URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS

Court of Appeal (NSW)|1995-05-02|Before: By P, Kirby P, Powell JA, Grove J

KirBy P, HANDLEY and POWELL JJA 2 May 1995, 17 May 1995

DAMAGES - personal injuries - disabled passenger injured alighting from bus - suffers from cerebral palsy - had secured full-time employment with Commonwealth - employment lost challenges to allowances for past wage loss, domestic assistance, future need for wheelchair and general damages - challenge to discount of 25 per cent for vicissitudes - held: All challenges dismissed except that discount for vicissitudes should be increased from 25 per cent to 40 per cent.

HUMAN RIGHTS - equal employment opportunity - disabled worker - cerebral palsy impact of injuries on employment and life - proper approach to calculation of damages - discount for vicissitudes increased from 25 per cent to 40 per cent otherwise substantial judgment confirmed vulnerability of plaintiff considered.

DAMAGES - personal injuries - passenger descending from motor omnibus caught in door and dragged by bus - right foot run over by bus wheel - passenger suffers from cerebral palsy from birth - injuries sustained terminate employment as clerk with Commonwealth - devastating effects on personal and employment life of injured passenger - whether would have ceased work in any case following subsequent pregnancy - whether allocations for domestic assistance justified by the evidence and reasonable - whether allocation for advanced need for wheelchair warranted - whether allowance of $100,000 for general damages shown to be wrong

whether discount for vicissitudes of 25 percent in computing future loss of economic capacity erroneous - held: (allowing appeal in part): (Kirby P; Handley JA and Powell JA concurring): (1) The challenges to the allowances made for loss of wages in the past, domestic assistance, advanced possible need for use of a wheelchair and general damages were not sustained; (2) The discount for vicissitudes of 25 percent allowed by the trial judge was wrong and a higher discount of 40 per cent should be allocated to take into account the added vicissitudes that the plaintiff faced by reason of her vulnerability and the special nature of her employment as disclosed by the evidence; (3) Accordingly, total judgment reduced from $1,090,000 to $1,029,443; (4) Appellant to secure only one-fifth of its costs of the appeal.

HUMAN RIGHTS - equal opportunity - disability - cerebral palsy - worker

employed in permanent clerical position - working at "the margin" of employability - serious injuries - loss of employment - proper approach to calculation of damages - relevance of constitutional condition - effect of

supervening pregnancy - whether would have ceased work - held: Judgment confirmed but allocation for future loss of economic capacity discounted for vicissitudes increased from 25 per cent to 40 per cent.

Disability Discrimination Act 1992 (Cth), s5. Equal Employment Opportunity (Commonwealth Authorities) Act 1987. Public Service Act 1922 (Cth), s33(3).

Kirby P The Court has before it a defendant's appeal in a personal injuries damages action. The Urban Transit Authority of New South Wales (the appellant) complains that a judgment entered by Grove J in the Common Law Division of

the Supreme Court in favour of Ms Maria Seitis (the respondent) is appealably excessive. His Honour entered judgment in the sum of $1,089,903. The judgment was made up of the following components:

Out of pocket expenses (including taxi fares) 14,643 Past economic loss 125,000 Interest on past economic loss 7,980 Fox v Wood component 20,478 Future economic loss 302,302 Future domestic assistance 500,000 Accelerated wheelchair need 10,000 General damages 100,000 Interest on past general damages 9,500 Total 1,089,903

The appellant challenges the components for past economic loss; future economic loss; domestic assistance; the allowance for an accelerated need of a wheelchair and general damages. The appellant also challenges, but only consequentially, the allowances made for interest on past economic loss and general damages.

The appellant also complains that the overall judgment entered was, apart from its component parts, plainly excessive. It suggests that Grove J erred in allowing a discount for vicissitudes of 25 per cent in calculating future economic loss. This represented only 10 per cent greater ian the conventional discount of 15 per cent provided for vicissitudes. According to the appellant, in the particular circumstances of this case, the discount for vicissitudes should have been substantially higher. The failure to provide a more substantial discount was suggested as one reason to explain the excessive estimate of future economic loss. Instead, the appellant urged that a discount of no less than 50 percent was required by the evidence in the case.

Liability is not in issue at the trial. The case was, as I shall show, an unusual one in many ways. The Court must approach the appeal bearing in mind a number of principles which govern the resolution of such contests. Without exhausting the applicable principles, the following, at least, must be mentioned:

The Court will not disturb a judgment entered for damages for personal injuries unless it is convinced that the primary judge erred in the allowance made either generally or in respect of particular heads of claim. The appellate court is required to bear in mind the quasi discretionary nature of ie assessment of damages. Of their nature, damages assessments are not susceptible to normative treatment. Upon the evaluation of disabilities and the prognosis of their impact in the future, minds will invariably differ. The judge of trial has many advantages in considering the whole of the evidence and seeing the witnesses. The appellate court will not tinker with the judge's assessment. In an appeaL even one extending to a review of factual findings, the appellate court will only disturb the judge's orders for established error. See Moran v McMahon (1985) 3 NSWLR 700 (CA), 723;

