MACKIE v FARRELL (BY HER NEXT FRIEND JOHN FARRELL) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL GLEESON CJ, PRIESTLEY and COLE JJA 14 March 1995, 14 March 1995 [1995] NSWCA 265 PERSONAL INJURIES — ASSESSMENT OF DAMAGES — The plaintiff/respondent was badly injured when a car being driven by the appellant/defendant collided with a train. She became completely quadriplegic. The only issue at the trial was the assessment of the damages to be paid to her. The trial judge assessed damages under a number of headings. The only point raised in the appeal concerned the amount awarded for future nursing care. It was argued on behalf of the appellant/defendant that the trial judge erred in the rate adopted in reaching the figure he did, in holding that a registered nurse rather than an enrolled nurse was reasonably required for nursing services, and in his estimation of the number of hours for which nursing services were required. Held: On the basis of the case before him, it was reasonably open to the trial judge to reach the conclusion that he did in assessing the amount for future nursing care. Gleeson CJ Mr Justice Priestley will deliver the first judgment. Priestley JA The appellant in these proceedings was one of two defendants at the first instance trial. He was the driver of a car which collided with a train at a level crossing. The respondent to the appeal, the plaintiff at the trial, was a passenger in the car. She was very badly injured. She became completely quadriplegic. Her skull was fractured. She suffered post-traumatic amnesia for seven weeks. Although there were different views as to the most likely explanation for it, there was no doubt that her cognitive functioning was impaired, at least to some extent, because of the injuries she suffered in the accident. The accident was in November 1991 when she was seventeen. At the trial the appellant consented to judgment against him. The proceedings were discontinued against the other defendant. The question left for the trial judge was the assessment, in money terms, of the damages to be paid to the plaintiff/respondent. Amongst other things these damages had to cover the cost of future care of a young woman utterly unable to look after herself throughout her life which, on the evidence before the trial judge, was likely to last fifty-four years from the date of his judgment. The trial took fifteen hearing days. The evidence and addresses concluded in July 1993. I will mention the main headings under which the trial judge reached his assessment of damages because they give a small glimpse of the huge amount of time and effort that must be spent by many people in looking after a person in the plaintiff/respondent's position. The main headings were: non-economic loss, in regard to which a maximum figure was in force by reason of the Motor Accidents Act 1988; the costs of general practitioner consultations; the cost of specialist visits; the cost of physiotherapy; the cost of psychological support; the cost of podiatry treatment; the cost of annual hospitalisation; the cost of IVP procedure each three years; occupational therapy; the cost of future medication; motor 2 UNREPORTED JUDGMENTS vehicle expenses; the costs of annual holidays; the cost of future surgery for likely skin breakdown; the cost caused by the special needs of quadriplegics which must be catered for; the cost of an environmental control system; additional building costs; future domestic and nursing care; and then the strictly economic matters of past wage loss and interest, future wage loss, loss of superannuation benefits and the cost of management of the fund resulting from the judgment and also out-of-pocket expenses to the date of trial. A considerable degree of agreement was reached at the trial in regard to many of these items. There were some claims, which I have not mentioned, which the trial judge disallowed. The total sum which he assessed under the headings I have mentioned was $5,092,042. When certain matters concerning interest were taken into account the figure for which judgment was entered was $5,125,567. The appellant filed a notice of appeal against the amount of the judgment containing eleven grounds. However, in written and oral submission the appellant made it clear that only one matter was challenged in the appeal. This concerned one element under the heading "Future domestic and nursing care". This heading had accounted for $3,140,153 of the judge's figure of $5,092,042. The various components that went into this figure are briefly noted in a small table which the judge entitled "Summary of Domestic Care". This had four items in it. The first, for a live-in house couple including handyman and chauffeuring duties for which a weekly figure was arrived at by the judge of $1,374; second, weekend relief care by live-in carers, $770 a week; third, cost of keep for live-in carers $200 a week; and fourth, nursing care by registered nurses, $823 a week. This made a weekly total of $3,168 which the judge discounted on the five per cent tables to reach his figure of $3,140,153. No question is raised in the appeal about the