Winterton v Mercantile Mutual Insurance [2000] QCA 249

[1] PINCUS JA: I have had the advantage of reading the reasons of Holmes J in which the nature of the respondent plaintiff's disabilities is explained. The learned primary judge adopted the view of witness H L Coles as to the amount of assistance the respondent requires, but I do not here repeat all that is in that full report. His Honour also appears to have been willing to act upon the evidence of Mrs Robinson, the respondent's grandmother. The case has to be approached on the basis that the respondent's need for help and supervision is considerable. I am, like Holmes J, of the respectful opinion that the amount of damages awarded must suffer a reduction.

[2] Mrs Robinson has health problems and was at the date of trial "just managing" to look after the respondent. Mrs Robinson told the judge in effect that the respondent's forgetfulness creates a problem when she attempts domestic tasks, that she falls over, and cannot be left alone for more than about half an hour. The report of H L Coles says that the respondent has a bad gait, cannot control her right hand properly, has poor co-ordination and her speech is affected, tires easily, has significant problems with her feet, and her hand and finger function is poor.

[3] The psychologist L K Salzman who provided a report which the judge was, it appears, prepared to have regard to, was of opinion that the accident had lowered the respondent's intelligence from an IQ of 81 to an IQ of 72. In some respects - for example vocabulary, verbal comprehension and abstract thinking - her performance was in the "average" or "moderate deficit" range. But she had a severe deficit in other ways, such as general knowledge and immediate recall; the psychologist's assessment of immediate recall is consistent with the observations of Mrs Robinson. The psychologist's opinion was that the respondent was performing in the "mildly mentally retarded" range and had "very significant cognitive deficits". The respondent's brain damage has reduced her from being a person who, although not very bright, could be expected to cope on her own to one who has, in some areas, serious defects in mental ability, making it impracticable for her to live independently or to get other than employment of a sheltered kind, for example with a charitable body.

[4] Mrs Robinson gave other evidence bearing upon the extent to which, on her observations, the respondent could function. She explained that the respondent tries to help with domestic tasks, that she plays computer games, goes to school, sleeps well, goes from house to house with Mrs Robinson on matters connected with the Jehovah's Witnesses, attends Church twice a week, helps with gardening and undergoes hydrotherapy. She also attends Jehovah's Witnesses youth groups and goes to barbecues. It must also be noted that although the respondent goes shopping and can carry a shopping bag (and write a shopping list), her ability to perform such tasks has substantial limitations, as appears from the report of S Mottarelly. Her teacher at school hoped she might at some stage work, not in open employment, but in a "safe supported sheltered working environment".

[5] The learned primary judge, in a particularly concise but comprehensive set of reasons, made it clear that he assessed the cost of future care on the basis of the "Domicare model", supported by the evidence of the witness S J De Campo, but subject to two adjustments. The first was that his Honour increased the De Campo estimate, which assumed care for 18 hours a day, to add the cost of the additional 6 hours; I do not accept the appellant's attack on that adjustment. The second was that the judge made a deduction of about 25% from the cost so varied, mainly because of the assumption that Mrs Robinson would continue to care for the respondent for some years; the 25% represented 10 years care.

[6] It is clear from the evidence that there was good support for the Domicare model in that there were reasons to think that other ways of providing long-term care, wholly or in part, had their difficulties. However, topics which required consideration in this connection included, in my opinion, the following.

[7] The respondent's counsel points out, correctly, there was no evidence dealing directly with this topic. But there was evidence which had relevance to it. Despite her difficulties in functioning, mentally, at a normal level, the respondent is capable of forming a warm and, to use H L Coles' expression, "mutually supportive", relationship with another person. She is it appears one who has sexual feelings, according to the observations of her teacher Clayton James and she is one who "gets a friend and sticks to a friend". Mrs Robinson thought the respondent was better when she had contact with a single person for a long period of time, rather than attempting to form relationships with a number of people. Experience shows that some people with worse disabilities than the respondent has do marry or form relationships, sometimes with other disabled people. This applies even to some grossly disabled people, such as Professor S Hawking, who has married twice. Of course, there is the risk that a person desiring to form a relationship with or to marry the respondent would be attracted to some extent by her financial position, consequent upon the judgment in this case; but even such a partner could be of substantial help to the respondent in coping with daily life.

