Sullivan v Gordon

Court of Appeal (NSW)|1999-09-22|Before: Spigelman CJ, Mason P, Powell JA, Beazley JA, Stein JA, Newman J, Grove J, Dunford J

Background Facts 20 The appellant was born on 6 August 1973 in New Zealand. She came to Australia in March 1989 with her mother. On 23 April 1989 she was a passenger in a motor vehicle which was involved in a head-on collision with another vehicle. The appellant suffered extensive injuries, in particular to her head, face, legs and liver. However, her principal injury was frontal lobe brain damage, and this has given rise to her main ongoing disability. 21 The appellant is single and has always lived with her mother and some of her other siblings. Following the accident, but prior to trial, the appellant gave birth to two daughters by different fathers, Misty-Anna, born 18 February 1991, and Sarah, born 23 April 1993. She had also had one abortion. The child Misty-Anna resides with her father or his relatives in New Zealand as the appellant has been unable to care for her. At the date of trial the appellant resided in Australia with her mother. The child Sarah resides with the appellant, but is almost totally cared for by the appellant's mother, Mrs Wereta. 22 The appellant's case was that her frontal lobe damage had had significant effect on her ability to order aspects of her daily life, including the personal care of herself and her children, and her financial affairs. Mrs Wereta gave evidence of the appellant's behaviour both prior to and following the accident. She said that following the appellant's discharge from hospital, the appellant was in a wheelchair and that she was required to care for her daughter "as if she were a baby". After a period, the appellant began using a walking frame and ultimately became fully mobile. However, she became "difficult to control". Mrs Wereta described her daughter before the accident as being "laid back" and would respond to teasing with laughter and retaliatory teasing. However, following the accident she was extremely bad tempered, a characteristic which was "exhibited to all with whom she came into contact". When asked about the appellant's temper following the birth of her child Misty-Anna, Mrs Wereta said: "She would just scream. The baby would cry, she would either cry too or scream at the baby and 'What the hell is the matter?' and things like that and then she would just walk out, walk out the door". 23 Mrs Wereta was of the view that the appellant was unable to properly care for her daughter Sarah. She was also of the opinion that she was unable to properly manage her affairs. She referred, by way of example, to the appellant's dissipation of part of her lump sum worker's compensation award on recently met male companions. The appellant's mother also gave evidence that the appellant did not contribute to the housekeeping or household, that her memory was bad, and that she was unable to plan ahead, but lived "only for the instant moment". She said the appellant also had a low level of personal hygiene. 24 During cross-examination it emerged that the appellant had been a difficult teenager prior to the accident, and that Mrs Wereta had placed her under the supervision of welfare authorities because of her conduct. The respondent urged upon the trial judge that the appellant had been a person of little responsibility prior to the accident and that in reality little had changed in terms of her conduct since the accident. The trial judge rejected this submission. He found that the evidence of Mrs Wereta, whom he accepted as a "straightforward and honest witness", clearly demonstrated that the appellant's conduct after the accident was markedly different from that which she had exhibited beforehand. The trial judge also accepted the evidence of Dr Paul Darveniza, a neurologist, that the appellant's conduct as described by her mother was caused by her frontal lobe damage, although she had not suffered any significant cognitive loss as a consequence of her brain injury. Notwithstanding the absence of significant cognitive loss, the trial judge found that as a result of the brain damage, the appellant was permanently unemployable, was irresponsible and was in need of supervision.

The Griffiths v Kerkemeyer Claim 25 The appellant claimed to be in need of personal assistance on a daily basis for herself and for the care of her child. The trial judge awarded Griffiths v Kerkemeyer damages on the basis that the appellant would require supervision for a period of ten hours per week indefinitely into the future. His Honour made the same allowance for past care from 7 December 1989: see s 72(2) of the Motor Accidents Act. 26 The appellant challenges this award on two bases. First, she submitted that ten hours a week for her own personal care was inadequate. Secondly, she submitted that the trial judge made no allowance for her demonstrated need to have her children cared for.

Award of Ten Hours Assistance Per Week 27 Dr Darveniza categorised the appellant's brain damage as severe. He noted the history, given to him during his consultation with the appellant (apparently given by the appellant's mother), that: "[s]he remains very forgetful. She can't be relied on to go to the shops even with a note. She has left the gas stove on on numerous occasions, she needs constant help from her mother in the care of her children. For instance, she forgets her children's medicine, never turns pot handles in on the stove and forgets to change their nappies (partly due to a loss of sense of smell). She thinks slowly, can't plan and lacks insight into her behaviour."