first three items. The point raised in the appeal, and the only point raised in the appeal, concerned the fourth item, nursing care by registered nurses. The appellant's submission is that the figure of $823 a week is demonstrably wrong and that the reasonable and proper figure should be, in round figures, $300 a week. In the calculation mentioned in the written submissions it was said if the appellant were successful in persuading the court to adopt the figure which it says is the correct one, there would be a reduction in the sum of damages arrived at by his Honour of approximately $518,000 which would require a consequential reduction in total interest. There were said to be three sources of error in the allegedly wrong figure of $823 reached by the judge. These related to the rate his Honour adopted in reaching the figure he did, in his Honour holding that a registered nurse rather than an enrolled nurse was reasonably required for nursing services and that the number of hours for which the nursing services were required was over-estimated. The appellant, on each of the three aspects said to have led to error in regard to the conclusion concerning nursing care, carefully and thoroughly and in considerable detail analysed portions of the evidence which were said to support the conclusion that there were discrepancies in the evidence of witnesses called for the plaintiff and illogicalities in his Honour's conclusions upon the whole of the evidence. As to the rate aspect his Honour accepted a rate of $30 an hour as the one he would adopt. The appellant said that the plaintiff/respondent's own evidence showed that $22 was the reasonable figure. A lady named Blackman who gave URJ MACKIE v FARRELL (BY HER NEXT FRIEND JOHN FARRELL) (Priestley JA) 3 evidence in the plaintiff's case referred to such a figure and it is submitted that there was no reason for his Honour not to accept it. The Court was taken to the evidence in some detail on this point. His Honour had commented on Mrs Blackman's evidence in his reasons saying that she originally considered an hourly rate of $22 as appropriate. It was submitted that by his use of the word "originally" his Honour meant to convey that Mrs Blackman had later given evidence of the higher figure. The submission continued that there was nothing in the evidence that she gave at the trial to justify the view that she did support a higher figure than that which she was said to have considered originally. Part of this argument may be accepted, but not the critical part. From the evidence that we were taken to it would appear that Mrs Blackman did not give any evidence at the trial directed to an opinion of hers that a higher figure than the $22 she originally mentioned was now an appropriate one. She simply, so far as I have followed the evidence, was not asked anything further about what she had said in her written materials, but to derive from the judge's use of the word "originally" the inference that he was under the misunderstanding that she subsequently changed her mind and supported a higher figure is to take a step not to mind supported by his Honour's language or a consideration of the whole of the circumstances and the whole of the language of the judgment. It is correct that in the beginning, if one looks at her giving of her written reports as the beginning of her evidence, she originally considered an hourly rate of $22 as appropriate. His Honour's statement to that effect does not, in my opinion, imply any view on his part as to the effect of her later evidence, or that he made any mistake in his understanding of her evidence. Looking at this first aspect of the matter concerning the rate I do not think it is necessary to retrace further the appellant's detailed argument. One thing that emerged in the course of the hearing in regard to rate was that there was before his Honour evidence pointing towards a lower rate than the $30 adopted by his Honour, there was evidence pointing to a considerably higher rate, and there was evidence that the rate he adopted was the actual rate being paid to a registered nurse at the time of the trial. Counsel fairly acknowledged to the court that no contention or issue was raised at the trial to the effect that there was a degree of stage management in the use of a registered nurse at the $30 per hour rate at the time of the trial. Once that acknowledgment is taken into account, I cannot see how the trial judge can be said to have been wrong in adopting what he was entitled to accept as an arm's length going rate actually in use at the very time of the trial. I do not think there is anything in the argument about this first factor in the judge's arrival at the $823 figure which should cause this Court to adopt a different view from that of the trial judge. The second factor said to have led to error was his Honour's finding that it was reasonable to charge the appellant/defendant with the cost of a registered nurse as distinct from an enrolled nurse. The distinction between the two types of nurse is less apparent under the vocabulary used today than it was in previous times when the less