COUNCIL OF THE MUNICIPALITY OF HUNTERS HILL v HUGHES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY, PRIESTLEY and CLARKE JJA 22 June 1994, 17 August 1994 [1994] NSWCA 70 Appeal from District Court — Assessment of damages caused by defective roadworks — Injury to elderly lady. Domestic assistance — Whether need established — Held: Evidence supported judge's conclusion that needed. Quantum of damages for domestic assistance — On facts, need for services for which damages awarded. Renovations of home — On facts, reasonably necessary to cope with injuries — No question of principle. ORDERS Appeal dismissed with costs. Mahoney JA On 31 May 1988 the plaintiff Miss Doris Irene Hughes suffered an injury for which it has been held the Council of the Municipality of Hunters Hill is responsible. On 24 September 1993 his Honour Judge Mahoney assessed the damages payable by the Council to the plaintiff at $138,000. The Council has appealed to this Court against his Honour's assessment. The appeal has been pressed in relation to two matters: the amount included in the judgment for domestic assistance for the plaintiff; and the amount included for renovations to her home claimed to be necessary because of her injuries. 1. DOMESTIC ASSISTANCE: Mr McCulloch for the Council submitted first that no case has been demonstrated for the provision of domestic assistance for her. I do not think that that submission should be accepted. The plaintiff was born in 1905. She was therefore, at the time of the accident, an elderly lady. But his Honour was satisfied that before the accident she was "very active physically, attending to cooking, gardening - even up till the time of the fall - occasional lawn mowing... walking considerable distances sometimes". She was, he found, "a person with a strong voice and she was quite a spirited person". She was "gregarious and independent" and "able to use public transport whenever she wanted to, to visit one of her other siblings...". She had, he said, "many old age complaints but none of them stopped her to any appreciable extent from doing the types of things she wanted to do whenever she wanted to do them". I see no reason why his Honour's findings should not be accepted. His Honour found that the accident had "changed all of that". She was for some months in hospital and thereafter could walk only with the use of two walking sticks. At the time of trial she used one. "Her longest independent journey these days is not regular but occasionally a trip down to the front letter-box to maintain communication and this not something that she does every day.... More fundamentally, her ability for self care has been seriously comprised". Now she "only bathes when care is available for this to be done and 2 UNREPORTED JUDGMENTS as a consequence has only bathed twice a week". She has had "various dizzy spells" and "various falls". His Honour saw the accident in question as contributing to her condition. It was submitted that her condition was, or was contributed to, by her age or by the conditions which she suffered prior to the accident. Mr McCulloch relied upon the medical evidence suggesting that this was so. The evidence given by the plaintiff was not precise and detailed but it was sufficient to warrant the finding that his Honour made. If her activities before the accident were as his Honour described and her condition thereafter was as she indicated it was, I am satisfied that the conclusion his Honour reached was warranted. Notwithstanding that the doctor in question suggested that some of her difficulties at least were not related to the injury to her hip in the fall, I am satisfied that the fall contributed to her condition in the manner found by the judge. His Honour was satisfied that "had she not broken her hip she would have been able to live independently until at least the age her sister was able to do that, namely, ninety-two years of age". His Honour said: "T am satisfied that even though she did have a variety of aches and pains and general illnesses up until the present time, none of those would have comprised her capacity for independent living to such an extent that she would have required any form of either temporary or permanent care." Having regard to what she had said and done, I accept this conclusion. Mr McCulloch then referred to the services provided to her by, eg, her niece, her voluntary help ("Meals on Wheels') and a nun who visited her from time to time. He referred to the help she has obtained from, eg, young people who have helped her or might have so done. I do not think that these matters qualify her right to claim for present domestic assistance. His Honour said: "T am satisfied that she is entitled to an allowance under a Griffith v Kerkemeyer component which would provide for the daily buying and the daily preparation of a meal for her from the time when she was discharged from hospital up until the time of the trial." His Honour saw the compensation for this as assessed "on the basis of a commercial rate for seven days per week which come to a figure of $81,324 and that will be included in her verdict'. I accept that finding. It was then submitted that there was an error in his Honour's calculation of the amount to be included in the judgment in this regard. It was accepted that the principles to be applied are those referred to in Van Gervan v Fenton (1992) 175 CLR 327. The Council accepted that those principles involve, in the ordinary case, the assessment of compensation at commercial or market rates: ibid at 344. But, it was submitted, where market rates do not provide a reasonable basis for assessment of that compensation, the matter may be assessed in other ways. It is, I think, difficult to formulate precisely what was submitted in this regard as an alternative to calculation upon the basis of assistance seven days a week on a three hourly basis, the basis on which the judge assessed damages. But Mr McCulloch indicated, by way of example, that at the date of the trial the plaintiff was receiving assistance to an extent less than that on which the compensation was based; that this was sufficient; and that it could be obtained on the basis of payment of some $6 per visit or $6 per week. He pointed to the fact, as it was suggested, that the market rates as used by the learned judge contemplated a three hour minimum attendance. Three hours, he submitted, was an excessive period, at least on a seven day per week basis. Accordingly, the suggested was, a different basis should be adopted. URJ COUNCIL OF THE MUNICIPALITY OF HUNTERS HILL v HUGHES (Clarke JA) 3 The (as it is described) Griffith v Kerkemeyer award is of an anomalous character. But it is well established in this country and has been affirmed and explained in Van Gervan v Fenton. The principles enunciated and affirmed by the High Court must in my opinion be faithfully applied. I do not mean by this that compensation is to be assessed upon ordinary market rates with a minimum period of attendance when that is plainly unreasonable. But having regard to the facts of this case, I am not satisfied that it is so here. I do not doubt that the plaintiff could manage to live without a seven day attendance for the period contemplated by the judge. But the assistance provided to her by seven day attendance for three hours would in my opinion be no more than would be reasonable to meet the needs arising from the accident. I would, on the facts of this case, agree with the basis of compensation adopted by the judge. 2. RENOVATIONS: The judge awarded $340 for "renovations by way of the construction of a ramp from the back door out to the outdoor toilet" and $5729 for bathroom modifications. The bathroom modifications were claimed because, it was submitted, she needed the special modifications so that, inter alia, she could bathe appropriately. Mr McCulloch did not press an objection to the former award. But he submitted that renovations which would provide a toilet inside and a shower instead of a bath were not proper to be included. Having regard to the plaintiff's condition, I do not doubt that an inside toilet and a shower in which she can be bathed by those who come to assist her are facilities required to meet the disabilities arising from the accident. The appeal in this regard should not succeed. For these reasons in my opinion the appeal should be dismissed with costs. Priestley JA I agree with Mahoney JA. Clarke JA I agree with Mahoney JA. Appeal dismissed with costs. Counsel for the Appellant: MT McCULLOCH Instructed by: EBSWORTH AND EBSWORTH Counsel for the Respondent: LJ ELLISON Instructed by: ADRIAN AND FELLOWS