(The loss of the sense of smell was a consequence of her injuries.) 28 Dr Darveniza further recorded that: "Her mother says she has become promiscuous, (to wit three pregnancies since the accident) and has become an easy target for advances from the opposite sex." 29 On examination Dr Darveniza noted that the appellant was "flippant and fatuous", that her short term memory was seriously impaired and that he considered her unable to look after herself or, even more so, her children "without considerable continuing help from her family". He said that patients with frontal lobe damage lack "insight and judgment". 30 The trial judge accepted the appellant's mother as a credible witness and her evidence coincided with the reports she made to Dr Darveniza. The appellant's mother also gave evidence that the appellant was unable to manage her money; was bad tempered including with the "little ones"; was unable to look after Sarah; was inconsistent with her own personal hygiene; and was irresponsible in attending to her contraception regime, often forgetting to take her pill. She was poor at performing household tasks such as washing, ironing and cooking. For example, sometimes when she did the washing, clothes would be damaged by shrinkage. Sometimes if she did the ironing she scorched the clothes. If she did the cooking she would sometimes burn the food and on occasion, the cooking utensils. 31 All the medical witnesses accepted that the appellant was in need of domestic and professional assistance. There was, however, a degree of variance amongst the experts as to the extent of the care required. 32 The trial judge accepted Dr Darveniza's opinion that she needed professional assistance from a social worker of about 1 - 2 hours per day. In so concluding, his Honour did not expressly analyse the evidence which indicated the type of assistance she needed. To the extent that his Honour relied on Dr Darveniza, he alluded only to that part of the evidence which referred to her social irresponsibility and her inability to organise her money. In respect of those aspects of her need for care he referred only to her need for "professional care". He did not deal with her need for daily care relating to her personal needs such as assistance with her washing, ironing and cooking and personal hygiene, nor did he deal with the need for there to be somebody available to the appellant when, as Dr Anderson, psychiatrist, put it, she needed care to "help her pick up the pieces when things go wrong". 33 Indeed, his Honour, in adopting Dr Darveniza's quantification of the amount of care required by the appellant, overlooked his evidence that the appellant needed "considerable continuing help from her family". I should add that the respondent did not argue that the assistance she needed for essential household tasks fell within s 72(3) of the Motor Accidents Act which excluded claims "if the services would have been provided … even if the [plaintiff] had not been injured by the motor accident". 34 In my opinion, having regard to the evidence of the appellant's mother as to the extent of the assistance she is required to give her daughter (separate from the care for the child) and the medical evidence which supported the appellant's need for daily domestic help in addition to professional assistance for her organisational needs, his Honour's allowance of two hours a day, five days a week was manifestly inadequate. I would assess the overall care which the appellant has required since her discharge from hospital and continues to require to be three hours a day, seven days a week. However, in accordance with s 72(2), such damages are only payable from 7 December 1989. Neither the trial judge nor the appellant drew any distinction between the rate which a professional would charge and a commercial rate for the provision of household services. Accordingly, I would award Griffiths v Kerkemeyer damages based on the commercial rate for such services. That rate was proved in evidence by the Dial-an-Angel report.

