COMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KirBy P, HANDLEY and SHELLER, JA 9 June and 18 August 1995, 2 February 1996 [1996] NSWCA 114 DAMAGES — paraplegic — young female plaintiff challenge to allowances for damages in assessment case — proper provision for discount for vicissitudes — pharmaceuticals — catheterisation wheelchairs — computers — domestic equipment burglar alarm — swimming pool — building repairs transport requirements — home care — handyman services — vacation and travel — lowered prospect of marriage (or like relationship) — management of funds — Marsland v Andjelic (1983) 31 NSWLR 162 (CA); Nicholson v Nicholson (1994) ATR 81-311, consd. DAMAGES — assessment of — young woman aged 18 rendered paraplegic in motor vehicle accident — calculation of heads of damage — trial judge (Barr AJ) awards $2,082,865.90 — upon appeal by insurer and cross appeal by plaintiff held: (Sheller JA; Kirby P and Handley JJA concurring) (Allowing appeal and cross appeal); Upon a recalculation of the appellant's damages, judgment should be entered in her favour in the sum of $1,985,881.90 in substitution for the sum entered at trial to take effect from 28 February 1995, but with no order as to the costs of the appeal or cross appeal. DAMAGES — paraplegic — young female University student with good employment prospects — proper approach to calculation of damages — consideration by Sheller JA (Kirby P and Handley JA concurring) of proper approach to heads of damage; (1) Although the discount for vicissitudes in the calculation of probable future earnings but for injury is a matter of assessment and conventionally 15 percent is allowed, discretion in calculating the ordinary contingencies of the particular case must be left to the trial judge, but a discount of 5 percent was inappropriate and a further reduction for vicissitudes of 10 percent in all would have been more appropriate; (2) Having regard to other discounts made by the trial judge for the time that the plaintiff would be out of work whilst having children, greater than would be allowed by the Court of Appeal, the allowance of $364,000 for future economic loss should be reduced to $341,687 and a consequential adjustment made to the amount for loss of superannuation benefits; (3) The allowance for future pharmaceuticals should, on the evidence, be halved; (4) Having regard to the evidence of the plaintiff's control of bladder and bowel function, the allowance for catheterisation should be reduced from $35,000 to $28,000; (S) The allowance for wheelchairs should be reduced from $15,850 to $5,800; (6) The allowance for computer equipment should remain; (7) The allowance for domestic equipment should be reduced from $12,200 to $2,000; Marsland v Andjelic (1993) 31 NSWLR 162 (CA) applied; (8) The allowance for swimming pool should be reduced from $115,000 to $103,500; (9) The provision for swimming pool maintenance should stand; (10) The allowance for building repairs and maintenance should be deleted; 2 UNREPORTED JUDGMENTS (11) The allowance of $25,000 for transport requirements should stand; (12) The provision for home care as to the future should, on the cross appeal, be increased from $231,250 to $265,226; (13) The provision for handyman services should not be varied; (14) The provision for vacation and travel expenses should not be varied; (15) The allowance for loss of financial benefit of a husband (or like partner) of $100,000 should not be disturbed. Sharman v Evans (1977) 138 CLR 563; Hines v The Commonwealth (1985) ATR 81-338 (SC) followed: (16) The provision for management of the plaintiff's funds of $90,000 should not be disturbed; Nominal Defendant v Gardikiotis (1994) 19 MVR 307 (NSW CA) followed; (17) The plaintiffs attack on the allowance of $18,650 for parental past care failed as did other minor matters in the cross appeal: Nicholson v Nicholson (1994) ATR 81-311 (NSW CA) followed; (18) Damages recalculated accordingly and substitute judgment entered by Court of Appeal. Motor Accidents Act 1988, s72 s(2), s79. ORDERS 1. Appeal and cross appeal allowed; 2. Set aside the verdict for $2,082,865.90 and substitute $1,985,881.90 to take effect from 28 February 1995; 3. The appellant to pay the respondent's costs of the trial; 4. No order as to the costs of the appeal or cross appeal. Kirby P I agree with Sheller JA. Handley JA I agree with Sheller JA. Sheller JA INTRODUCTION [1] The appellant, Commercial Union Assurance Company of Australia Limited, appealed and the respondent, Michelina Pelosi, cross appealed from a decision of Barr AJ of 28 February 1995 in which his Honour directed judgment for the respondent in the sum of $2,082,865.90. The respondent brought the proceedings against the appellant as the third party insurer of the late Brian James Carter, the driver of a motor vehicle which, on 26 December 1989, collided with a motor vehicle, in which the respondent was a passenger, causing the respondent injuries which resulted in paraplegia. Liability was admitted. The amounts Barr AJ allowed for damages were as follows: General damages 222,000.00 Out of pocket expenses 126,840.90 Past economic loss 52,037.00 Future economic loss 364,000.00 Superannuation benefits 39,000.00 Future medical and hospital expenses 242,045.00 Training, education and rehabilitation expenses 65,470.00 Home alterations, construction and maintenance 37 1,960.00 Transport requirements 51,495.00 Nursing care 8,118.00 Homecare 249,900.00 Handyman/Gardener assistance 60,000.00 \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shell JA) Vacations and Travel $ 40,000.00 Loss of financial benefit and support of $100,000.00 husband Fee for management of the fund of verdict $ 90,000.00 moneys TOTAL $2,082,865.9} The amounts for out of pocket expenses and past economic loss included awards for interest. The appellant challenged the quantification of some of these items as excessive. The respondent claimed that some were too low. The parties joined in asking the Court, if the amounts were to be varied, to re-calculate the damages. In a well known passage in Government Insurance Office of New South Wales v Cox (1976) 50 ALJR 559 at 561 Barwick CJ spoke of the considerable variation in personal opinion to be expected in making prognoses about future earnings and said that "mere disagreement in opinion will not establish error." In Todorovic v Waller (1981) 150 CLR 402 at 413 Gibbs CJ and Wilson J said: Seseee damages for financial loss likely to result from personal injury 'can only be an estimate, often a very rough estimate, of the present value of his prospective loss': British Transport Commission v Gourley [1956] AC 185 at 212, per Lord Reid. Ultimately the process must always be one of judgment rather than calculation." An appellate Court must bear in mind in cases such as the present that the degree of uncertainty and the wide range of possible and legitimate opinion about how the future will unfold means that the Court will not intervene simply because had it considered the matter at first instance it would have arrived at a different result. On the other hand the Court must reconsider and if necessary correct evaluations which are founded on an _ erroneous understanding of the evidence or which are so unreasonable as to demonstrate error. BACKGROUND [2] The respondent was born in Switzerland on 4 May 1971 and came with her parents to Australia in 1980. She attended St Clare's College, Waverley and was injured when waiting for her results in the Higher School Certificate examination. She intended to enter a full time course at the University of New South Wales for the Bachelor of Commerce degree in Marketing and Hospitality Management. She had been interviewed and the indications were that she would be eligible to enter the course provided she gained an aggregate mark of at least 403. As it turned out, her raw mark of 412 was scaled down to 389 and she would not have been able to enter the course directly. She had however decided in those circumstances to begin a degree of Bachelor of Arts at the same university and transfer after one year, given satisfactory progress, to the Bachelor of Commerce degree. The course would have taken another six months to complete. If she had succeeded she would have entered upon her career in the hospitality industry in mid 1994. When she was injured she was working part time as an assistant at a pasta shop. If she had started her degree course, she said, she would have continued to work there, increasing her shifts and earnings during university vacations. She increased her earnings by working additional hours during school holidays. The respondent suffered a number of serious injuries, the chief of which were a fracture of the spine at L2 with severe damage to the lower spinal cord, multiple bowel lacerations and abdominal injuries, fracture of the left medial malleolus, 4 UNREPORTED JUDGMENTS comminuted fracture of the left fibula, fracture and dislocation of the right ulna near the elbow, chest injuries and rib fractures and injuries to the head and face. For a short time she was unconscious. She was taken to Gundagai Hospital, then to Wagga Wagga Base Hospital, where several bowel repairs were carried out. Open reduction of the right ulna and closed reduction of the left ankle were affected. Because of her spinal injury, on 31 December 1989, the respondent was transferred to the spinal unit at the Prince Henry Hospital. Motor power and sensation below T12 were completely lost. The right elbow was fixed internally with a plate and screws. These were later removed but the condition of the elbow prolonged the early stages of the respondent's physical rehabilitation. After admission to Prince Henry Hospital she had an indwelling urethral silastic catheter inserted for approximately four months. When it was removed she was taught the technique of intermittent self catheterisation. She was also taught to manage her bowels by oral faecal softeners and rectal stimulants and to be independent in personal care, including washing, dressing and feeding herself. Although she was taught to stand with the use of gutter splints in parallel bars, she could not and cannot walk efficiently. Her major means of ambulation is by wheelchair. On 25 May 1990 the respondent was discharged from hospital and returned to live with her parents at their two storey house at Maroubra. She could not negotiate steps, stairs, bath, bed or lavatory without help. Within a few weeks ramps and a hoist were installed at the house and taps were repositioned so that she could get access to them from her wheelchair. That made it possible for her to get into and out of the house and up to her bedroom on the first floor and back again without assistance. Even so, she continued to need assistance with bed, bath and lavatory. At the date of the trial her static condition was that she was permanently paraplegic at T12. With a loss of the normal lumbar curve, kyphosis developed at L2. She could stand with support but could not walk. She had a fixed flexion deformity of 20-30 degrees of the right elbow which limited extension and made it difficult for her to transfer from bed to wheelchair. There was a 10-20 percent loss of function of the right arm, a significant matter in a right handed paraplegic, because she had frequently to lift her body weight with her arms. The weakness of the right elbow had caused her to favour it and placed greater weight on the left arm than otherwise would have been the case. Barr AJ thought that she would have great difficulty with the right elbow later in life and that these circumstances gave rise to a threat to the stability of the left elbow as well. The fracture of the left medial malleolus had not properly united. The need to attend rehabilitation courses during 1990 prevented the respondent from beginning tertiary studies during that year. In 1991 she began a three year full time Bachelor of Business course at the University of Technology, Broadway. At first she undertook a full load of work but after two weeks realised she could not cope with the strain. She had difficulty getting through a full day's work, chiefly because she had to sit up for hours at a time, which caused back pain. In addition, she had difficulty in easily getting about the campus to lectures, library, lavatory, car park and the like. As a result she was obliged to drop back from five subjects first to four and then, in the next semester, to three. Thereafter the respondent continued at that rate and expected to complete the course by taking three subjects at a time and to graduate after the end of the 1995 academic year. GENERAL DAMAGES \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shelles JA) [3] The respondent was 18 when injured. His Honour said that she was an intelligent, personable, well educated, well motivated and attractive young woman. She enjoyed sport and actively participated in swimming, aerobics and softball. Although she had never been, skiing interested her and the trial judge was satisfied that she would have learnt to ski and participated in that sport. She would have had an active and rewarding life in the work of her choice and as a wife and mother. Instead, she will be confined to a wheelchair for most of her waking hours for the rest of her