reserved. The defendant, recognising that this Court is bound by the decision of the Court of Appeal in Zhang, formally submitted that the ABS statistics based on historical, not projected, data should be used to assess life expectancy. 14 Neither party submitted that there was any familial history or like matters which rendered reference to the life tables inappropriate as a starting point. However the defendant submitted the statistical life expectancy of the plaintiff should be reduced by reason of his brain damage, hemiplegia, heavy smoking and the possibility of epilepsy. 15 There was evidence that, statistically, brain damage resulted in a 5% reduction of the years remaining (Drs Buckley and McCarthy); that statistically there was a 4% reduction of the years remaining by reason of hemiplegia (Dr Yeo); and that by reason of the plaintiff's heavy smoking there should be a reduction of 5 years in his life expectancy (Dr Zeman); and that the risk of epilepsy occurring and impacting on the plaintiff's life expectancy was extremely small (Drs Buckley and Zeman). Various other matters, such as the beneficial effect of the plaintiff's attendance at the gymnasium, his socioeconomic grouping and his history of excessive alcohol intake were also referred to in the evidence. 16 Drs Buckley and McCarthy proposed a 5% reduction for the plaintiff's brain injury but no additional deduction as the majority of brain damaged persons were heavy smokers, the plaintiff did not exhibit any of the factors relevant to a reduction for hemiplegia and in any event most brain damaged persons had a degree of physical impairment. 17 Dr Zeman proposed a 5% reduction for the brain damage together with an additional reduction of 5 years for smoking. 18 Dr Yeo proposed a 4% reduction for the hemiplegia together with an additional 4% - 5% for smoking. 19 The plaintiff submitted that Dr Buckley's evidence should be accepted and that the appropriate reduction should be 5% of the years remaining by reference to the prospective life tables. 20 The defendant submitted that the evidence of Professor Yeo and Dr Zeman should be accepted and that there should be a reduction of 7.5 years in the statistical life expectancy. 21 The effect of the brain damage, hemiplegia and heavy smoking upon the plaintiff's life expectancy is speculative. I accept that the statistics for the reduction of life expectancy in brain damaged persons were derived from a study of persons many of whom were heavy smokers and some at least of whom suffered physical incapacity. I also accept the cohort from which the life tables are calculated include persons in both categories. However each set of statistics includes persons who are neither smokers nor physically incapacitated. Accordingly, in my opinion, it is necessary to increase the reduction of life expectancy for the plaintiff, who is both a heavy smoker and suffers various physical disabilities, beyond the 5% proposed by the plaintiff. In my opinion a reduction of 4 years in the statutory life expectancy is appropriate. The calculation should be made having regard to the ABS prospective life tables.

