BOOCOCK v DUNNE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE, HANDLEY and SHELLER JJA 4 July 1994, 4 July 1994 [1994] NSWCA 31 QUANTIFICATION OF DAMAGES — PAST AND FUTURE Clarke JA In this appeal the plaintiff who was awarded a judgment of $133,628challenges only the allowances made pursuant to Griffiths and Kerkemeyer for the past and the future. The appeal is an unusual one insofar as his Honour did not hear any oral evidence dealing with the case on the basis of a transcript taken before an arbitrator. There were good reasons for this course to be followed but it is unnecessary to refer to them here. The plaintiff, as I shall call her, was born on 4 September 1911 and lived in England. In 1987 she travelled independently to South Africa and in December 1987 she travelled to Perth. She was involved in an accident on 6 March 1988 in New South Wales and was admitted to Ballina Hospital. The medical history appears in various medical reports and in his Honour's judgment and in the circumstances of this case it is necessary only to refer to one opinion which was accepted before his Honour. Before doing that I should say that the plaintiff, prior to the accident, had been an active lady. She had driven her own car, she had been a volunteer driver for Meals on Wheels, she looked after, on occasion, elderly ladies, she was an organiser of choir outings and she was a keen attender of speedway meetings. She saw her daughter, who lived in the same village, fairly regularly but the evidence was that apart from some assistance with the laundry, gardening and house maintenance she was entirely independent. The evidence demonstrated that in the accident she sustained severe physical injuries but in the main over a period of time they settled down. Nonetheless the accident had on any view a dramatic effect on the plaintiff and transformed her from an active independent person to one who was very much dependent on her daughter. The evidence accepted by his Honour from Professor Mulley, to which I wish to refer, was as follows: "Tn summary some of the symptoms and signs could theoretically be ascribed to aging however the history is of a previously vigorous symptom-free lady who is now physically impaired and mentally distressed by the accident (and a long drawn out litigation process) though we could technically argue some of the spinal, neck and shoulder problems can in part be related to aging the likelihood is that much of her problems are as a result of the accident." His Honour also accepted the evidence from the plaintiffs daughter, Mrs Nicholson. She said that since the accident she had done her mother's ironing, she had shopped for her mother, she had vacuumed the house, cleaned the windows in the bathroom, she had done the washing and the cooking, assisted her with bathing and attended to her garden. She provided the means of transport for her mother on her outings. These were all the subject of specific findings by his Honour. 2 UNREPORTED JUDGMENTS Specific times were allocated to a number of tasks which came to about five to six hours per week. His Honour thought five and a half hours. The plaintiffs daughter has cooked for her mother on a regular basis and has driven her wherever she has required to go. His Honour set out in the judgment evidence which he specifically accepted and that included the following question and answer: "Q. On an average day then how long would be spent there? A. Three, perhaps four hours in different parts of the day. In the morning and then in the afternoon, I would go down again in the evening." That evidence was, of course, given by the plaintiffs daughter. There is also evidence that the plaintiff spent every weekend with her daughter and son-in-law which, on my understanding of the evidence, was a markedly different situation from the time before the accident. In the earlier times, as I understand the evidence, they would visit with each other most weekends either at the plaintiffs house or the plaintiffs daughter's house; no doubt occasionally the plaintiff stayed the whole weekend with her daughter. His Honour, having accepted the evidence to which I have referred, came to the conclusion that a fair assessment of the time necessarily spent by the plaintiffs daughter in providing the services and assistance outlined averaged fifteen hours per week and having regard to the statutory background he proposed compensating her for nine hours services per week. The plaintiff complains that this was an inadequate recognition of the evidence and that upon any view a period much greater than just over two hours per day should have been allowed. One of the difficulties in this case is that his Honour did not give any reasons for cutting down significantly the time designated in the evidence which he accepted. As IT have said, this court is in as good a position as his Honour to evaluate the evidence which was given and, speaking for myself, I can see no reason why such a dramatic reduction should have been effected. It is suggested that his Honour must have taken the view that those additional periods which he did not allow would have been rendered necessary with or without the accident. I simply cannot accept that view and I hasten to add it is not a view which finds clear expression in his Honour's judgment. Where one has a spritely seventy-eight year old independent lady prior to the accident and a much diminished person after the accident there is no reason, in my view, for more than a recognition that there were imponderables, one of which was the aging process and its affects upon the plaintiffs, operating in the period between accident and assessment. For my part they would be adequately taken account of by taking the lower of the two figures, that is three hours per day and assessing compensation on that basis which would mean that there were fifteen compensable hours per week. Although the evidence focused on assistance given by the plaintiffs daughter it should be pointed out that there was evidence of assistance from other persons. I think Miss McFee was correct to demonstrate this was a relevantly minor factor in the case and I would not allow of any increase upon the hours provided by the plaintiffs daughter. On the other hand, it presents also as a reason for making the relatively small reduction on account of the imponderables. For those reasons and recognising that we are in the area of the crystal ball, I would be inclined to the view that there should be allowed fifteen hours per week for the period between accident and trial. For the future his Honour allowed the same amount that he had allowed in the past for a period of three years. I see no reason why fifteen hours should not be applied for some period in the future although one must recognise that as she got URJ BOOCOCK v DUNNE (Sheller JA) 3 older she would most probably, although not certainly, have required a deal of assistance from her daughter. Her life expectancy was agreed at 7.75 years from the date of trial and the question is what reduction should be made in respect of the vicissitudes for the future having regard to the fact that the plaintiff was then relatively old. I have come to the conclusion that an appropriate reduction is to allow only for five years rather than the three years his Honour gave and to compensate her upon the basis that she would require fifteen compensable hours of assistance during those five years. We have been informed by counsel that the allowances that I would be disposed to make result in an assessment of the past component of Griffiths and Kerkemeyer damages at $41,293 and for the future $46,045. I would propose that the judgment below be set aside, that the appeal be allowed and that in lieu of the judgment of Justice Studdert, judgment be entered in favour of the plaintiff for $178,811, such judgment to date from 6 May 1993. The respondent must pay the costs of the appeal and is to have a certificate under the Suitors Fund Act if qualified. Handley JA I agree. Sheller JA I agree. The order I would make is that the judgment below is set aside as to costs.