life. Her life expectancy has been reduced between 5 and 10 percent. She has suffered regular severe back and leg pain. That suffering will continue in the future and she will need to adjust her hours of attention to the task in hand in order to control pain and spasms. She is at risk of urinary tract infection and will need to submit herself regularly for medical examination. She runs the risk as well of the formation of body ulcers. In later life she will need more or less constant nursing attention. In the meantime the simplest tasks will have to be achieved by determined effort, pain and discomfort. Although the respondent has been taught to self catheterise she prefers to deal with urine by manual expression every two hours. Eventually she will have to resort to the use of a catheter. She deals with her bowels by manual evacuation. She has completely lost all feeling below T12. She runs the risk of injuring herself unawares. She has no feeling in the genital organs and cannot experience sexual pleasure. She suffers urine leakage from time to time, sometimes when she is making the physical effort necessary to transfer herself from the wheelchair to some other environment. Occasionally she suffers the embarrassment of accidents with her bowels as well. The disability and pain resulting from the injury to the respondent's right elbow are significant in a right handed person denied the use of her legs. His Honour thought they will threaten her mobility as she ages, putting greater pressure on the uninjured left arm. This made her significantly worse off than a paraplegic having normal, healthy arms. She bore an operation scar stretching from the sternum to the bottom of the abdomen. His Honour treated the respondent's case as a most extreme case within the meaning of s79 of the Motor Accidents Act 1988 and awarded the maximum amount then allowable for general damages of $222,000. As neither party challenged this award, I need not consider the effect of the Court's decisions in Nominal Defendant v Gardikiotis (1994) 19 MVR 307 and Nicholson v Nicholson (1994) ATR 81-311 and any subsequent increase of the maximum amount. OUT OF POCKET EXPENSES [4] The out of pocket expenses were agreed. PAST ECONOMIC LOSS [5] The appellant did not challenge the amount allowed under this head or the amount allowed for interest thereon or interest on past out of pocket expenses. The respondent cross appealed on the ground that the amount allowed for past economic loss was too low and I shall return to deal with this. His Honour accepted the respondent's evidence that she would have started her Arts degree course at the University of New South Wales at the beginning of the 1990 academic year and would have transferred at the appropriate stage to the Bachelor of Commerce course. She would then have commenced employment in the hospitality industry at a gross rate of $25,000 per annum. He accepted that while a student she would have received income working part time in a pasta shop. FUTURE ECONOMIC LOSS PROBABLE EARNINGS BUT FOR INJURY 6 UNREPORTED JUDGMENTS [6] The appellant challenged the $364,000 awarded for future economic loss. Barr AJ thought the respondent would have been a very suitable candidate for entry into the hospitality industry. Apart from her personal qualities, earlier referred to, she spoke Italian fluently and had a good knowledge of French. Her Year 12 co-ordinator at St Clare's College was struck by her sophistication and personal charm, her maturity and depth of perception and thought her well fitted to any position requiring her to deal with members of the public. The manner in which she applied herself to her studies at the University of Technology in spite of her grave difficulties said a lot about her tenacity and adaptability. His Honour accepted the evidence of Mark Weatherley of Price Waterhouse Urwick, management consultants, whom the respondent called, that the salary ranges available to her would have been as follows: Ages 20-25 $22-$28,000 pa 26-30 $25-$35,000 pa 31-40 $32-$52,000 pa 41-50 $48-$65,000 pa 51-65 $50-$80.000 pa He also accepted that the position in any of those ranges of an individual would depend on negotiation between the individual and management and that females tended to earn a little less than males. The respondent said she would have wished to marry and have three children. His Honour found that that was probably what she would have done. While the respondent gave no evidence of this, I assume that Barr AJ included within the prospect of marriage the possibility that the respondent would form a permanent relationship or relationships without marriage and have children. In this judgment I treat the prospect of marriage as including that possibility, slight though it may have been in the respondent's view of life. The respondent said she would have left work for a period to have the children, then returned to work what she called "limited hours" until the children went to school. She thought she would probably have taken five years off work between the ages of twenty-six and thirty-two. When she returned his Honour thought she would have earned a salary at a rate towards the bottom of the available range because, on her return, she would have been working limited hours and by that time would have had an absence of five years, with consequent loss of experience and seniority. He accepted that the respondent would have continued work until age 65. He set out in a table the present value of the amounts he considered the respondent would probably have earned but for her injuries: PERIOD GROSS pa NET pw WEEKS PRESENT VALUE AT 5% 1.3.95-3.5.97 $25.000 $389.89 112 $43,667 4.5.02-31.12.04 $32,000 $480.99 89 $42,808 (part time work) 1.1.05-3.5.12 $42,000 $595.30 193 $114,893 4.5.12-3.5.21 $56,500 $746.31 161 $120,156 4.5.21-4.5.36 $65,831 $831.50 - [sic] $124,725 $446,249 \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shellé# JA) Neither party complained about these calculations. The heading of the fourth column "Weeks" is a mistake. It should be "Discounted multiplier". From the total his Honour deducted for vicissitudes "only 5%" because he said he had "already assumed five years without earnings and a further short period of reduced earnings thereafter". This produced an amount of $423,937 for probable earnings but for injury. The appellant submitted: 1. The range of salaries in the schedule of probable earnings assumed successful completion of an appropriate university degree and a successful career in marketing and management, most probably in the hospitality/travel/tourism group of industries. The ranges indicated were for a person successful in their career. They were not a range between a successful career and an unsuccessful career. 2. The trial judge had failed to take account of the effect that the respondent's absence from the workforce would have had on her career and salary path and failed to appreciate that the range was not applicable for someone who had been out of the workforce for a lengthy period. Her absence would have caused her to earn a salary not towards the bottom of the available scale but below it. 3. The trial judge had failed to have regard to this evidence when he said the respondent would have been absent from work for five years and thereafter returned to part time work for approximately two years and eight months. His Honour should have found that the respondent would have taken ten years out of the full time workforce and given effect to that finding. The respondent had said that if she had had three children two years apart she would have taken roughly ten years out of the workforce. She said that she would probably have done some part time work when the children were older "obviously once they are out of nappies" and gone back to full time work when the children were at school. 4. The trial judge erred in discounting the earnings by only 5 percent for vicissitudes. The appellant submitted that upon full time return to the workforce in January 2005, when the respondent would have been nearly thirty-four, the assumption of a gross annual salary of $42,000, which was in the middle of Mr Weatherley's range, was too high and did not sufficiently take account of the respondent's absence from the workforce. It is to be observed that at this point it was assumed that the respondent who was intelligent and well motivated had been working part time for two and a half years. During that period the assumption was that she would be at the bottom of the scale. I am not prepared to interfere with his Honour's conclusion that, in the circumstances, her gross annual wage would have been of the amount he set out. The appellant has not persuaded me that the trial judge overlooked the possibility that the respondent might have been less successful than she hoped. Clearly he regarded this as remote. Equally she might have been more successful in her career than she hoped or returned to the workforce with less salary penalty than the amount, his Honour chose, suggests. I do not accept that his Honour failed to appreciate these matters or that the amounts he chose demonstrated error. In cross examination the respondent gave the following answers: [7] "Q. Had you not been injured I take it you would have wanted to marry and have children? A. Yes. [8] Q. And you would have wanted to keep on working? A. Yes. [9] Q.And it would have been necessary of course for you to have help to look after the children while you were working? A. I would have probably got back to work when the children were at school. 8 UNREPORTED JUDGMENTS [10] Q. If you had three children two years apart, that would mean you would have to take about 10 years out of the workforce? A. Possibly, yes. [11] Q. That is roughly so, is it not? A. Yes. [12] Q. If you take the third one being born when the first one was four or five and the last one goes to school at age of five? A. Yes. [13] Q. You have taken about ten years out of the workforce, have you not? A. I presume I would have probably done some part time work when the kids are older, obviously once they are out of nappies. Q. When do you presume that, when you said a moment ago you would have gone back to work when the children were at school -- A. Full time work." Whatever the basis for the question which suggested to the witness that, if she had three children two years apart, she "would have to" take about ten years out of the workforce and the significance of her response "possibly" and the rejoinder "that is roughly so", for a modern working mother who is intelligent and well motivated such a long absence from the workforce is an unlikely prospect. There was no logic in or indeed explanation for the question unless it was a mistaken reference to the effect of the respondent's injury upon her work capacity if she had children: Reading the evidence and having regard to the form it took I would put little weight on it. Obviously his Honour put little weight-on it. I am not satisfied that there is any basis for saying that by concluding that the respondent would have taken five years off work (in the Table between 3 May 1997 and 4 May 2002) and then worked part time for just over two and a half years until 31 December 2004 his Honour underestimated the time that the respondent would have been away. By that time, if she had three children two years apart, the youngest would have been three and a half and going to pre-school. In my opinion this challenge to the calculation should be rejected. VICISSITUDES [14] Conventionally New South Wales courts have reduced awards for future loss of earning capacity by 15 percent while recognising that there may be circumstances justifying a departure from this figure in some cases; see Luntz, Assessment of Damages, 3rd ed, para6.4.6. In Moran v McMahon (1985) 3 NSWLR 700 at 706 Kirby P said: "Why there should be any conventional discount, and why it should be 15 percent regardless of the infinite variety of chances which may befall an injured party, has never been adequately debated." This has not changed. In Wynn v NSW Ministerial Corporation (unreported) 21 December 1995 the High Court referred to this New South Wales practice. Furthermore it is not clear whether the discounted multiplier figures used were arithmetical or actuarial. In the various reports, Geoff McRae, a fellow of the Institute of Actuaries of Australia employed by William M Mercer Pty Ltd, prepared for the respondent, the actuarial factors are said to assume no mortality and 5 percent per annum compound interest. The difference is explained in Luntz at 273 footnote 9. In the present case the reasons his Honour gave for fixing a discount of 5 percent for vicissitudes were that he-had already assumed five years without earnings and a further short period of reduced earnings. Ordinarily contingencies would include death, sickness, accident, unemployment and industrial disputes. Against such should be weighed greater career success with more promotions and higher salaries than those anticipated. The trial judge's explanation for the percentage chosen has particular force. By assuming that the respondent would be out of the workforce for five years and then working on a part time basis for two years and eight months he had already \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shell JA) reduced the value of her future earning capacity by about 15 percent. This took no account of the degree of probability that she would have no children or fewer children than three or that her husband or other family members would play a sufficient part in looking after the children to enable her to return earlier to the workforce. These matters alone, in my opinion, would have justified Barr AJ's allowing a further reduction for vicissitudes of no more than 5 percent. But Barr AJ also allowed $100,000 for the loss of the financial benefit and support of a husband. The justification for this allowance I discuss later in the judgment. I would not disturb it. That being so, I have difficulty in accepting Barr AJ's conclusion that the further reduction for vicissitudes in assessing future probable earnings should be no more than 5 percent. The deduction on account of the respondent's absence from the workforce to have children was substantial and greater than I would have made. For this reason I would regard a further 15 percent reduction as too much. In my opinion his Honour should in all the circumstances have allowed a further reduction for vicissitudes of 10 percent. This has the effect of reducing the amount of probable earnings but for injury by $22,313 to $401,624. The appellant made a written submission that the trial judge erred in failing to take into account the cost of child care but for the accident during periods of employment. This however was not a point made at the trial and I do not think we should entertain it. RESIDUAL CAPACITY [15] Barr AJ expected that the respondent, doing her course at the reduced rate of three subjects at a time, would complete it and graduate at the end of the 1995 academic year. This would qualify her for employment in a number of fields in which she had an interest, for example, marketing, public relations and personnel management. His Honour found that she would not be able to enter in any way upon the career she had intended. She could never now bring to it the strength and agility required of new graduates entering the hospitality industry. That career was closed to her. According to Associate Professor Jones, who treated the respondent, provided she had an appropriate level of domestic assistance, she could work full time in a sedentary occupation. However that would be difficult because of the pain that results from kyphosis and what Professor Jones called "the severe (right) elbow abnormality". His Honour said: [16] "Having given that evidence in confirmation of something he had said in one of his reports, Professor Jones then appeared to qualify his opinion by reference to the back and elbow problems. He emphasised that any work the plaintiff could do would depend on the need for a sympathetic employer and other appropriate services, including suitable car access, as well as domestic services. He said that the plaintiff could not work after the age of fifty." Dr Yeo, whom the respondent called, considered that, provided she first completed a post graduate degree by age twenty-five, the respondent could probably work for twenty years at 50 percent capacity but that she would have to retire by forty-five years of age. On the other hand Dr Lowy, a medical practitioner consulting in occupational medicine and rehabilitation, whom the appellant called, thought that her capacity to work approached that of an able bodied person. His Honour acknowledged the substantial range of opinion on the respondent's residual capacity for work but was not satisfied that the respondent would be able in practice to achieve much more than 50 percent wage earning capacity of a worker paid under the Clerk's Award and that she would have to give up work at or about her forty-fifth birthday. 10 UNREPORTED JUDGMENTS In a report of 24 October 1991 Mr Weatherley said that the respondent's completion of a formal academic qualification in marketing would not guarantee her access to employment. He referred to the practice of new graduates' being assigned to menial work in order to gain experience, particularly in the hospitality industry and said: "Outside the hospitality industries marketing traineeships usually involve experience in the sales department and trainees are expected to work whatever hours are necessary to do their jobs. Someone who can only work three or four-fifths of a normal working day, and who is confined to a wheelchair, would rarely if ever receive serious consideration for employment. The best that might be hoped for is that Miss Pelosi might be able to find some part time employment in a clerical or semi-clerical job or in some form of sales, sales-support, or promotional work that can be done over the telephone. There is also a possibility that she could be employed as a part time research assistant, perhaps in a university or a marketing research organisation. Unfortunately this sort of back room research role is not well suited to her temperament, which is socially outgoing and needs contact with people. We believe it is largely because of these socially outgoing characteristics that she chose marketing and the hospitality industries and the same qualities would have contributed to her chances of success. [17] [18] It is unlikely, however, that she will every be able to establish herself in a career in marketing or the hospitality industries. This is because it is necessary in these fields to be able to cope with long hours, physical work, and to be fully mobile. This is particularly so for the first few years when young people are required to do a lot of physical and menial work in order to get practical experience. It is not possible for someone confined to a wheelchair to do that sort of work and get that sort of experience and consequently she is not likely to be employed. Her best chance of finding employment may be as a part time clerk or research assistant." In oral evidence Mr Weatherley said that bearing in mind that the respondent would be a graduate with no experience in her early/mid 20s, employers would be looking for somebody to train for full time employment. "Part time work, particularly of only about half a working week, really would be of no interest to them." Asked about jobs within government and policies designed not to discriminate against people because they are disabled Mr Weatherley said: ".... the same principle applies as has always applied that they should be capable of doing the job that they are employed to do and if the disability prevents them from doing that or is a serious handicap in doing that, then there is no obligation on the employer to employ them." Barr AJ said that, according to Mr McRae, the respondent, if she did not marry, would be capable of earning something in range of $100-$120,000 until her forty-fifth birthday. That would produce a figure somewhat greater than $100,000 after appropriate allowance for vicissitudes. Mr McRae was working on the present value, assuming 5 percent interest, of 50 percent of the wage payable under the Clerk's Award. His Honour thought, however, that the figure might be unduly favourable to the appellant because it assumed an ability in the respondent to get work without the need to do a further degree, which might be necessary, and it assumed the availability of a specially understanding employer and appropriately adapted work place that would be necessary for her to work at all. As well an allowance had to be made for the probability that the respondent \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shellét JA) would need to take time off work because of illness from infection or because of tiredness or the need to enter hospital for medical tests. Accordingly the figure needed to be further substantially discounted. All this assumed that the respondent would not marry and have children which his Honour said he accepted as a reasonable possibility arising from her incapacity and allowed the appellant the benefit of it." The judgment continued: [19] "In order to make a proper allowance for the plaintiff's residual wage earning capacity, however, it is necessary to look to the probability that she may marry and have children. I accept the plaintiffs evidence that she still wishes to do so. She has been advised that she should not have more than two children and I would expect her to follow that advice. If the plaintiff starts work at the beginning of 1996 following her graduation, she will have only a few years of full time work before she must begin to have her children. Because of her disabilities the plaintiff does not have the choice open to able bodied women to defer the decision to have children until well into their thirties. Associate Professor Jones says that if she has children that will take her out of the workforce for. at least ten years. I think it unreasonable to suppose that if she does have children she will be able to work for many years before she begins to have them and I think it unreasonable to expect any substantial ability to earn wages after the children get into their teens. Taking Mr McRae's figures and assuming four years of full time work before the plaintiff leaves work to have children, I think that she could probably earn about $40,000 on present values before the end of 1999. That assessment also may be generous to the defendant, however, because it makes no allowance for the special kind of employer and work place the plaintiff must have. It also assumes that the plaintiff will not find it necessary to go on to further studies and it ignores time off for sickness and medical tests. It, too, must be discounted. I think that there is a reasonable possibility that the plaintiff will marry and have children. I have therefore made allowance for that possibility and for the effect it will have upon the various heads of damage claimed, including this one. It is impossible with any accuracy to make allowance for the various competing factors, but I think it reasonable to assess the plaintiff's residual earning capacity at $60,000." By deducting this amount from $423,937 and rounding off the difference his Honour assessed the net value of future economic loss at $364,000. About this approach the appellant made the general submission that although the respondent had made a very credible and rapid progress through a business degree with distinctions and credits, the judgment proceeded on the basis that she would be reduced to a work capacity, at best, of 50 percent of the Clerk's Award, that is to say, not what was actually earned in the work place, which usually exceeds the award, but of the award "which is the floor". What his Honour had in mind was that the respondent was capable of doing only a part time job. The appellant relied on Professor Jones' opinion, although he had not seen the respondent since February 1993 when she came to him for a review not for a medico legal assessment. In his report of 15 August 1990, Professor Jones said that the respondent had potential to embark upon a vocational pursuit which he estimated she could continue until the age of fifty. "She will require domestic assistance if she is to work for approximately 20 hours per week". However, as Barr AJ pointed out, in his oral evidence he qualified this by saying that: "If the work place is appropriately designed and accessible, I felt that on the basis of her physical status, that she could work full time as long as she had the domestic assistance that I prescribed. There are difficulties of course with her back 12 UNREPORTED JUDGMENTS impairment". He then referred to the kyphosis and the elbow abnormality with the possibility of attrition in those areas which would make full time work difficult and added: [20] "...but as I saw her at the time I prepared the reports, it was my view that it would be reasonable on the basis that she had all the assistance that I have prescribed for her, to work full time until she had the family or she retired. [21] Q. Would you regard her as being capable of going to a normal retirement age if she had had that assistance? A. No. I said that on 5 of my report of 24 July 1990. [22] Q. Is that still your view? A. Yes, I would only qualify that by saying that she has, I believe, described problems with her back and elbow and that is something which was unforeseen by me in 1990 and may have to be taken into consideration." The appellant called Peter Ryan, a management consultant with McKenzie Reward. The trial judge did not express refer to his evidence. Mr Ryan had substantial experience in the field. In his report of 15 August 1994, under the hearing "Work Prospects", he referred to the marketing/sales field in which there are a range of predominantly desk bound occupations in marketing, market research, product management and sales offer opportunities. He considered there were opportunities in internal sales and sales administration that might suit the respondent's abilities and interests. The limiting factor could be her possible incapacity to work thirty-five or more hours per week but, according to Mr Ryan, many business sectors are increasingly amenable to permanent part time work and other flexible working arrangements, "including application to professionals". Also of possible relevance was the likely rapid growth