PARISI vy MUSTAFA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SHELLER and COLE JJA 26, 27 August, 18 September 1996 [1996] NSWCA 421 The respondent was injured when she was struck by a motor vehicle driven by the appellant. The appellant admitted liability. The respondent brought an action, to which the Motor Accidents Act 1988 applied, to recover damages for her injuries. The trial Judge awarded the respondent damages for non-economic loss, having assessed that the respondent's was 80 percent of a most extreme case. For past and future care and assistance, his Honour calculated damages on the bases of past gratuitous care, 4 years of full time domestic assistance provided by her family, and assistance twenty-four hours a day, five days a week for the remaining 17.5 years of her expected life. The appellant submitted that the awards were excessive first, because there was evidence that the respondent's immediate family would continue to care for her in the future, and second, because the trial Judge gave no discount for the likelihood or possibility that, even if the respondent had not been injured, her family would have continued to look after her full time. HELD: 1. It was open to the trial Judge to find that there would be a need for supervision and professional care at some time in the future, even though the family offered to provide whatever assistance the respondent might need. There was no error in his Honour's approach to drawing a balance between these heads. 2. There was no evidence to support the conclusion that if the respondent had not suffered the injuries for which she claimed, she might have required future care either of a gratuitous or professional nature beyond such as would be comprehended by the vicissitudes accounted for in the statistical life expectancy. It was unnecessary to decide the question whether the vicissitudes of life should be taken into account in assessing an allowance for future hospital expenses; see Sharman v Evans (1977) 138 CLR 563; Frankcom & Anor v Woods (unreported) 1 October 1980 per Glass JA. Sheller JA. The appellant, Elia Parisi, appeals from a decision of Judge Garling given on 26 September 1995. The plaintiff and respondent, Emine Mustafa, was injured in a motor vehicle accident on 29 May 1992 when she was struck by a vehicle owned and driven by the appellant. The respondent was born on 28 December 1934 and was fifty-seven at the time of the accident. She sued the appellant to recover damages for her injuries. Liability was admitted. Judge Garling awarded her $987,689. The action was one to which the Motor Accidents Act 1988 applied. His Honour treated the respondent's as 80 percent of a most extreme case and awarded her $177,600 for non-economic loss. For past gratuitous domestic care he awarded her $77,827. For future care for the first 4 years he awarded her $108,413 based on her receiving fulltime domestic assistance from her family. For the remaining 17.5 years of her expected life he awarded her $355,819 on the basis that she would need someone to look after her twenty-four hours a day, five days a week and, in addition, $185,264, on the basis that she would need help for the other two days of the week. The balance of the verdict consisted of amounts for out of pocket expenses and future care and medication. 2 UNREPORTED JUDGMENTS The appellant appealed against the amounts awarded for non-economic loss and for past and future care and assistance. Judge Garling accepted that the respondent was severely disabled as a result of the motor vehicle accident and would require care of some type in the future. He recorded that the appellant submitted that the respondent's was 70 percent of a most extreme case. The respondent submitted 100 percent. According to the respondent's daughter's evidence, which his Honour accepted, before the accident her mother was a very astute lady who cared for her family. She discussed what was happening in politics, both in Australia and overseas. She was a meticulous housekeeper. She was a happy, busy mother, who always had people in the house. She spoke Turkish and Greek fluently and could get by with her English. She was very close to her husband who, at that time, had cancer which was in remission. According to her daughter the respondent was a completely different person after the accident. She had difficulty in speaking her languages. She was not totally disabled and did things for herself. Shecould do some housework and she could do some cooking but this was described as fairly useless. She burnt herself. She could put her clothes in the washing machine and turn it on. But she got the clothes mixed up and could not hang them out. She got some small meals for herself. She complained that she had lost her sense of taste. She could not manage any financial affairs. When she was left by herself she got very depressed. Her daughter had come home to find the home in darkness, with her mother sitting on the couch or lying on the couch, staring at a TV which was not even on. At other times when she came home the TV was on and her mother had fallen asleep. The respondent cried a lot. She appeared to have some type of hearing loss. Both the daughter and the respondent's son said they could not leave her alone as they feared