Claim for Child Care 35 The appellant also claimed damages for the care needed for her child, or for both children should her first child be returned to her care. The appellant submitted that the trial judge made no award to cover the cost of child care, which, so it was submitted, was in the nature of a Griffiths v Kerkemeyer claim. 36 In Griffiths v Kerkemeyer, the question for the High Court was whether there could be included in an award of damages "amounts in respect of the value of the services provided and to be provided for [an injured plaintiff] … by members of his family, when [the injured plaintiff] was not under any legal obligation to pay for those services" (per Gibbs J at 163). The services under consideration in that case included those of a nursing and domestic nature. Relying in particular upon the principles stated in Donnelly v Joyce [1974] QB 454, it was held that the value of such gratuitously provided services was a recoverable loss. 37 In Donnelly v Joyce Megaw LJ, delivering the judgment of the Court, stated at 462 that: "The loss is the plaintiff's loss. The question from what source the plaintiff's needs have been met, the question who has paid the money or given the services, the question whether or not the plaintiff is or is not under a legal or moral liability to repay, are, so far as the defendant and his liability are concerned, all irrelevant. The plaintiff's loss, to take this present case, is not the expenditure of money to buy the special boots or to pay for the nursing attention. His loss is the existence of the need for those special boots or for those nursing services, the value of which for purposes of damages - for the purpose of the ascertainment of the amount of his loss - is the proper and reasonable cost of supplying those needs. … … [I]t does not matter, for that purpose, whether the plaintiff has a legal liability, absolute or conditional, to repay to the provider what he has received, because of the general law or because of some private agreement between himself and the provider; it does not matter whether he has a moral obligation, however ascertained or defined, so to do. The question of legal liability to reimburse the provider may be very relevant to the question of the legal right of the provider to recover from the plaintiff. That may depend on the nature of the liability imposed by the general law or the particular agreement. But it is not a matter which affects the right of the plaintiff against the wrongdoer." 38 Applying this principle in Griffiths v Kerkemeyer, Mason J stated at 193-194: "It is now recognised that the true loss is the loss of capacity which occasions the need for the service. In consequence the existence of a legal liability to pay is not the dominant consideration … [t]he theory on which the plaintiff is permitted to recover is that the damages are awarded as compensation for his loss, whether he is under a legal liability or other obligation to pay for the services or not." 39 See also Stephen J at 180. 40 In Graham v Baker (1961) 106 CLR 340 it was held that damages are awarded not merely for diminished earning capacity but because that diminution is or may be productive of "financial loss". In Griffiths v Kerkemeyer the Court reconciled this principle with an award of damages for gratuitously provided services by determining, as a matter of policy, that the wrongdoer should not benefit from the fact that care was provided by family members and others free of charge. 41 Griffiths v Kerkemeyer thus gave recognition to the underlying principle that it is a "plaintiff's accident-caused need" which is compensated and that "the reasonable cost of satisfying that need [is] only a means of quantifying the damages to be awarded": per Stephen J at 179. As Dawson, Toohey and McHugh JJ explained in Nguyen v Nguyen (1990) 169 CLR 245 at 262-263: "The plaintiff's loss in Griffiths v Kerkemeyer was caused by his physical disability. It was in accordance with accepted principle to assess part of that loss by reference to the cost of the services which were required to satisfy the need to which the disability gave rise. What was novel about the decision was the application of that principle even though the plaintiff had not borne and would not bear the cost of the services. The novelty was not in valuing the necessary services, both retrospectively and prospectively; there was nothing new in that. The novelty lay in giving the plaintiff the cost of those services even though he had not paid, and would not pay, for them, in order that he, and not the defendant, should reap the benefit." 42 There was argument during the course of this appeal as to whether a Griffiths v Kerkemeyer claim was in the nature of general or special damages and whether, in any event, there remained any relevant distinction between the two types of damages. The question of the nature of a Griffiths v Kerkemeyer claim was discussed in Van Gervan v Fenton (1992) 175 CLR 327. 43 In Van Gervan v Fenton the High Court gave further definition to the damages payable under a Griffiths v Kerkemeyer claim, holding that such damages are calculated, not by reference to the actual cost to the plaintiff, but by reference to the market cost of providing the services. In reaching this conclusion, Mason CJ, Toohey and McHugh JJ revisited the judgments in Griffiths v Kerkemeyer. Their Honours pointed to the difference between the judgment of Gibbs J and that of Stephen and Mason JJ, the latter determining that Griffiths v Kerkemeyer damages were to be assessed according to the "need for such services" whereas Gibbs J held at 168-169 that damages were only recoverable if "the need is or may be productive of financial loss". Their Honours stated at 332-333 that: "to add this requirement is to go as close as is possible to treating the claim as a claim for special damages. Yet the Griffiths v Kerkemeyer doctrine was only made possible by rejecting the established common law rule that, in an action for damages for tort, the reasonable cost of services required as a result of the tort is a claim for special damages and can only be recovered if the plaintiff has a legal (or perhaps a moral or social) obligation to pay for them. As Stephen J pointed out in Griffiths, the principle laid down in Donnelly 'deprives of all substantive significance the distinction between special and general damages: if a plaintiff's accident-caused need is the loss to be compensated, the reasonable cost of satisfying that need being only a means of quantifying the damages to be awarded, the distinction between the two kinds of damages becomes unreal'." 