Future care 22 It was submitted on behalf of the plaintiff that: (a) he requires care 24 hours per day 7 days per week as a result of his accident caused disabilities; (b) it should be accepted that the plaintiff's partner is no longer able to provide care for him or that it would be unreasonable for her to be required to do so; (c) the care should be provided commercially by three 8-hour shifts per day, two being active shifts and the other inactive, 7 days per week. 23 The defendant accepted that commercial care was required 7 days per week but disputed the plaintiff's submission that such care was required 24 hours per day. The defendant's primary submission was that the plaintiff's daily care needs would be met by paid care from 8am to 8pm provided by two carers each working a 6 hour shift irrespective of whether the plaintiff's partner remained with him or not. 24 The area of debate was thus what care, if any, was required by the plaintiff from 8pm to 8am. Each party sought to support its submissions by reference to the plaintiff's history during the period since his discharge from hospital. 25 The following aspects of that history were particularly relied upon by the parties: (a) The plaintiff is a heavy smoker. He is unlikely to give up that habit. There is a risk that as a result of the tremor in his right arm he may drop ash from his cigarette whilst he is smoking or drop bits of cigarette when trying to light it. This has occurred on a number of occasions. The risk is increased as the "second skin", which controls the tremor, is flammable and cannot be worn when smoking. The plaintiff's clothing has cigarette burn holes in them. On one occasion (which I find was whilst the plaintiff was in hospital) the plaintiff set his chest hair alight whilst smoking. The plaintiff and his partner have agreed he should smoke only in the kitchen (where there is a tiled floor), at his bench or outside and not in carpeted areas. The plaintiff said he never smoked elsewhere in the house though his partner said on a very few occasions she had had to ask him not to smoke in the lounge room. The plaintiff gave evidence that if his partner was not there he would "smoke anywhere". There are "no smoking" signs at the gymnasium which the plaintiff attends. The plaintiff heeds those signs; (b) Prior to the accident the plaintiff was a heavy drinker of alcohol. On many days after work he would go to the hotel with his mates and come home late affected by alcohol and abusive. On some occasions he would not arrive home until 2 - 3am after drinking with friends. On three or four occasions since injury the plaintiff has gone out by himself and returned home after dark having been drinking with others. On one occasion the plaintiff bought alcohol from the Glossodia bottle shop and went to a friend's place and got drunk. On another occasion he got drunk with a neighbour and returned home in such an abusive state that the police were called. The plaintiff gave evidence he had since sworn off the grog. However this was not confirmed by the plaintiff's partner or his carer. The plaintiff's partner gave evidence she limits the plaintiff to 2 -3 drinks per day as a fourth drink "sends him over the edge". The plaintiff gave evidence that if his partner was not there he would make sure the fridge was full [of alcohol] and if he started drinking at a retail outlet he would not stop. The plaintiff says the Glossodia bottle shop was two hours away by wheelchair. It closed at 7.30 or 8pm. There was thus no point in the plaintiff setting out for the bottle shop after 6pm. He also acknowledged there was no point in going to friends' houses after 8pm. The plaintiff's carer said the plaintiff would buy alcohol from the bottle shop when they visited the Glossodia shopping centre. The plaintiff would take the alcohol home to drink; (c) The plaintiff said he was a moody person before the accident and was more so now. Anything could set off his temper and he starts to lose the plot if asked to wait. When moody he gets frustrated, yells abuse at his partner, strikes objects about the house and drives his chair at parts of the house. He takes medication which helps calm him and has done an anger management course. He forgets to take his medication a couple of times per week; (d) The plaintiff does not like to be left alone for more than 1 - 1.5 hours. If left alone for longer periods he becomes angry and starts banging things. He constantly telephones his partner on her mobile phone if she is out. The plaintiff said he felt he couldn't stay in the house alone at night; (e) The plaintiff is competent in transferring to and from his wheelchair and can do so quickly if necessary. He has had some falls from the wheelchair when he has been unable to get himself back into his chair. There are no footpaths in his street and he drives the wheelchair on the road. On occasions he has exhibited scant regard for the potential risks posed by other traffic; (f) On one night an intruder entered the grounds of the plaintiff's home. The intruder was a drunken boy. The plaintiff wanted to go outside and bash him. His partner locked the door to prevent the plaintiff going outside and called the police; (g) The plaintiff stays at home most nights not because he wants to but because his partner prefers it. On some occasions he sleeps very heavily, on others he wakes up with some regularity and gets up to have a cigarette. The plaintiff generally sleeps with his partner. On occasions he will wet the bed. The frequency of this occurrence is unclear. The plaintiff says probably twice per week, his partner says once per week, whilst examining doctors recorded once per month, twice per month or twice in three months. Usually when this occurs the plaintiff changes his pyjamas and goes off to sleep on the lounge. When the partner is woken by these events ("every three to four weeks") she gets up and changes the bed linen something which the plaintiff is unable to do; (h) The plaintiff's morning routine is to arise between 6 and 7am, toilet, breakfast (with mixed success), shower and dress himself and then interact with the children. His partner arises a couple of hours after him. She does not perceive any need to rise when the plaintiff does. In the evening the family has dinner and puts the children to bed between 7pm and 8pm. 26 The plaintiff's medical experts pointed to the plaintiff's history since his discharge from hospital as illustrating that he was at significant risk of harm from such things as causing a fire, falling from his chair and being unable to get up, becoming intoxicated, acting impulsively and so on such as to make it unsafe for him to be left alone at home at night. The plaintiff's partner gave evidence to similar effect. 27 The plaintiff's experts gave evidence that the presence of the plaintiff's partner at home had had a moderating influence on the plaintiff's behaviour either because of the overall routine and structure which her presence brought to the plaintiff's life (Dr Buckley) or because he did not wish her to leave (Dr McCarthy). However in the event the partner left it was their opinion that the plaintiff would be likely to behave impulsively, putting himself at risk, almost certainly smoke in bed and other unsafe areas of the house, access alcohol, attempt to do things he was not physically capable of and become extremely frustrated and angry. 28 The defendant contended that the history showed that over a period approaching four years the plaintiff had not caused any fires, rarely got drunk or left the house alone or acted impulsively so as to put himself at risk. He was able to deal with the situation if he wet the bed and if he had fallen from his chair that generally had occurred in the daytime when outdoors. Accordingly the defendant contended that at most the risks of harm to the plaintiff between the hours of 8pm and 8am were "a very remote, extremely occasional possibility only" and not such as reasonably required the provision of care at night. 29 The defendant's qualified specialists, Dr Yeo and Dr Zeman (rehabilitation specialists) and Dr Maguire (a consultant psychiatrist), supported the defendant's contentions. Dr Maguire, whilst conceding that having regard to the various possible risk factors to leave the plaintiff alone would place him at risk, considered the risk low as there had been insufficient incidents recorded to justify the provision of care. Dr Zeman considered care between 8pm and 10pm would be required if the partner was not present, but there was no need for care from 10pm to 8am as there had been very few instances of care been required during the night. Dr Yeo had left the question of the need for an observer's role to Dr Maguire who had not recommended it. 30 I have concluded that the evidence establishes, on the probabilities, that: (a) Whilst the plaintiff's partner continues to live with him the level of risk to the plaintiff between the hours of 8pm and 8am is at a very low level and not such as reasonably to require the provision of commercial care between those hours; (b) Should the plaintiff's partner leave the plaintiff taking the children the risk of the plaintiff behaving in such a manner as to expose him to serious risk of injury would be greatly increased and the risk, in my opinion, would be at such a level as to reasonably require the provision of commercial care 24 hours per day 7 days per week. 31 These conclusions give rise to three sub issues: (a) Is the plaintiff entitled to be compensated under s 128 of the Act in respect of the period 8pm to 8am whilst his partner remains with him?' (b) Is the relationship of the plaintiff and his partner likely to fail, if so, when?; (c) In what manner is full time commercial care to be provided for the plaintiff?

