NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NEW SOUTH WALES) v WALLACE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER, HANDLEY and CRIPPS JJA 22 March 1993, 22 March 1993 [1993] NSWCA 200 DAMAGES — quantum — no question of principle. Meagher JA I will ask my brother Handley JA to give the first judgment. Handley JA This is an appeal by the defendant from an assessment of damages by Master McLaughlin. The plaintiff was a single man aged 58 at the date of injury and 63 at the date of trial. He sustained severe head injuries in the accident and was unconscious for over three weeks. The Master found that the disabilities from which the plaintiff suffered were essentially disabilities resulting from brain damage and that he suffered from gross cognitive impairment. He was described by Dr John Lawson, who gave evidence on behalf of the defendant, as being grossly intellectually and neurologically impaired. He has little ability to communicate, suffers from incontinence of the bowel and the bladder and is totally dependent upon others for all personal activities, including bathing, toileting, dressing and eating. The Master assessed damages at $1,024,832.19, to which were added the fees of the Protective Commissioner for administering the verdict. The defendant has propounded only four modest challenges to this award. The first in relation to interest on past loss of wages is not contested. The learned Master calculated such interest without allowing for the fact that the plaintiff had received workers compensation payments. These payments will have to be refunded from the damages but without interest. The plaintiff would be over compensated if he were awarded interest on his past loss of wages without allowing for the receipt of workers compensation during this period. This is established by Bachelor v Burke (1981) 148 CLR 448. The agreed deduction from the verdict is $16,596.11. The second and third contentions relate to alleged double counting between the awards of compensation for loss of earnings, and the awards for the cost of care in a nursing home. Sharman v Evans (1977) 138 CLR 563 establishes that double counting can occur in those circumstances and some reduction in the cost of care should be made to avoid double compensation. However, I am satisfied in this case that no adjustment of the award of the learned Master is called for to avoid such over compensation. At the date of trial the cost of care was in the order of $123 a day, $103 being received by way of Commonwealth subsidy and $20 a day being paid for from the plaintiff's invalid pension. Damages for the cost of future care and for such cost in the period between trial and judgment were based on the amount of the Commonwealth subsidy at the date of trial. The balance which was being paid from the plaintiff's invalid pension was not taken into account. This means that no deduction from the damages awarded under these heads is required to avoid double counting. 2 UNREPORTED JUDGMENTS The figure for past out of pocket expenses was agreed at the trial at $185,868.56. The figure for past nursing home care is not disclosed in the evidence, nor is the basis upon which that figure was agreed. However it is likely that the figure for past nursing home care will equal the Commonwealth subsidies which will have to be refunded and does not include the additional amounts paid from the plaintiffs invalid pension. In that event there will again be no double counting and no occasion to reduce this component of the damages awarded by the learned Master. I would therefore reject the third and fourth grounds of appeal. There remains the question of general damages. The learned Master awarded the sum of $200,000 under this head. On the evidence the plaintiff had a life expectancy of ten years at the date of trial. This reduced life expectancy was not causally related to the accident. The Master found that the plaintiff was "to an extent able to understand his own condition" and therefore had some awareness of his loss, and this finding was not challenged. In my opinion, and with respect to the Master, the award of $200,000 for a man of this age by way of general damages when the plaintiff was only aware of his loss "to some extent" is disproportionate and outside the range of a sound discretionary judgment. I would therefore propose that this past of the award be set aside and on a reassessment I would award the sum of $150,000. Mr Gross QC for the respondent sought in a notice of contention filed immediately prior to the hearing to establish that in one respect the Master's assessment was inadequate and an additional amount should be allowed by way of off-set against the reductions established by the appellant. The Master awarded the sum of $29,413.71 for past gratuitous care but made no corresponding allowance for the future. It seems, however, from the Master's reasons for judgment, that no claim was ever made for future gratuitous care and it is significant that no notice of cross-appeal or contention was filed within time which raised this as a ground for complaint against the Master's award. In those circumstances I conclude that no such claim was made at the trial and therefore no such claim can now be entertained. I would propose therefore that the appeal be allowed and that the judgment for the plaintiff for $1,024,084.92 be set aside and in lieu thereof there be judgment for $936,193.08 plus an appropriate allowance for the administration fees of the Protective Commissioner in relation to a judgment in that sum. The respondent should pay the costs of the appeal but have a certificate under the Suitors Fund Act. Meagher JA I agree except on the question of general damages. In my opinion the amount awarded for general damages should not be disturbed. The plaintiff suffered truly horrendous injuries which totally ruined the quality of his life for its remaining fifteen years, the effect of which is he is at least intermittently conscious of. Nor do I say anyone could rationally say $200,000 is too much whereas $150,000 is not. Otherwise I agree with what has fallen from my brother Handley JA. Cripps JA I agree with the orders proposed by Handley JA and his reasons therefore, and in particular I agree with his views concerning the question of general damages. Meagher JA: The order of the Court therefore is the order proposed by Handley JA. 1. Appeal allowed. WABW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NEW SOUTH WALES) v WALLACE (Cripps JA) 2. Judgment for the Plaintiff below in the sum of $1,024,084.92 is set aside and in lieu thereof judgment is substituted in the sum of $936,193.08 plus an appropriate allowance for the administration fees of the Protective Commissioner in relation to a judgment in that sum. 5 3. The Respondent is to pay the costs of the appeal and have a certificate under the Suitors Fund Act. Counsel: 10 Appellant: M Elkaim Respondent: BJ Gross QC with L Levy Solicitors 15 Respondent: TG Hartmann and Associates