for her safety. She complained about double vision and held her head at an angle. She had pain in the pelvis and low back, especially if she exerted herself. At times she seemed to have 'some attacks'. She cried, screamed, went limp and fell on the floor. The respondent's husband died on 11 December 1992. She wanted to continue living in her house. As a result of the accident the respondent suffered a severe closed head injury with brain damage. She also suffered various other injuries which it is unnecessary to particularise. She remained in hospital until 7 July 1992, in part, until 18 June 1992, at the St George Hospital and then at Lidcombe Hospital where she went for rehabilitation. Before the accident the respondent was not in perfect health. She suffered from tinnitus, some depression, musculo skeletal pain and some joint pain. But his Honour accepted that these problems, whilst obviously present, did not cause her a lot of problems before the accident. His Honour found that after the accident the respondent suffered from a condition of traumatic dementia. The trial Judge said: The plaintiff is now sixty years of age. It is over three years since the accident. The plaintiff is very disabled, yet she can walk, she can talk, she can do household tasks, she can do some cooking. She talks to her children and friends. She can go about her normal daily living to an extent that she can go to the bathroom, she can bath herself and do things like that. And I think to that extent she differs from a worst case scenario. True it is her mental functioning has been reduced dramatically, and she is to an extent aware of that. However, that has influenced me in coming to the conclusion that non-economic loss should not be on the basis of a worst case. I find that the plaintiffs ability to lead a normal life has been significantly impaired. URJ PARISI v MUSTAFA (Sheller JA) 3 I find that non-economic loss should be assessed on the basis of 80 percent of a worst case, and allow the plaintiff for non-economic loss the sum of $177,600.' The work that her son and daughter and relatives did for the respondent exceeded forty-six hours a week though her claim was based on forty hours a week. His Honour regarded this as a moderate claim supported by the medical evidence and accordingly he allowed it. Dr Stening, the treating neurosurgeon, whose opinion the trial Judge regarded as a powerful one, said in a report of 5 June 1995 that he regarded therespondent as unfit for most duties unless she was fairly closely supervised. In the doctor's opinion she needed company both from family and from professionals twenty-four hours a day as she was not sufficiently integrated to be able to carry out even simple tasks without supervision. She would also need supervision as she was likely to remain immobilised unless she got this sort of help. The trial Judge referred to reports from Drs Kendall, Mellick and Ali who spoke of the respondent needing care ranging from semi-custodial care to twenty-four hours a day care. The trial Judge was satisfied that she should not go into a nursing home if at all possible, and that was the general opinion of doctors and her daughter, and indeed the respondent herself. He found that the respondent needed somebody twenty-four hours a day for the rest of her life. He said this: The plaintiff's daughter and son cannot be asked to continue to carry out the tasks they have in the past. Both of them must get on with their lives. They have done more than enough for their mother. The various relatives must be allowed to get on with their lives. The time has come when this plaintiff is looked after by someone from outside the house, and is looked after twenty-four hours a day. That is clear evidence before me, and that is what I intend to allow. The respondent's claim was based on domestic assistance from the family for a period of four years, which totalled $108,413, which his Honour allowed, and then the further amounts to which I have referred for the remaining 17.5 years. In his written submissions Mr Hislop QC, who appeared for the appellant, referred the Court to the general context in which this case had to be considered and particularly the continuance of the respondent's social life, her ability tolook after herself and the effect upon her of grieving for her deceased husband. The appellant also emphasised the treatment that the respondent had undergone from time to time for the various complaints to which I have referred. These were all matters which his Honour expressly took into account. In support of the submission that the amount allowed for non-economic loss was too high, the appellant pointed to the respondent's age and what was said by this Court in Reece v Reece (unreported) 28 February 1994. In my opinion the appellant has not shown that the trial Judge acted on any error of principle or misapprehension of the facts or had made a wholly erroneous estimate of the appropriate percentage of a most extreme case. His Honour's conclusion is supported by the range suggested at the hearing by counsel. The appellant submitted that the awards made for assistance were excessive substantially for two reasons. In the first place, there was evidence from each member of the respondent's immediate family