Is the plaintiff entitled to be compensated under s 128 of the Act in respect of the period 8pm to 8am whilst his partner remains with him? 32 The plaintiff's submission, in essence, is that during the night the partner fulfils the same role as would a commercial carer performing an inactive (sleep over) shift. Accordingly the plaintiff's partner should be regarded as providing an attendant care service for the plaintiff during this time. The period of time thus involved exceeds 6 hours per week and will continue beyond 6 months and accordingly compensation is payable pursuant to s 128 of the Act. 33 The defendant submits that the evidence establishes: (a) That between 6am and 8am the plaintiff's partner remains asleep in bed whilst the plaintiff gets up and attends to his ablutions etc; (b) Between 8pm and 10pm the plaintiff and his partner are at home together and perhaps watching television or attending to their own matters. The plaintiff's evidence was that the arguments between him and his partner normally occur in the afternoon and he expects that if he had care up to 8pm he and his partner would be able to spend the evenings together once the children had gone to bed and their relationship would be starting to get back to normal; (c) That between 10pm and 6am the plaintiff and his partner sleep; (d) During the periods the plaintiff's partner is asleep she does not provide any services or active supervision of the plaintiff's activities. In the past she has provided services or active supervision if and when the need arises and she awakes to do so. However the evidence indicates the provision of any active services or supervision by her during the period 10pm to 8am was rare. Similarly in the period 8pm to 10pm after the children had gone to bed there was little evidence that services or active supervision was required and the probability, is, so far as the future is concerned, such requirements should be minimal when the increased care regime between 8am and 8pm is in place; (e) Insofar as the setting up of a household routine appropriate for the plaintiff was concerned, that routine had been set up some time ago and was essentially accepted by the plaintiff. The partner's mere presence in the home was not the provision of a service or supervision but simply a result of the fact that she was the partner of the plaintiff and had been for what is now many years; (f) The correct analysis was that the plaintiff's mere presence was not the provision of a service or supervision such as prima facie to attract compensation or, if it was, it was excluded pursuant to s 128(2) of the Act being a service which would have been provided to the plaintiff even if he had not been injured by the motor accident. To the extent that the partner is likely to provide services or active supervision in the future this would fall well short of the statutory proscription in s 128(3) of the Act; (g) The situation was quite different with a commercial carer who it was necessary to bring onto the premises in order to be present in the event that any problem arose for the plaintiff for which he required assistance. 34 In my opinion the partner is present at the house as a consequence of the pre-existing relationship and not as a consequence of the injury to the plaintiff. Her mere presence is not compensable under s 128 of the Act. She is however, whilst present, on hand to deal with any situation which arises as a result of a need occasioned by the plaintiff's injury. The evidence did not establish that such services or supervision which she would be likely to provide for the plaintiff in the future between 8pm and 8am would occupy 6 hours or more per week (s 128(3) of the Act). Accordingly, in my opinion, the plaintiff is not entitled to compensation pursuant to s 128 of the Act in respect of future services or supervision. In my opinion the partner is quite capable of providing such minimal services as would be required and it would not be unreasonable that she continue to do so. Indeed it would be quite unreasonable to require that commercial care be provided during these periods. 35 Dr Yeo considered it appropriate to provide a call up system to deal with the problems which arise when the plaintiff wets the bed. The evidence suggests the plaintiff was well able to handle the situation overnight and that the changing of the bed linen could await the arrival of the morning carer. I see no basis to require the defendant to meet the costs of arranging such a call system. Indeed it would be unnecessary if the partner was present and if she leaves the plaintiff then she will be replaced by full time care.

