Tenhoopen v Nilson

JUDGE1 PERRY J The appellant, who was the defendant at first instance, appeals against a judgment in favour of the respondent for $5,765,318.47 by way of damages arising out of a road accident which occurred on 17 June 1986 when the respondent, who was then a young girl of 7 years, was hit from behind while riding her bicycle, by a car driven by the appellant. 2. The respondent cross-appeals with respect to some, but not all, of the elements in the award which are the subject of the appeal. 3. A compromise of the issue of liability pursuant to which it was agreed that the respondent would recover 90% of her damages to be assessed, was approved by the Court before the commencement of the trial, and the judgment sum represents that proportion of the assessed damages, less certain payments made by the appellant before the trial. 4. The respondent suffered what were described by the learned trial Judge as "calamitous injuries" resulting in permanent quadriplegia. He found that the degree of quadriplegia "was the most serious imaginable compatible with life". 5. The accident caused a disruption of the spinal cord at the C3 level of the cervical spine, below which there was a permanent and complete loss of motor power and sensation. The plaintiff also suffered a compound fracture of the right tibia and fibula. She required seven months' treatment in intensive care at Adelaide Children's Hospital. 6. One of the more serious effects of the plaintiff's injuries is the loss of the voluntary use of her respiratory muscles. She is unable to breathe satisfactorily without mechanical assistance. This will be the position for the rest of her life. As to this aspect of the matter, the learned trial Judge observed: "She was placed on what is called an oxylog ventilator at The Royal Adelaide Hospital and remained on this apparatus continuously until phrenic nerve pacers were surgically implanted in the phrenic nerves in her diaphragm on 9 February 1988. It 'consists of an external battery-powered transmitter delivering a coded radiofrequency signal which is transmitted through the intact skin via a loop antenna to platinum electrodes placed around the phrenic nerve'. The pacers reduced the amount of time that she had to be physically connected to the ventilator to assist her breathing, and she was gradually weaned off the oxylog ventilator. From mid December 1988 until earlier this year, she was able to be on the phrenic nerve pacers for 24 hours a day. In January last she was admitted to The Queen Elizabeth Hospital for studies on the efficiency of the phrenic nerve pacing. As a result of these studies and since about February, she has been on the ventilator between midnight and 6.30 am 'to rest her diaphragm'." 7. The plaintiff's loss of sensory perception and the development of the condition of osteoporosis has made the plaintiff more susceptible to fractures of her bones. 8. In May 1989, she accidentally fractured her right tibia when she hit her foot on a doorframe, and required treatment at Adelaide Children's Hospital. In December 1989, a major operation was performed in an attempt to correct her spinal curvature. On a number of occasions she has suffered from significant urinary infections, and infections of the respiratory tract. Her skin has been susceptible to trophic ulcerations. She is subject to a condition known as autonomic dysreflexia, which is a complication of her injury to the spinal cord and which results in symptoms including sweating and hypertension. In February 1992 she suffered a further fracture, on that occasion to her left femur, resulting in treatment at Queen Elizabeth Hospital. As a result of that, her leg was in plaster for a month. 9. In January 1987 she was transferred from Adelaide Children's Hospital to Regency Park Centre for Young Disabled. In 1987 and 1988 she was able to attend Regency Park School. During that time a chin control was installed in her electric wheelchair. She is confined either to bed or to a wheelchair, and when coming and going from school she is accompanied by a nurse or by her mother. She came home to live with her mother and step-father in September 1988, following which she attended, albeit spasmodically, at Croydon Primary School. From July 1990 and throughout 1991 she attended at Ferryden Park School, supplementing her tuition there with a correspondence course. In the year when the trial was held, that is in 1992, she attended Woodville High School where she was described by the learned trial Judge as "progressing reasonably well with her first year studies". 10. The learned trial Judge found that before the accident, the plaintiff was a "pleasant, happy, lively and reasonably intelligent girl who was doing reasonably well at school". 11. He found that she was now fully aware of her plight. At this point it is convenient to deal with the various heads of damage the subject of appeal. Non-economic Loss 12. The learned trial Judge assessed damages under this head, before apportionment, at $320,000, as to which he attributed $90,000 to the past and $230,000 to the future. 