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The appellate court will also keep in mind the rules which restrain disturbance of the findings of the primary judge where those findings are, or may be, affected by the judge's estimate of the credit or reliability of witnesses. The appellate court is obliged, by repeated authority of the High Court of Australia, to defer to the primary judge's assessment of credit. It may only disturb findings which rest upon conclusions as to credit, and the acceptability of that particular evidence, if it is clear that the primary judge has misused the advantage of conducting the trial or has reached conclusions which are palpably erroneous or contradicted by incontrovertible evidence. See eg Abalos v Australian Postal Commission (1990) 171 CLR 167, 179;

The foregoing rule of deference also extends to the assessment by a trial judge of conflicting evidence of medical experts. See Ahmedi v Ahmedi (1991) 23 NSWLR 288 (CA), 299. Where there is such a conflict, the appellate court will defer to the conclusions of the primary judge unless the established exceptions, allowed by law, are made out, authorising the appellate court to substitute its own, different, opinion;

Because a claimant for damages for personal injuries cannot return to the court if, in the eventualities, the judgment proves to be inadequate by later events, provision must be made in {he assessment of damages for the range of future eventualities which the court considers to be open in the evidence. The court adjusts its prediction of the future in the light of its assessments of the probabilities of future events occurring. No court has the gift of prophecy. But to prevent injustices from occurring, the court must make allowances for damages which are sustained by the evidence concerning likely future events, viewed on the basis of the evidence available to the date of the trial. See Malec v JC Hutton Pty Ltd (1990) 169 CLR 638, 639; Medlin v State Government Insurance Commission (1995) 69 ALJR 118 (HC); and 5. Because the injuries in the instant case occurred as long ago as 1984, the respondent's damages fell to be calculated in accordance with the common law. They were not controlled by-the several caps and limitations imposed by the Motor Accidents Act 1988.

The respondent was a child of a family of Greek migrants. The family came to Australia in 1963. The respondent was born in this country in 1964. When born, it was discovered that she suffered from a condition of cerebral palsy. This manifested itself in various disabilities including quadriparesis and dysarthria. These conditions caused the respondent to walk with an awkward gait, to have considerable difficulty in speaking clearly and to appear on superficial external observance to be a person who was intellectually disabled.

During her childhood, the respondent was given to epileptic attacks but these settled over time. As a child, it took the respondent much time to learn the skill of walking independently. By reason of her cerebral palsy, she was prone to lose her balance and to fall over. Before the subject accident, the respondent's disabilities were worse on the left side. Her right hand was dominant. Her right side was stronger. Her right hand provided her with her main manual capacities.

At first the respondent was educated in various "Spastic Centres". She left school without a School Certificate. She commenced work at a sheltered workshop. However, despite her physical disabilities and severe speech impediments, the respondent was a bright young woman. Grove J found her to be alert, intelligent and astute. The medical evidence supported these findings. They

have not been challenged in the appeal. Grove J also found that the respondent was an honest witness. This finding controls the approach of this Court to some of the challenges of the appellant.

The frustrations of being a young woman of superior intelligence engaged in the repetitive work of a sheltered workshop ultimately caused the respondent to undertake a course of studies at the Sydney TAFE. To her great credit, the respondent completed a course in typing, word processing and book- keeping. She did this in December 1982. She was unemployed until May 1983. However, she then secured employment as a clerical assistant grade 1 in the Federal Department of Health, Housing and Community Services. Her work involved her in a number of duties, namely collecting papers, mainly from medical practitioners; delivering papers to a mail room; amalgamating reports with files; delivering messages and some filing.

The respondent's achievement in securing remunerative employment is one which commands admiration. The evidence suggested that she required supervision, but this was to be expected in a young employee with the duties described. When engaged, the respondent was at first appointed on probation. She was considered the most severely disabled person to have been employed in the Federal Public Service. There seems little doubt that her engagement had been promoted by the Equal Employment Opportunity Unit of the Public Service Board's Sydney Regional Office. Grove J accepted that the respondent represented the "margin" of employability. Nonetheless, she must have worked with a fair degree of satisfaction to her supervisors because, shortly before the subject accident, she was confirmed as a permanent employee of the Public Service of the Commonwealth. As found by Grove J:

'This was a major turning point in her life. She had made friends at work. She was accepted by them as one of the group and she accompanied them upon excursions, entertainments and other activities engaged in by her unhandicapped friends. She went to bars, parties, clubs and the like. Her work made her happy and quite obviously this was because her feelings of fulfilment derived from the acceptance that her co-workers offered to her."

