DAMAGES - NEGLIGENCE – PERSONAL INJURIES – MEASURE OF DAMAGES
– QUANTUM – Where plaintiff severely injured
in car accident –
Where no dispute as to negligence – Where dispute as to amounts claimable
Source
Original judgment source is linked above.
Catchwords
DAMAGES - NEGLIGENCE – PERSONAL INJURIES – MEASURE OF DAMAGES– QUANTUM – Where plaintiff severely injuredin car accident –Where no dispute as to negligence – Where dispute as to amounts claimableunder various heads of damages,in particular, future loss of income &future accommodation and care – Where dispute as to plaintiff’ssentience- Whether amounts claimed by plaintiff reasonable.Motor Accident Insurance Act 1994Supreme Court Act 1995,s 16Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR648Castro v Hillery [2001] QSC 510,Chulcough v Holley[1968] ALR 274,Goode v Thompson [2001] QSC 287,Goode vThompson [2002] QCA 138[2002] 2 Qd R 572,Griffiths v Kerkemeyer [1977] HCA 45
(1977)
139 CLR 161,
Hills v State of Queensland [2006] QSC 244,
Lewis
(by his litigation guardian P Osborn) v Bundrock & Anor [2008] QSC
189,
McChesney v Singh [2002] QSC 311,
Nguyen v Nguyen
(1990) 169 CLR 245,
Sharman v Evans [1977] HCA 8
(1977) 138 CLR 563,
Theden v
Nominal Defendant [2004] QSC 310,
Todorovic v Weller [1981] HCA 72
(1981) 150
CLR 402,
Van Gervan v Fenton [1992] HCA 54
(1992) 175 CLR 327,
Willett v
Futcher [2005] HCA 47
(2005) 221 CLR 627,
Winterton v Mercantile Mutual
Insurance, [2000] QCA 249,
Judgment (229 paragraphs)
[1]
M Grant-Taylor SC and P de Plater for the plaintiff
[2]
[1] On 2 June 2001 the plaintiff was a passenger in a vehicle that was involved in a single vehicle accident. He was then 12 years old. He is now 20 years of age.
[3]
[2] As a consequence of the accident, the plaintiff suffered the following substantial injuries:
[4]
(a) A traumatic brain injury with a right third nerve and right seventh nerve involvement;
[5]
(b) A fracture of the right frontal bone, resulting in the débridement of necrotic frontal lobe tissue;
[6]
(c) A fracture of the right zygoma and orbit, with a question of possible optic neuropathy;
[7]
(d) Contusions of the right temporal and right frontal region and the right superior globus pallidus and right corona radiata;
[8]
(e) A small extradural haemorrhage of both frontal lobes;
[9]
(f) Fractures of the right tibia and fibular requiring open reduction and internal fixation; and
[10]
[3] Among the complications which developed as a consequence of those injuries, the following are the most significant:
[11]
(b) Dysautonomia with described spasms, hypertonia, temperatures, sweating and tachycardia;
[12]
(c) A urinary tract infection (possibly related to the placement of an indwelling catheter);
[13]
(e) Hypocalcaemia and hypercalcuria secondary to immobility;
[14]
(f) Calcification in the right lower limb (thigh); and
[15]
(g) Contractures of both ankles and the right elbow.
[16]
[4] As would be expected, the plaintiff endured lengthy hospitalisation and treatment. He has been assessed as having a whole person impairment of 95 per cent.
[17]
[5] Negligence is not in contest, but the quantum of damages is.
[18]
[6] There is little upon which the parties agree. The major areas of dispute arise with respect to:
[8] Luke Steven Waller was on a weekend access visit with his father when the accident occurred. He was halfway through his grade seven year at Mary Valley State School. He had experienced learning difficulties in grade three and, in grades five and six, his performance declined quite dramatically. He had been diagnosed with Attention Deficit Disorder and was taking medication which allowed some control over the conditions. That, combined with the dyslexia from which he also suffered, no doubt contributed to the difficulties he experienced at school. His mother also blamed problems he had experienced with bullying at the school and with difficulties associated with access arrangements with his father.
[21]
[9] Luke's parents had separated some years before the accident. He has two half-sisters. His father was a plant operator. Two years ago, while working at a rail camp at Port Headland, he was killed in an accident.
[22]
[10] At the site of the accident, his Glasgow coma scale was four. He was transported to Gympie Hospital and later to the Royal Children's Hospital where he remained in the intensive care unit from 3 June to 22 June 2001. On discharge from the ICU, he remained in a high care room for some 23 weeks, after which he was transferred to a ward and then, on 26 November, to the Gympie Hospital from which he was discharged on 17 December 2001. He continued to receive intensive rehabilitation treatment for another six months or so.
[23]
[11] The following procedures were amongst those undertaken while he was in hospital:
[24]
(a) An open reduction and internal fixation of the fractured right tibia - the plate was removed in January 2002.
[25]
(b) Insertion of a peg (per endoscopic gastrostomy) following the removal of a naso-gastric tube;
[26]
(c) Débriding of necrotic right frontal lobe of the brain. A dural patch to the right frontal deficit was applied and a left burr hole created for the evacuation of hygroma.
[27]
(d) Injection of Botulinum toxin to the left upper limb and left lower limb - for the relief of spasticity;
[28]
(e) Myositis ossificans was demonstrated in the right anterior thigh;
[29]
(f) The peg which had been inserted was removed and a BARD button inserted;
[30]
(g) Surgery for left and right Equino varus and lengthening of the tendo Achilles.
[31]
[12] The plaintiff lives with his mother, her partner and his half-sisters. The house has been modified to accommodate his needs. It is one of two houses on a 385 acre property in the Mary Valley. The property is owned by Mrs Waller's parents who occupy the other house.
[32]
[13] Mrs Waller cared for the plaintiff without any paid assistance until July 2002 when he went to Canberra to live with his paternal grandmother. That arrangement stayed in place for 12 months and during that period his mother would visit him and bring him home during the holidays.
[33]
[14] In about July 2003 the plaintiff returned to live at the property in the Mary Valley and he resumed school. From that time Mrs Waller had the assistance of paid carers.
[34]
[15] The major area of debate under this head concerns the degree, if any, of the plaintiff's awareness or insight into his condition.
[35]
[16] Dr Campbell (a neurologist) examined the plaintiff in October 2003 and reported that, while in the neurological ward, he underwent treatment with physiotherapy, occupational therapy, speech therapy and hydrotherapy. Whilst convalescing in the neurosurgical ward, he developed contractures due to spasticity and disuse. Treatment with Botox injections and Achilles tendon lengthening operations were undertaken.
[36]
[17] On examination he noted that the plaintiff continued to suffer the residual effects of the severe brain injury. He was unable to speak and had poor communication skills. He made inappropriate sounds and tones only. He was able to respond to basic commands but had no self-help skills at all. He was incontinent of faeces and urine and wore pads for protection. The doctor noted that he had writhing, jerking, inappropriate and non-purposeful movements of the head and right upper limb. His opinion was:
[37]
"He will never be able to care for himself, let alone earn a living in the future. His quality of life is poor and the future is equally bleak. ... The treatment provided to date has been appropriate. There is no clinical indication to consider further treatment or surgery. The contractures are irreversible. Essentially Luke will require a full time carer for the rest of his life. Future management should be in the form of respite for the mother.