over the next few years in the incidence of employees' being permitted to work from home. In summary he considered that the respondent's prospects of employment as a graduate in fields suited to both her areas of undergraduate study and her outgoing nature were fairly good, albeit that her possible incapacity to work full time might be an inhibiting factor with some potential employers. This work could reasonably be considered as the principal basis for projecting her remuneration ahead of basic clerical or telesales work. Asked in chief whether the private sector and the public sector were attending to access and facilities for disabled employees, Mr Ryan said: "Certainly I have observed over a period of the last ten or fifteen years there have been improvements in that area. Part of the period I was employed in the public sector in the employment branch, the Public Service Board, the areas I was in charge of in fact related to special employment programs for people with disabilities. Initiative of that kind operates at Federal Government level and to a lesser extent in Local Government and now increasingly in the private sector as well, so I have certainly observed a degree of trend towards greater opportunity for people with disabilities." Later he gave evidence about jobs in the marketing area. He said: "There are various specialisations. There is market research, one that I have mentioned, advertising, which again is a specialised area within marketing, product management where a person takes on a role of being responsible for the marketing of particular products within a company. There is a more broad based marketing management role usually at the more senior level which might take in a range of those areas. \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shell JA) [23] Q. Of a supervisory nature? A. Usually yes and sometimes the marketing role is combined with selling as well. So sometimes marketing and sales are combined. On other occasions they are kept separate. [24] Q. Now, human resources is separate in personnel, can you explain that to us? A. It is not really all that separate. It is probably a more recent term, but if there is a distinction to be made pertinent probably for example it is more on the personnel administration side which is to do with recruitment and personnel records. Human resources tends to be a bit more broad-based in that it incorporates the employment and institutions aspects as well as the training the development aspects. Sometimes a company will have a separate personnel manager and separate industrial relations manager and a separate training and development manager. On other occasions it might have a human resources manager who cover all three of those areas. [25] Q. I take it if the organisation is big enough there may be employees whose area of work is within one of other of those subcategories? A. That's right, usually in the larger organisations." He did observe that while there was plenty of part time work in sub professional roles there was not so much in the graduate area though this was increasing from a low base. In cross examination Mr Ryan acknowledged that there were difficulties for women who had left the workforce for some years to raise children and had then come back to it. He said: "However, if she deferred having children until her thirties she would have a period of five years or so to establish quite a strong track record. Provided she is initially able to work full time as indicated I don't thing there are insurmountable barriers." Barr AJ found that the respondent would not be able to work full time and the evidence, which he accepted, was that if she were to have children she would need to do that in her twenties and it might take her out of the workforce for ten years. His Honour said that because of her disabilities the respondent did not have the choice open to able bodied women to defer the decision to have children until well into their thirties. Mr Ryan gave the following evidence: [26] "Q. Would you agree as a paraplegic person if she has her children early then wants to come back to the workforce she would be a relatively unattractive proposition to many employers because she would have had the usual problems of having been out of the workforce? A. Yes. Q. Having children and therefore no employment activity during that time she would be distanced by some years from when she had completed her tertiary education? A. Yes." A little later he gave the following evidence: [27] "Q. Now, do you agree that if she went for an interview and disclosed obviously that she was a paraplegic, but that she was unfit for full time employment and was only fit for part time employment that would discourage many employers at the outset? A. I would agree with that." Mr Ryan estimated annual salary rates for the respondent based on the following assumptions: [28] "(i) the lower end of the range relates to average salary rates applicable to personnel professionals, progressing through to a middle-level personnel management role by retirement; 14 UNREPORTED JUDGMENTS 29] (ii) the upper end of the range relates to average salary rates applicable to marketing professionals, progressing through to a middle-level marketing or product management role by retirement; 30] (iii) these salary rates refer to full time employment - no specific deduction has been made to account for Ms Pelosi's likely part time employment (for which a pro rate adjustment may be made); 31] (iv) employment to age 50 has been assumed, based on medical reports submitted; 32] (v) apart from early retirement, no breaks in income for childbearing/childcare or other reasons have been assumed; 33] (vi) the rates are based on an amalgam of current private and public sector rates, expressed in June 1994 dollars. AGE RANGE/YEARS AVERAGE SALARY RANGE 26-30 (1997-2001) $ 25,000-27,000 31-35 (2002-2006) $ 31,000-34,000 36-40 (2007-2011) $ 36,000-41,000 41-50 (2012-2021) $ 44,000-51,000" As part of its submissions the appellant provided a Schedule of Residual Earning Capacity as follows: "January 1996 to 3 May 2000 $ 27,000 gross pa 4 May 2001 to 3 May 2011 Nil 4 May 2011 to 3 May 2016 $ 34,000 gross pa 4 May 2017 to 4 May 202 $ 41.000 gross pa 5% Tables $190,011 net LESS 15% for vicissitudes ($28,501.65) TOTAL $161,509.35" This was based on Mr Ryan's report. For the periods, other than the first from January 1996 to May 2000, the appellant used amounts below the minimum amount of Mr Ryan's ranges. The table assumed the respondent would be ten years out of the workforce while she was having children. The table took no account of the contingency that the respondent would not marry. The appellant complained that the trial judge appeared to have approached the case on the basis that the respondent was virtually disqualified from employment, gave insufficient reasons for arriving at the amount of $60,000 and failed to mention the evidence of Mr Ryan. It was difficult to know whether his Honour took account of Mr Ryan's table and discarded it or discounted the amounts shown and, if so, for what reason. The appellant submitted that the trial judge failed properly to consider the respondent's own evidence as to her ambitions and career expectations. She had said that if she did not get some form of employment when she graduated at the end of 1995 she would definitely go back and do some post graduate study. She mentioned her Masters, a PhD and an MBA. She said that with the Bachelor of Business in Marketing and Management she could go into the marketing industry and marketing products either overseas or domestically. "I could go into personnel work or to public relations, that kind of thing. It is pretty broad." Asked about the travel industry and travel agents she said that she knew what travel agents earned. \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shells JA) [34] "That is not the industry I want to get into. [35] Q. What they do not make enough money? A. No, definitely not." Dr Yeo spoke of the respondent completing her Bachelor of Business degree and increasing her potential for employability by completing a second degree by the age of twenty-five years. [36] "Miss Pelosi may then find employment for approximately twenty years in employment for which she is suited in open industry although limited to 50 percent of normal work capacity. She will require early retirement by the age of forty-five years. Her employability will depend on an understanding employer, the appropriate attendant care as previously described [in an earlier report] the provision of a suitable motor vehicle and access to her place of employment. An understanding employer and an appropriate economic climate will assist in Miss Pelosi finding this suitable part time employment." Asked in chief what he meant by 50 percent of normal work capacity Dr Yeo said that he anticipated "that is up to nineteen hours per week of a normal working week." Dr Burniston, a consultant physician in rehabilitation medicine, in a report of 4 February 1991, said that the respondent was well motivated for vocational rehabilitation. "She presents a pleasant personality and a positive manner, and one would expect her to ultimately achieve success in the vocation or profession of her choice." Dr Lowy, in a report of 5 October 1994, said that the respondent when she completed her Bachelor of Business course at the end of 1995 was hopeful of obtaining full time work in marketing, management, public relations or similar. [37] "In my opinion, her work capacity will be limited by the accessibility of a wheelchair at her place of employment. I consider she is capable of working a normal full time working week; (ie 37 to 40 hours per week out of a total of 168 in a week). I consider that her employability approaches that of an able bodied person, having regard to the absolute necessity of wheelchair access on a daily basis and perhaps a sympathetic employer. Her retirement age would also approach that of a normal person, although her total life expectancy may be reduced...." Mr Ryan referred to a role for the respondent "where there is a sales development account development responsibility that would often require high level skills and high level pay." Barr AJ obviously preferred the evidence of Dr Yeo and Mr Weatherley. The acceptance of Dr Yeo's evidence that the respondent would be capable only of part time work substantially lessened her prospects, as Mr Ryan acknowledged. Indeed once his Honour accepted what Dr Yeo said, Mr Ryan's evidence was of little if any assistance. No reason was advanced why his Honour should not have preferred the evidence of Dr Yeo and Mr Weatherley. Having done so, he discounted Mr McRae's calculations in the manner he described for the reasons he gave. The discount was a substantial one. In her amended statement pursuant to Pt33 R8A dated 16 August 1994 the respondent's future earnings in spite of injury were calculated, in accordance with Mr McRae's report, at $106,561. However Ido not think that the respondent can be held bound to this amount. The discount his Honour made is greater than I would have made but I am not satisfied that grounds have been shown for disturbing the result his Honour reached. He had the benefit of seeing the respondent and hearing the evidence of the doctors and 16 UNREPORTED JUDGMENTS of Mr Weatherley and Mr Ryan. He was entitled to form his own view as to the future prospects of the respondent, injured as she was, in the workforce. In my opinion this ground of appeal succeeds to the extent that the amount Barr AJ allowed for vicissitudes was too low. The appropriate discount was 10 percent with the result that probable earnings but for the injury should have been assessed at $401,624. Barr AJ deducted $60,000 from $432,937 and rounded off the difference ($363,937) at $364,000. Rather than deduct $60,000 from $401,624 it is simpler to deduct $22,313 from $364,000, thereby giving the respondent the benefit of the trial judge's rounding off, and assess the net value of future economic loss at $341.624. SUPERANNUATION [38] His Honour's assessment of the amount that should be awarded for loss of superannuation benefits was linked to the respondent's assessed loss of earning capacity. Adjustment of his Honour's award for future economic loss requires that his award for loss of superannuation should also be adjusted proportionately. This leads to the amount of $39,000 reducing to $36,603. FUTURE MEDICAL AND HOSPITAL EXPENSES PHARMACEUTICAL EXPENSES [39] The respondent claimed $49,650 for pharmaceutical expenses, calculated at $50 per week for 52 years. Barr AJ allowed $35,000. His Honour adopted for the most part a multiplier which assumed a life expectancy of 52 years but used round figures in view of the range of reasonable opinion. According to Professor Jones' report of 15 August 1990 the respondent's medications included [40] * Bactrim, one tablet per day; [41] * Coloxyl with Senna, two tablets at night; [42] * Metamucil and Oxybutynin, one tablet three times daily. Bactrim is used to maintain a sterile urine, Coloxyl with Senna as an addition to the Metamucil and Oxybutynin to assist with bladder function. Dr Yeo said Professor Jones had described a specific medication that helped relax the bladder and was