CURRY v HARRIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and HANDLEY JJA 3 May 1995, 8 September 1995 [1995] NSWCA 111 DAMAGES — profound and permanent intellectual and cognitive impairments to child — proceedings brought when young man — evidence of nomadic existence provision for past and future need — likely increased need for care and assistance in later life — held: Appeal allowed — damages for need increased from $100 pw to $200 pw — judgment otherwise affirmed but varied for this increase. DAMAGES — past and future care — need for — likely utilisation of — plaintiff suffers injuries at age 2 years 3 months — consequential substantial and permanent intellectual and cognitive impairment — tendency to impulsive unsocial conduct — difficulty in employment and personal relationships — proceedings brought when plaintiff as young man — evidence of further dislocation by later discovery of family relationships — evidence of nomadic life and only one short term personal relationship — estimation of extent of psychological injury and compensation for real need — trial judge (Garling DCJ) awards damages of $950,790 — challenge in appeal only to components for past and future care — held: (1) The existence of a need, proved by the evidence, gives rise to an entitlement to damages. Kovac v Kovac [1982] 1 NSWLR 656 (CA); Donnelly v Joyce [1974] QB 454 (CA) referred to; (2) The calculation of past need should not be disturbed; (3) Although the future need was difficult to calculate, the allowance made by the trial judge was appealably inadequate having regard to the evidence of the plaintiff's proved need for permanent assistance in the preparation of meals; ie provision of food and shopping; some basic housekeeping; and the maintenance of his clothing etc; (4) Allowance for future assistance increased from $100 per week to $200 per week and capitalised. Medlin v State Government Insurance Commission (1995) 69 ALJR 118 (HC) referred to. ORDERS 1. Appeal upheld; 2. Judgment below set aside except as to costs. 3. In lieu of the judgment below, judgment in the sum of $1,093,790 to be entered to take effect from 21 December 1994; 4. The respondent to pay the appellant's costs of the appeal; and 5. Operation of these orders suspended until the record has been amended to insure all proper parties are named in it. Kirby P I agree with Priestley JA. Priestley JA This is an appeal against a judgment of his Honour Judge Garling in the District Court. The appellant was the plaintiff in an action against the respondent claiming damages for personal injuries arising out of a motor vehicle accident which happened on 21 October 1976, when he was aged two years and three months. The District Court had jurisdiction to hear and dispose of the action pursuant to a memorandum of consent filed in accordance with s51 of the District Court Act 1973. 2 UNREPORTED JUDGMENTS Breach of duty of care was not contested at the trial, so that the dispute was essentially one of causation and quantum. The appellant was awarded damages in the sum of $951,790. He appealed on the basis that the trial judge's assessment of the head of damages for past and future care was so inadequate as to require correction by this court. No question was raised about other heads of damage. BACKGROUND The following factual outline is directed only to the issues raised in the appeal. It was not really in dispute at the trial that the appellant's condition is characterised by substantial and permanent intellectual and cognitive impairment problems. The trial judge found that these resulted in the appellant having deficient "linguistic function, impairment of memory, lack of insight, poor planning, irritability, inability to concentrate, intolerance to change and to disagreement". There was evidence before the trial judge that these features combined to make the appellant impulsive, lacking in social judgment, and prone to overreact to the most minor and mundane of problems encountered on a daily basis. Such personality and behavioural disorders render the appellant incapable of functioning meaningfully in personal relationships and have the result that most employers would regard him as unacceptable for employment. At the trial the appellant contended that his condition was attributable to brain injury sustained in the motor vehicle accident. There was conflicting medical and psychological evidence on the question of the extent to which the appellant's present condition was caused by the accident. The respondent argued that the appellant's condition was attributable to environmental influences associated with his upbringing and family life. Rejected at birth by both his parents, he was brought up by his grandmother, who had suffered a miscarriage at about the time of his birth, under the impression mat she was his mother and that his natural mother was his sister. In 1984 the appellant learnt of his true mother's identity. This affected him adversely. There was also evidence mat mere was a lack of effective discipline and consistency in the appellant's home life during his upbringing. The trial judge concluded that the accident was the major cause of the appellant's present condition, but that some "non-accident related problems" contributed to his present state. Because of this, he reduced the amount for general damages by 25 per cent. Similarly, although the trial judge held the consequences of the accident would have made the appellant unemployable in any event, in assessing both his pre and post trial economic loss, he used an