[38]
Luke has been symptomatic for two years and three months. Brain injuries recover mainly in the first few days/weeks and months but by twelve months maximal recovery has been reached. Luke's condition is therefore stable and stationary and is likely to be permanent (or to deteriorate due to complications such as aspiration/further contractions, pressure area damage to the skin)."
[39]
[18] Dr Gillett (an orthopaedic surgeon) examined the plaintiff in September 2003. He reported:
[40]
"Luke Waller has had pain and suffering associated with a head injury, facial injuries and fracture of his right tibia. His injuries have been complicated orthopaedically by development of myositis ossificans on the right thigh."
[41]
"He has an upper motor neurone attitude of his right upper limb with a limited range of motion of his right shoulder, but there is sufficient abduction and external rotation to allow hygiene in the axilla."
[42]
"He has an almost ankylosed right elbow and he has a typical thumb-in-palm deformity of his right hand but it can be passively corrected to achieve hygiene to the palm. There is a gross flexor power over extensor power.
[43]
"His right lower limb is similarly affected in relation to greater flexor over extensor power. He has scarring of the tendo Achilles lengthening and he has a plantar grade hind foot but clawing of the toes. ...
[44]
The left side reveals spontaneous movement of the left upper limb where he can raise his arm above the shoulder. ..."
[45]
[19] Dr Gillett was of the view that some of the deformities and other matters might require surgery. I will deal with those later.
[46]
[20] Dr Powell (a specialist in rehabilitation medicine) visited the plaintiff at his home in August 2004. She reported on his condition and, among other things, said:
[47]
"Luke requires 24 hour care and assistance and could not be left alone. He requires assistance in all activities of daily living and personal care as well as in feeding, supervision of medication and administration of appropriate fluids.
[48]
I believe that Luke has poor insight into his situation. I am advised by his mother that he prefers the company of young people and does respond appropriately. The degree of damage to the frontal lobes described in the medical notes would be consistent with his having poor insight even if we were able to communicate with him."
[49]
[21] The plaintiff called evidence from his mother, his three carers and Jane Remington-Gurney (an occupational therapist). Each of these witnesses gave evidence which supports the conclusion that the plaintiff:
[50]
(a) Has the capacity, particularly at home, to ambulate with assistance;
[51]
(b) Can communicate in a 'yes' and 'no' fashion by body or hand movements;
[52]
(d) Can participate in therapeutic activities requiring him to understand and respond, for example, to propositions about past experiences;
[53]
(e) Can recognise people and respond in a way which is appropriate to the relationship he has with them.
[54]
[22] Most of the matters referred to immediately above were not observed or were not known to Dr Powell when she made her report. Some of them occurred after her visit. Her opinion that the plaintiff had "poor insight" into his condition was relied upon by the defendants. It was argued that there was no evidence that the plaintiff has any appreciation of a change in his circumstances following the accident and that as Dr Powell was not challenged on her opinion as to insight, it was a necessary consequence that I should find accordingly.
[55]
[23] The activities and abilities of the plaintiff referred to by the plaintiff's witnesses over the last two or three years appear to demonstrate an improvement which is inconsistent with Dr Campbell's opinion that the plaintiff's condition was stable and stationary in 2003. No evidence was called to explain the apparent inconsistency between the opinion expressed in 2003 and the apparent improvements in capacity observed by his mother and his carers. Nor was anything proffered to expressly contradict Dr Powell's opinion on insight.
[56]
[24] The plaintiff claims an amount of $225,000 for general damages. The defendants argue for $100,000.
[57]
[25] There are a number of authorities which provide guidance in the assessment of an appropriate award under this head. They include the following:
[58]
• Winterton v Mercantile Mutual Insurance, [2000] QCA 249 - female, 14 years old at time of injury, impairment of gross and fine motor skills, severe cognitive defects, 10 to 15 per cent impairment of the leg, unemployable, significant scarring - $150,000
[59]
• Goode v Thompson [2001] QSC 287 - male, 12 at time of injury, grave intellectual impairment, need one-on-one care for rest of life, epileptic, spasticity, able to walk with great difficulty, "little insight into his pitiable condition" - $150,000
[60]
• Castro v Hillery [2001] QSC 510 - female, 36 at time of injury, severe brain damage, gross physical disabilities, greatly impaired capacity to communicate, did have insight into condition - $160,000
[61]
• McChesney v Singh [2002] QSC 311 - female, 17 at time of injury, severe brain injury, significant physical impairments, had insight - $150,000
[62]
• Hills v State of Queensland [2006] QSC 244 - male, injured during birth, severe type of cerebral palsy, has insight, life expectancy a further 44 years - $220,000.
[63]
[26] The extent of insight is, in this type of case, always important. So far as comparisons are possible, the plaintiff's injuries are, speaking very broadly, in the same category of disastrous injury as those in the above cases.
[64]
[27] Dr Powell's evidence was that he had "poor insight", not "no insight". His behaviour with his family and carers demonstrates an awareness of his environment but does not necessarily establish any greater insight into his condition. Nevertheless, there is some, albeit poor, degree of sentience not unlike that in Goode v Thompson. That case was decided in 2001.
[65]
[28] The plaintiff has a life expectancy of another 60 years. During that time he will require constant care and supervision. Although this is not a conclusive factor, the diminution in the value of money since 2001 (reflected in an increase in the consumer price index) has been about 28 per cent. Those factors, together with the gross injuries and severe continuing disabilities, lead me to the conclusion that an appropriate award in this case for general damages is $200,000.
[66]
[29] I will allow $9,600 as interest calculated at the rate of two per cent a year for eight years on $60,000.
[67]
[30] The plaintiff relied on a report from Roland Sykes (Exhibit 6) in which, based on information provided to him, he made a series of calculations to arrive at an estimated past loss of earning capacity in an amount (ignoring contingencies) of $79,810.
[68]
[31] That calculation is in two parts. First, an estimate of what could have been earned while the plaintiff was a student from age 15 until the assumed completion of grade 12. Secondly, an estimate of what could have been earned on the basis that the plaintiff entered full time employment at the conclusion of grade 12 until the present.
[69]
[32] With respect to the first part of his calculation, Mr Sykes assumed that he would have been employed for eight hours a week during term (39 weeks) and 38 hours a week during school holidays (9 weeks). The remaining four weeks of the year were allowed for annual holidays when he would not have worked.
[70]
[33] The difficulty with that assessment (even after reducing it for contingencies) is that it is a "perfect world" solution. It does not account for: the plaintiff's individual abilities or lack thereof, his remote location and the consequent difficulties for a school boy arranging transport to and from work, and the extent of available work in reasonable proximity to his home.