necessary while the respondent was catheterising the bladder, a very reasonable prescription. They were prescribed in 1990 and with the passage of time some degree of accommodation within the bladder and bowel had allowed the respondent to require less medication. The respondent said that she had been taking celery and juniper tablets as a substitute for these drugs. The cost per month for celery and juniper tablets and other medication was $25. Over the projected period of life expectancy this produced a capital sum of $5,600. Dr Yeo said that though he could not speak authoritatively about them, the celery and juniper tablets were helping her maintain a healthy body. The medications the respondent required related to the bladder and the bowel and sometimes medications that related to spasticity. The bowel was to be controlled by a very regular disciplined approach to diet including roughage, fibre and Metamucil. It did not appear necessary for the time being for her to have these medications, provided she had regular mobility and hydrotherapy was available in due course. Later in his assessment of damages the trial judge included an amount which would enable the respondent to have her own swimming pool. If the celery and juniper tablets plus Metamucil were not adequate the respondent would require a regime of pharmaceutical medication of the type referred to by Professor Jones. These opinions Barr AJ accepted. \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shellié# JA) His Honour thought it inappropriate to allow the amount claimed by the respondent, because it was "likely in view of her present lifestyle and motivation that she will not need to have substantial resort to pharmaceuticals for a few years yet, though the need will arise as she ages." The appellant submitted that there was no evidence to suggest that there had been any change in the respondent's need for pharmaceutical medication which would bring the capital sum required up to anything like $35,000. The assumptions upon which Mr McRae's report and the respondent's claim proceeded was that the respondent would expend $50 per week for pharmaceuticals. The respondent's evidence was that she had no bowel or bladder infections in the six years since her accident and did not take any of the pharmaceutical preparations prescribed. The appellant suggested that $12,000 was an appropriate assessment. In my opinion his Honour's award was, with respect, demonstrably excessive for the following reasons. There was no ground for allowing an amount of $50 per week for the rest of the respondent's life. Mr McRae simply assumed this amount. The accepted list of past out of pocket expenses showed $2,915 for pharmaceutical expenses for a period of 190 weeks from the date of the accident, being an average of $15.34 per week. In my opinion an appropriate allowance would be based on a future average weekly expenditure of $25. Allowing for his Honour's conclusion that the respondent will not need to have substantial resort to pharmaceuticals for a few years yet but that the need will arise as she ages I would halve his Honour's assessment and substitute $17,500 for his award of $35,000 for future pharmaceutical expenses. BLADDER AND BOWEL CARE [43] For bladder and bowel care the respondent claimed $42,321.66 based on an annual rate of $2,223.50. Barr AJ allowed $35,000. At the time of the trial the respondent preferred not to self catheterise but to express her urine at two hourly intervals. His Honour accepted Dr Yeo's opinion that the respondent would eventually have to self catheterise. The respondent was entitled to be a member of the Paraplegic and Quadriplegic Association and as such to obtain the necessary products at members' rates. On the assumption of an annual expense in due course of about $2,000, based on an estimate prepared by the Association, his Honour assessed the amount at $35,000. The appellant submitted that the only discount his Honour made was that available to members of the Association so that, effectively, the respondent's claim was not discounted at all although it allowed for full self catheterisation from the date of verdict to the respondent's death. The respondent had not self catheterised and had not been doing so for some years and had no bladder infections. Dr Yeo gave the following evidence: [44] "Q. Would you assume that in relation to her bladder she does not seem to catheterise herself now and instead goes to the toilet approximately every two hours or so. What is your opinion concerning her need to be catheterising herself? A. This lady may require catheterisation intermittently if she were to develop a bladder infection. She at present empties her bladder with what we call a timed process of tapping and straining and appears to be emptying the bladder reasonably 18 UNREPORTED JUDGMENTS well because she has avoided major urinary tract infections. However, she explained to me when I last saw her on 20 June this year that she was still prone to occasional incontinence of urine leading obviously to embarrassment and difficulties but in the main this lady's paralysed neurogenic bladder appears to be reasonably balanced. [45] Q. Would there be some provision, however, made for the cost of catheterisation on the basis that depending on how things go in the future she may or may not require it either on a long term basis or intermittently? A. I believe that I have taken that into account when I estimated her possible hospitalisation, if I recall correctly every second year a week's hospitalisation at the appropriate private day rate. I have no evidence to suggest that I should in addition add costs of catheterisation on top of that since I believe if she does require catheterisation I am assuming she will have a significant urinary tract infection requiring specialist care. [46] Q. If she go to the point where she developed infection in the absence of catheterisation might the situation arise where advice is given that she should stay with catheterisation rather than increase the risk of urinary infection? A. Yes. [47] Q. If that point arose would that create a need to cost the ongoing catheterisation? A. Yes." However Dr Yeo, when asked what were the chances of her requiring and not requiring self catheterisation, said that it was very unusual today to find a female with a T12 paraplegia who was not self catheterising. The respondent's fracture at L2 was characterised as a T12 paraplegic. Professor Jones gave the following evidence: [48] "Q. You were asked about the question of self catheterisation, whether that will be necessary. In your view, long term, would she require self catheterisation? A. Michelina will do self catheterisation as long as she is physically capable of doing it. In a female it becomes progressively more difficult with aging. Ultimately her bladder will be managed by a supra-pubic catheter. [49] Q. Would you assume that she does not go to self catheterisation but relies on regularly voiding the urine at particular intervals throughout the day so as to prevent her bladder from being over-extended; for the future, would you recommend that she rely on self catheterisation rather than that particular method? A. On intermittent catheterisation rather than supra-pubic catheterisation." Professor Jones said that eventually the technique becomes difficult for the aging quadriplegic female and the ultimate method of bladder emptying would be by a catheter placed above the pubis directly into the bladder. At a younger age that is avoided because the long term effects in the bladder are not totally known Asked about intermittent catheterisation the Professor said: [50] "It is possible to empty the bladder/bowel by straining but the risks there are that if there is an imbalance of the muscle power of the bladder wall itself and the outlet, then one can cause damage to the upper urinary tracts. She may very well be able to cause either reflex emptying to the bladder or purely strain to overcome the outlet obstruction but the risk is that there may be part pressure on the kidneys." Professor Jones recommended, if the respondent did not want to use the catheters, that she have her bladder investigated and ensure that she was not doing harm by emptying her bladder without the catheters. If that was the case, she was completely emptying the bladder and there was no reflux to the kidney, \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shelle JA) he would accept it was a reasonable form of management of her bladder. If that was not the case, he would recommend that she continue with the self catheterisation. Intermittent self catheterising is the preferred option since it avoids a lot of urine investigations that have been done in the past. Most patients use intermittent catheterisation. Professor Jones was asked if the respondent was not self catheterising intermittently, whether she would need to continue to monitor the outcome in terms of her avoiding the extension of the bladder. He said: [51] "Absolutely. One would have to ensure she was not getting retention of urine with residual which can become affected. She could get pyelonephritis. Q. What is the cost of those investigations and necessary frequency of your investigations which you would recommend if in fact she is continuing with a regime of not using self catheterisation? A. She would require a urodynamics study and a kidney x-ray or ultrasound. They would be required on average each five years for the urodynamics and each two years for the kidney x-ray. The cost, I can't comment." Unfortunately Barr AJ gave no reason for, effectively, allowing the full amount of the respondent's claim. His finding that the respondent would eventually have to self catheterise and that at the time she was not self catheterising suggests that some further discount was appropriate. The appellant submitted that the cost should be postponed for twenty years and then allowed for the last thirty years of the respondent's life which gave a figure of about $6,000. In my opinion this is too greater discount. Professor Jones' recommendation was that the respondent self catheterise. That was the preferred option. While his Honour, does not refer to this evidence he must have taken it into account in coming to the conclusion that he did. I would postpone the cost for five years and then allow it for forty-five years. The Paraplegic and Quadriplegic Association estimated the cost per annum if the respondent recommenced self catheterisation at $1,976.70 or $37.87 per week. This produces the following capitalisation using Mr McRae's annuity factor. Period Yearly Amt Weekly Amt Weeks Annuity Factor (weekly basis) Total Su Next 50 yrs $1,976.70 $37.88 2609 976.14 $36,978 Next 5 yrs $1,976.70 $37.88 261 231.42 $8,766.7 Postpone for 5 yrs then next 45 yrs $1,976.70 $37.88 2348 $28,211 I would substitute an amount of $28,000 for the $35,000 his Honour allowed. ACTION SPORTS WHEELCHAIR The respondent claimed for three wheelchairs. Barr AJ allowed the cost of two wheelchairs, an Action Sports wheelchair at $10,800 and a folding framed wheelchair at $5,050. The appellant submitted that the trial judge failed, in calculating the amount allowed, to have regard to the respondent's evidence as to how long a wheelchair lasted her. Patricia Hargreaves, a consultant occupational therapist, who prepared a report for the respondent, said that this type of wheelchair had been supplied for the respondent's use. The Paraplegic and Quadriplegic Association on the basis of replacement every three years put the cost at $525 per annum. The respondent gave evidence in August 1994 that she had had her sports wheelchair since she left hospital which was in May 1990. Asked what condition the chair was in the respondent said: 20 UNREPORTED JUDGMENTS [52] "It is near new because I have not been able to use it because every since I have had the car I use the folding frame for the wheelchair hoist so I have not used it" Barr AJ does not explain how this evidence was taken into account in his assessment which was based on the Paraplegic and Quadriplegic Association estimate. Any adjustment to the amount allowed is arbitrary. The appellant suggests that a reasonable approach would be to allow one such chair every six years at $1,575 which produces a capital sum of $5,760.83. The respondent has advanced no argument contrary to this and I would accept the appellant's suggested reassessment. I would substitute the amount of $5,800 for the amount allowed by his Honour of $15,850. MISCELLANEOUS WELFARE ITEMS [53] Barr AJ allowed $5,000 for a Nippy Outdoor Scooter, an item included in a list of future requirements in Ms Hargreaves' report. Ms Hargreaves introduced her recommendations by saying that the items referred to were not necessarily the specific items which the respondent might require but examples which indicated the cost of such items. She went on to say that most suppliers were tentative about the estimated life of equipment as this depended on the use/abuse received. His Honour said that it was not entirely clear whether the respondent would require this item of equipment. The respondent described the item as being like a little motor bike. You wheel yourself on to the bike and drive it like a motor bike. She said that she