It was this time that disaster struck. On 30 May 1984 at about 5.30pm the respondent was travelling to her home on a motor omnibus operated by the appellant. She was in the process of alighting from the bus at her bus stop in Alexandria when the door of the bus closed on her hand. The bus moved off. The respondent was dragged more than 3 metres before the bus slowed and the driver released the door. The consequence was that the respondent fell free from the bus but her right foot was caught by the rear wheel of the bus. She suffered a crush fracture. She was taken to the Royal South Sydney Hospital. It was there found that she had suffered the following injuries:

A significant crush fracture to the soft tissue, bone and joint structures of the right foot with soft tissue scarring and joint damage;

Deep penetrating wounds to both the web spaces between the third and fourth and fifth toes of the right foot;

Fracture and dislocation of the metatarso phalangeal joint of the right third toe;

Fracture involving the distal phalanx of the fourth toe; and

There was no real dispute about these injuries. Nor, as I have said, did the appellant dispute its liability to the respondent. The case has involved the working out of the consequences of the injury for the disabilities suffered by the

URJ URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS (Kirby P) 5

respondent, distinguishing, to the extent proper, the difficulties she suffers in life from her congenital condition of cerebral palsy and the added disabilities occasioned by the serious accident caused by the circumstances rendering the appellant liable.

The respondent did not return to work. In her injured state, she was looked after by her mother. When her parents travelled to Greece, the respondent went with them. Grove J considered that she had little option but to do this. The appellant suggested that this merely showed her vulnerability and lack of independence attributable to her cerebral palsy.

On 1 September 1986, the respondent was advised by her employer that there was no position suited to her restricted ability. It was decided that it was impossible to place her. On 1 May 1989 the respondent was retired from the Federal Public Service. She did not appeal against that decision as she was entitled, in law, to do. She let it stand.

In about May 1992 the respondent commenced an association with her partner, Mr Paul Connor. Subsequently she gave birth to a child, Sarah, in April 1993. Mr Connor is a carpet layer. According to the evidence, he was earning between $500 and $600 per week nett at the time of the trial. He acknowledged that he was the father of the child. But he had no plans to marry the respondent and she expressed doubts as to the probable duration of their relationship. Oral evidence was given at the trial by the respondent, by her mother, by Mrs Jodie Willoughby, who described her pre-injury abilities and by Mr Alan Brown concerning her employment duties. Oral evidence was given by a number of medical and rehabilitation specialists including Drs Selby-Brown (orthopaedic), Metcalfe (psychiatrist), Tahmindjis (general practitioner), Giuffrida (psychiatrist), Mr Weatherley (employment consultant), Dr Yeo (rehabilitation) and Dr Middleton. A large number of reports were provided on behalf of the respondent. Tendered on her behalf was a newspaper article stating that she was the first person with cerebral palsy ever to be employed by the Federal department which engaged her.

For the appellant, a number of medical reports were tendered including those from Sir Keith Jones (orthopaedic) and Associate Professor Richard Jones (rehabilitation). In addition to other medical reports, the appellant showed three segments of video film concerning the movement abilities of the respondent. Those films were also shown to this Court. They were apparently designed to indicate that the walking stick which the-respondent acquired after the subject accident was rarely used by her to bear weight. My own impression from viewing the video films was that they showed that the respondent relied on the walking stick from time to time. Certainly, she was seen on a number of occasions to use various means to steady her gait. This included continuous holding onto a balustrade, supporting herself against a wall and holding the hand of her companion (apparently Mr Connor) as she walked down a sloping street.

The disabilities of the appellant recounted in the evidence were as follows:

The development of post-traumatic arthritis at the site of the fractures in the right foot;

A requirement to rely more on ie left foot than had previously been the case. As a consequence of her cerebral palsy, the left foot was her "bad" foot. It remained unstable and occasioned a sense of instability in the appellant's capacity to walk and move about;

A requirement to reverse her pre-accident position in which her right foot was dominant and to develop a capacity of relying upon the left foot because it had not been injured in the subject accident;

The gait was affected with a loss of balance and mobility as a consequence of the foregoing;

The respondent was also unable to walk without a stick in her "good" (ie right) hand. This necessity limited her ability to carry out bi-manual activity;

The respondent complained of a limited endurance in walking and standing, pushing or carrying objects, including an inability to carry heavy objects or dangerous objects, such as hot fluids or dishes;

The respondent also complained of inability to carry, bathe or manage her daughter;

She complained of an inability to climb or descend stairs and gross impairment of her capacity to cook and carry out normal housekeeping duties; and

In addition to the foregoing, the respondent complained of serious and prolonged depression, a reduction in her residual prospects of marriage and a fear of public transport as well as a general loss of self-confidence.

Grove J described the respondent's family background, her cerebral palsy and her intelligence, her studies and her employment, the accident and its profound effects on her life. He recounted the lay evidence concerning the respondent's pre-accident capacity to walk independently. He accepted that evidence but acknowledged that the respondent was more vulnerable than was a person without her handicap. Commenting on the video films which were shown, Grove J found that they displayed a greater range of ability than the respondent has demonstrated in Court. However, he was not convinced that the respondent was feigning disability. He had no doubt that, whereas the respondent did not always place weight on the walking stick she carried, she did need it:

"T am abundantly satisfied... that she needs the stick in the sense that it provides balance and confidence and although she uses it for weight-bearing only sometimes it is always there as a precaution against imbalance or the need to weight-bear.