[71]
[34] The plaintiff's school records do not paint a picture of someone who was likely to be able to obtain work readily or to retain it. Notwithstanding his mother's view that bullying and access problems contributed to his poor record, the records are not inconsistent with a child who suffered from ADD and dyslexia.
[72]
[35] It is more reasonable to assume, in light of his remote location, his school records, his apparent and understandable preference for country life and his involvement in sporting activities, that his capacity to be employed would have been more in the order of six hours a week on average over the whole year (four hours a week for 39 weeks and 18 hours a week for nine weeks). For the purposes of this award then, I have adopted Mr Sykes' method of calculation but have worked on the basis that his average weekly hour of work would have been half that which Mr Sykes used.
[73]
[36] Interpolating that new figure into Mr Sykes' calculation results in the following:
[74]
[37] Using those figures as a basis I award $9,000 for that part of his past loss of earning capacity.
[75]
[38] In this period Mr Sykes bases his calculations on the average income from five occupations listed in the report of Marcia Noble, an occupational therapist. It is important to note that Ms Noble's opinion was expressed only as examples of occupations. In 4.9 of her first report she said:
[76]
"Whilst it is not possible to nominate even a general occupation or direction Luke would have taken but for his injury I believe it is reasonable to suggest he could have achieved academically to a similar level to his parents. On this basis, but for his impairments, Luke would have succeeded in obtaining work in an occupation within Major Group 7 (intermediate production and transport workers) or Major Group 6 (intermediate clerical, sales and service workers)."
[77]
[39] Ms Noble then went on to list the following as "examples of occupations that would fall into these groups":
[78]
Pest and weed controller
General waiter
General construction plant operator
Heavy truck driver
Forestry worker
[79]
[40] Ms Noble was cross-examined on the opinion she expressed in that part of her report with respect to the effect that his condition of Attention Deficit Disorder might have had on his prospects. She was asked:
[80]
"He would need to have a good attitude, though, to be able to concentrate, to be motivated, to accept direction from superiors, and so on, would he not? - Somewhat. It depends on the job he is doing. If he is in a job where he doesn't have to work in groups, like a forestry worker, then that may be better suited to him. If he is in a job where he can be more physically active rather than having to sit in a classroom for six hours, then that's likely to be far more suited to someone with Attention Deficit Disorder."
[81]
[41] Ms Noble did not say that the plaintiff would have obtained work in one or other of the occupations she listed. They were only given as examples. In light of her evidence and in light of the evidence about the plaintiff's academic abilities and capacity to work at school, I think it more likely that an appropriate level of income would be represented by someone employed as a forestry worker. Using the same method as Mr Sykes the following represents the relevant weekly earnings for that occupation in the period under consideration.
[82]
[42] I then apply those weekly earnings in the same way as Mr Sykes to arrive at the total earnings for each of the constituent periods.
[83]
[43] For past loss, then, there is a total of $64,855.90. I deduct from that an amount of 10% to allow for contingencies and arrive at a loss of $58,371. Using those figures as a basis I award $60,000 for that part of his past loss of earning capacity.
[84]
[44] The plaintiff has received Centrelink benefits in an amount of approximately $35,000.
[85]
[45] Thus interest on past economic loss can be calculated in the following way:
[86]
Past loss of employer's superannuation contribution and interest
[87]
[46] I have not attempted to use Mr Sykes' method of calculating this amount; rather, given the small amount involved, I have simply taken 9% of the amount of $60,000 to arrive at a figure of $5400. To that amount I add $600 to represent interest lost.
[88]
[47] The finding made above as to the occupation upon which calculations should be based settles the basis upon which future loss should be assessed. Putting that to one side, the debate between the parties was over the extent to which any assessment of future loss should be adjusted to allow for contingencies. Mr Grant-Taylor SC, for the plaintiff, submitted that the discount should be no more than 10 per cent, while Mr Williams QC argued for 20 per cent in his written submissions but moderated that approach in oral argument to finally submit that 15 per cent was appropriate.
[89]
[48] I will deal first with the calculation relating to future loss of earning capacity which, as I have said, I will base on the earnings of a forestry worker. In Mr Sykes' calculations under this head, he adjusted the current adult wage by an indexation factor for each five year period from the time the plaintiff would turn 25 until the age of 45. The result, for a forestry worker, was that a maximum weekly wage at age 45 was $832 per week. This is the figure the defendants submitted I should apply for each year if I accepted a forestry worker as an appropriate measure. I intend to do that.
[90]
[49] Using the figure of $832 per week gives a net (after tax and Medicare levy) figure of $695 per week. For the 45 years from the plaintiff's current age until retirement and using the 5 per cent discount tables that equates to a loss of $660,250.
[91]
[50] The submission on behalf of the plaintiff was that I should adopt the approach argued for by Professor Luntz in his text - Assessment of Damage for Personal Injury and Death, (4th ed), at 6.4.5-6.4.17. The argument presented by Professor Luntz is quite compelling. He demonstrates that the "accepted" rate of 15 per cent is excessive and is at least twice that which it should, on his analysis, be. As with much of the assessment that needs to take place with respect to compensation for personal injuries, there has, sensibly, been a reasonably "broad brush" approach taken. If this were not done, then the process of assessing loss would become a much longer, much more complicated, and not necessarily any more accurate, assessment. Professor Luntz says that:
[92]
"... a reasonable allowance in the average case of a person in regular employment for contingencies other than death causing loss of income, after taking into account sick leave, social security and other benefits, appears to be less than 5.5%, being at most 0.4% for sickness, injury and unpaid holidays; at most 0.1% for industrial disputes; and at most 5% for reduction of income consequent on unemployment." (At 6.4.14)
[93]
"A larger contingency allowance would be appropriate for children and others who were not in regular employment at the time of injury."
[94]
[52] The current economic climate reminds us of the volatility which can be and is experienced in the domestic economy and would over the next 45 years undoubtedly be experienced on a number of occasions. The occupation of forestry worker or one like it is one which, being either unskilled or partly skilled, is subject to vagaries of the economy to a greater extent than some other, more secure, forms of employment. The major element which contributes towards a higher contingencies factor is the possibility of death. The medical evidence was to the effect that the injuries suffered by the plaintiff will not result in an appreciable diminution of his life expectancy. According to the document tendered, the plaintiff has a life expectancy of at least another 60 years. Of course, as the description suggests, it is only an expectancy. The plaintiff's father died in an accident a few years ago at an early age. These are things which can happen to anyone.
[95]
[53] I am moved by the argument presented by Professor Luntz in his text to agree that an appropriate level for contingencies is less than a standard 15 per cent. I must, though, take into account that over the next 45 years things will happen which cannot possibly be foreseen today and Australia's economy will, at the end of the plaintiff's notional working life, that is, in 2054 be unrecognisable by us. There can be little science in the estimate which is to be used for contingencies but I have decided to work on the basis that Professor Luntz's approach is a more thorough and justifiable examination. His view, based upon his own research, is that contingencies should be under 10 per cent in the average case. This is, though, not an average case. The plaintiff was, of course, not at work at the time of the accident. The plaintiff has a notional working life of another 45 years. In those circumstances, I think it appropriate to account for those factors by taking 10 per cent as the basis upon which to commence the process and then increasing that by 2 per cent to a total of 12 per cent for all contingencies.