Failure of the relationship 36 The plaintiff and his partner have lived together for approximately 14 years. The plaintiff's abuse of alcohol was a problem before the accident and led to his partner leaving him for about 12 months when their first child was a baby. The partner left because she got sick of the drinking and verbal abuse. 37 Since the accident the plaintiff gets frustrated, argues and yells abuse at the partner. This occurs about once a day normally in the afternoon. On occasions the plaintiff has struck his partner on the cheek. 38 Both the plaintiff and his partner describe their relationship as not good but there have been some improvements in that lack of money, which was the cause of a lot of the arguments after the accident, is not now a problem due to the partial settlement of the plaintiff's claim. Both the plaintiff and his partner feel that there will be further significant improvement in the relationship if there is a carer in the afternoons to occupy the plaintiff. The plaintiff said if he and his partner spent their evenings together after the children were in bed then the relationship "would start getting back to normal". 39 The plaintiff's partner, when asked why she was still in the relationship said: I love Jon, and I have the kids, and I just need some help. She confirmed she intended to stay provided she got some help. 40 There is evidence from a number of the medical experts as to the higher risk of separation in relationships where one of the partner's has brain damage. There is evidence the divorce rate in the general population is "pretty high". 41 It is of course impossible to know whether the relationship between the plaintiff and his partner will fail and, if it does, when that failure will occur. There is obviously considerable stress upon it yet both parties wish it to last. Doing the best I can I estimate there is a 60% chance the relationship will fail. I find that if the relationship does fail the failure will occur in 18 years time. Provision of future commercial care 42 Dr Buckley gave evidence that in his opinion the plaintiff required full time care 24 hours per day, 7 days per week and that the medically most appropriate care was live-in care. 43 The defendant accepted that if full time commercial care was required then it was appropriate to provide it on a live-in basis. 44 The plaintiff adduced evidence that there was a risk of burnout with live-in carers by reason of the stressors of dealing with a patient such as the plaintiff. The plaintiff's present carer gave evidence that he considered 12 hours per day working with the plaintiff was probably the maximum as working with a brain injured person is very draining. The carer said he would not be able to cope with three consecutive days of 24 hour shifts with the plaintiff. He accepted that his lifestyle was such that he would not wish to work as a live-in carer in any event. 45 However Dr Buckley believed if full time carers were available his prescription would probably work. Dr Zeman said his experience was that a number of people are prepared to work as live-in carers for two, three or four days per week. 46 There was evidence from an occupational therapist retained by the plaintiff that none of the five to seven agencies which she used in Sydney provided live-in carers. The occupational therapist qualified for the defendant supplied the names of a number of organisations who held themselves out as prepared to provide live-in carers. The plaintiff's occupational therapist confirmed by enquiry that this information was accurate at least as to some of these organisations. 47 In my opinion, insofar as full time commercial care is required, it is appropriate that such care be provided on a live-in basis. I assume the figures for the provision of such care can be agreed by the parties.

