FAGAN v CAFE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL GLEESON CJ and PRIESTLY JA 10 August 1995 [1995] NSWCA 144 DAMAGES — ASSESSMENT OF DAMAGES FOR PERSONAL INJURIES — where plaintiff already requiring care before accident — whether extra care required — no error in finding. The plaintiff, prior to a motor vehicle accident, suffered from cerebral palsy and already required the full-time care of his mother. The issue in the appeal concerned the trial judge's findings as to the extra need for domestic services resulting from the accident - HELD - No error was shown. (No question of principle involved.) Gleeson CJ. This is an appeal from a decision of his Honour Judge Solomon given in the District Court in February of this year. The matter came before his Honour for assessment of damages in relation to personal injuries suffered by the respondent as a result of a motor vehicle accident. The respondent was run down in Castlereagh St, Coonamble by a motor vehicle. I do not propose, for purposes of giving my reasons, either to repeat or to summarise the findings of the facts in the reasoning of Solomon DCJ. I will assume his Honour's reasons for judgment are available to be read with my reasons. His Honour awarded damages in the amount of $139,154.37. The appeal is limited to a challenge to two components of that amount. The first is a sum of $16,028.08, and the second is a sum of $65,540.44. Those amounts were awarded respectively in relation to past domestic services. The future domestic services and the awards were governed by the provisions of s 72 of the Motor Accidents Act. The case presented the trial judge with a difficult factual judgment by reason of the following circumstances. The respondent was born in June 1938. The motor vehicle accident occurred in July 1991. The respondent had been seriously disabled since birth. He suffered from cerebral palsy. He was cared for by his elderly mother. There was a good deal of evidence referred to in Solomon DCJ's reasons for judgment concerning the extent of independence enjoyed by the respondent prior to the 1991 injury and the effect of that injury upon his independence and upon his needs for care. The submission that was advanced on behalf of the appellant at trial, and which was repeated in this court, may be summarised as follows. The respondent needed full-time care before the 1991 accident. The 1991 accident resulted in no material increase in his need for domestic services. Alternatively, the evidence did not warrant a conclusion that any increase which resulted from the accident was such as to take the respondent over the threshold imposed by s 72 of the Motor Accidents Act. The findings of fact made by Solomon DCJ in relation to that submission appear on pp 3-7 of his Honour's reasons for judgment. The appellant addressed no argument to his Honour to the effect that there were alternative figures which 2 UNREPORTED JUDGMENTS should be preferred to those put forward on behalf of the respondent in the event that the argument that I have just summarised was rejected. Similarly, no alternative figures were put to this court. The argument which has been advanced is that, having regard to the whole of the evidence, his Honour should not have awarded any amount in respect of the provision of either past or future domestic services. The pre-existing condition of the respondent at the time of the accident, and the fact that he was being cared for by his elderly mother, and had never worked, or had any form of employment in his life, plainly presented the trial judge with a difficult issue for judgment. On the one hand, in favour of the respondent, it was evident that the respondent was a person in a position of unusual vulnerability and, in that connection, his Honour remarked that a tortfeasor has to take his victim as he finds him. On the other hand the care which was already required by the respondent made it extremely difficult to quantify the additional need for domestic services that might have resulted from the injuries the subject of this action. Ultimately his Honour's conclusion was based upon an acceptance of the following evidence of the respondent's mother: Q — How much extra time is now involved in doing those extra things, as best as you can estimate? A — It's very hard for me to give an estimate of that, to truthfully say, possibly a couple of hours perhaps. Q— So the effect of what you're saying is that you now do about two hours a day more than you used to do and you do that because of his accident? A — Yes that's right. There may be room for debate as to whether the second of those questions could be characterised as leading, pulling or dragging, but the question was not the subject of objection, nor was the evidence the subject of any cross-examination. His Honour had to assess that evidence in the light of his estimation of the reliability of the witness. He said in his reasons for judgment: I find the plaintiff's mother to be a witness of truth and to have attempted to assist me in my assessment of the amount of domestic assistance provided by her. I am satisfied that the plaintiff as I indicated before was independent to a large degree in the house and I am satisfied that as a result of the injuries sustained by him, that he is no longer as independent as he was before. I am satisfied that the supervision and additional work of the plaintiffs mother amounts to two hours per day. I am of the view that is a conservative figure in the light of the evidence of the mother and my observation of the plaintiff. Notwithstanding the careful arguments that have been addressed to this Court by senior counsel for the appellant, I am not persuaded that any successful challenge has been made to that finding or that there has been demonstrated any error of factual or discretionary judgment requiring appellate intervention. I would propose that the appeal should be dismissed with costs. Priestley JA. I agree with the Chief Justice. Gleeson CJ. The order of the court will be as I have proposed. Appeal dismissed with costs. Counsel for the appellant: L M Morris QC and M G Pincott Counsel for the respondent: D Rickard URJ FAGAN v CAFE (Gleeson CJ) Solicitors for the appellant: Waterfords, Coonamble Solicitors for the respondent: G E Lazar