[96]
[54] Applying the contingencies factor of 12 per cent reduces the amount for future loss of earning capacity to $581,020. I will allow $585,000.
[97]
[55] Mr Sykes undertook a quite detailed assessment of the amount which could be regarded as properly representing this head of damage. I accept, though, the submission of the defendants that a similar result (and the basis usually used for this) can be reached by simply taking 9 per cent of the allowance for lost earning capacity which provides a sum of $52,650.
[98]
[56] In order to assess the appropriate level of care in both the past and the future, I must determine the extent of the plaintiff's needs which flows from the injuries sustained in the accident. In doing that, the criterion is one of reasonableness not of what would be ideal (Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 648 at 661). It follows, then, that an award will not include every expenditure that would be advantageous for the plaintiff.
[99]
[57] Past care in this case can be divided into two periods: (a) from injury to discharge from hospital, and (b) from discharge to the present.
[100]
[58] This part of the claim was presented by a number of witnesses. Ms Noble, in her report, set out in what purported to be detail the times which had been spent looking after the plaintiff in this period by his mother. In his written submissions, Mr Grant-Taylor only relied upon her estimates tangentially and approached them from the basis of testing them through an exercise which I will deal with later.
[101]
[59] Ms Noble's evidence on this point was not that which the court should accept unless supported by other reliable evidence. In the written submissions on behalf of the defendants, it was said that she was "nothing more than an advocate for the plaintiff's cause". While I would not go that far, parts of her report and some of her behaviour in the witness box did not have any of the necessary qualities of detachment which an expert should bring to the task of presenting evidence. In that part of her report which deals with past gratuitous care there are a series of figures presented which purport to be representative of the amount of care provided at particular times and for particular purposes. It became obvious during cross-examination that many of those figures represented nothing more than guesses based on her impressions and past experiences. Some of them, for example, those relating to the period during which the plaintiff was in the intensive care unit, simply were unsupported and were advanced notwithstanding the absence of any evidence to demonstrate that any time spent by the plaintiff's mother would have had any therapeutic benefit for the plaintiff. The plaintiff was during that period unconscious. The analysis which she performed was little more than her assessment of what she thought should have been done rather than what was done. It was not uncommon for her, during cross-examination, to provide answers which included non-responsive material to the question and which were clearly inserted by her in order to bolster the plaintiff's case.
[102]
[60] Mr Grant-Taylor SC, in oral submissions, explained that the plaintiff's claim (as presented in the written submissions) only sought an award for past care from 1 January 2002. He said this had been done so that there would be "no dispute on account of the fact that over much of the previous seven months Mr Waller was cared for in hospital where, as our learned friends correctly point out, some substantial measure of his care would have been attended to by the nursing staff". That is, in my respectful opinion, an appropriate way in which to proceed in this case. Notwithstanding that Mrs Waller did what any loving mother would do, her work, given the plaintiff's condition at that time, did not fall into the category of treatment or care for a need which flowed from the injury sustained. As I have said the plaintiff was unconscious for part of that period and unresponsive for a larger part.
[103]
[61] The claim for the plaintiff is based on his asserted need for round-the-clock care. That need is not in dispute - what is in dispute is its extent and content.
[104]
[62] The principles to be applied when assessing damages under this head are well known:
[105]
(a) The defendant must pay for the services reasonably required to satisfy the need created by the plaintiff's disability - Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161;
[106]
(b) Whether or not the plaintiff has paid or will have to pay for those services is irrelevant - Nguyen v Nguyen (1990) 169 CLR 245;
[107]
(c) Whether the care is provided on a gratuitous basis or a commercial basis, it is to be assessed at its market cost - Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327.
[108]
[63] The plaintiff relies upon the assessment made by Ms Noble of the plaintiff's requirements for care during this period and the calculation made by Mr Sykes in reliance on that assessment to arrive at a figure of $869,069 for past gratuitous care.
[109]
[64] In order to demonstrate the reasonableness of the estimates used by Ms Noble in the exercise she undertook, Mr Grant-Taylor SC engaged in the exercise of subtracting the amount which had been paid by the insurer on care prior to the trial from the notional amount which would have been paid had care on a round-the-clock basis been provided at commercial rates from 1 January 2002 until trial.
[110]
[65] The exercise proceeded in the following way:
[111]
(a) The amount spent by the insurer to date in providing care from 17 February 2004 to the time of trial was $720,696.
[112]
(b) In order to arrive at the sum which would notionally have been paid for round-the-clock care, Mr Grant-Taylor adopted the figure of $5,468 per week, being the cost which would be incurred now for the regime under which the plaintiff is currently receiving care.
[113]
(c) Using CPI figures to extrapolate backwards in time the cost of weekly care, the figure of $1,831,835 was arrived at.
[114]
Consideration was then given to adopting a different model for those years when the plaintiff's mother was almost entirely responsible for caring for the plaintiff, that is, the calendar years 2002 and 2003. An allowance was made on the basis of a different model proposed by Mr Hart. The same extrapolation was applied to arrive at a set of figures which resulted in a total cost of $1,608,363.
[115]
[66] Thus, by deducting $720,696 from that last figure, the result is $887,667 which is not substantially different from the amount calculated by Mr Sykes which was based upon Ms Noble's estimates.
[116]
[67] The defendants argue that a broad brush approach should be taken as Ms Noble's report cannot in the defendants' submission be sensibly relied upon to provide any realistic estimate of the plaintiff's gratuitous care needs. The allowance proposed by the defendants is as follows:
[117]
(a) From the date of discharge to June 2002 when the plaintiff went to Canberra - eight hours a day - a total of 1,568 hours.
[118]
(b) From the time he was in Canberra an allowance of four hours a day - total of 1,820 hours.
[119]
(c) An allowance of eight hours a day for the period from the plaintiff's return from Canberra to the commencement of care funding in 2006 - total 6,552 hours.
[120]
(d) After the commencement of care funding in 2006 an allowance of two hours a day for six days a week with an additional 9.5 hours on Saturday - total 2,795 hours.
[121]
[68] The defendants therefore submit that an appropriate allowance is 12,735 hours at the appropriate hourly rate. I will return to the hourly rate later.
[122]
[69] In response to the exercise undertaken by the plaintiff as a check on the amount arrived at by Mr Sykes, the defendants submitted that there was a fallacy in the approach taken by the plaintiff. It was argued that the approach by the plaintiff amounted to this: there are 24 hours in a day, 12 hours of commercial care are provided, the plaintiff requires round-the-clock care, therefore there must be 12 hours of gratuitous care. It was argued that that approach fails to take into account the fact that the plaintiff is asleep for a large part of that second 12 hour period and so attracts nothing by way of gratuitous care because there is no need in that period for a person to do anything. It was acknowledged that there may well have been irregular periods when there were interruptions which would require care to be provided. There was also a need, argued the defendants, to take into account the fact that the plaintiff was for part of the period under consideration attending school and therefore there was an obvious reduction in the component of care needed at that time.