that they would continue to care for her in the future as they had done in the past. Secondly, it was said that the trial Judge gave no discount for the likelihood or the possibility that, even if the respondent had not been injured, her family would have continued to look after her full time as she grew older and particularly after the death of her husband. The appellant emphasised the desire of the respondent not to have strange people coming into the domestic environment and the desire of the other members of the 4 UNREPORTED JUDGMENTS family to meet this wish. It was submitted that future care should be calculated on the basis that the members of the family provided itwithin the limitations imposed by s 72 (3) of the Motor Accidents Act 1988. At most something should have been added for the small possibility that part of that assistance would be provided by outside persons. On any basis there should have been a discount for the possibility that the respondent would have required this sort of assistance even if she had not been injured, particularly bearing in mind the state of her health before the accident. So far as past assistance is concerned, the only issue left to his Honour was whether it should have been allowed on the basis of 40-50 hours a week or 20-30 hours a week. No ground is shown for interfering with his Honour's conclusion. So far as the future was concerned there was the medical evidence to which his Honour referred which pointed to the need for supervision and professional care meaning, as I would understand it, carers who were not members of the family. It is quite true that each member of the family agreed that they would provide whatever assistance the respondent needed. With a closeknit family such as this one obviously is, that evidence is not surprising. But a Court has to consider the future from the respondent's point of view, and experience teaches that for the reasons advanced by his Honour outside care will ultimately be needed. His Honour balanced future gratuitous care with professional care by dividing it into two periods, the first four years and the remaining period of the respondent's expected life. It is possible that to a greater or lesser extent professional care would be needed sooner or gratuitous family care would continue longer. No one can forecast this with precision. His Honour having heard all the evidence drew the balance that he did. No error is shown in his approach. It accords with the medical evidence and I would not interfere with it. What in principle may be a more difficult question is whether some discount should have been allowed for the possibility that, but for the accident, the respondent would have needed part time or full time care as she grew older. Counsel for the appellant and for the respondent differed about whether the appellant had ever squarely put this to the trial Judge. The transcript of argument, which the respondent furnished to the Court, did not record such a submission. The trial Judge made no mention of it which, in a careful judgment, is odd if indeed it was put. What is more important is that there is no evidence from the family or from doctors which would assist in determining the existence or calculating the extent of that possibility. The respondent referred us to the decision of this Court in Frankcom & Anor v Woods (unreported) 1 October 1980 and particularly the judgment of Glass JA, with whom Hope JA agreed, at 5 or 6. In that case the trial Judge, in calculating the amount due under the heading of future nursing services, applied the principle expressed in the joint judgment of Gibbs and Stephen JJ in Sharman v Evans (1977) 138 CLR 563 at 587. Once a probable life expectancy is determined, what is commonly described as the vicissitudes of life enter not at all into the assessment of future hospital expenses. In thisCourt no point of difference was perceived between 'future hospital expenses' and 'future nursing services'. In Frankcom it was argued that one vicissitude should have been brought into account, namely, the possibility that the plaintiff had he not been injured may have been required to spend money for nursing and hospital treatment. Glass JA expressed the view that this contingency was also covered by the proposition laid down by the High Court. The appellant submitted that this conclusion may need URJ PARISI v MUSTAFA (Cole JA) 5 to be reviewed in light of the High Court's decision of Malec v JC Hutton Pty Limited (1990) 169 CLR 638 particularly at 645. In that case no mention was made of Sharman v Edwards. It is, in my opinion, unnecessary to decide this question in this case. There was no evidence to support a conclusion that, if the respondent had not suffered the injuries for which she claimed, she might require future care either of a gratuitous or professional nature beyond such as would be comprehended by the vicissitudes accounted for in the statistical life expectancy. In my opinion the appeal fails on all grounds and should be dismissed with costs. Cole JA. I agree with Sheller JA. Appeal dismissed with costs. Counsel for the appellant: JA Timbs QC/MB Williams Solicitors for the appellant: Glover and Glover Counsel for the respondent: JD Hislop QC/GM Watson Solicitors for the respondent: Gibsons