did not know whether she needed it or whether she would use it very well. His Honour concluded that there was a reasonable possibility that the respondent might have the need of such an item and made an allowance for it discounting the figure claimed to $5,000. The appellant submitted that it was unreasonable to allow an amount under this head. The respondent drove a motor vehicle. Dr Lowy said that a Nippy scooter was inappropriate as the respondent could drive a car and it would be "like a badge of disability". The item was appropriate for people more disabled than the respondent who had difficulty in transferring in and out of a car. With some hesitation in light of the evidence I think we should defer to his Honour's view that a discounted allowance should be made for this item. I would not interfere with the amount determined. TRAINING, EDUCATION AND _ REHABILITATION EXPENSES COMPUTER AND TEXT BOOKS [54] In addition to the replacement of a computer and printer every five years, an auto-modem every ten years and a workstation every twenty years the respondent claimed an amount for text books and other literature calculated at $500 per annum for six years, a capital amount of $2,664.74. Barr AJ allowed $21,350 for educational equipment including the computer and _ printer, auto-modem and workstation but only $1,000 for text books and other literature. The appellant suggested that in the absence of a specific finding that the respondent would pursue further tertiary education to improve her employment prospects the appropriate finding was that the respondent's tertiary education had concluded. Furthermore the trial judge approached her economic loss claim on the basis that she would not work from home. If she did, the employer would be expected to supply the necessary computer equipment. The respondent in evidence said that she did not know whether if working from home she would need a computer. At the university she would use computers provided. However she gave the following evidence: \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shelft JA) 55] "Q. Let me put this question to you, if you did have a computer you would want your own study room for it? A. Yes. 56] Q. Why do you need one now? A. To get access to it more easily and to be able to do assignments and things like that from home. 57] Q. After you have finished your study why do you need one? A. I don't know. I may need one I guess for work, may be doing it at home if I am working from home for example. 58] Q. If you were working from home it would extend the hours, would you agree, you would work? A. Possibly. 59] Q. If you weren't working at home what use would you have for a computer? A. I don't know." His Honour referred to the determined efforts of the respondent to progress with the course she was undertaking at the University of Technology. He accepted her evidence that she had difficulty in obtaining access to books on shelves and in carrying books back and forth and that the effort involved was likely to add to her discomfort and would affect her ability to work and earn income. He thought it a distinct possibility that she would find it necessary in order to sell herself in a difficult labour market to equip herself with a post graduate degree. She was prepared to undertake that additional effort. Accordingly he considered her claim for entitlement to the cost of setting up and maintaining her computer and printer was made out and that she demonstrated the need for a modem to gain access from home to records kept in other places, as for example, in the computer at the university. Further while it might be unrealistic to expect her to obtain part time work from home, the facility might assist her hunt for work. Her possession of a computer throughout her working life and in retirement would be necessary for her continuing rehabilitation. The trial judge disallowed the claim for text books in the way that it had been framed but, accepting the possibility that the respondent would need to do a post graduate course, a step she would not have needed to take to get employment uninjured, he allowed $1,000. In my opinion his Honour's allowance for computer equipment and text books is unexceptionable. DOMESTIC EQUIPMENT [60] The appellant challenged the allowance Barr AJ made for domestic equipment. The items allowed were a waste disposal unit at $3,000, a clothes dryer at $1,700, a wall oven at $2,000, a cooktop at $2,000, a dishwasher at $2,500, a microwave oven at $500 and an ironing board, wall mounted with safety cut out switch, at $500, making a total of $12,200. The trial judge was conscious that the respondent had to demonstrate that her need for these items was greater than or different from the need of uninjured people for the same item. The respondent's contention was that her incapacity made them necessities for her whereas they were merely luxuries for other people. In Marsland v Andjelic (1993) 31 NSWLR 162 at 178 Kirby P and Meagher JA discussed a claim of this kind and said that the need for such items might be classified as "possible" rather than "certain". "However, as Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 instructs, this does not, in law, relieve the Court of the duty to provide for them in an assessment of damages. Naturally, the extent of possible or probable need affects the amount of damages to be awarded under such heads of claim." There are two degrees of probability to be weighed as part of what Lord Diplock described as "a double exercise in the art of prophesying not only what the future holds for the injured plaintiff but also what the future 22 UNREPORTED JUDGMENTS would have held for him if he had not been injured"; Paul v Rendell (1981) 55 ALJR 371 at 372. The first is the probability that uninjured the respondent would have acquired the items claimed. The other the probability that injured she will need them. Barr AJ said that the case was different from Marsland v Andjelic because there was no direct evidence that the respondent had, because of her incapacity, a greater need for the items claimed than an able bodied person would have. It had been left to inference. He said: "For the most part I have been prepared to draw the inference contended for by the (respondent) but that does not extend to all the items she has claimed." The appellant argued that given the degree of success the trial judge found that the respondent would have had in her career but for the accident, the domestic items allowed would have been virtual necessities but for the accident. In evidence the respondent accepted this. Furthermore the trial judge had allowed a substantial amount for the respondent's future care, including housing costs. Under that item provision was made for special benches in the kitchen and the like. About the amounts individually, his Honour spoke only of the wall oven and the cooktop, the claimed unit cost of which he considered reasonable but the intention to replace every five years excessive. In my opinion the degree of probability that the respondent injured would need these items and that the respondent uninjured would have acquired them must be almost the same. I think, with respect, his Honour's approach was not justified by the circumstances of the case and the resultant assessment wrong. I would infer that the respondent's need injured was slightly greater than it would otherwise have been and would be a need she would have to meet sooner. On this basis I would substitute the amount of $2,000 for the $12,200 his Honour allowed. BURGLAR ALARM [61] The respondent claimed for the yearly maintenance of a burglar alarm at $300 per annum (($5,870) and the cost of an alarm at $3,000 every five years ($12,912). Barr AJ allowed $5,500 for maintenance and the cost of an alarm at $2,500 every eight years which produced a capital sum of $7,250. His Honour gave no explanation for this discount. The same approach should be applied to this item. I have no doubt that the item was a necessity for the respondent. The degree of probability of the respondent's need injured, seems to me to be substantially higher than the degree of probability that she would have acquired a burglar alarm, if uninjured. I would estimate the difference at 50 percent. This produces an amount greater than that his Honour allowed. His Honour substantially discounted the claim and I would not disturb the result he reached. HOME ALTERATIONS, CONSTRUCTION AND MAINTENANCE SWIMMING POOL ENCLOSURE AND BOOSTER HEATER [62] The respondent claimed $118,344 for a swimming pool, enclosure and booster heater. Barr AJ allowed $115,000. Dr Yeo's evidence supported the conclusion that, if the respondent were to proceed in employment despite her disability, she would need both a heated and enclosed small domestic size swimming pool. It was important that the respondent have access to the pool area without the discomfort of a low ambient temperature. If an all year swimming programme at 26 degree C was envisaged, Mr Newlin-Mazaraki, the architect the respondent called, stated that the pool should be enclosed and booster heating provided for five to six months of the year. In June 1991 he estimated the cost at $35,500 for the pool and $42,600 for the enclosure. By July 1994 his estimate had increased to the amount the respondent claimed. \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shel JA) Mr Booth, the architect the appellant called, gave evidence that a totally enclosed pool would cost up to $69,000. However his Honour thought this was an estimate that Mr Booth had not really had the opportunity to consider carefully. Asked to consider Mr Newlin-Mazaraki's report which put the cost at $118,000 with a full enclosure consisting of brick, weatherboard, glass and tiled roof, Mr Booth said: [63] "That to me seems totally excessive, although I'll qualify that. If it is to be fully enclosed, it probably would cost that amount. I mean, you are going to have to build a very large room within which is a swimming pool, almost - if I could use the term - like a ballroom." His Honour was satisfied that the pool should be totally enclosed and accepted Mr Newlin-Mazaraki's estimate, which was based upon the cost of a pool recently installed. He allowed for the economy that would be achieved if the pool and house were constructed as one project and so came to the amount of $115,000. The respondent complained that his Honour had made no allowance for betterment of the house property, for the amenity of the pool to other members of the respondent's family and for the likelihood that the respondent would have had a swimming pool in any event. The trial judge found that Mr Newlin-Mazaraki's estimate was more reliable than that of Mr Booth. I do not think we can disturb his finding or the finding that there was need for the pool to be enclosed and for there to be a booster heater. I do not regard the enclosure and the booster as items that the respondent was at all likely to have had had she not been injured. Indeed I do not think that there was any high degree of probability that the respondent would have had a swimming pool had she not been injured. However I would discount the trial judge's assessment by 10 percent to allow for the degree of probability that the respondent uninjured would have built a swimming pool. Accordingly I would substitute the amount of $103,500 for the $115,000 his Honour allowed. SWIMMING POOL MAINTENANCE [64] The respondent claimed $96,893.89 for the maintenance and running costs of the swimming pool, based on Mr Newlin-Mazaraki's estimate of $97.58 per week for water rates, cleaning, chemicals, energy for pumps and heating and hoist maintenance. Barr AJ allowed $70,000. He said this was based upon Mr Newlin-Mazaraki's estimates, which included a substantial amount for cleaning, including clearing leaves from the pool and from filters. However this expense would not be occasioned if the pool was totally enclosed. He said that he did not accept Mr Booth's opinion without reserve either, because he had not allowed any amount for the hoist which would be necessary. The range of weekly running costs was about $43 to about $97. He concluded that a figure of a little more than $70 per week, which was within the range of evidence, would produce an amount sufficient to compensate the respondent. The appellant claimed this was excessive. The amount certainly appears high but is supported by evidence which his Honour accepted. For my part I am not satisfied that sufficient ground has been shown for this Court to interfere with the allowance. BUILDING MAINTENANCE AND REPAIRS [65] The respondent claimed for the cost of painters, plumbers, and electrical contractors at $79.27 per week which the trial judge regarded as excessive. He accepted that in the early years these expenses were likely to be low and to a degree covered by building or tradesmen's contracts. He doubted whether average costs would ever get as high as $79.27 per week even in later years and said: "Allowing for that and for the fact that there will be a substantial deferred 24 UNREPORTED JUDGMENTS period before costs of this kind begin to mount up, I allow $50,000." The appellant submitted that the respondent's injuries did not result in any special need for these services and