I am satisfied that there has been a considerable deterioration in the plaintiff's ability subsequent to the accident. I consider the continuing physical effects of the injuries are contributors to this deterioration but that magnification is likely to have followed because gross stresses have been affecting her. Until recently the most prominent stress was sourced in the loss of her job which, to the plaintiff; was more than an agreeable occupation. It represented the achievement of her life's goal - a life among and acceptance by the wider community rather than confinement in a disadvantaged class. It was evident from the visible upset of the plaintiff that present stresses would include major apprehensions as to how she is going to care for her daughter in the future. I accept that the plaintiff has a real perception of symptoms in direct association with her injuries. It does not matter from the point of view of damages whether these are organically or psychiatrically based. To a large extent the latter are playing a part."

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Grove J accepted the diagnosis of clinical depression which, in the circumstances, was scarcely surprising. He also accepted a diagnosis of traumatic stress reaction. He did not accept the appellant's submission that the respondent could resume work. Specifically, he rejected the applicant's contention that the respondent's pregnancy would have terminated her employment in any event. He awarded her economic loss to the date of the trial upon the basis of the income scales applicable to her employment, subject to allowance for the period of maternity leave.

So far as future loss of economic capacity was concerned, Grove J considered that it was likely that, had the respondent not been injured, she would have remained in employment, using all of her determination to do so. He noted that the present capitalisation of her wage loss as a public servant in the grade which she enjoyed at the time of injury came to $403,070, given her life expectancy. He discounted this sum by 25 per cent "for adverse vicissitudes". This produced a sum of $302,302 for damages under this head.

Grove J then provided for domestic assistance. He found that the respondent would need such assistance in the future. He concluded that she would probably have had such a need for assistance in any event by reason of her congenital condition. He declined to regard the birth of her child as "adverse circumstances". He set out the claims of the respondent for domestic assistance at cost. These came to a total claim of $1,075,269. He determined that this sum should be discounted by about 50 per cent and rounded to $500,000. That was the amount which he provided for domestic assistance. He declined to make allowance for additional costs of building a suitable home. But he did award a sum of $10,000 for a chance that the respondent would need a wheelchair at a time in the future, earlier than might have been the case had she not been injured. He awarded $100,000 for general damages. He provided for interest both on past economic loss and on the past component, ie half, of the general damages. In this way, Grove J came to the judgment which is the subject of this appeal.

It is convenient to deal first with the appellant's argument that the respondent's pregnancy would effectively have terminated her employment with the Commonwealth, had she not been injured. In my view there is no substance in this claim and Grove J rightly dismissed it.

Behind the argument is the suggestion that, because the respondent suffered the congenital condition of cerebral palsy, the advent of a child would have provided her with the feeling of self-worth and value which employment had provided in her work for the Commonwealth. I consider that this view of the inherent likelihood of the case is not only a mistaken view of female and disabled employment generally in today's society. It also seriously mistakes the motivation of the respondent as demonstrated by the evidence.

It is quite beside the point to speculate whether, had the respondent not been injured in the subject accident, she would have been in the position at home where, apparently by accident, she became pregnant. I shall assume that the pregnancy would have supervened in any event. But even upon that assumption, I consider that it is completely unrealistic to assume, accident apart, that the respondent would have retired upon the birth of her child. This is now not only uncommon in the general employment of women. It would be completely out of harmony with the evidence of this young woman's exceptional effort. By her own endeavours, she had secured training to obtain work and the sense of self-worth and purpose that comes with it. She enjoyed her work for exactly the reasons

which Grove J explained. This was not, as it developed, a special job, however it originated. It was an ordinary job amidst ordinary workers without handicaps and disabilities. Having attained this life, and fulfilled the goal of securing it, it seems scarcely likely that the respondent would, on becoming pregnant, have given it away forever. To make that suggestion is to fly in the face of the evidence, accepted by Grove J, concerning the motivation and personality of the respondent. The high probability is that, had the respondent become pregnant, she would have given birth to the child and, after due time, left the child in the care of her mother who, on the evidence, seems now to be taking a large part in her upbringing. This is not at all an unusual circumstance. I consider that Grove J was right to assume that this is what would have occurred in this case.

It is true that the respondent gave evidence that she had a general desire to have two children. But neither is it unusual in the Australian community for mothers of two and more children to return to work. The prospects of the respondent's retiring voluntarily to look after her children are small. In these circumstances, Grove J approached this first argument of the appellant correctly. I see no error in the approach which his Honour took. I consider this argument of the appellant to be without merit.