estimated wage figure reduced by taking into consideration his view that even uninjured the appellant "would have had other problems from other areas". In assessing past and future care of the appellant, the trial judge did not make a percentage allocation for the various causative influences of the appellant's condition as he had done in respect of general damages. In respect of past gratuitous services provided by the appellant's grandmother Mrs Curry, the trial judge took into account that: (i) after 1990 the appellant left home and did not require much help from his grandparents - nothing was therefore allowed for after this time and until the trial; (ii) between 1979 - 1990 the appellant was at school and could not therefore have been receiving full time care from his grandmother as he was either looking after himself or someone else was looking after him while at school; and (iii) the impact of environmental influences upon the appellant's condition. In the result he allowed $61,750 for past gratuitous services. URJ CURRY v HARRIS (Priestley JA) 3 In assessing future care the trial judge considered the evidence of Mrs Curry and Mr Rawling, a clinical neuro-psychologist who gave expert testimony at the trial. He took into account the facts that: (i) from the age of sixteen years the appellant had led a nomadic life, basically looking after himself, and requiring help and assistance only "from time to time"; and (ii) noting that Mr Rawling had not seen the appellant since 1991, upon which he based the observation that Mr Rawling had not "really considered the current position". On the basis of a life expectancy of 55 years he allowed $100 per week on the 3 percent tables making a total of $142,000 in round figures. (In his reasons the trial judge said he was using a five per cent discount figure, but the calculation shows he was using three per cent. Before us the parties agreed on this.) In assessing $100 per week he took into account me vicissitudes of life and, presumably, that not all of the appellant's present condition was attributable to the accident. THE PARTIES ON THE RECORD The trial took place before Garling DCJ on a number of days in September, November and December. He delivered judgment on 21 December 1994. It had become plain during the hearing that the plaintiff was not able to manage money or property competently. On 16 December 1994 Hodgson J appointed the Protective Commissioner receiver and manager of the plaintiffs estate until further order. One of the orders made by the trial judge was that the balance of the judgment sum, after payment of some specified amounts, should be paid directly to the Protective Commissioner. No amendment to the parties on the record had been made when the appeal came on for hearing. The court raised the matter with counsel who said that an application was on foot in the Protective Division to have the Protective Commissioner replaced by another manager. Counsel added that he had asked for the file in that matter to be sent to the court. The file was not in court, and nothing further was done about the record until after the hearing of the appeal was complete and the decision reserved. The file has since been obtained by the court, and I assume the parties have no objection to the court's now using it for the purpose only of seeing what orders were made in the Protective Division. These were made on 2 June 1995. The principal one for present purposes was that the Perpetual Trustee Co Ltd be appointed the manager of the estate of the plaintiff to act in relation to his estate under the order and direction of the court. Appropriate steps should be taken to put the record in order. The orders of this court pursuant to its decision in the appeal should not become final, or passed or entered until this has been done. ISSUES FOR DETERMINATION IN THE APPEAL The appellant argued that the trial judge erred in his assessment of the factual material before him in concluding that the appellant will be essentially capable of looking after himself subject to receiving some help and assistance from time to time. It was submitted that by reason of the permanent deficits the appellant has suffered as a result of the accident, he has lived in a substandard level of existence with evidence of personal neglect, shown by inferior nourishment, hygiene and health, personal appearance and general management of his life; an allowance of $100 per week for future care will not compensate for this but, on the contrary, will mean that the appellant's standard and quality of life will continue to deteriorate in the future below accepted standards consistent with human dignity and the human condition. It was submitted that as a result of the 4 UNREPORTED JUDGMENTS personality and behavioural deficits resulting from the brain injury sustained in the accident, the appellant now has a need for personal supervision, care, support and assistance of a fairly substantial and intensive character. It was then submitted that compensation, in the particular circumstances of the appellant can only, as a practical matter, be assessed in one of two ways. The first would be on the basis of a full time live-in companion/attendant to supervise and provide for the needs of the appellant. The second would require valuing the specific tasks necessary to be performed by a carer in ensuring that the appellant is provided with specific services or assistance in ordinary living tasks. On the latter approach it was submitted that 27 hours of care per week would be necessary to provide