[8] Much was made in argument of the difficulty disclosed by the evidence in providing a single full-time carer on a commercial basis. There was evidence, which his Honour plainly accepted, that such a carer would not be likely to stay long and would be very difficult to find. Miss De Campo said that some of her "complicated" clients had 12 to 15 people looking after them. There was, on the other hand, evidence which his Honour also accepted of the possibility of obtaining long-term care from a person or persons not obtained through a commercial agency. The learned primary judge found that:

" . . . it is more probable than not that a significant part of the support and care that Rebecca will receive for many years will come from members of the Jehovah's Witnesses community. However, it cannot be assumed this will be life long". (emphasis added)

The basis of that finding was, it appears, the discussion to which some reference has already been made of the respondent's close involvement with that religious organisation and of the contacts which had been had with two women, members of that community. Mrs Robinson's preference, she said, was to have the respondent cared for by someone from the Jehovah's Witnesses; nothing positive was done before trial, partly because Mrs Robinson was waiting for the outcome of the litigation. Other evidence tending to suggest that such an arrangement might be practicable was that Mrs Robinson, who found looking after the respondent 24 hours a day extremely tiring, thought that having a carer give services for eight or nine hours a day would "do very nicely". Mrs Robinson emphasised the difficulty the respondent had in dealing with numbers of people and that she did better adhering to a single person. Presumably she would be better cared for by having to deal with two long-term carers than with a variety of people working shifts.

[9] In considering this aspect, it has to be kept in mind that commercial organisations whose experience showed up the problem of engaging a single carer, even with some relief, had in mind not only persons doing the job just for the money, but persons doing it for rather low pay - for example $36 for the whole night shift. The basis on which damages have been assessed is that there would, after the 10 year period to which I have referred, be over $400 per day available to perform the caring function which was at the date of trial performed by Mrs Robinson. Even if one assumes, as the judge did not, that Mrs Robinson would immediately abandon her care of the respondent, the amount is $300 per day - over $2,000 per week. This should be contrasted with the sum of $616 per week which was allowed in the judgment as the value of Mrs Robinson's care.

[10] This was the solution the judge adopted. That his Honour did so was in my opinion due largely to the solid evidence which was given, and accepted, about the difficulty about finding a suitable long-term single carer on a commercial basis. His Honour also had evidence suggesting that the 24-hour rotational system is not very common. That evidence came particularly from D F Quinn, the manager of a substantial disability support service, who told the court that at the date of trial the organisation provided no customer with 24 hour care. K L Burges, a person of similar occupation, claimed to have "vast experience in that 24-hour care situation". Her evidence relating to "live-in carer arrangements" included the following:

"Quite often a lot of people do have some extended family networks where the family likes to become very involved ...".

"One that I've recently done, it's been a very, very good case - the fact that we've been able to employ an extended family member on a full time basis and that's worked very well ... If they're on a paid basis like in a private arrangement, you tend to find that you very rarely change a carer ... this one that I was actually just speaking was the extended family member so they just treated it like their home basically".

"Quite often I find that families, particularly if there is families involved, they really do have a very good idea of somebody who they know would be compatible for the person that requires a live-in carer".

[11] There was, so far as I can ascertain, no real dispute that the sort of care which would best suit the respondent personally was not that on which the judge made his assessment, but a system under which there was a long-term single carer (or perhaps a couple) to whom the respondent might become attached. It seems quite unlikely, on the evidence, that the respondent would adjust well to the contemplated roster of five or perhaps more carers; Mrs Robinson thought this would greatly unsettle the respondent. On the other hand the evidence showed that persons related to the respondent, apart from Mrs Robinson herself, had evinced little or no interest in assisting with her care. Two factors must be kept in mind: firstly, that members of the extended family might be more willing to help if doing so did not bring with it a financial burden, but rather a financial advantage; secondly, that one might think of members of the Jehovah's Witnesses community as substitutions for the respondent's extended family.

[12] To summarise the position as to future care, the judge thought that the only arrangement which could adequately care for the respondent was a commercial one involving a number of people working shifts. There were other possibilities, the most likely one being care provided by members of the Jehovah's Witnesses community; his Honour said that a significant part of the respondent's care would probably come from that source "for many years". In my respectful opinion, his Honour should have taken greater account of that likelihood and also of the chance that, in some other way not involving a purely commercial arrangement, the respondent would be able to have some, perhaps the bulk, of her need for care and companionship provided for.

[13] Holmes J, correctly in my opinion, regards the principle of Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 as relevant to the assessment of damages in such a case.

"If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring ... the court assesses the degree of probability that an event ... might occur, and adjusts its award of damages to reflect the degree of probability". (643)

In illustrating the way in which this works, the major judgment considered a case in which two probabilities had to be combined, multiplied, to make proper allowance for the chance of a future eventuality (645). Examples of similar approaches, weighting probabilities, can be found in Mortimer v Burgess (1997) 25 MVR 463 at 468, 469 and Wright v Shire of Albany (1993) A Torts R 81-239 at 62,479.