The appellant's contention was that the basic need for domestic assistance was to be explained by reference to the basic condition of cerebral palsy. This was not caused by the subject injuries. The appellant should not be responsible for their consequences nor for the assistance necessary to overcome them. The appellant was not liable to provide assistance as a consequence of a disabled woman with cerebral palsy falling pregnant and giving birth to an infant who placed heavy demands upon her. The appellant challenged ie provision of any allowance for domestic assistance. Alternatively, it disputed Grove J's quantification.

Grove J approached the calculation of this entitlement with the following findings in mind:

"T am satisfied that the plaintiff needs the quantity of assistance along the lines described by Dr Yeo and Dr Middleton. Professor Jones on analysis, is not in dissent in principle although he holds different quantitative views. I note in passing his comment that... 'the continuing impairments and disabilities have a causal relationship with the alleged incident' and I reiterate my acceptance of his description of the fluctuant nature of the symptoms of cerebral palsy.

An overview of the evidence including my assessment of the plaintiff and witnesses as well as the expert opinion leads me to these conclusions. The plaintiff does have a need for domestic assistance. It would be reasonable to fulfil that need at cost."

Dr Yeo's evidence explained {he need for such assistance in these terms:

"T... believe that if this lady weren't a cerebral palsy lady she wouldn't require four hours of attendant care a day. My argument for consideration of that prescription is that here is a lady who clearly on the clinical history coped incredibly well with her cerebral palsy. I therefore feel that it is only right for me as a doctor to see that change of lifestyle which has occurred since her injury as being due to the injury....

Q:... What do you say has to be done for that four hours a day?

A: It's domestic assistance, which means that she would have difficulty with bending and stairs and reaching up and vacuuming and cleaning under the bed and repetitive domestic assistance that would - she could manage, but she would manage with undue difficulty... I think what we are trying to do is to provide this

URJ URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS (Kirby P) 9

lady with a physical ability to cope with what she coped with before she had her accident and my prescription is an attempt to do that. Q: Would this be fair: it's an attempt to rebuild her lifestyle to a desirable level, as distinct from what she needs. You don't suggest she needs four hours a day? A: No. I suggest she needs four hours a day to approach the physical state and mental stability that she had prior to her accident.

Q: I put to you the injury added nothing to the disability flowing from the cerebral palsy insofar as the care of a child is concerned?

A: No. Her injury added to her loss of what balance she had and therefore an apprehension about her ability to mobilise both in an anticipated way and in an unanticipated way, as we visualised on the third video...

Q: In terms of how you assess that need, she would have had that need pre-accident?

A: My interpretation is that she would have had some needs if she were living on her own. She now has additional needs.

Q. What handyman tasks that she could do before can she now not do because of the injuries in this accident?

A: Well, she certainly shouldn't be encouraged to reach up and do something that involves her not maintaining balance with one hand or the other.... What has

impressed me, without having the detail that I believe you quite reasonably ask of me - what impressed me was the fact that in a clinical history that for a long time she was coping extremely well when she really didn't need to cope. She was persistent in her approach to employment and her activities and she appeared to be coping as best she could, with the family helping around the house. Now, all that changed dramatically following the accident and the patient claimed to me that she was now extremely restricted in what she could do,- both in employment and in and around the house.

Q: Your assessment is based on acceptance of her history?

Q: She couldn't have carried a baby in her pre-accident state, could she?

A: Well, I remember asking her that - if she felt she could - and she gave me the impression that she would have had some abilities in that regard, better of course than a complete quadriplegic could, and I believe that we would have to be guided really by her history now as to whether she felt she could have carried a baby without the need of a nanny before and now she can't. I believe now she can't."

It was this assessment which led Dr Yeo to his conclusion:

"Tn view of [her] difficulties, I am now of the opinion that she requires a live-in nanny" until the child reaches the age of eight years as well as an additional two hours per day domestic assistance to that prescribed in my previous report... between Sarah Jane's age of eight years up to the age of fourteen years. "

Professor Jones (who I remind myself was retained for the appellant) noted the respondent's pre-accident independence "in personal care and most activities of daily living" and that she did not need a walking stick at that time. He went on. in his report:

"Whilst independent in personal care, there are considerable limitations in her ability to undertake chores about the house, some of which she is no longer capable of performing without assistance or modifications architecturally in her home. I would accept she has the discomfort of which she claims in her right foot and that she now needs to use a stick in her right hand, which has precluded her

from bimanual activities such as carrying boiling water. The would also be a marked reduction in her capacity to undertake domestic chores such as vacuuming, sweeping, hanging out the clothes and cleaning the bathroom. Activities involved with the care of her child however could be better managed were she to have a child's bath at the height of a chair, and cooking could be better accomplished in a similar arrangement where she could sit at a stove and at a bench These aspects of her domestic rehabilitation ought to be considered.