[123]
[70] The problem with the approach taken by the plaintiff is that both methods used to justify the claim are flawed. First, Ms Noble's report was, as I have earlier observed, not one upon which a court could place total reliance. Secondly, the check proposed to be constituted by the other method only compounds the error because it assumes that there was a need for gratuitous care for all hours other than those provided commercially during any 24 hour period. This was not consistent with the evidence given by the plaintiff's mother, nor with the events which occurred in the life of the plaintiff's family which included the plaintiff's mother attending upon the needs of the balance of the family and having another child.
[124]
[71] The approach taken by the defendants is one which better reflects the recognition of the need which the plaintiff had for care and the manner in which it was provided gratuitously. I do not accept, though, that it would be appropriate to only allow eight hours per day from the date of discharge to June 2002 when the plaintiff went to Canberra. It was clear from the evidence that the care needed to be provided by the plaintiff's mother was very substantial in the early part of that period and that, allowing for a reduction in the amount of care needed over that period of time, an allowance of 12 hours a day on average would be a better reflection of the need. Thus, for that period the amount of care should be recorded at 2,352 hours.
[125]
[72] A similar broad brush approach should be taken to the period representing the time since the insurer commenced funding care in 2006. The proposal of only two hours a day for six days a week does not adequately allow for those needs which a person in the plaintiff's position has and which were referred to by Mrs Waller in her evidence. I prefer an allowance of four hours a day for six days of the week, with 9.5 hours on Saturday remaining as the allowance for that day. That equates to a total of 33.5 hours per week which is a total of 4,355 hours. That results in a total hours of care of 15,079.
[126]
[73] The evidence supported a rate of approximately $18 an hour for a permanent employee which, given the length of time and number of hours involved, is more appropriate than a casual rate.
[127]
[74] In order to allow for increasing wages over the relevant period, I will allow half the period of time at $16 an hour and the balance at $18 an hour. That amounts to a sum of $256,343. I will allow $260,000.
[128]
[75] I will allow interest at the rate of 1.98% of that total sum from injury until the present, that is, eight years, in the sum of $41,184.
[129]
[76] This area was the subject of considerable debate. It is the largest single component of the plaintiff's claim and involves consideration of various combinations of home care, shared residence or institutionalisation. In assessing it, I take into account the following general principles:
[130]
(a) The test for determining the extent and type of care is whether it is reasonable, not whether it is ideal - Arthur Robinson at 661.
[131]
(b) The defendant is not liable for every expenditure that would be advantageous for the plaintiff - Chulcough v Holley [1968] ALR 274 at 279.
[132]
(c) The assessment of what is reasonable requires a comparison of cost against health benefit - Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 at 573.
[133]
(d) Whether the market cost of acquiring care services should include an agency fee depends upon whether the plaintiff can engage and organise those services - Goode v Thompson [2002] QCA 138.
[134]
(e) No discount is made for the vicissitudes of life - Sharman v Evans.
[135]
[77] The plaintiff identified six possible methods of providing care. One of them, accommodation in an institution or nursing home, was not advanced by either party and it was not supported by any of the evidence.
[136]
[78] The alternatives for the provision of care were presented in the following way:
[137]
(a) a continuation of the current regime, in which the services of three paid carers are supplemented by Mrs Waller;
[138]
(b) a conversion of the current regime into one in which paid care is provided on a 24/7 basis with Mrs Waller ceasing to provide any attendant care, her role being reduced to a mere supervisor;
[139]
(c) the plaintiff's care being accommodated by a system of two x 12 hour shifts;
[140]
(d) the plaintiff's care being accommodated by one x 24 hour shift;
[141]
(e) the plaintiff's care being accommodated by sharing a residence with another disabled client or clients.
[142]
[79] The proposal that care could be provided by a single person working a 24 hour shift is one which I discard immediately. I accept Dr Powell's evidence that calling upon a single carer to work for a 24 hour shift would be a very difficult task. It would also, I think, be very difficult to obtain the requisite number of persons able to work 24 hour shifts in the relatively remote community in which the plaintiff currently lives.
[143]
[80] The second type of shift arrangement which was proposed was one put forward by Mr Hart. Dr Powell thought that 12 hour shifts would be able to be put in place because although such a shift involved a lot of personal care, there would also be substantial periods of rest and relaxation for the carer. The program promoted by Mr Hart, which would use two 12 hour shifts, faced considerable practical problems with its implementation. Mr Hart accepted (T4-16) that the three carers currently employed would remain in place until they departed of their own choosing. He was asked:
[144]
"You couldn't change the program to either the two x 12 hour shift or the one x 24 hour shift until all three have fallen by the wayside?-- That would certainly pose a dilemma in the interim, yes."
[145]
[81] Mr Hart went on to say that he would be very surprised if the funding body or any administrator allowed that situation to continue for a long period of time.
[146]
[82] It would, of course, be an option for Mr Hart to terminate the employment of the carers currently engaged in order that he could implement a two x 12 hour shift model. The persons currently engaged are clearly dedicated individuals who have the best interests of the plaintiff at heart. They should not, though, be expected to agree to work for a lower amount which would be the inevitable consequence of the adoption of a two x 12 shift regime.
[147]
[83] There are two reasons why I reject the two x 12 hour shift model. First, given Mr Hart's intention of allowing the current carers to remain in place until they decide to leave, such a model may not be introduced for a long period of time and thus it is difficult to assess an appropriate cost and would likely lead to uncertainty or confusion among those who are currently caring for the plaintiff. Secondly, Mrs Coles was asked about the viability of 12 hour shifts. Her view was that 12 hour shifts are too demanding on carers if it is desired that they be engaged in the long term. The evidence about the plaintiff's disability leads me to the view that he would be better cared for by persons who are familiar with him and grow to understand the manner in which he communicates. His current carers gave evidence about the time it takes to become confident that his means of communication are being properly understood.
[148]
[84] The use of a 24 hour shift model or a two x 12 hour shift model would result in a lower overall cost but it would, on the evidence, also result in a diminution of the appropriate level of heath care which the plaintiff's disability generates. For those reasons I do not accept that it is reasonable to adopt either of those models.
[149]
[85] The defendants proposed, as an alternative, the use of shared accommodation. The defendant described the plaintiff as an "ideal candidate for shared accommodation". That might be the case if the plaintiff was living in Brisbane. There was no evidence to suggest that there was any capacity to afford such an arrangement in or near Gympie. All such residential accommodation homes are in Brisbane at the moment. In order for such accommodation to be constructed there would need to be adequate funding available for it and there would also need to be another client who was compatible in a medical and personal way with the plaintiff. There was no evidence to suggest any of that was likely, let alone available. It would not be reasonable to assess damages under this head on a basis that would require the plaintiff to move away from his family merely in order that he take part in shared accommodation for which there is no certainty about his suitability or its availability.