the appellant with assistance and services as follows: (a) preparation of three meals per day; (b) housekeeping; (c) food and general shopping requirements; (d) purchase, laundering and maintenance of clothing. The respondent argues against the appellant's submissions by saying that the level of care sought is not justified on the evidence. Further it is argued that as a result of the appellant's nomadic life the care sought cannot and will not be rendered to the appellant. In determining this appeal therefore the following questions need to be considered: (i) Does the evidence disclose a need for a level of care greater than that which can be provided on an allowance of $100 per week? This question requires assessment of the factual material before his Honour. If this question is answered no, the appeal will fail. (ii) If the answer to (i) is yes then the following questions arise: (a) whether on the evidence it would be right to conclude that any monetary provision for future care will not be used for that purpose and (b) if so, what part should such a conclusion play in the assessment of damages? THE NEED FOR FUTURE CARE AS DISCLOSED BY THE EVIDENCE Most of the evidence at the trial was directed to questions other than those relevant to the issues argued in the appeal. There was voluminous documentation of medical and psychological reports dealing with causation. The material discussing the appellant's inability to look after himself and specifying the type and level of care he now needs tended to be more general. There are some features of the relevant evidence which make it even more difficult than usual to assess the type and level of care the appellant now needs as a result of the injuries sustained in the accident. For example, when the trial began the appellant had formed a relationship with a an older woman. It seemed that during this relationship his standard of living and quality of life improved. The evidence indicated he received help from this woman in budgeting his finances and in generally looking after himself. Most of the medical and psychological evidence, in particular that of Mr Rawling and Dr Dan, neurosurgeon, was based on the opinion that the appellant was unlikely to form a lasting relationship because of his personality disorder. That was borne out in the case of this particular relationship, which had come to an end by the time the trial was over. Nevertheless the fact that it lasted for some time, and was for the appellant's benefit, indicates some possibilities for the appellant, perhaps not very hopeful, but making the future very difficult to predict. Another difficulty of assessment is that in this case the primary focus is not on nursing services needed by the appellant because of physical disabilities because the evidence shows there is little he is physically incapable of doing, because of his accident injuries, if the matter is looked at purely from the point of view of the motor functions involved in self-care and maintenance but on services URJ CURRY v HARRIS (Priestley JA) 5 required as a result of the accident injuries, which have made him emotionally and psychologically incapable of looking after himself. (Examples from the evidence are set out below.) Notwithstanding the difficulties in making assessments of the future based on the factual material, the legal position is that the appellant is to be compensated for needs arising from accident-caused injuries regardless of whether the source of such need is physical or behavioural. The principle governing such matters was said by Megaw LJ in Donnelly v Joyce [1974] QB 454 at 461-462 to be that the injured person is to be compensated for loss arising from the tortfeasor' negligence and loss includes the "existence of need" which has arisen as a result of the accident caused injuries. In Kovac v Kovac [1982] 1 NSWLR 656 Mahoney JA at 675 defined "need" and likewise said: "When injuries have created in a plaintiff a particular need, the plaintiff is entitled to be appropriately compensated because he has that need. The term 'need' is ambiguous, but in this context I see it as indicating a condition as a result of which the plaintiff will suffer pain, discomfort or other difficulties which may be relieved, in whole or in part by the services of another." While these statements were directed to need arising from physical disablement, they would appear to cover cases involving need arising from non-physical factors caused by the wrong sued for. The following features of the evidence, categorised according to the specific tasks for which the appellant submits that he requires services and assistance, illustrate his situation. (a) GENERAL. Mr Rawling's report of 25 January 1991, written pursuant to a psychological assessment of the appellant, concluded that the appellant will require constant care and supervision and that he could not be expected to manage any moneys awarded to him by way of compensation. Mr Rawling reiterated this view in a later report of 31 August 1994 in the following terms: "Given the grossly disturbed, anti-social, immature, impulsive and profligate nature of his behaviour in recent years, it was difficult to imagine how Matthew could be reasonably expected to responsibly manage any money paid to him in compensation or survive without some form to supervision." The trial judge observed that Mr Rawling had not, for the purposes of the later report, seen the appellant since 1991. He also said that in his view there was no evidence other than Mr Rawling's concerning the appellant's