GOVERNMENT INSURANCE OFFICE OF NSW v RIZKALLA [1993] NSWCA 118

GOVERNMENT INSURANCE OFFICE OF NSW v RIZKALLA SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, CLARKE and HANDLEY JJA 15 April 1993, 14 May 1993 [1993] NSWCA 118

ASSESSMENT OF DAMAGES — ALTERNATIVE BASES OF ASSESSMENT — EVIDENCE

ASSESSMENT OF DAMAGES — damages assessed on the basis of home care — question as to existence of a cheaper alternative in an institution — insufficient evidence before the court to conclude that there was a real possibility that such an alternative would arise.

Sharman v Evans (1976-7) 138 CLR 563, considered.

Mahoney JA I agree with the judgment of Clarke JA.

The argument before this Court was directed in the main to the compensation to be paid because of the plaintiff's past and future need for care. It is an issue of importance, not merely because of the amount involved, but because, since at least the time of Sharman v Evans (1976-7) 138 CLR 563, the provision of continuing care has posed issues of some difficulty.

In the present case, it was proved that the plaintiff needed continuing care and that the cost of it, if given at home, was great. He could be cared for in an institution for less. I shall assume that care of him in an institution would have been reasonable, at the time of the trial or thereafter. There was no certainty that care of him in an institution could be arranged. The issue to be determined was whether, because of the possibility that institutional care might be able to be arranged subsequently, that possibility should be taken into account to reduce the compensation otherwise to be awarded to him, and by what amount.

In principle this depends upon the approach to be adopted. In principle, the plaintiff is to be compensated because the defendant's negligence created in him a need for services: cf Griffiths v Kerkemeyer (1977) 139 CLR 161; Van Gervan v Fenton (1992) 66 ALJR 828. In assessing damages for that fact, it is relevant to take into account, though it may not be determinative, the amount which, as far can be determined, the plaintiff must pay to provide the needed care. I shall assume for purposes of this argument that the court's first task in the present case is to determine what that care will cost. It is, in my opinion, unlikely on the evidence that institutional care will be found for him. On that finding of fact, the proper conclusion is that his care will cost an amount calculated by reference to the cost of the home care. On that approach, it is not proper to reduce that amount to take account of the possibility that institutional care might become available.