44 Their Honours added at 333: "[s]ignificantly, in Nguyen, Dawson, Toohey and McHugh JJ [at 262] interpreted Griffiths as holding that 'the plaintiff's loss … was represented by [his] need'." 45 The claim presently under consideration is damages for the cost of looking after a third party - the appellant's child. The question is whether this claim is compensable on a Griffiths v Kerkemeyer basis. 46 The authorities are divided on the issue. In this Court the leading authority is Burnicle v Cutelli, where the Court held that a plaintiff's inability to render such services sounded in general damages, but disallowed damages assessed on a Griffiths v Kerkemeyer basis. Reynolds JA held at 28: "I am of the opinion that an assessment must be made as a component of an award of general damages, just as must be done in respect of any other deprivation which does not produce financial loss." 47 Mahoney JA was of a similar view. In particular, he expressed the opinion that not only was Griffiths v Kerkemeyer an exception to the traditional basis for the assessment of damages, but that a claim for an award of damages for services provided to others would be an unacceptable extension of the principle. 48 Glass JA saw no distinction in point of principle between the impairment of the capacity to provide domestic services to one's family and the inability to care for oneself. 49 In New South Wales Burnicle v Cutelli has been approved in Government Insurance Office of New South Wales v Planas [1984] 2 NSWLR 671 at 672; Haines v Higgins (unreported, New South Wales Court of Appeal, 16 December 1988); and Samrout v Alameddine (unreported, Supreme Court of New South Wales, Grove J, 24 April 1996) and has been consistently followed in damages claims in this state. Contra, however, Kealy v Fairfield Hospital (unreported, Supreme Court of New South Wales, Dunford J, 18 April 1997). A similar approach was adopted in Mauward v Doyle [1983] WAR 210. 50 There is recent authority in Queensland to the opposite effect: Sturch v Willmott [1997] 2 Qd R 310. In that case, the trial judge had allowed a claim for the cost of the care of dependent children up to the plaintiff's presumed date of death (her life expectancy having being shortened due to the defendant's negligence). However, he disallowed the claim in so far as it related to the need to care for the children in the period beyond the presumed date of death. On the appeal, the defendant conceded the plaintiff's entitlement to damages for the care of the children up to the time of the plaintiff's presumed death but contested her entitlement for the period beyond that. There was an illogicality in that stance, as the Court of Appeal recognised, and the Court therefore considered the validity of the claim for the period both before and after the plaintiff's expected date of death as a whole. The plaintiff succeeded. 51 Macrossan CJ classified such a claim as either falling within the traditional Griffiths v Kerkemeyer principle or being so analogous as to be an acceptable extension of the principle to compel the calculation of such damages on the same basis as a Griffiths v Kerkemeyer claim. 52 Davies JA did not accept that the claim was a true Griffiths v Kerkemeyer claim. He held that claims which fell within that principle were properly classified as based on the plaintiff's "loss of amenity; more specifically for loss by the plaintiff of her capacity to care for herself giving rise to a need for care". The claim for compensation for loss of the ability to care for a child, while still a loss of capacity, was a "loss of capacity to care for others". His Honour considered that such a loss did not give rise to a need for care. Notwithstanding that, he held (at 321-322) that such a loss was a loss of the plaintiff and that: "[t]here are…policy reasons which favour placing an economic value on the domestic contribution of a spouse to her family and treating the loss or diminution of the capacity to make that contribution as the spouse's loss rather than, as in former times, her husband's…That loss of diminution is … analogous to a loss or diminution of earning capacity and should ordinarily be measured by the replacement cost of the services which, by reason of her loss or diminution, the plaintiff is no longer able to provide". 53 Fryberg J also found that the claim was compensable. He stated at 323: "For the appellant it was argued that a claim under Griffiths v Kerkemeyer is a claim for compensation for loss of capacity suffered by the claimant; that this extends to include loss of capacity of the plaintiff in the present case to perform her usual domestic and other activities for her children; and that to that extent the calculation of the loss should take into account the lost years. If the first step in the argument is correct, then the second step must also be correct in the light of the concession to which I have referred. On the basis that both steps are correct, Davies JA had held that the third step follows. Assuming that those steps are correct, I agree with that conclusion. Indeed the respondent did not contend that on that basis the conclusion would not follow." 54 A similar approach has been taken in the English Court of Appeal in Daly v General Steam Navigation Co Ltd (The "Dragon") [1981] 1 WLR 120. See also Cummings v Canberra Theatre Trust (1979) 25 ACTR 33; Hodges v Frost (1984) 53 ALR 373; and Waters v Mussig [1986] 1 Qd R 224. 55 However, Perry J in Kite v Malycha (1998) 71 SASR 321 has recently refused to follow this approach, finding it inconsistent with the principles laid down in Graham v Baker.