constant need for care and supervision. There are three points about this that weaken the judge's approach. Although it is true that Mr Rawling had not, when he prepared his report of 31 August 1994, seen the appellant since 1991, he had considerable information available since that date; also, he gave oral evidence in which he was cross-examined and maintained his opinions, on the basis of all information then available. Second. Dr Dan was asked about the matter in examination-in-chief: "Q. Doctor, given the severity of the injury that you have concluded existed here, would that alone in a healthy individual be sufficient to compromise the individual as far as independent living was concerned. A. Yes I think it would. It could." Cross-examination on this point seems to have been limited to the question of whether evidence of the appellant having formed a relationship could be taking as presaging a more stable and settled lifestyle on the part of the appellant. Dr Dan replied: 6 UNREPORTED JUDGMENTS "Tt would also be quite common for people with his behaviour patterns that appear to be well documented to maintain a relationship for a limited period of time but not to be able to persist, usually because the other person sooner or later runs out of patience." That is what had happened by the end of the trial. Third, Dr Bell, a psychiatrist, saw the appellant prior to compiling his report dated 10 November 1993. He first saw the appellant when he was about seven years of age, in 1981, and since that time has written seven reports concerning the appellant. In the last report, addressed to the appellant's solicitors, he wrote: "Your client appears incapable of managing his domestic affairs. He would need care and supervision." It is not surprising that these doctors should come to this view. As I said earlier, much of the evidence at the trial was concerned with the question whether the appellant had been rendered unemployable. It seems to me that most, although not all, of the aspects of the appellant's personality disorder which were taken as indicating unemployability, also suggest he would not be able to manage his personal and domestic affairs in a way that would ensure him of an adequate standard of living. Problems such as impaired memory, limited insight, poor planning and concentration skills, and impulsive behaviour, particularly when manifesting themselves to the degree that they do in the appellant, would seem to compromise an individual's capacity for independent living in much the same way as an individual's capacity to cope with employment. (b) Preparation of meals. Counsel for the appellant submitted that on the evidence the appellant is not receiving adequate nourishment because of his own neglect in his purchase, preparation and consumption of meals. In her evidence Mrs Curry said in reply to questioning as to whether the appellant had dressed, eaten, and lived reasonably since leaving home: "No sir, he's not. My daughter from the central coast, his mother, he was living just down from her and she said Mum he wouldn't do anything if I went near him but she said come up, she said he's so thin and he's hungry and she said and he's dirty and we're not dirty people and he was exactly that, hungry and dirty, trying to go to school he was. Took him out and bought him clothes and bought him food." Part of the problem in this respect stems from the appellant's impaired memory and planning skills. Ms Oakley, an occupational therapist, wrote in a report dated 18 August 1994: "Matthew appears to be unsafe in preparing cooked meals. Forgets to turn off stoves, has set fire to a caravan as he inappropriately left hot oil cooking to go to perform some other task. He states he is unable to follow a recipe and is unable to remember simple verbal instructions regarding food preparation. He states he is able to prepare simple snacks and salads. He states his poor memory interferes with his ability to adequately and safely prepare cooked meals." (c) Food and general shopping requirements. There is also evidence that the problem with under-nourishment arises from the appellant's handling of money in an impulsive and reckless manner. In his report of 25 January 1991, Mr Rawling records: "He has no capacity for handling his money responsibly. His grandparents often visited him in Nowra to find the fridge bare, all his money having been spent on computer games." URJ CURRY v HARRIS (Priestley JA) 7 Dr Kaplan, a psychiatrist, made a similar observation in his report of 30 September 1991 stating: "His spending money is impulsive and self-directed with no regard for the consequences. His grandparents describe how he will often spend his entire welfare cheque by the time he gets home, usually on matters relating to his preoccupations. (d) Housekeeping. There is contradictory evidence on the need for supervision and assistance with housekeeping activities. Certainly this seems to have been a problem while the appellant was living at home. His grandmother said in evidence: "... Matthew he'd shower but you had to beg him to clean his teeth, he didn't care if he looked scruffy, he didn't worry about his room, he could never keep the room clean but he'd, he destroyed a room, completely destroyed his bedroom and didn't care, it didn't worry him if he slept, slept in his clothes or what, he just didn't seem to take a pride in himself." However, the evidence seems to indicate that since leaving home the appellant is able to do basic housekeeping, with the exception of washing clothes. Returning to the