13. The appellant claims that that is too much, and the respondent that it is too little. The learned trial Judge found that the plaintiff had suffered a 20% loss of the normal life expectancy. In the course of his findings with respect to this head of loss, the learned trial Judge, after referring to the respondent's protracted period of hospitalisation and institutional treatment, and to certain behavioural disturbances indicating serious difficulties in adjusting to her state of total dependency upon others, went on to make some findings based on observations which he had made during the course of a visit to her step-father's house at Rosewater. His description was as follows: "She can perform very slowly and with difficulty certain activities involving the use of a pencil, paint brush or computer stick, all in her mouth, but these activities require great determination and persistence. On my visit to the house, I observed her doing these things. I also observed her undergo the humiliation of being trussed up and hoisted from the bedroom to the bathroom, and I observed a secretion being suctioned through her tracheostomy. This procedure is frequently necessary to clear her airways. The tracheostomy will remain in place for this purpose and also in case of pacer failure." 14. The learned trial Judge went on to observe that the plaintiff has a "lifetime of disability" ahead of her. For all intents and purposes, she has lost the ability to move her upper and lower limbs. She suffers from involuntary muscle spasms. Her loss of bladder and bowel function results in a need to use catheters and an enema throughout the day. She can perform none of the activities involved in day-to-day living without assistance, including washing, bathing, dressing and feeding. As the learned trial Judge commented: "It is very unlikely that she will marry, and childbirth is even more unlikely. She must live a completely sedentary existence and is likely to remain substantially isolated from her peers in respect of most daily activities, including social and sporting events. She will not be able to participate in wheelchair sports that other less disabled people can enjoy. She is unable to walk, dance, run or even drive a motor vehicle. She remains prone to fatigue as a result of the severity of her injuries, and her ability to concentrate for any length of time is thereby limited. Her situation has to be constantly monitored by suitably qualified people. She is aware of her needs in this respect and lives in constant fear of respiratory failure and death." 15. Mr Walsh QC who appeared for the appellant, referred to an award for non-economic loss of $244,000, which was made in 1989 in favour of a young man who suffered from complete motor quadriplegia below C5 level, and other devastating injuries (Tenhoopen v Nilson, unreported, Olsson J, 23.3.89, 150 LSJS 16). However, in cases of this kind, no meaningful comparison can be made with other awards. 16. For the appellant to succeed as to this aspect of the appeal, he must demonstrate that the award of the learned trial Judge was wholly erroneous. In my opinion, he has not discharged that onus. Given the catastrophic nature of the injuries suffered by the respondent, the consequences of the injuries upon the quality of her life, her age, and her awareness of her plight, in my opinion, the award for non-economic loss, although high, was within allowable limits. Furthermore, as to the cross-appeal, no case has been made out which would justify an increase in this part of the award. 17. The appeal and cross appeal on this head should be dismissed. Future Earning Capacity 18. There was no claim for past loss of earning capacity, having regard to the fact that the plaintiff was aged 13 years at the time of the trial. For future loss of earning capacity, the learned trial Judge awarded $350,000 before apportionment. Again, this head of damages is the subject of both an appeal and a cross appeal. 19. His Honour found that the plaintiff is totally and permanently unemployable. That finding is not challenged. 20. The learned trial judge had the benefit of evidence given at the trial by a Ms McAuliffe, a clinical neuropsychologist, who worked as an employment consultant. She assessed the plaintiff's intellectual abilities, and offered a view as to what her career prospects might have been had it not been for the accident. In her report, which was before His Honour, she concluded: "The results of testing, perusal of school reports and assessments from prior to the accident and investigation of her history all indicate that Chantelle was of average to above average intelligence compared with others of her age prior to her accident. Formal testing demonstrates that she is currently of average intelligence, although she is behind others of her age on tasks that are related to her interrupted schooling (reading, arithmetic). She had been involved in callisthenics since age 2 and has since developed some keen artistic talents (as judged by her art teachers). On the balance of information the evidence suggests that, prior to her accident, Chantelle had the capacity to develop a career suited to someone with an average to above average intellect. She has a vivacious nature and would have been successful in dealing with others and popular among her work colleagues. It is increasingly common for females to pursue careers as a life-long venture. This is both from a personal fulfilment point of view and from increasing financial burdens placed on families where it is common for more than one member to be working. While it is not possible to say exactly what career Chantelle would have moved into, her level of intelligence and her current nature suggest that she could have been involved in a varied range of careers and these may have been in the following areas: clerical and secretarial, nursing, teaching, personnel and sales as well as information processing. In summary, Chantelle

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Judgment (14 paragraphs)

CHANTELLE DAWN BURFORD (BY HER NEXT FRIEND IAN ALLAN MCFARLANE) v. CLIFFORD EDWARD ALLAN No. SCGRG 90/1125 Judgment No. 3974 Number of pages - 16 Damages - general principles (1993) Aust Torts Reports 81-226 (1993) 60 SASR 428 [1993] SASC 3974 (17 June 1993)

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Cases Cited (7)