Fund management 48 It was common ground: (a) that the plaintiff was entitled to damages for the cost of management of that part of his damages which had been or would be placed under management; (b) that the annual rate charged by the fund manager would be 1.59% of the total funds under management. 49 The defendant took no issue with the charges or the means of calculating the charges of the fund manager. 50 The only question in issue between the parties was whether: In calculating the present value of the cost of fund management, does one take into account as a separate item the fact that the fund will earn income, which in some years will increase its capital value and in others will slow what would otherwise be the diminution of its capital value. 51 The plaintiff submitted that because the fund will, on the balance of probabilities, earn something each year, an assessment should be made of its probable earnings and those probable earnings should be included in the fund upon which the management fees are to be charged. 52 The defendant submitted: (a) the predicted earnings of the plaintiff's fund is but one of a number of future variables that may affect the corpus; other variables equally incapable of any form of precise calculation include the effects of inflation on amounts to be drawn down from the fund, the tax regime to which the fund is subject, and the types of investments the fund managers make in the future. These variables may affect the corpus of the fund in different ways at different times. Some may have a negative effect on the corpus; (b) it is unacceptable to adopt a model which includes only one of the these variables, namely fund earnings, while ignoring the rest. Predicting future trends in one variable is necessarily speculative; attempting to predict future values of all of the relevant variables would be mere guesswork; (c) the effect of using a model which includes predicted future values of all relevant variables, even if a worthwhile model could be developed, amounts to a recalculation of the discount rate to be applied to the plaintiff's future expenditure on the cost of managing his funds, which is impermissible. The statutory rate of 5% cannot be varied; (d) this is consistent with statements by the majority of the High Court in Todorovic v Waller (1981) 150 CLR 402 at 422, 449, 458, 459 and 465. That case (which predated the imposition of the statutory discount rate in motor accident and other cases) established the discount rate of 3% which was treated as being of general application until overtaken by statute; (e) the High Court considered the matters which ought to be taken into account in formulating an appropriate discount rate for the purpose of calculating the present value of future losses and expenditures. The Court made it clear that a number of factors incapable of any precise calculation, not limited to the earnings the plaintiff might obtain on the investment of his lump sum damages, must be taken into account. The discount rate bundles together all of these factors. It must be assumed that the legislature took the same factors into account in mandating the statutory discount rate; (f) all of these incalculable future variables are incorporated in the 5% discount rate provided by s 127 of the Act. Section 127 of the Act is applicable as the payment of fees to the fund manager is a liability to incur expenditure in the future. 53 In my opinion the submissions of the defendant are compelling. Accordingly I hold that in calculating the present value of the cost of fund management one does not take into account as a separate item the fact that the fund will earn income. Conclusion 54 This judgment was published, in draft, to the parties on 25 January 2007 to enable the necessary calculations to give the effect to my determination to be made and agreed between the parties and for appropriate short minutes of orders to be prepared. 55 On 6 March 2007 the parties presented short minutes of orders which contained agreed calculations and explanatory materials as follows: By consent, the Court orders: The parties agree that the draft judgment herein gives rise to the following calculation of damages based upon life expectancy of 48.5 years:

1. $50,286 in respect of further gratuitous assistance provided to the plaintiff in respect of the period 12 December 2005 to the date of draft judgment herein, 25 January 2007.

2. $2,039,375 in respect of future care from 25 January 2007 and for the ensuing 18 years allowed on the basis of 12 hour shifts daily at the cost of $3,263 per week.

3. The additional sum of $1,036,801 in respect of future care at the expiration of 18 years referred to in the last paragraph based upon a 40% prospect that the plaintiff will continue to live with his partner and require 12 hours of commercial care daily at a cost of $3,263 per week and a 60% prospect that the relationship will fail at that time and the plaintiff will require care by way of full-time live-in carers at a cost of $2,842 per week. The calculation is based on a composite calculation of $3,010.40 per week for the remaining 30.5 years of the plaintiff's life after the next 18 years.
4. Deleted.
5. The parties agree that Funds Management arising out of the findings in the draft judgment ought be allowed in the sum of $1,042,448.
6. The parties agree that the defendant has paid the sum of $45,000 for commercial care since 12 December 2005. It is agreed that the sum so paid ought to be added to damages assessed herein and the defendant to have credit for such sum.
7. Verdict accordingly in the sum of $4,213,910 for remaining heads of damage including costs of Funds Management. Judgment, after credit for the said sum of $45,000 in the sum of $4,168,910.00.

8. Costs reserved with liberty to apply on 7days notice. 56 I accept the calculations made by the parties as correct. Orders

57 I make the following orders: 1. Final verdict for the plaintiff in the sum of $4,213,910.00 together with the sum referred to in paragraph 2 of the interim terms of settlement dated 15 December 2005 and filed in this Court on that date.

2. Final judgment for the plaintiff in the sum of $4,168,910.00 together with the sum referred to in paragraph 2 of the interim terms of settlement dated 15 December 2005 and filed in this Court on that date.

3. The said sum of $4,168,910.00 be paid, pursuant to s 77(3)(b) of the Civil Procedure Act 2005 to Australian Executor Trustees Limited as manager of the plaintiff's estate to be held and applied by the manager as part of that estate.

4. Costs reserved, with liberty to apply on 7 days notice.

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