The factual basis to establish the respondent's disabilities around the house and in caring for her child was laid by the evidence of the respondent's mother and Mr Connor and also by her own evidence which the judge accepted as truthful. In short, this demonstrated that a woman, who was already significantly handicapped but able to cope with a high degree of independence, was, by the injuries and disabilities she sustained, pushed into a position of marked dependence on others. It is true that pre-accident, her mother used to meet her at the bus on most days. But this was explained as more by the mother's choice than by the respondent's needs. The respondent was entitled to damages for the impact of the accident upon her. That impact included a significant reduction in her bimanual capacity, an increase in her instability, a marked diminution in her mobility and depression.

The appellant objected to such a large allocation for domestic assistance for such apparently minor orthopaedic injuries. But the injuries were by no means minor in their impact on this highly vulnerable person. Nor can the consequences of depression and psychological injury be overlooked. The appellant asserted that the cost consequences of the respondent's motherhood shall fall "upon the father of the child, not the appellant'. So it should. But the cost consequences of restoring the respondent to an essential capacity to look after her child, as she would have been able to do had she not been injured, is the responsibility in law of the appellant.

I confess that my initial impression was that the allowance of $500,000 for domestic assistance appeared excessive. At first impression, it seemed a sum so great that it appeared to stray into providing the respondent with assistance really attributable to her constitutional condition rather than her compensible injuries. Cf Donnelly v Joyce [1974] 1 QB 454 (CA), 460. The allocation must be brought back to the tortfeasor's wrong. See Davies v Borough of Tenby 119741 2 Lloyds LR 469 (CA), 479. However, it is important to note that Grove J based his calculation upon the hourly rate for domestic assistance authorised by the lay and medical evidence which he accepted. Those sums, together with an amount for workers' compensation premiums which she would be obliged to pay, came to an aggregate sum of $1,075,269. His Honour proceeded to consider reduction suitable to take into account contingencies presented by the evidence. These included deductions for the likelihood that the respondent would have manifested her constitutional disabilities more profoundly later in life, and would have done so had she been uninjured. They also included allowance for the portion attributable to the needs of the child, as distinct from those of the respondent which could properly be laid at the door of the appellant. See Burnicle v Cutelli [1982] 2 NSWLR 26 (CA), 37; Government Insurance Office of New South Wales v Planas and Anor [1984] 2 NSWLR 671 (CA), 672. He went on:

"A reduction of the plaintiff's claim by 45 per cent to take account of the considerations which I have adumbrated produces $591,398. Fifty percent reduction produces $537,635. I do not suggest that these arithmetical exercises

URJ URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS (Kirby P) 14

reflect the likelihood of division between tort and non-tort induced need. Separation into such is in reality impossible. The probability of significant tort- induced loss has been demonstrated and I have performed those exercises to fortify my ultimate judgment that it would do justice between the parties in all the circumstances if I were to award the plaintiff $500,000 for these elements of loss."

I agree with the submission for the respondent that much depended, in the calculation of this item of the damages, upon the view which Grove J took of the respondent and her witnesses. Much turned on the differential assessment of the respondent's pre-accident condition, capabilities and motivation and those revealed by the evidence after the injuries were sustained. I would not myself have awarded a component as large as $500,000 for this element of the loss. In part, this would be by reason of my own estimate of the likely demand that would have been made, had the respondent been uninjured, upon her mother, the child's father and other members of the family. It is important to keep steadily in mind the need to limit the appellant's liability to the obligation to supplement the already greatly diminished capacity of a person suffering from cerebral palsy. But in the end, taking into account the substantial discount which Grove J has already allowed and acknowledging the imponderables inherent in the kind of calculation upon which his Honour was embarked in this unique case, I do not believe that it can be said that the allocation made for domestic assistance has been shown to be wrong. Cf Government Insurance Office of New South Wales v Cox (1976) 50 ALJR 559 (HC), 561. Accordingly, the appellant's challenge to this head of damage must be rejected.

The appellant contested the allowance of $10,000 which Grove J provided for the possibility that the respondent would have an accelerated need for a wheelchair because of her loss of mobility and stability. This allowance was made in the course of his Honour's rejection of various other special claims, including for a spa pool, modification of the respondent's house and provision of handyman services. Turning to the wheelchair, his Honour said:

"The evidence included discussion of the plaintiff becoming dependent on a wheelchair for mobility in the future or finding it more convenient to use one for locomotion... [The] claim [for] damages of $33,500 [was made]. If the plaintiff does come to need or reasonably wish to use a wheelchair the need or wish will derive from the deterioration of the status of her spasticity and the contribution of the accident would be no more than to accelerate the stage of that occurrence. The evidence does not go beyond establishment of the possibility of the happening On that basis only chance is involved and I consider this should attract compensation of only part of the claim and I award S10,000 on this head of damage."

The appellant contended that this allowance was a mistake. The respondent herself had indicated, by her evidence, a marked disinclination ever to use a wheelchair. The evidence of the experts, it was said, did not sustain the chance for which the provision was allocated.

So far as the respondent's evidence is concerned, Grove J was not bound to accept that it represented any more than her strong preference for mobility, awkward and fluctuating though it was. He was entitled to form his own view on the utility of, and eventual need for, a wheelchair, so long as it was grounded in the evidence. In my view, there was evidence to support the view that loss of mobility could ultimately require an accelerated need for use of a wheelchair.