Should Burnicle v Cutelli Continue to be Applied in this State? 56 In Burnicle v Cutelli the capacity which the plaintiff lost was one which she had exercised prior to the accident - that is, she already had a family for whom she cared. The same position applied in Sturch v Willmott. That is not the case here. The appellant did not have children until after the accident. Notwithstanding that factual difference, the question for determination is the same as that which arose in Burnicle v Cutelli - namely, whether damages to compensate for the loss of the capacity to care for dependant children is compensable, and if so, what is the measure of the compensation payable. In Burnicle v Cutelli it was held that whilst the loss of capacity was compensable, it only sounded in general damages. 57 When this appeal was originally argued, neither party made reference to Burnicle v Cutelli. In my opinion, if that decision was to stand, it would govern the outcome of this part of the appellant's claim so as to restrict the plaintiff to having this part of her lost capacity reflected in general damages only. Although making no reference to Burnicle v Cutelli, the trial judge clearly applied the principle stated by the majority that such a claim sounds only in general damages. 58 For my part, I cannot see any logical basis for the distinction drawn in Burnicle v Cutelli between the measure of damages in a traditional Griffiths v Kerkemeyer claim and the measure of damages for the loss sustained by the inability to care for a dependant child. The decision does not, in my opinion, reflect the true nature of a claim of this type, based as it is in a loss of pre-accident capacity which gives rise to a specific post-accident need: see Nguyen v Nguyen and Van Gervan v Fenton. It was for this reason that the matter was re-listed for further argument. 59 On the further argument in the matter, senior counsel for the respondent accepted that Burnicle v Cutelli appears no longer to be good law. It will be clear from what I have said that I consider that to be the case. A person who has lost the capacity to care for a child or children is entitled to be compensated on the same basis as a traditional Griffiths v Kerkemeyer claim. 60 Senior counsel for the respondent submitted, however, that on the facts of this case, the appellant was not entitled to be compensated on a Griffiths v Kerkemeyer basis for the loss of her capacity to care for her children, but only by way of general damages. He advanced three propositions in support of this submission. First, this case was to be distinguished from Sturch v Willmott where the plaintiff had children at the time of the accident; secondly that the matter was to be determined as a matter of causation and here, the loss of capacity to care for children was not caused by the accident, but by the plaintiff's own actions in having children; and thirdly, the plaintiff had not acted reasonably in having children. 61 I find it difficult to see the legal or practical logic of the first of these arguments. Although the factual situation is different from Sturch v Willmott, it is well established that, although the cause of action in a negligence claim is complete as the time when damage is suffered (which in a motor vehicle accident is at the time of accident), the court must award damages for the losses which reasonably flow from the damage, both present and future. When assessing those damages the Court takes account of facts which are known as at the date of trial: see Willis v Commonwealth (1946) 73 CLR 105; Thompson v Faraonio (1979) 24 ALR 1; Ruby v Marsh (1975) 132 CLR 642; Johnson v Perez (1988) 166 CLR 351. Also see generally Luntz, Assessment of Damages for Personal Injury and Death, third edition, para 1.4.1. The appellant was a teenager when the accident occurred. It was therefore possible that at some time in the future she would have children. By the date of trial that possibility had become a reality, thus enabling the court to determine the amount of compensation for her lost capacity to look after the children, having regard to the actuality which existed at trial. I should add at this point that no claim was made for the possibility that she may have had more children in the future which may have increased or extended the need for care. 62 The second and third submissions travel together as the respondent relies upon the third submission to advance the argument that the appellant's unreasonable conduct broke the chain of causation. Senior counsel for the respondent referred to McKew v Holland Hannen & Cubitts [1969] 3 All ER 1621 and in particular to the passage in the judgment of Lord Reid at 1623 that: "It is quite possible that in spite of all reasonable care [the plaintiff's] leg [injured due to the defendant's negligence] may give way in circumstances such that as a result he sustains further injury. Then that second injury was caused by his disability which in turn was caused by the defender's fault. But if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. His unreasonable conduct is novus actus interveniens. The chain of causation has been broken and what follows must be regarded as caused by his own conduct and not by the defender's fault or the disability caused by it. Or one may say that unreasonable conduct of the pursuer and what follows from it is not the natural and probable result of the original fault of the defender or of the ensuing disability. I do not see that foreseeability comes into this. A defender is not liable for a consequence of a kind which is not foreseeable. But it does not follow that he is liable for every consequence which a reasonable man could foresee. What can be foreseen depends almost entirely on the facts of the case, and it is often easy to foresee unreasonable conduct or some other novus actus interveniens as damage caused by the novus actus. It only leads to trouble that if one tries to graft on to the concept of foreseeability some rule of law to the effect that a wrongdoer is not bound to foresee something which in fact he could readily foresee as quite likely to happen. For it is not at all unlikely or unforeseeable that an active man who has suffered such a disability will take some quite unreasonable risk. But if he does he cannot hold the defender liable for the consequences." 63 This statement has, of course, to be viewed in the light of general principles of causation. In McKew, Lord Guest referred to the statement of Lord Haldane in Steamship Baron Vernon v Steamship Metagama [1928] SC(HL) 21 at 25 that damages are recoverable if they are the natural and reasonable result of the negligence. Included in that category was "reasonable human conduct". In McKew it was held that thee appellant's conduct was unreasonable. 64 In Australia, the proper approach to the question of causation was discussed in March v E & MH Stramare Pty Ltd (1991) 171 CLR 506. As Mason CJ held in that case, causation in negligence is a question to be determined by applying commonsense to the facts of the particular case. The test also applies to the question whether some particular damage resulted from the negligent act or omission: see Medlin v State Government Insurance Commission (1995) 182 CLR 1. Medlin demonstrates that the chain of causation is not necessarily broken by an act of a plaintiff or a third party which constitutes a more immediate cause of the loss or damage than the defendant's negligence. See also Chappell v Hart (1998) 156 ALR 517; Kavanagh v Akhtar (1998) 45 NSWLR 588. 65 In March v Stramare, Mason CJ considered, at 517, that the decision in McKew could be explained as: "a value judgment that it would be unjust to hold the defendant legally responsible for an injury which, though it could be traced back to the defendant's wrongful conduct, was the immediate result of unreasonable action on the part of the plaintiff. But in truth the decision proceeded from a conclusion that the plaintiff's injury was the consequence of his independent and unreasonable action." 66 The present respondent conceded that it was foreseeable that the appellant might have children. Indeed, he said that the evidence disclosed that in her case it was probable that she would, given her pre-accident behaviour which had caused her mother to have the appellant placed under the supervision of the welfare authorities. However, foreseeability alone was not sufficient to make the respondent causatively liable for the cost of looking after the children. And, he submitted, there was no evidence, and no case run below, that the appellant's pregnancies were caused by the accident. He then submitted that in circumstances where the appellant had suffered a significant diminution in her capacity to care for any children, it was unreasonable in the McKew sense for her to have children so that the chain of causation was broken. She was thus only entitled to general damages for the lost capacity, and in this regard, had been adequately compensated in the trial judge's award of general damages. 67 I have already referred in some detail to the evidence as to the effect the appellant's brain damage had on her normal functioning and in particular to the trial judge's acceptance of Dr Darveniza's evidence that the appellant's frontal lobe damage interfered with her capacity to have insight into her own behaviour, that she was irresponsible and in need of supervision. The effect of this type of damage was demonstrated by her behaviour in various ways including her inability to handle money, her forgetfulness and her promiscuity. An aspect of her forgetfulness was that she would not always take her contraceptive pill. That evidence, in my opinion, clearly established that the appellant's brain damage reduced her ability to determine whether it was appropriate or responsible or reasonable for her to have children, either at all or in the circumstances in which she conceived and bore these children. The appellant's conduct in having children, even if it could be objectively viewed as unreasonable, was caused by the respondent's negligence and consequently there was no break in the chain of causation. 68 Senior counsel for the respondent further submitted that the claim was reflected in the award of ten hours care per week, which, he submitted was adequate. In particular, he submitted that Dr Darveniza's opinion that the appellant needed two hours professional care per day included care for the children. I do not agree that the evidence supports this submission. Dr Darveniza drew a clear distinction between the appellant's own needs and those of her children, stating that the need for her children to be cared for was a separate issue. His evidence was that the appellant was in need of two hours professional help each day. He did not express any opinion as to the extent of the daily or weekly care requirements for the children. 69 Senior counsel resisted the claim for child care on two further bases: first that there was no evidence to support the claim; and secondly, that the appellant had failed to mitigate her damage in respect of the claim.