evidence of his grandmother: "Yes, he rented a flat, a very nice flat at Narooma and my husband and I went down there and it was surfacely clean, I mean you could see that he'd been trying to do his best but there was a lot of washing and my husband and I said right, we'll take it to the laundromat, he didn't have a washing machine. He can't - he doesn't manage very well for himself." (e) Purchase laundering and maintenance of clothing. Various of the extracts above indicate that the appellant requires assistance and supervision with the purchase, laundering and maintenance of clothing. THE RESPONDENT'S SUBMISSIONS ON FUTURE CARE The respondent argues that (a) the evidence in the medical reports on the subject of the appellant's need for care is general; (b) the factual material in these reports is hearsay; and (c) most of the evidence relates to the appellant's management of money, not his need for care. There is some force in the respondent's argument that the conclusions reached in the medical and psychological reports, particularly those of Mr Rawling and Dr Dan, were of a general nature in respect of the appellant's continuing need for care and supervision in the management of his living circumstances. This was probably a by-product of the primary concern of these reports having been the issues of causation and unemployability. However, I do not think, when the medical reports are read in their entirety and their general conclusions supplemented by the more specific material contained in them, and considered along with all the other evidence at the trial, the generality of the conclusions expressed in the medical reports can be said to be a decisive obstacle for the appellant. The respondent further argues that the factual material in the reports is hearsay. But this argument could only help the respondent if there had not been proved in the appellant's case factual material substantially to the effect of what was recorded in the reports. This seems to me to have been done. The respondent also argues that most of the evidence on which the appellant relies relates to the management of finances and not the need for care and supervision. The two matters are however interlocked. The appellant cannot have an adequate standard of living, particularly with respect to such matters as health, nourishment and hygiene, unless his spending is directed to appropriate goods 8 UNREPORTED JUDGMENTS and services. This is only one factor in determining quality of life, but an important one. The examples given earlier on the appellant's inappropriate spending decisions clearly demonstrate this. OPINION Ihave reached a different conclusion on this matter from that of the trial judge. In saying this, I think I should emphasise that the case before him was a very difficult one in many respects and that subject to this one matter, which is the only one to which the appeal, as argued, was directed, his views seem to me to have been carefully considered and soundly formed. On one aspect of the one matter on which his views were questioned however it seems to me that this court should take a different view. This is the matter of future but not past care. I do not think that the trial judge's disallowance of any amount for services from 1990 until trial is reasonably open to challenge. He had the actual facts of the matter before him and in my view was entitled to reach the decision he did. However, in regard to the future, in my respectful opinion he did not take into consideration all the available material. To say, in regard to the plaintiffs ability to look after himself in the future that there was no evidence other man that of Mr Rawling and that he really had not considered the current position, is not in my opinion a correct summary of the evidence. I have already indicated my reasons for this opinion. Another important thing is that there was detailed evidence given of what were called the "living options" available to the appellant in his condition. This evidence is important in trying to assess the future of the appellant, something which is particularly difficult to predict. Having read all the materials as best I can and recognising the precariousness of any forecasts of what is likely to be the course of the appellant's life, but recognising also that I must make some attempt to do so, it seems to me that the appellant is more likely than not to continue living the kind of life he has lived so far, will form relationships of a temporary kind from time to time during which he will be cared for better than at other times, but that as he grows older there will be very real chances of two trends developing: 1. he will become more amenable to accepting service help when he is living alone, and 2. that he will spend time in institutions of one kind or another and that, from among these, the most likely kind he will spend time in is the kind of group home described at various places in the evidence, one such source being in Mr Wright's report to the GIO dated 24 March 1994 (Exhibit Y). There is also the possibility mentioned by Dr Bell that the appellant may become psychotic in the future. The trial judge recognised the need for services, but discounted the full cost of the services which the appellant in my opinion really needs, because of the trial judge's opinion that the appellant would not in fact use such services. I think this was a sound approach, in the sense that the appellant in my opinion had to show not only the need caused by the brain damage but have sufficient material before