Insofar as the subject accident had contributed to that loss, the provision of some allowance in the respondent's judgment was proper. Dr Yeo, the rehabilitation specialist, for example, said:

Q: Therefore she has no need for wheelchair access?

A: The prescription for wheelchair access is based on the recommendation that there is no steps. Wheelchair access implies that the house should be free of stairs for her safety and that modifications should be made for a bathroom, so that with her gait, as the court has previously indicated, there would be a railing and so on to assist her.

Q: She had that problem pre-accident because of her spasticity?

But Dr Middleton, also a specialist in rehabilitation medicine, gave this evidence:

"Q: This plaintiff has no present need for a wheelchair, does she?

A: Well, it depends what she is aiming to do. If she were aiming to be in a situation where she was covering large distances in area in terms of mobilising, there would be some advantages not probably so much to her using a wheelchair, but one of those electrified mobility aids such as a Gopher. I guess, for example, the sort of situation that might be useful for that would be if she wants to go on long shopping expeditions or those sorts of things...

Q: You would be unable to distinguish between her requirements as a spastic for a wheelchair and her condition post-accident, would you not? In other words, any requirement that you say she might have for a Gopher or for a wheelchair is relevant and dependent really upon the fact that she is a spastic?

A: No, it is dependent on the combination of that and the effects of the accident injuries.

Q: What is the additional component of the accident injury which makes it necessary to have what she did not have before?

A: The main component is pain and resulting alteration in her walking pattern and her walking endurance - walking and stepping.

In her written report, Dr Middleton explained how the injury to the respondent's previously dominant limb, the need to retrain her walking and the consequential alteration in her gait could cause arthritic changes which might advance the need for assistance:

"Tn the longer, (sic) should the degenerative arthritic changes in her right foot progress further, she may be expected to be subject to increasing pain and disability in her right foot and, as a result, I would expect that in coming years she would be likely to come to require alternative forms of mobility, such as use of a wheelchair or electric gopher or similar device."

As Grove J accepted the evidence of the respondent and her medical witnesses, it is unsurprising that he provided for the real chance that the need for a wheelchair would be advanced beyond that which would have faced the respondent, uninjured. The objection to this component of the damages must also be rejected.

The appellant urged that the allowance of $100,000 for general damages was excessive. It argued that the respondent had made a good recovery from her injuries, had little current need for medical assistance and whilst losing her

URJ URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS (Kirby P) 13

employment had been distressing, her post-injury life had been largely explained by ha absence in Greece, her failure to pursue other forms of employment and her supervening maternity.

I find none of these arguments convincing. The case is a very unusual one. It is one in which I think this Court does well to defer to the advantages which the primary judge had in viewing the whole of the evidence and forming an assessment of the impact of this accident on the vulnerable life of the respondent. Viewed in that light, I see no error in the award of general damages which calls for intervention of this Court.

This brings me to the final item upon which the Court indicated to the parties that it held some concern. I refer to the discount provided by Grove J in the calculation of future economic loss for the vicissitudes of life which would have confronted the respondent had she not been injured. The conventional discount for the vicissitudes in an ordinary case is 15 percent. Although, as the Court has often said, this discount is not immutable, it is the one which is ordinarily applied. By allowing a discount of 25 percent, Grove J added 10 per cent for the additional vicissitudes which the respondent faced. With respect to his Honour, and with hesitation, I have come to the view that this additional factor of 10 per cent was inadequate.

The respondent had, it is true, secured employment with the Commonwealth. She had every motivation to remain in that employment and I do not doubt that she would have striven to do so. She was described by Sir Keith Jones (retained for the appellant) as very intelligent and very determined. Allowance must be made for that factor. Likewise, as the respondent submitted, allowance must be made for the legal obligations which are now imposed upon the Commonwealth, as an employer, to provide equal opportunity for persons with disabilities such as the respondent manifested. See eg Public Service Act 1922 (Cth), s33(3); Disability Discrimination Act 1992 (Cth), s5f; Equal Employment Opportunity (Commonwealth Authorities) Act 1987 (Cth). Arbitrary termination of the respondent's employment would have been susceptible to various sanctions, including political action and media attention. These are further considerations which probably meant that, whatever her difficulties, given ordinary work effort, the respondent would have been retained in employment with the Commonwealth for an indefinite time, so long as she wished. She was, after all, confirmed as a permanent employee. The probation report on her, immediately prior to the accident, was favourable.

On the other hand, there was a range of considerations which would need to be taken into account in estimating the respondent's future employment prospects, when compared to those of the average employee. She undoubtedly suffered a severe physical handicap which made her susceptible to injuries of the kind which occurred in this case. Thus, if an incident of a similar kind had occurred in non-compensable circumstances, at home or in a private setting, the respondent might recover nothing.