they should not have been allowed. I agree. Any house owner, particular one engaged, as the respondent was expected to be, in a successful career would be faced with paying the cost of painters, plumbers and electrical contractors. I do not think there was any difference in the extent or degree of probability between the respondent's using these services uninjured and injured. I would uphold the appellant's submission on these items and deduct the amount allowed from the verdict. TRANSPORT REQUIREMENTS [66] Barr AJ found that the respondent used her car to travel to university and frequently travelled to the country or interstate for family and social occasions or holidays. He did not accept that over the whole of her life she would have to travel any significantly greater distance, because of her disability, than she would otherwise have. However he accepted that she would always have to drive to work whereas, she might, uninjured, have used other means of transport. On the other hand because the length of her working life might not be great she would use her car far less later in life than an able bodied person would. He allowed $10,750 for additional vehicle maintenance and running costs and $15.745 for a mobile telephone. The appellant challenged neither. The respondent claimed for long term parking. The quantification of this claim depended on whether the respondent had no children and worked to about forty-five years of age or whether she married and had children with a consequential substantial reduction in her ability to attend work. His Honour said that the annual cost of $3,000 was reasonable but discounted the total claim to allow for the possibility that the respondent's future working life might be severely limited and allowed $25,000. The appellant submitted that it was wrong to allow this amount for long term parking when the respondent's residual earning capacity was assessed as only $60,000. There was some evidence that government or other instrumentalities or firms, who were interested in affirmative action for disabled people, would take into account the need or perhaps provide for parking. The respondent said that if in the future she entered the workforce, not from her home, but in a business establishment, preferably she would need an undercover parking space so that she would not get wet leaving the car and getting into a wheelchair and have access to the building; easily. The cost of parking in the central business district was $6,000-$7,000 per annum which translated to $76,892 to $89,707 over twenty years. $25,000 represented, therefore, a substantial discount to allow for the fact that the respondent might not need a car space for the whole of that period. In my opinion it is self evident that, if the respondent is to work away from home and if her only means of transport is by car, she will need a place to park near her place of work. His Honour took account of the possibilities that she may work at home, that her working life may be reduced and that her employer may provide a parking facility. The logical result of the appellant's argument that the capital sum of $25,000 should be disallowed or reduced is that the assessed residual earning capacity should be further reduced to the same extent. No ground has been shown to interfere with his Honour's assessment. HOME CARE \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shel2& JA) [67] Barr AJ awarded $249,900 for home care. The appellant did not challenge the allowance of $18,650 for past care. It did challenge the assessment of $231,250 for future care. In Pettersen v Bacha (unreported) Court of Appeal, 9 March 1995, Cole JA, with whose judgment the other members of the Court agreed, said at 7 of his judgment: [68] "The question of what constitutes reasonable care is a question of fact to be determined by the trial judge having regard to his assessment of the witnesses and other evidence called before him. The circumstances in which an appellate Court should interfere with such a finding of fact are extremely limited. The level of care required, and the reasonable cost of providing that level of care, was dependent very much upon the trial judge's assessment of and acceptance of witnesses." Barr AJ recognised that this head of claim was likely to vary according to whether the respondent married and had children or worked as closely as she might to a full working life. He said: [69] "If she works full time and has no children she will need twenty hours per week domestic assistance, according to Dr Yeo, whom I accept. If she does not work and has no children she will need only twelve hours per week of such assistance. If she has two children she will need four hours additional help per day during the first two years of the life of each child. Thereafter the need for assistance with the children will continue but taper off. The need for general care for the (respondent) herself will increase to twenty hours per week in about twenty years time." In his report of 6 August 1990 Dr Yeo recommended that the respondent "be provided with twelve hours of domestic assistance per week for the next twenty years and then twenty hours per week thereafter. In his oral evidence he said that "her minimum requirements will be twelve hours of domestic assistance per week rising to twenty hours per week later in life." Dr Yeo thought that the respondent would enter the workforce for up to 50 percent of a normal working week up to the age of forty-five and then be prematurely retired. He did not, however, give evidence that she would need twenty hours per week domestic assistance. It was Professor Jones who said that, if the respondent was to work, she would require domestic assistance for approximately twenty hours per week. About this Professor Jones was not cross examined. However Professor Jones thought that the respondent could enter the workforce full time. S72 of the Motor Accidents Act 1988, unamended by the Motor Accident (Amendment) Act 1993, applied and provided, so far as presently material: 70) ~Maximum amount of damages for provision of certain home care services 71) (1) An award of damages shall not include compensation for the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided to the person in whose favour the award is made by a member of the same household or family as the person, except in accordance with this section. 72] (2) No compensation shall be awarded unless the services are provided, or are to be provided, for not less than 6 months and may be awarded only for services provided or to be provided after the 6-month period. 73] (3) No compensation shall be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident. 26 UNREPORTED JUDGMENTS (4) No compensation shall be awarded unless the services provided or to be provided are not less than 6 hours per week and may be awarded only for services provided or to be provided after the first 6 hours." Subs(5) and subs(6) imposed a limit on the amount of the weekly or hourly rate allowable for such services. His Honour said: "If the plaintiff works for the better part of the next twenty years and has no children, she will need twenty hours services per week during that period, fourteen of which will be compensable. If on the other hand she works for about four years and then starts a family, she will need the following assistance: [74] (a) For four years: twenty hours per week, fourteen of which are compensable; [75] (b) For the next sixteen years varying amounts of assistance ranging from forty hours per week to, say, twenty hours per week and perhaps averaging about thirty hours per week, twenty-four of which are compensable. In order to give effect to both these possibilities, I assess her need for assistance over the next twenty years as averaging about twenty-six hours per week, twenty hours of which will be compensable. I therefore allow: 20 years from 1995 at 20 hours per week ($13 per $173,250 hour = $260 per week) For the next 32 years at 14 hours per week ($13 per $ 58.000 hour = $182 per week) $249.900* The parties accepted that $13 was the statutory rate. The $249,200 included the $18,650, his Honour had allowed for past care. The appellant submitted that the trial judge erred in finding that the respondent would require twenty hours domestic services per week for the next twenty years if she worked and did not have children. The respondent cross appealed against the amount allowed as too low. It is convenient to consider the appeal and cross appeal together. On the one hand the appellant said that if the respondent worked she would require twelve not twenty hours per week for domestic services and hence the compensable time was six and not fourteen hours. I do not think that the appellant challenged the proposition that if she had children both amounts would be increased by four hours per day or twenty eight hours per week. The appellant also submitted that if it were correct to allow twenty hours per week where the respondent was working, there would have to be a discount to take account of those matters which caused the trial judge significantly to discount the respondent's post accident residual earning capacity. Dr Lowy said that the respondent's mother prepared breakfast, lunch and the evening meal, made the bed, put out the respondent's clothing and did the washing and ironing. This domestic assistance would amount to perhaps two hours per day for seven days per week which would include food, shopping, cooking, washing, room tidying, etc. These hours of domestic assistance might increase with age, especially after menopause. The respondent gave the following evidence: *Q. Supposing you had a house in which you had wheelchair access appropriately built in so that for instance you had a kitchen where everything was at a height where you could reach and there \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (ShelB# JA) was a work bench under which you could put the chair to chop vegetables, whatever, that you had a laundry in which you had a front loading washing machine and a dryer side by side both accessible from the wheelchair, that it was on a single level so you did not have any difficulties with stairs or anything like that, the rooms designed so there was access to furniture, proper room around beds and such like; what do you say you could not do about looking after yourself in the house? A. I would not for example be able to mop the floor on the tiles, things like that. [76] Q. Let me exclude heavy cleaning work, scrubbing and mopping which would have to be done from time to time. Apart from that what do you say you could not do? A. I could do everything but it would take me twice as long as an able bodied person to do it meaning I would get tired more and I would be sitting longer. It would take more time. It would put extra pressure on me. [77] Q. That would be true of things which require continuous effort but say putting clothes in washing machine, taking them out and putting them in a dryer, that would not take you longer than anyone else? A. It would because I would have to reach down and pick them up. After a while my back gets sore doing things like that. [78] Q. Do you think you could do everything apart from the heavy cleaning but it would take you longer? A. I suppose. I mean I have not been in that situation. I cannot say for sure." This evidence presents a person who would need more domestic assistance if she were in the workforce than if she were not. Even though Barr AJ mistakenly attributed the evidence about the need for twenty hours domestic assistance to Dr Yeo rather than Professor Jones, I would not be prepared to interfere with his Honour's conclusion that for the better part of the next twenty years, if the respondent had no children, she would need twenty hours assistance per week. There was evidence to support this and his Honour saw the witnesses. His Honour's conclusion that if she were to have children additional help would be required for the first two years of four hours per day or twenty-eight hours a week which, together with twelve hours while not working, produced the upper figure in the range he chose of forty hours per week. Again I am not satisfied that these amounts are wrong. For twenty years his Honour treated twenty hours as compensable and chose what the respondent's counsel described as "the statutory rate of $13 per hour", this being no doubt a reference to s72(6) of the Motor Accidents Act. The allowance for the next thirty-two years of 14 compensable hours per week is explained by his Honour's finding that the need for general care would increase to twenty hours per week in twenty years time even if the respondent were not working. Thus the calculation made by his Honour is consistent with the findings he made. In her cross claim the respondent complained that his Honour erred by allowing nothing for the first six hours. Her sister, who had consistently helped the respondent after she was injured, was engaged to marry a Canadian and had gone to Canada. The respondent had said that she would need to have paid help because she did not have any more sisters to rely on and she could not honestly rely on friends and other people "who don't know how to help me in a public situation." Once she left her parents' house she