[14] If, in the present case, adoption of the shift-work system with multiple carers was thought to be more probable than the other regime the judge thought would be used for many years, it would not be right to treat the more probable outcome as certain; the chance that it would not come to pass would have to be considered. In the present case there is no precise monetary figure which can be attached to care within the Jehovah's Witnesses community, but it would surely be likely to cost much less than a figure approaching $3,000 per week, which the judge allowed for the shift work care. Even if one ignores the possibility of the cost of care being brought down by arranging for some care by another relative, or by acquisition of a partner, it is difficult to accept the basic figure of nearly $3,000 per week which the learned primary judge adopted for the purpose of calculation. I would reduce the figure of $2.2M which his Honour allowed for future care to $1.6M, not by any attempt at arithmetical calculation, but by treating it as quite possible that the shift work arrangement may never eventuate and that persons with some personal association with the respondent may play a substantial part.

[15] I agree that the component of $200,000 for pain and suffering and loss of amenities should be reduced by $50,000, for the reasons given by Holmes J. I would allow the appeal with costs and reduce the award to $2,574,301.07. I agree with the orders proposed by Holmes J.

[16] MUIR J: I have had the advantage of reading the reasons of Pincus JA and Holmes J. I am in general agreement with both reasons. I agree with Holmes J's assessment of damages and with the order she proposes.

[17] HOLMES J: This appeal concerns the future care, and pain, suffering and loss of amenities components of an award for damages in the respondent/plaintiff's favour. The plaintiff was injured in a motor vehicle accident in 1995 when she was 14 years of age. At the time of trial she was 18. The trial judge accepted that her head injuries sustained in the accident had caused impairment of her gross motor skills in the form of loss of mobility and balance, while her fine motor skills were impaired by poor co-ordination and an involuntary tremor. She could manage some personal hygiene tasks - toileting, brushing teeth and showering - independently but needed assistance with other aspects of grooming and personal care. She manifested severe cognitive deficits and was assessed as performing in the moderate deficit - borderline mentally retarded to mildly mentally retarded range (although the assessing psychologist considered it likely from the information he had as to pre-morbid performance that previously she had functioned in a low average to borderline range). Among her more significant problems were a severely impaired short term memory and a tendency to become disoriented.

[18] The plaintiff had orthopaedic injuries consisting of minor impairment of the right elbow, and a 10 to 15 per cent permanent impairment of the leg; and was also suffering a chronic ulceration of the right foot arising from her injuries. In addition, she had suffered significant scarring to the right side of her face and more extensive scarring to the right side of her body, which the trial judge described as "very unsightly". It was common ground that she was unemployable and would not be capable of living independently. At the time of trial, in September 1999, she was attending a special school; but that would cease at the end of the current school year. The learned trial judge awarded damages of $2,200,000 in respect of the plaintiff's future care needs, while an amount of $200,000 was awarded for pain, suffering and loss of amenities.

[19] A considerable amount of the evidence at the trial was directed to identifying how the plaintiff's obvious future care needs could be met. At the time of trial she was being cared for by her grandmother, who was 71 and in poor health. Among the matters that were in issue were whether the plaintiff required round-the-clock care, and whether she should be cared for by a single live-in carer with respite arrangements, or whether a rotational system of care involving a number of workers should be adopted. An allied question was whether it was to be expected that such care would be provided by an agency such as Domicare, with associated administration costs; or whether it was likely that a less formal arrangement would be needed.

[20] The evidence put before the trial judge was that agency-provided care on a rotational basis for 18 hours per day (with allowance for periods without supervision during the day) would cost $2,035 per week. By extrapolation, such care provided on a 24 hour basis would cost $2,903 per week. In contrast, care from an individual worker, with a weekend relief worker under a private job sharing arrangement, might be expected to cost something of the order of $45,000 per year.

[21] There were objections to both kinds of arrangements. As to the former, it was pointed out that the plaintiff herself would prefer to be cared for by one person. The evidence was that she found exposure to numbers of people unsettling, preferring continuity and familiarity with a very limited number of individuals. On the other hand, there was evidence that it was difficult to find individual carers, and that they were subject to burnout; and, moreover, that there was a risk of abuse when a single carer was involved.

[22] The trial judge concluded that a rotational, full-time care model was appropriate and thus that the award for future care should be premised on a cost of $2,903 per week. However, taking into account that the need for such care was not imminent, given the grandmother's involvement, he discounted the award by 25 per cent, arriving at the figure of $2.2 million which is the subject of appeal here.