The range of her employment functions was strictly limited. She was unable to use the telephone because of her speech impediment. She was described as a slow worker needing constant supervision. To some extent a special job was found for her. She continued to need, and to receive, considerable family support prior to the accident. The Commonwealth was not able to produce wage records of a comparable employee. I get the impression that, whilst her employment was a real and not an artificial one, it was significantly adapted to her capacities which

were severely limited. Adverse non-compensable events and significant changes in her life could have affected her inclination to continue with her work. She was found by Grove J to be the "margin". In this sense, it would not have taken a great deal to push her from employability into unemployability. Whilst her motivation was high, and her achievements close to heroic, the realities are that chance events of life were significantly more likely in her case to push her from the "margin", than in the case of the average employee.

Although there is not an exact parallel in the deduction of more than 50 per cent for domestic assistance, some of the same conditions deriving from the congenital vulnerability of the respondent and her dependence on others, must be taken into account. Making full allowance for the intelligence of the respondent and her high motivation to remain in employment as well as the inhibitions on the Commonwealth to terminate that employment, I have concluded that a 25 per cent discount for future contingencies was inadequate. The marginal increase in the risk of vicissitudes disturbing- the respondent's employment was greater than 10 percent. In my view a discount of no less than 40 percent was required.

In making the allowance for the discount for vicissitudes, the Court is not concerned in moral judgments. It is not concerned to determine what should happen. Its sole function is to endeavour to make proper allowance on the probabilities of what would have happened, had the respondent not been injured. Approaching the matter in this way, I am of the view that Grove J did not provide sufficiently for the risks that the respondent, for extraneous personal or other reasons, might not have been able, or willing, to maintain her employment for the full working life for which provision was allowed. Not the least of the risks that had to be taken into account was that, with advancing years, the condition of cerebral palsy would have deteriorated, obliging the respondent to either cease work altogether or to cut down on her employment activities. Those probabilities (in the opinion of some of the medical practitioners) were not adequately reflected in the discount of the provision for future economic loss. An appropriate way to reflect them is by increasing the deduction for vicissitudes.

The appellant invited the Court to look at the entire damages and to conclude, viewing the aggregate sum as a whole, that the amount awarded was excessive. Cf Walton v Powles [1967] 3 All ER 721 (CA), 723; Faulkner and Anor v Keffalinos (1971) 45 ALJR 80 (CA), 84. Whilst I agree that it is appropriate, having added the component parts, to consider the entire sum (See eg Kovac v Kovac [1982] 1 NSWLR 656 (CA), in this special if not unique case, I do not believe that much assistance is derived by the Court from a reflection on the amount of the total judgment. The case cannot be compared, even in the general way permitted, to other like cases. There are no other cases in my experience that are similar to this. Therefore, the only safe approach to the judgment is to ensure that the component parts are as accurate as can be provided and then to aggregate them. For the reasons which I have now stated, no error has been shown in any of the component amounts allowed by Grove J except for that provided for future economic loss. In my opinion, that component should be reduced by reference to the higher discount which I consider to be appropriate The capitalisation of the full amount claimed for future economic loss was $403,070. Discounting that sum by 40 percent the allowance which should be made under that head is $241,842. That sum should be substituted for the allowance of $302,302 allowed by Grove J. All other components should be confirmed.

URJ URBAN TRANSIT AUTHORITY OF NEW SOUTH WALES v SEITIS (Powell JA) 15

The result is that the total judgment to which the respondent is entitled is $1,029,443. ORDERS In providing for costs, it is appropriate to take into account the fact that the 5 appellant has failed on all but one of the many items of challenge which it has raised against the judgment of Grove J. In my opinion, the appellant should have only one-fifth of its costs of the appeal. Originally the respondent, as cross-appellant, filed a cross-appeal. However, when the appeal was called, the cross-appeal was abandoned. 10 = The orders which I propose are:

Appeal allowed;
Cross-appeal dismissed with costs;
Set aside the judgment of Grove J;
In lieu thereof, order that judgment be entered in favour of the respondent 15 (plaintiff) in the sum of $1,029,443;
Confirm the costs order at trial;
Order that the substituted judgment take effect from 22 December 1993; and
Order that the respondent pay one-fifth of the appellant's costs of the appeal.

Handley JA I agree with the orders proposed by Kirby P, and I agree generally with his reasons.

In lieu thereof, order that judgment be entered in favour of the respondent (plaintiff) in the sum of $1,029,443;

Order that the substituted judgment take effect from 22 December 1993; and

Order that the respondent pay one-fifth of the appellant's costs of the appeal.

35 Counsel for the appellant: GB Hall QC / PR Sternberg

Solicitors for the appellant: Gordon and Johnstone Counsel for the respondent: MDA Maurice QC / GJL Scragg

40 Solicitors for the respondent: James Papas and Associates

Authorities) Act 1987(Cth)

At a glance

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Judgment (131 paragraphs)

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Legislation Cited (3)

Cases Cited (7)

Cited By (1)