No Evidence to Support the Claim 70 Senior counsel for the respondent submitted that the appellant failed to place any evidence before the trial judge of the extent of care required for the children. This is not correct. There was ample evidence before the trial judge of the appellant's inability to care for Sarah and of the care provided to the child by the Mrs Wereta. Mrs Wereta did not place any specified period of time on that care. It was obvious, however, that it was virtually full-time even if the appellant was present.

Failure to Mitigate 71 The respondent submitted that, by having children, the appellant had failed to mitigate her damage. This submission was a variation of the submission that the appellant's pregnancies constituted unreasonable conduct which broke the chain of causation and raised a factual issue (not dealt with by the trial judge) as to whether the appellant's pregnancies were a consequence of her brain damage or whether they involved a deliberately chosen course of conduct. 72 As I have already indicated, it seems plain enough that as a result of her frontal lobe damage, the appellant engaged in behaviour which led to her pregnancies. It seems difficult in those circumstances to see how the appellant could have mitigated her damage. The logical conclusion of the respondent's submission was that the appellant should be sterilised. There are significant difficulties with such a proposition, as senior counsel for the respondent seemed to accept (see transcript of argument p 23). I do not propose to deal with the issue in any detail, except to note that under the provisions of s 204 and Sch 1 of the Mental Health Act 1990 (NSW) sterilisation is classified as a "special medical treatment" and may only be carried out with the consent of the Mental Health Review Tribunal or if a medical practitioner is of the opinion that the procedure is necessary as a matter of urgency to save a person's life. In any event, it is probably the case that there is a common law right to procreate: see Re Jane (1988) 85 ALR 409. See also art. 23(a) of the International Covenant on Civil and Political Rights.

Motor Accidents Act 1988 (NSW) 73 I have proceeded so far on the basis that the appellant's claim is compensable on the same basis as a Griffiths v Kerkemeyer claim. Properly characterised, those damages are general damages, measured by the market value for such services. However, the appellant's injuries were sustained in a motor vehicle accident and her claim is governed by the provision of the Motor Accidents Act. Part 6 provides separately for awards of economic and non-economic loss. "Non-economic loss" is defined in Part 6 to mean: "(a) pain and suffering, and

(d) disfigurement." 74 The traditional Griffiths v Kerkemeyer head of damage is dealt with separately in s 72. As at the date of the hearing, that section provided that compensation was only payable if the home care services were provided for a period of not less than 6 months and only after a 6 month period (subs. 2); compensation was not payable if the services would have been provided even if the person had not been injured (subs 3); compensation was only payable if the services provided were not less than 6 hours per week and the compensation payable in respect of services provided after the first 6 hours (subs 4); and if the services to be provided were not less than 40 hours per week, the amount of compensation was not to exceed the average weekly earnings of all employees in New South Wales, calculated in accordance with the provisions of the subsection (subs 5). 75 Neither "services for additional domestic assistance" nor "domestic assistance" is defined. However, child care of the type required by the appellant to care for one or both her children falls within the ordinary meaning of those phrases and accordingly fell to be determined in accordance with s 72 as part of the totality of her claim for domestic assistance. The trial judge erred in failing to assess that claim in so far as it related to care for the child Sarah and the claim requires re-assessment. 76 The question arises whether this Court should assess this part of the claim or whether the matter should be remitted for re-hearing. In my opinion, having regard to the ceiling imposed by s 72(3), there is sufficient material before the Court to enable the re-assessment to be made, as any assessment would exceed forty hours per week. I have determined that the appellant is personally entitled to 21 hours per week. The evidence supports a finding that almost full-time care is required for the child. The child will, from the age of about five, be at school, at least between the hours of 9am and 3pm. However, that leaves the need for care between the hours of about 7am to 9am and from about 3pm to 9pm, or eight hours a day, as well as full-time care on the weekend, making a weekly total of about 60-65 hours of childcare. In my opinion, the care should be allowed until Misty-Anna turns 16. I would only add that I consider that provision should be made through the teenage years because, although she may be able to do some personal chores and attend to her own basic care, she will still need the usual domestic care and supervision of any teenager at school. There was of course no evidence as to the age at which children start and finish school or of school hours. However, these are matters of common knowledge and the Court is entitled to act on that basis: Evidence Act 1995 (NSW), s 144. 77 Accordingly, I am of the opinion that the appellant is entitled to the maximum amount payable under s 72 until Misty-Anna turns 16 and thereafter is entitled to 21 hours a week. There was no challenge to the Dial-An-Angel figures and they should form the basis of the assessment under s 72.