[23] In respect of the award for pain, suffering and loss of amenities, the appellant argued that it exceeded awards given in tetraplegic and paraplegic cases, and was significantly higher than awards made in other cases involving comparable levels of brain injury. Reference was made in particular to Hedge v Suncorp Insurance and Trennery [1997] QCA 406, Appeal No 4911 of 1996, 7 November 1997, a decision of this court in which an award of $150,000 to a plaintiff aged 17 at the time of suffering severe brain damage, was upheld, but was described as "certainly high". Mr Griffin QC for the appellant, conceded, however, that a conclusion that the award for pain, suffering and loss of amenities was excessive would not, in the context of a total award of $3.22 million, warrant interference, having regard to the decision in Elford v FAI General Insurance Company Limited [1994] 1 Qd R 258.

[24] As to the award for future care, it was contended that the trial judge adopted a model which went beyond the evidence, in allowing for 24 hour care, which was more than the 18 hours proposed in the Domicare model. In addition it was submitted that the trial judge had failed to make sufficient allowance for a number of prospects: that the plaintiff might marry; that the Jehovah's Witness community, to which she belonged, might provide support; that family members might assume the responsibility for her care when her grandmother was no longer available; that she might be institutionalised; that full-time care might not be required if she were to become involved in activity in a sheltered workshop arrangement; that a live-in carer might in fact be found; and that she might in any event have required care as she grew older.

[25] Counsel for the respondent plaintiff argued that the evidence supported a need for constant supervision of the plaintiff, and that the prospects of alternative care contended for by the appellant were negligible. His Honour's discounting of the award by 25 per cent adopted, it was said, an overly optimistic view of the prospects of care by the grandmother in coming years. As to pain, suffering and loss of amenities, we were referred to a number of other awards to brain-damaged plaintiffs, almost all emanating from New South Wales; and counsel submitted that the plaintiff's multiple disabilities and the likelihood of her increasing isolation and emotional deprivation after her grandmother's death warranted damages in the amount awarded.

[26] I do not, with all respect, consider that the award for pain, suffering and loss of amenities can be sustained. It is clear, when regard is had to other awards in cases of severe brain injury and para- and tetraplegia, that it exceeded what was appropriate by some $50,000. That of itself would not warrant an adjustment to it; and it becomes necessary to consider the second issue, as to whether the award for future care can be supported. I have come to the conclusion that it cannot.

[27] Although I consider that the evidence warranted the learned trial judge's conclusion that 24 hour care was required, it seems to me that he has erred by treating the prospect of rotational agency care as if it were a certainty, rather than one of a number of competing possibilities; notwithstanding that it is not even the preferred option of the plaintiff. It is a case in which, in my view, the evidence at its highest indicated that there were a number of possible outcomes; so that an award could be arrived at only by balancing the competing possibilities, rather than by adopting one and discounting to allow for contingencies. The proper approach is that set out in Mallett v McMonagle [1970] AC 166 at 176, adopted in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 640 and 643; that is, to "make an estimate as to what are the chances that a particular thing will or would have happened and reflect those chances, whether they are more or less than even, in the amount of damages which it awards".

[28] In the present case, that approach would, in my respectful opinion, have resulted in a recognition that the chances of a more informal arrangement for the plaintiff's care were at least equal to those that the rotational care model provided by an agency would be adopted, requiring an averaging between the two models. Accepting a figure of $1,850 per week as representing that average, one arrives at a figure over 64 years, discounted at 5 per cent, of $1,890,700. Having adopted that approach, however, I consider that a lesser discount than 25 per cent should be applied to reflect both the prospect of the grandmother's continuing assistance - which, in view of her ill-health, seems to me doubtful - and other contingencies; and that something in the order of a 15 per cent discount is adequate. The final figure for future care thus discounted is close to that arrived at by his Honour Pincus JA and I would, accordingly, adopt his figure of $1,600,000.

[29] Given the substantial difference made to the total award by this adjusted figure, I would allow the appeal and vary the amount awarded for future care to $1,600,000. The pain, suffering and loss of amenities award also should be varied to $150,000. I do not, however, think it is necessary to adjust the figure allowed for interest on damages in respect of pain and suffering, which was calculated on less than half the award, in an amount of $80,000, for 4.3 years to trial.

[30] Having altered the assessment in those ways, I propose the following orders:

1. The appeal is allowed. 2. Order 1 of the judgment below is set aside. 3. Judgment is given for the plaintiff/respondent against the appellant/defendant in the sum of $2,574,301.07, representing damages of $2,355,429.07 and Public Trustee charges of $218,872. 4. The plaintiff/respondent is to pay the appellant/defendant's costs of and incidental to the appeal.