[150]
[86] That leads to the conclusion advanced by the plaintiff, namely, that the current regime should be continued save that Mrs Waller would be removed from her role as a carer and replacing her with a paid carer. Each of the plaintiff's current carers gave evidence. Each of them was impressive in their own way, demonstrating determination, knowledge and compassion when it came to looking after the plaintiff. To continue his care in their hands and to allow for him to be cared in the future by persons of similar ability is not anything but reasonable.
[151]
[87] The proposal that the plaintiff remain in the same type of care is one which has been accepted in a number of cases and there are no factors which take this plaintiff outside the precedents established for other similarly injured persons.
[152]
[88] The plaintiff argues that an appropriate award should be based on a weekly rate of care of $5,468.00, which is the amount that would be charged by the firm "Open Minds", the entity currently supplying carers. That amount is based upon a modification of the current charge being made which, as set out earlier, is not a 24/7 basis. In other words, the plaintiff argues that the current system should be changed so that his mother is no longer involved in any formal way in the care regime and that she should be replaced by a full-time carer.
[153]
[89] The defendants submit that the current model of care is the most reasonably practical and realistic model for the plaintiff's needs and that a regime involving a mix of both the family members and paid commercial carers should be maintained. The defendants calculate the current cost of that model, on a weekly basis at $3,467.00. That is based on the current commercial care cost of $3,037.00 plus an amount of $430.00 for the gratuitous care afforded by the plaintiff's mother. Consistent with what I have said earlier, that amount is inadequate and, if this proposal was accepted, it should be increased to $670.00 a week, being four hours a day except for Saturday at 9.5 hours, all at a rate of $20.00 an hour. The defendants then propose that that regime would cease after 30 years when the plaintiff would move into shared accommodation. As I have said above, I do not accept that shared accommodation is appropriate in the plaintiff's circumstances.
[154]
[90] Mrs Waller's evidence was that it was likely that the plaintiff would remain living with his family for the foreseeable future. That is a matter of some significance in the calculation of an appropriate award for future care. I consider it likely given the current age of the plaintiff and of his mother and the domestic relationships which presently exist that he would remain living under the arrangement which currently exists for the next 20 years. After that, I expect that he will require round-the-clock professional care with his mother playing a minor role in accordance with her age by then.
[155]
[91] I proceed on the basis that he will remain in the current type of arrangement for 20 years and after that time there will be an arrangement similar to that referred to by Ms Williams in her evidence at a cost of the order set out in Exhibit 20. On that basis I make the following calculation:
[156]
Commercial care $3,037 per week (5% discount ) $2,022,642.00
[157]
Gratuitous care $670 per week (3% discount) $527,960.00 $2,550,602.00
[158]
From the period 20 years from now until 60 years from now
[159]
Commercial care $5,468 per week (5% discount) $1,891,928.00
[160]
I consider it appropriate to apply a discount to that figure, not to allow for the vicissitudes of life, but to allow for the possibility that a different regime might have to be put in place and, of those different regimes which were considered, they were all of a lower cost. Both parties applied a discount of 15% at this point and I consider that appropriate. That results in a reduction of the amount to $3,776,150. I will allow $3,780,000.
[161]
[92] Although the defendants did not comment upon this claim, as I read the report of Mr Sykes, he has calculated this amount upon the basis that the plaintiff will be required to pay for home maintenance from March 2025 for approximately 50 years. Given that I have calculated future care on the basis that he will remain with his mother for another 20 years, it is more appropriate to deal with it on the basis of his being required to engage persons on home maintenance for a much shorter period and I assess it at a period of 20 years. That is approximately 20% of the period allowed for by Mr Sykes. Taking into account the postponed nature of this claim, I award $20,000.
[162]
[93] Dr Powell was asked to comment on the items set out in clause 4.1 of Ms Noble's report with respect to medication, continence aids and button needs. Dr Powell had no difficulty with any of the items set out under that heading apart from an entry for pawpaw ointment as being a treatment of choice. That reduces the weekly cost of those items to $136.79. An appropriate allowance then over 60 years at the 5% discount is $138,459.
[163]
[94] The defendants say that neither Ms Noble nor Mr Sykes were in a position to assess these matters, but I accept Dr Powell's assessment of them as appropriate.
[164]
[95] This claim is for an amount of $138,459 and the detail of it is set out in Schedule 4.4 to Mr Sykes' report.
[165]
[96] The defendants attack various parts of the claim made here and I am satisfied that the claims made with respect to customized shoes, orthotic splints, a mobile phone, RACQ membership, electronic software, particular types of switches, a computer and accessories, a cut out table and high back chairs, wheelchair ramps, a reclining lounge chair and an electric bed should not be allowed. The basis for that is that some of these equate to items which the plaintiff would have in any event purchased, had the accident not occurred. Others are unnecessary, and some have been accepted by the plaintiff as not able to be claimed.
[166]
[97] Much of the claim originally made by the plaintiff was abandoned and what was left was subject to uncertainty. The best I can do on the figures available is to assess it without an attempt at precision in an amount of $35,000.
[167]
[98] The plaintiff claims $181,830. Dr Noble was asked about the concept of the additional costs, which would be incurred were holidays to be taken away from home, and her view was that the concept would be reasonable. The defendants, though, say that the argument is fallacious. There was no evidence that he would be taken on holidays by his mother, the reliance on a mere statistical likelihood of taking holidays must be considered against the background of the plaintiff's life. There was no evidence that the plaintiff would benefit from being taken on holidays in the manner sought by the claim made and given his level of injury and neurological impairment, I think it unlikely that he would be taken on holidays. I am supported in that view by the fact that since the date of the accident, apart from a family camping trip, he has not been taken on any holidays. I make no award under this heading.
[168]
[99] The plaintiff has, apart from being reviewed by his general practitioner twice a year, not required any medical review or been under the supervision of a specialist for the last two years. It was doubted by Dr Powell that any advantage would be obtained in having occupational therapy so long after the injury and she was of the view that some work over the next two years might be of some use.
[169]
[100] There is, though, the potential for therapy to be required with changes in technology and for advice to be received on that. Ms Noble makes a recommendation which appears to be the ideal rather than what is reasonable. I will allow $5,000 under this head.
[170]
[101] This is an area which is of some concern. The argument for the plaintiff is that notwithstanding that the commercial carers have built into their fees an amount for case management there should be some independent oversight for the benefit of the plaintiff. The plaintiff argued that for the case manager to have any association whatsoever with the care provider rendered nugatory the case manager's role as an advocate for the plaintiff.
[171]
[102] On my assessment of his future care needs, his mother will be in the role of a "case manager" for at least 20 years. Dr Powell's view was that the absence of an independent case manager did not compromise the care which would be available to the plaintiff and there was no evidence that such a situation has arisen in the past or would be likely to arise in the future. The defendants argued that an award of this nature would constitute a double counting because the agency fees which will be administered include amounts which are specifically allocated to case management functions.