General Damages 78 The trial judge found that the appellant had suffered a substantial loss of her ability to lead a normal life, and in particular had been deprived, by reason of her frontal lobe damage, of the opportunity to undertake the proper care of her children. The trial judge found that this was "important". His Honour found, pursuant to s 79 of the Motor Accidents Act that the appellant's ability to lead a normal life was significantly impaired and that that impairment represented fifty per cent of the most extreme case. 79 The appellant submitted that the trial judge's assessment of the impairment of her ability to lead a normal life was too low and that an assessment of 80 per cent of the most extreme case was appropriate. 80 Section 79(1) of the Act, at the relevant time, provided that damages should not be awarded for non-economic loss "unless the person's ability to lead a normal life is significantly impaired by the injury suffered in the accident". Section 79(2) provided that the damages to be awarded for non-economic loss should be a "proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded". The maximum which might be awarded was fixed by s 79(3) at $180,000, subject to indexation pursuant to s 80. Pursuant to s 79(3), the maximum amount was only to be awarded "in a most extreme case". 81 In Matthews v Dean [1990] Aust Torts Reports 81-037, Grove J said at 68,018: "[n]o doubt Parliament recognised that comparisons of the extent of bodily injury must be odious hence the choice of language 'A most extreme case' (my emphasis) which avoids any requirement to apply the superlative by imagining the most extreme case and put that at the top of some grisly table of catastrophes." 82 Matthews v Dean was cited with approval by the Court of Appeal in Southgate v Waterford (1990) 21 NSWLR 427 and in Dell v Dalton (1991) 23 NSWLR 528. 83 As noted by Handley JA in Dell v Dalton at 533, the expression "a most extreme case" is not the subject of any statutory definition nor do the words have any technical legal significance. As such, his Honour considered that the principles stated in NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512, by Kitto J in the following passage were applicable: "The common understanding of the words has therefore to be determined, and that is a question of fact .... The next question must be whether the material before the Court reasonably admits of different conclusions as to whether [the case] fall[s] within the ordinary meaning of the words as so determined; and that is a question of law. ... If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact". 84 Handley JA continued at 533-534: "In my opinion it was open to the trial judge on his findings to conclude that this was 'a most extreme case'. Once this Court holds that the findings of fact by the trial judge 'admit of different conclusions' the ultimate finding that a particular case is or is not 'a most extreme case' will not readily be susceptible of appellate review. Like other issues in the assessment of damages for personal injuries its resolution will involve questions of fact and degree, and matters of opinion, impression, speculation, and estimation, calling for the exercise of commonsense and judgment. Accordingly this Court will only be entitled to intervene and disturb the ultimate conclusion of the trial judge in accordance with the ordinary principles governing appellate review of awards of damages for personal injuries. These were discussed and applied by this Court in Moran v McMahon [1985] 3 NSWLR 700". 85 The trial judge's assessment of fifty per cent of the most extreme case included the consideration that the appellant was unable to adequately care for her children and therefore had lost that amenity. I have concluded that this aspect of the appellant's claim is properly compensated under s 72. Notwithstanding that the matter was re-listed for further argument to determine whether part of the appellant's claim was governed by Burnicle v Cutelli there was no cross-appeal on the issue of general damages to deal with the possibility that the Court would overrule that decision. Irrespective of that, this Court should examine the matter so as to ensure that the appellant is not doubly compensated. 86 I have already dealt in some detail with the appellant's continuing medical problems. Suffice it to say for present purposes that she continues to suffer from brain damage which has a significant impact on her ability to care for herself in a consistent way and to a standard which is reasonable, even given the pre-accident standard which she did and would have enjoyed, but for the accident. She is financially irresponsible to such an extent that the verdict monies were ordered to be paid into the office of the Public Trustee. In my opinion his Honour's assessment of 50% of a most extreme case is an appropriate assessment of her non-economic loss without taking into account her inability to care for her children. It would have been inadequate had that claim been properly assessed as part of the non-economic loss.

Reduction of Future Economic Loss by 50% for Vicissitudes. 87 The trial judge found that had the appellant not been injured, and had she continued to work in the wool industry, she would have been out of work for substantial periods of time during a calendar year due to the intermittent nature of the industry. His Honour therefore considered that it was appropriate to assess the appellant on the basis that she would have worked for two-thirds of each year. His Honour also was of the view that uninjured, the appellant would have missed substantial periods of work from time to time due to pregnancy and consequential child rearing. Taking these considerations into account, in addition to the "matters usually taken into account when assessing this topic" the trial judge was of the view that the proper discount figure for vicissitudes for future loss should be 50 per cent. 88 The appellant submitted that the reduction of the damages for future economic loss by 50 per cent for vicissitudes was too high and that a reduction in the order of 30 per cent was appropriate. 89 It is accepted that the "usual deduction" for contingencies is 15%, a percentage accepted by the High Court as "the practice" in New South Wales, "subject to adjustment up or down to take account of the plaintiff's particular circumstances": see Wynn v NSW Insurance Ministerial Corporation (1995) 184 CLR 485 at 498. See also Moran v McMahon at 713-714; Burnicle v Cutelli at 30; Hobell v Leonard (unreported, New South Wales Court of Appeal, 29 May 1990); Commercial Union Assurance Company of Australia Ltd v Pelosi (unreported, New South Wales Court of Appeal, 2 February 1996); Nestle Australia Ltd v McDougall (unreported, New South Wales Court of Appeal, 24 June 1998). 90 In Urban Transit Authority of New South Wales v Seitis (unreported, New South Wales Court of Appeal, 17 May 1995) a deduction of 40 per cent for vicissitudes was considered appropriate where the plaintiff had cerebral palsy. However, in NSW Insurance Ministerial Corporation v Sprengnagel (unreported, New South Wales Court of Appeal, 28 March 1995) a 40 per cent discount was described as "high": per Priestley JA at 8. 91 The appellant was only fifteen and a half years old at the date of the accident and thus had little work history. However, her mother gave evidence that the type of work which she was doing at the time, work in the shearing sheds, was full-time work available for 12 months of the year. She said: "A. …We start off in New South Wales until their season finishes, then go up to Queensland and they are just starting, you do that season; then you go down through Broken Hill and they are just sort of coming to the tail end but you jump in there and work there and down to South Australia where they are just starting and then into Victoria, do that season, and it is time to start again in New South Wales. Q. For the circuit what part of the year does it occupy? A. It takes the whole year round." 92 Notwithstanding this evidence, his Honour made the finding to which I have referred and further held that had the accident not occurred the appellant was likely to have substantial time off work to have and to care for children. There was no evidence to support this finding, although it was one which, historically, was typically made in damages cases involving female plaintiffs. I do not consider that the Court can now assume it to be the case. To the extent that child bearing and rearing might affect a person's earning ability, it should, in my opinion be reflected in the usual contingencies, unless in a particular case there is evidence to support an increase in the percentage deduction for contingencies. An increase might be permissible where, for example, an injured plaintiff, intending to have more children but who already had a child or children had taken a substantial period off work to care for that child or, alternatively, a plaintiff had expressed an intention to have time off work for that purpose. 93 In my opinion, an appropriate deduction for contingencies in this case would be in the range of 25 to 30%. This is higher than the usual deduction of 15%, but there was evidence of matters which would warrant the increase. In particular, and as I have already mentioned, the appellant had been a restless teenager, such that her mother placed her in care for a short period. The family was itinerant and notwithstanding that they followed work around the countryside it was work of a seasonal nature. The appellant was prepared to concede a reduction of 30% and therefore I am of the opinion that is the reduction which ought to be made. Accordingly, I propose that the appeal be allowed with costs and that within 7 days of today's date the parties bring in Short Minutes of Order reflecting these reasons. 94 STEIN JA: I agree with Beazley JA. ***************