impressive name of nurse's aide was applied to those who are now called enrolled nurses. The enrolled nurse is one who has trained as a nurse for a shorter period and to a lower level of skill than the registered nurse. There was again, as I have mentioned, detailed analysis of this evidence also and there was emphasis placed on differences between the evidence given by Dr Yeo and Dr Buckley who were both expert in the area. 4 UNREPORTED JUDGMENTS Without disrespect to the earnest submissions of the appellant on this matter it seems to me sufficient to say that the difference between those two doctors did not go to basic or substantial matters and that it need only be said, in answer to the submission, that in my opinion it was reasonable for the judge, considering the whole of the evidence of Dr Yeo and Dr Buckley on this point, to take the gist of the evidence from both of them as being that only a registered nurse could reasonably guarantee adequate care for the future period in the circumstances in which it was being assumed, for the purpose of the trial, the plaintiff was likely to find herself. That is the way I read that evidence and I do not think the trial judge was wrong in such an approach. One submission in this connection was that the plaintiff and her mother were content with a lesser number of hours and a lesser standard of nursing attention than Dr Yeo and Dr Buckley thought was reasonable. Even if that be a right evaluation of their evidence, there is no reason for preferring their opinion to those of the experts. The discrepancies between those experts were, in my view, matters rather of detail and emphasis than anything going to some fundamental problem requiring the judge to reject both of them. Their evidence left the judge in a position where he could fairly assess their opinions and arrive at the conclusions that he did. The third matter, the number of hours allowed by his Honour or used by his Honour in his calculation, which was twenty-eight hours per week, was said to be simply not reasonable on the evidence. It was said that Dr Buckley changed his view from twenty to twenty-eight hours per week as a result of the report of the occupational therapist and this was a matter for criticism in that it was for the expert medical practitioner to be telling the occupational therapist what the answer was rather than the other way around. However, when Dr Buckley's evidence is read it does not seem to me that he simply deferred to the therapist's view. It was one of the matters which he took into account in arriving at his final opinion. This point was raised with the witness named Lucas Smith, who was called in the defendant's case. He was asked whether it was the function of an occupational therapist to prescribe such matters. The matters referred to were not confined to questions of hours, but nevertheless raised this same point of whose opinion should be the primary one. His answer was: "The occupational therapist may identify those needs but defer then to the appropriate professional to prescribe what quantity and indeed what treatment regime may be required." - and that seems to me an appropriate description. It also seems to me to be what Dr Buckley and the therapist were doing, in what led up to Dr Buckley's final view. Dr Buckley took into account what the therapist said and as an expert arrived at his opinion, what the therapist said being only one of the many factors in the formation of his opinion. A similar point was made by saying that Dr Yeo's view was dictated in part by the plaintiffs wishes. There is evidence showing that Dr Yeo used his discussions with the plaintiff, as well as his experience, in forming his view. There does not seem to me to be anything untoward in this. The result is on this point also it seems to me that, first, there was material before his Honour upon which he could reasonably come to his conclusion about the number of hours required and, second, if it were for me to form my own opinion on the matter based on the materials available to his Honour, I see no reason for arriving at any different conclusion. URJ MACKIE v FARRELL (BY HER NEXT FRIEND JOHN FARRELL) (Gleeson CJ) 5 In the result I think the matters argued in the appeal do not provide a basis for the Court interfering with the one item in his Honour's assessment which has been the subject of the appeal today and I would dismiss the appeal with costs. Gleeson CJ. I agree. Cole JA I also agree. Gleeson CJ. The order of the Court is that the appeal is dismissed with costs. [An application was made by the plaintiff/respondent for indemnity costs.] Gleeson CJ: We do not intend to make any special orders in relation to costs of the matter. The reason for that specifically in relation to the application for indemnity for costs is that it is evident the offer of settlement was made after the briefs were delivered and therefore after the brief fee was incurred. Appeal dismissed with costs. Counsel for the Appellant: AS MORRISON SC/BC MCMANAMEY Instructed by: STEWART CUDDY AND MOCKLER Counsel for the Respondent: P WEBB QC/D CONTI Instructed by: MCCLELLANDS