[172]
[103] I do not accept that there is an element of double counting. I respectfully agree with the reasoning of P D McMurdo J in Hills v State of Queensland where, at [258] he said:
[173]
"I have earlier concluded that a regime of managed care and not referred care, is more appropriate in Christopher's case and I have assessed the cost of future care upon that basis. That is relevant to the present question. Much of the work of a so-called case manager would involve the co-ordination of carers. Under a regime of managed care, that work is largely done by the agency, which is one reason why it is more appropriate for Christopher's case. On the other hand, one of the reasons for a case manager is to have the help of a person, who is independent of the care agency, so that Christopher can receive independent assistance and advice in his dealings with the agency. Because Christopher will be so dependent upon the individuals who provide this care, and upon the agency which provides those carers, he will be especially vulnerable to conduct which is not in his best interests and he needs the support of an independent person to take up his cause if he feels that something is awry." (emphasis added)
[174]
[104] The plaintiff in Hills suffered from a different condition. If anything, the plaintiff in this case is in greater need of oversight being applied to his care. When, as is inevitable, his mother will not be able to provide the same extent of care which she currently offers, there will be a need for someone to ensure that the plaintiff's reasonable care requirements are being met. It is no slight upon those who are caring for him to say that someone needs to be in place to "to take up his cause if he feels that something is awry". That role cannot be filled by a provider of care services. It may be that such a provider could honestly, but mistakenly, believe that there is no need to take certain steps in the regime of care. It is in those circumstances that an independent case manager is needed to consider and, if appropriate, take such steps as are necessary to take up the plaintiff's cause.
[175]
[105] I intend, therefore, to make an allowance for this in the following manner. I accept the hourly figures and number of hours suggested by Ms Noble of $135 and hour for four hours a month plus a travel allowance of $180 a month. I will delay the payment of those amounts for twenty years in accordance with my finding about Mrs Waller's role. That results in an amount of $57,335. I will allow $58,000.
[176]
[106] The plaintiff has conceded that the calculation made by Mr Sykes under this heading is too generous as no allowance had been made for the expenditure which would notionally have been incurred by the plaintiff in acquiring and maintaining his own vehicle. There is no evidence that any alterations had to be made to a vehicle in order that it could be used for transporting the plaintiff. It is inevitable that the plaintiff, had he been uninjured, would have acquired a vehicle of his own and would have maintained it. In the absence of any need for a special vehicle, there is no award under this heading.
[177]
[107] The plaintiff originally claimed a capital sum of $200,723 for the cost of house modifications which would be required for any house constructed to meet his needs. The argument which emerges from the evidence is over the manner in which Mr Deshon undertook his analysis. He commenced with the premise of a hypothetical house which was then required to be modified. The witness called for the defendants, Mr Lock, started with a project home which he then notionally modified and costed.
[178]
[108] The defendants concede that an allowance for house modifications may be made but argues that the amount originally claimed is too great and that no allowance should be made for depreciation or running expenses.
[179]
[109] The plaintiff, in his final submissions, referred to the decisions in Hills v State of Queensland [2006] QSC 244 and Theden v Nominal Defendant [2004] QSC 310 and the analysis undertaken in those cases. As a result of applying the logic displayed in those two decisions, the plaintiff concedes that a figure of $75,000 should be appropriate. I see no reason to award more than the figure arrived at by Mr Lock. His analysis appeared to be conservative and reasonable and met all the needs of the plaintiff. I will allow $50,000 under this head.
[180]
[110] The defendants argue that there should be no allowance for depreciation or running expenses as the plaintiff will never, in truth, construct or occupy a house, but will live with his family or in provided share accommodation. That is inconsistent with the findings I have made about the likely nature of the plaintiff's future care.
[181]
[111] The question of depreciation on a specifically modified house is problematical. The claim made is for $1,630 per annum for 65 years. That is based upon Mr Deshon's original costs which have been now conceded by the plaintiff to be too high. They also do not take into account the likelihood of the plaintiff remaining with his mother for another 20 years. A similar criticism can be made with respect to the claim for recurrent costs and house maintenance costs. I will allow a global sum for all of those matters in the amount of $50,000.
[182]
[112] Under this heading the plaintiff claims for anticipated or possible surgery and for "communication therapy".
[183]
[113] Dr Gillett gave evidence in his report of the chances of the plaintiff's needing certain types of surgery in the future. Dr Gillett originally saw the plaintiff in September 2003. His later reports were made without having the benefit of seeing the plaintiff again.
[184]
[114] The surgery suggested as possibly being needed and the likelihood of it being needed is set out below:
[185]
(a) Surgery to correct thumb-in-palm deformity. Cost $3,500. Chance of surgery being necessary - 50%;
[186]
(b) Surgery to perform capsular release of right shoulder. Cost $4,600. Chance of surgery being necessary - 10%;
[187]
(c) Surgery to right lower limb. Cost $5,400. Chance of surgery being necessary - 40%;
[188]
(d) Surgery to left lower limb. Cost $5,400. Chance of surgery being necessary - 20%.
[189]
[115] The plaintiff calculates the total amount appropriate to be awarded for that possible surgery as $5,450. The defendants argue that there is no immediate need for any of the above surgery and none of it may be needed at all. In its submissions the defendants factored in a delay of 20 years and thus arrived at a total amount of approximately $2,000. Dr Gillett said in his report of 6 October 2008 that: "The above surgeries may be used but are not highly likely to be required." On that basis I think it appropriate to award a global sum of $3,000.
[190]
[116] Ms Remington-Gurney saw the plaintiff in March 2007. At that time she recommended three 90 minutes sessions a year for the next three years. She now recommends therapy treatment for a further 10 to 20 years but only for one day a year. I have already referred to the evidence of the plaintiff's condition as being stable and stationary. It is difficult to see how one consultation a year for the next 10 to 20 years will be of any benefit to the plaintiff or whether it is reasonable at all. Ms Remington-Gurney did speak about advances in technology which may provide a basis for some future therapy. I will allow a global sum of $5,000 for that.
[191]
[117] These expenses, in the sum of $17,804, arose from a number of different points. One of them is his participation in various activities such as an art program and a drama program. I have no doubt that the plaintiff enjoys participating in those programs, but there was no evidence that his participation in that sort of program was a need which arose out of his injuries. They are recreational activities which have not been entered into on the basis of any expert rehabilitation recommendation.
[192]
[118] Another part of this claim consists of $7,520 for running costs of a car since May 2007. I think it likely that had the plaintiff not been injured then he would have either had a car or contributed to the use of a car and the plaintiff has not satisfied me that the responsibility for this cost should be borne by the defendants.