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Motor Accidents Act 1988(NSW)ss 72(2), 79, 80

Mental Health Act 1990(NSW)

New South Wales Court of Appeal CITATION : Sullivan v Gordon [1999] NSWCA 338 FILE NUMBER(S) : CA 40456/96 18/05/98 HEARING DATE(S) : 10/06/99 Considered on the papers JUDGMENT DATE : 22 September 1999

COUNSEL : Appellant: J S CoombsQC/ P J Doherty Respondent: D Nock SC/ L Babb (18/05/98)/ D Banwell (10/06/99) SOLICITORS : Appellant: Messinger & Messinger Respondent: Turner Freeman CATCHWORDS : Motor vehicle accident; damages; Griffith v Kerkemeyer damages; Burnicle v Cutelli; loss of capacity; damages for care; inability to care for children; impairment of ability to lead a normal life; reduction of damages for vicissitudes; Motor Accidents Act 1988 (NSW) ss 72(2), 79, 80 ACTS CITED : Motor Accidents Act 1988 (NSW) Evidence Act 1995 (NSW) Griffiths v Kerkemeyer (1977) 139 CLR 161 Burnicle v Cutelli [1982] 2 NSWLR 26 Donnelly v Joyce [1974] QB 454 Graham v Baker (1961) 106 CLR 340 Nguyen v Nguyen (1990) 169 CLR 245 Van Gervan v Fenton (1992) 175 CLR 327 Government Insurance Office of New South Wales v Planas [1984] 2 NSWLR 671 Haines v Higgins (unreported, New South Wales Court of Appeal, 16 December 1988) Samrout v Alameddine (unreported, Supreme Court of New South Wales, Grove J, 24 April 1996) Kealy v Fairfield Hospital (unreported, Supreme Court of New South Wales, Dunford J, 18 April 1997) Sturch v Willmott [1997] 2 Qd R310 Daly v General Steam Navigation Co Ltd (The "Dragon") [1981] 1 WLR 120 Cummings v Canberra Theatre Trust (1979) 25 ACTR 33 Hodges v Frost (1984) 53 ALR 373 Waters v Mussig [1986] 1 Qd R 224 Kite v Malycha (1988) 71 SASR 321 Willis v Commonwealth (1946) 73 CLR 105 Thompson v Faraonio (1979) 24 ALR 1 CASES CITED: Ruby v Marsh (1975) 132 CLR 642 Johson v Perez (1988) 166 CLR 351 McKew v Holland Hannen & Cubitts [1969] 3 All ER 1621 Steamship Baron Vernon v Steamship Metagama [1928] SC (HL) 21 March v E&MH Stramare (1991) 71 CLR 506 Medlin v State Government Insurance Commission (1995) 182 CLR 1 Chappell v Hart (1998) 156 CLR 517 Kavanagh v Akhtar (1988) 45 NSWLR 588 Re Jane (1988) 85 CLR 409 Matthews v Dean [1990] Aust Torts Rep 81-037 Southgate v Waterford (1990) 21 NSWLR 427 Dell v Dalton (1991) 23 NSWLR 528 NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 Moran v McMahon [1985] 3 NSWLR 700 Wynn v NSW Insurance Ministerial Corporation (1995) 184 CR 485 Hobell v Leonard (unreported, New South Wales Court of Appeal, 29 May 1990) Commercial Union Assurance Co of Australia Ltd v Pelosi (unreported, New South Wales Court of Appeal, 2 February 1996) Nestle Australia Ltd v McDougall (unreported, New South Wales Court of Appeal, 24 June 1998) Urban Transit Authority of New South Wales v Seitis (unreported, New South Wales Court of Appeal, 17 May 1995) New South Wales Insurance Ministerial Corporation v Spregnagel (unreported, New South Wales Court of Appeal, 28 March 1995) DECISION : Appeal Allowed

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