the court to show that the chances were that that need would be serviced if he were fully compensated for its theoretical cost. I think the same approach is required in such a case as in regard to future economic loss, as most recently explained in Medlin v State Government Insurance Commission (1995) 69 ALJIR 118. Where I disagree with the trial judge is that in my view he discounted too heavily what I have called the theoretical compensation cost because he did not take into account significant evidence available on the admittedly very difficult question of what the appellant would do in the future if full compensation were available. URJ CURRY v HARRIS (Priestley JA) 9 In a way not dissimilar to the trial judge, I doubt whether the appellant would use such compensation (even under the management of a competent manager) in either of the ways suggested in argument for the appellant. However, I do think on the totality of the evidence that it is more than likely that in the future the appellant will find himself in group living institutions of one kind or another, amongst which the most likely is the kind I have already mentioned. Mr Wright's report gave examples of hostels or group homes where the kind of assistance the appellant needs is available on a routine, supervised basis. Mr Wright gave some details of the cost of staying at these places. One instance is illustrative. In the particular case, which fits in quite closely with my view of the kind of hostel or group home the appellant is likely to find himself in in future years, which is subsidised by a charitable foundation, weekly board was at the time of Mr Wright's report, $135, covering food, rent, electricity, supervision, etc. In the case of residents with private income (and the example was given of income from insurance settlements) the weekly charge was $220. Another institution was charging home rent at the rate of one third of the invalid pension regardless of the income of the residents; in addition to the rent, food and other household costs had to be paid. Other institutions and agencies provide external support to someone living alone. These are much more expensive. also consider that as the appellant grows older the wandering aspect of his life is likely to lessen, he will be more likely to stay in one place for longer periods, his need for assistance will be easier to fulfil on a practical basis and he will be more likely to use available external agencies. Should such a development be associated with the continuation of his clear present inclinations to live outside any group or institutional situation, then the need that he undoubtedly has for services will in fact be satisfied and at a rate much more expensive than the $220 weekly board I mentioned earlier. On the basis of the uncontested findings of the trial judge such payments would be the direct result of the appellant's accident and substantially although not entirely chargeable against the respondent. When these various considerations are taken into account, I am of the clear view that the trial judge because of his not taking into account all of the relevant evidence, significantly under-assessed the amount that should have been awarded under the heading of "future supervision". The fact that I am clear to that extent, does not make any easier the assessment of a figure I can comfortably feel is fair to both appellant and respondent. I think the best practical method of trying to estimate this figure is that used by the judge, mainly by reference to a weekly amount. In fixing a weekly amount I have in mind me various factors already mentioned, taken together with the view that there will be substantial periods when in fact the appellant will not be using the compensation money for payment of supervision expenses, that the figure should try to take into account the various imponderables of his life not referable to the accident and that not all of his damage is attributable to the accident. Having done that, the figure that seems to me to be appropriate is that of $200 per week. Capitalising this in the appropriate way from the date of the first instance judgment, I obtain a (round) figure of $284,000. I think this should be substituted for the figure of $142,000 arrived at by the trial judge. The case was argued before us on the basis that if the court reached such a conclusion it would be sufficient to make the consequential adjustment to the trial judge's figures, without disturbing the other elements in his assessment. The result is therefore that I think the following orders should be made: UNREPORTED JUDGMENTS 1. Appeal upheld. 2. Judgment below set aside except as to costs. 3. In lieu of the judgment below, judgment in the sum of $1,093,790 to be entered to take effect from 21 December 1994. 4. The respondent to pay the appellant's costs of the appeal. 5. Operation of these orders suspended until the record has been amended to ensure all proper parties are named in it. Handley JA I agree with Priestley JA. 4. 5. Operation of these orders suspended until the record has been amended 1. Appeal upheld; 2. 3. In lieu of the judgment below, judgement in the sum of $1,093,790 to be Judgment below set aside except as to costs. entered to take effect from 21 December 1994; The respondent to pay the appellant's costs of the appeal; and to insure all proper parties are named in it. COUNSEL: Appellant: PM Hall QC/SJ Longhurst Respondent: BH Donovan QC/GJ Drake SOLICITORS: Appellant: Maguire and McInerney Respondent: Wales Insurance Ministerial Corporation