[193]
[119] Another expense involved travel costs of the plaintiff and his mother returning from Canberra during holidays while he was living with his grandmother. Mrs Waller gave evidence that had the plaintiff not been injured and had he been with his father on access then she would have brought him home for holidays in a similar fashion. That is something which I accept but the question and answer that elicited that evidence did not specifically allow for the fact that the plaintiff did not reside with his father and so it would have been unlikely for that expense to have been incurred. She answered it as it was a hypothetical question in a hypothetical way.
[194]
[120] I will allow $6,000 as a global sum under this head.
[195]
[121] I will allow interest at 1.98% per annum for 8 years on the sum of $6,000, being $950.
[196]
[122] Consistent with the decision in Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627, there was no denial of the plaintiff's right to an amount assessed as allowing for remuneration and expenditures properly charged or incurred by the administrator of the fund which will be established for the plaintiff during the intended life of the fund. The debate was over the correct way to measure such an amount.
[197]
[123] The plaintiff called evidence from Paul O'Neill, a business development manager from Trust Company Limited. He said that Trust Company's fee structure is as follows:
[198]
Administrator's establishment fee $8,800
Administrator's ongoing management fee 0.363% per annum
Investment MERs 0.45% per annum (The MER is the management expense ratio fee which is a fee paid to external funds managers for accessing their funds.)
[199]
[124] Mr O'Neill provided some calculations of the total net present value of the future cost of funds management in accordance with the Trust Company's calculations. Those calculations were based on a number of assumptions:
[200]
(b) The use of a conservative tax figure (about 7.25%) to arrive at after tax earnings;
[201]
(d) The funds would be drawn to zero or near zero in line with life expectancy, that is, straight line amortisation;
[202]
(e) An average MER of at least 0.45% inclusive of GST;
[203]
(f) A fee on fee structure in which the Trust Company charges a fee for managing the fees it charges; and
[204]
(g) No allowance for the purchase of a residential property.
[205]
[125] The defendants submit that the proper approach to an assessment of management fees is as follows:
[206]
(a) The real rate of return of earnings of the fund should be assumed to be 5%. The use of a particular rate of future earnings (either 7.2% or 9.4% according to the evidence) which is then discounted by the statutory rate of 5% to arrive at a present value is wrong in principle.
[207]
(b) It is wrong because the fees and charges of the administrator, being a head of damage, should be assessed within the constraints of s 16 of the Supreme Court Act 1995 and the principles established in Todorovic v Weller [1981] HCA 72; (1981) 150 CLR 402.
[208]
(c) It is clear from Todorovic v Weller that the discount rate was chosen to reflect the assumed rate at which income is earned by the fund, and to accommodate the effects of inflation, tax on earnings and so on.
[209]
(d) The defendants should not be obliged to pay, in addition to management fees charged by the fund administrator, further sums representing fees that the administrator proposes to charge for the investment of its allocated administration and management fees. See Lewis (by his litigation guardian P Osborn) v Bundrock & Anor [2008] QSC 189.
[210]
[126] The plaintiff's response to that argument was to direct me to the reasoning of the Court of Appeal in Goode v Thompson [2002] QCA 138; [2002] 2 Qd R 572 at [33] to [37]. In that case a straight line amortisation was rejected. The Court said:
[211]
"[35] The challenge made to this calculation is in respect of the second stage for income commission on the basis that it fails to recognise that, over time, the total sum available for investment will progressively diminish, resulting in a corresponding diminution in the income generated by the fund and the commission chargeable in respect of that income. The appellant therefore seeks to calculate the commission on the basis of a straight line reduction in the fund over time. This would result in the commission being reduced by one-half to $69,599 which reduces the future management fees to $119,323.
[212]
[36] The respondent argues that the appellant's approach ignores the reality that with an investment sum of $3.4m and a return at 3.53% per annum, the capital sum will increase initially and substantially during the first period of 20 years, when the respondent's parents are caring for the respondent and not incurring the cost of commercial care. The respondent submits that, in combination with a likely rise in returns for the fund over time, there will be a substantially higher level of annual income, a substantially higher level of annual fees and the fund increasing in amount in the foreseeable future, but depleting in the respondent's later years.
[213]
[37] The appellant's approach of a straight line reduction in the fund over time makes assumptions which are unrelated to what is likely to be the actual progress of the investment fund. In the circumstances the basis on which the learned trial judge assessed the income commission as part of the future management costs was not unreasonable."
[214]
[127] The Court was not, in my respectful opinion, purporting to invalidate the use of straight line amortisation in all circumstances. In Goode v Thompson the Court referred to the fact that the plaintiff would not, in the first 20 years, incur the cost of commercial care. The plaintiff in this case will. The assumption of straight line amortisation is one which is made by Trust Company in its calculations and which does more closely represent the likely position which will play out in this case.
[215]
[128] The main difference between the Trust Company's calculations and those advanced by the defendants is the likely after tax return. Mr O'Neill was unable to say what figure had been used but it appears likely that it was in excess of 7% but below 10%. As is set out above, the defendants submit that it is appropriate to use 5% as the after tax return as that is the figure mandated by legislation as the one to use for assessing all other aspects of future loss.
[216]
[129] In any exercise of this nature there is a degree of artificiality which cannot be avoided. The estimate apparently used by Trust Company can have no greater claim to accuracy over a 60 year time span than the 5% discount rate sought by the defendants. The purpose of the discount rate was summarised by Brennan J (as he then was) in Todorovic v Weller at 477:
[217]
"All that can be said is that the incidence of tax is likely to bear more heavily on increases in earnings than on the yield of an invested sum upon which a plaintiff may draw, and as the object of the discount rate is to equalize the net amount which can be drawn out of the fund year by year with the net amount which the plaintiff would have earned, the tax advantage enjoyed by yield in comparison with earnings must be taken into account by reducing the capital sum which is available for investment. In other words, a positive discount rate must be adopted." (emphasis added)
[218]
[130] I intend to use the method proposed by the defendants as it appears to be the one most suited to the circumstances of this case. In order to arrive at the sum which will be available for investment the following calculation is necessary:
[219]
[131] I will adopt $5,000,000 as the basis for calculating these fees.
[220]
(c) Annual investment fee is 0.813% of $5,000,000 $40,650.00
[221]
(d) To allow for amortisation, divide the annual investment fee by 2: $20,325.00
[222]
(e) On that amount for 60 years at 5% discount: $395,556.00
[223]
The total award for management fees is $395,556.00 + $8,800.00 = $404,356.00
[224]
[132] I give judgment for the plaintiff in the sum of $5,764,584.00.
[225]
Past loss of employer's superannuation contribution
[226]
Interest on past loss of employer's superannuation contribution
[227]
[133] On 10 July 2009 the parties appeared before me and made submissions with respect to some arithmetical errors and omissions, and to the fact that a particular rate of interest which had been agreed to be appropriate to be used had changed the day after the trial ended. In light of the submissions and the consent by both parties to the minor changes sought I altered the final order to be for the sum of $5,785,612.00. It also follows that the table in [132] should be altered to read:
[228]
Past loss of employer's superannuation contribution
[229]
Interest on past loss of employer's superannuation contribution