would definitely need help to maintain her home. She said: "I can't make my bed, it is difficult to circumnavigate the bed to make it properly, and just vacuuming is virtually an impossibility." She mentioned the difficulties of attending to garbage and 28 UNREPORTED JUDGMENTS carrying out minor repairs such as the replacement of light bulbs. In addition, while the respondent accepted the finding that she would need about twenty six hours assistance per week for the next twenty years of her life and twenty hours thereafter, the correct hourly rate was $14.91 being, on the evidence, the average gross hourly rate for home help. Barr AJ did not explain why the lower rate of $13 was appropriate. It may have been that, having chosen it to calculate the allowance for past care, which was voluntary care the respondent's family provided, he overlooked the necessity in the future for paid outside help not subject to the s72 limit. In his report of 26 July 1994 Mr McGrath calculated the present value of future home care by reference to the gross cost per week which was $14.91 per hour. In calculating the amount to be allowed for a handyman his Honour used the gross cost per week adopted by Mr McGrath. In my opinion his Honour's calculation should be adjusted by substituting $14.91 per hour for $13 per hour. Since I am not entirely clear as to how his Honour made the calculation or how he discounted it I propose to make the adjustment by dividing the product by 13 and multiplying it by $14.91. I am not satisfied that his Honour did not fully consider the argument put concerning the first six hours. One of the contingencies that has to be taken into account is that the respondent will marry and have a husband who will assist in the house and then children who will also be able to assist for a time. I do not think it unreasonable to assume that, at least to the extent of six hours a week, assistance will in the future be provided by members of the respondent's family. The respondent's evidence was that she wanted to live in her own house near her parents and they would continue to help her. They were relatively young, her mother in her mid-forties and her father slightly older. By the calculation I have mentioned I would substitute $265,226 for the $231,250 allowed by his Honour for future care which has the effect of increasing the total amount for home care of $249,900 by $33,976. HANDYMAN/GARDENER ASSISTANCE [79] Under this heading and in addition to other domestic and child care, Barr AJ allowed $60,000, for three hours per week calculated at $84 per week for the rest of the respondent's life ($82,488), discounted to allow for the possibility that the respondent would marry in which case her husband might be expected to perform a substantial amount of the work. The discount was approximately 27 percent. The appellant submitted the discount was inadequate and should have been increased to allow for the fact that, if the respondent had been successful in her career but for the accident, she would have needed, in any event, the assistance of a handyman/gardener. The respondent was asked who did the gardening and the maintenance of lawns and the surrounds at her parents' home and answered "my father and on occasion my brother". Asked: [80] "Q. When you acquire your own home how would you intend with that kind of work being done in your own home? A. If I were still single I would definitely need a gardener to help with those sorts of things." A discount of 27 percent for the possibility that the respondent may marry is not unreasonable. This is an aspect of the case to which I shall return. Nor do I think, in the absence of evidence, there is any significant degree of probability that, uninjured, the respondent would have required or employed such assistance. I would not interfere with this assessment. VACATIONS AND TRAVEL \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shel29 JA) [81] The respondent claimed $272,897.68 for a yearly two week holiday and for another eleven week holiday every third year with additional allowance for the cost of accommodation, airfare, meals etc for a carer and for having to take more expensive holidays. Barr AJ considered she was entitled to a reasonable figure to compensate her for additional expenses she would have to incur during her holidays such as the occasional cost of a companion, if she was not married, and additional assistance she would need by reason of her disability. His Honour regarded the respondent's assessment as unrealistic but allowed her $2,000 per annum for the rest of her life again discounted to allow for the possibility that her husband would give her significant assistance. This produced the amount of $40,000. The appellant submitted that an allowance had already been made for care and that the need for care on holidays would be largely the care needed at home. It was said, for example, that if the respondent were to travel to a holiday destination in Australia one could assume that the same care services would be available at the same price at that destination as in Sydney and had already been allowed for. The amount suggested was $1,000 rather than $2,000 producing a capital amount of $25,000. The respondent said that she enjoyed going on holidays. Since the accident she had been to Orange, Vincentia, Canberra, Cairns, the Gold Coast, Shepparton, Melbourne and Adelaide. She had taken her sister and her mother and father on occasions. She said that she would need somebody to go with her. While $1,000 may be within the range of an appropriate estimate I am not convinced that $2,000 is outside that range and I would not interfere with the amount assessed by the trial judge. LOSS OF FINANCIAL BENEFIT AND SUPPORT OF HUSBAND [82] Barr AJ found that the respondent's disabilities had lessened her prospects of marrying and thought, notwithstanding that the respondent intended to do so and have a family, she was entitled to a reasonable sum to allow for the possibility that she might not marry. He made no allowance for past loss but said: [83] "I also apply a discount to allow for the possibility that, uninjured, the plaintiff would have contracted a bad marriage or would for some reason have lost or failed to gain the financial support of a spouse. I allow the sum of $100.000." Speaking of the respondent uninjured, his Honour said that she would have had an active and rewarding life in the work of her choice and as a wife and mother. Speaking of her injured, his Honour said that he accepted the possibility that she would not marry and have children as a reasonable one arising from her incapacity and then said there was a reasonable possibility that she would marry and have children. It is not clear to me that his finding of a possibility that the respondent will marry and finding of a possibility that she will not marry indicates the degree of probability the decision of the High Court in Malec v Hutton required his Honour to determine. Again, in my opinion, in assessing this claim there are two degrees of probability to be weighed. The first is the probability that uninjured the respondent would have married, the second the probability that injured she will marry. For present purposes it seems implicit in his Honour's finding that the degree of probability that the respondent would have married but for the injury was high, about 80 percent. Her disabilities reduced her prospects of marrying, according to the discount his Honour made for the employment of a handyman, to about 27 percent. Valuation of the benefit lost if the respondent does not marry is extremely difficult. In Sharman v Evans (1977) 138 CLR 563 at 583-4 Gibbs 30 UNREPORTED JUDGMENTS and Stephen JJ spoke of a female plaintiff likely to marry and who may cease to exercise her earning capacity on, or at some time after, marriage. [84] Despite recent changes in patterns of employment of married women this remains a not unusual situation, the woman in effect exchanging the exercise of her earning capacity for such financial security as her marriage may provide. The measure of the one of course bears no necessary relationship to the other and the whole situation must be full of critical uncertainties such as whether the plaintiff marries, the extent of any of her employment after marriage, the success of that marriage and the extent to which it in fact provides her with economic security. Perhaps the only relatively certain factor will be her pre-injury possession of earning capacity and this in itself may be sufficient reason, absent any clear evidence pointing in a contrary direction, for the adoption of the expedient course of simply disregarding the prospect of marriage as a relevant factor in the assessment of such a plaintiff's future economic loss; this of course at least recognises the plaintiff's retention of capacity, which would have been available to her for exercise, in case of need, despite her marriage." In Warringah Shire Council v Jamieson (unreported), Court of Appeal, 19 December 1980, Samuels JA said that generally it would be appropriate to assume that a female plaintiff would have sought, and obtained, in marriage financial benefits roughly equal to those which she could have got in commercial or industrial employment. Despite the critical uncertainties, modern social conditions suggest that the adoption of the expedient course may be unsatisfactory. Implicitly Barr AJ recognised this. In Government Insurance Office of New South Wales v Mackie (1990) Aust Torts Reports 81-053 Clarke JA, with whom Mahoney and Handley JJA agreed, at 68,215 said that he did not believe that Sharman was laying down a general rule and did not think it any longer valid to proceed upon the assumption articulated in the Warringah Shire Council case. Clarke JA referred to other possibilities, in addition to the possibility that the plaintiff may not have married, which must be taken into account; that the plaintiff may have left the workforce on marriage or the birth of a child, may have had a short or disastrous marriage and had to support her husband or, on the other hand, may have worked continuously in a successful partnership with her husband and thereby enjoyed a very high standard of living. Again apart from marriage carrying with it, in modem society, a high rate of divorce, the respondent may have formed a permanent relationship or permanent relationships the opportunity for which are lost. Unfortunately in the present case Barr AJ did not explain what led to the assessment he made. He compensated the respondent in respect of the impairment of her future earning capacity. The separate claim for loss of financial benefit and support of a husband would overlap with this as Clarke JA observed in Mackie at 68,214 "to a marked degree". The amount allowed by his Honour represents $100 per week for the rest of the respondent's life. The case can be compared with Hines v The Commonwealth (1995) Aust Torts Reports 81-338 in which there was evidence that the plaintiff would but for the accident have married an accountant with good prospects. Giles J having listed the many imponderables, even where there was such evidence, and referred to calculations which suggested that a loss of over $1.S million had been sustained. His Honour valued the chance at $400,000 for both past and future loss of support, and including interest on past loss of support. \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shelf JA) Barr AJ's assessment of future economic loss was discounted on the basis that, uninjured, the probabilities were that the respondent would have been absent from the workforce for about five years and thereafter would have returned to part time work for approximately two years and eight months. During that period of time she would presumably have been dependent on her husband. Outside that period, during the continuance of the marriage, there may have been some other financial support although one would expect that both she and her husband would be contributing substantially to the upbringing of the children. However it seems to me that logically, if the projected loss of earnings is to be discounted for a period of child bearing, something must be offset against that discount for the loss of support of a husband as part of the calculated projection. No doubt something must also be allowed for the advantages that flow from pooling earnings thereby improving purchasing power beyond the purchasing power of two incomes separately enjoyed. It may be that it was in this way that Barr AJ approached his assessment. Using the figures his Honour did to assess the probable earnings but for her injuries, the respondent would have earned something in the order of $100,000 after tax during the five years he treated her as not working and the two years and eight months he treated her as working part time. Had the expedient course of disregarding the prospect of marriage as a relevant factor in the assessment of the respondent's future economic loss been adopted the present value of the net weekly income earned during this period would have been in the order of $100,000 but subject to a 15 percent discount for vicissitudes. This can be demonstrated by using a net weekly salary of $389.89 (see the table his Honour used) and the actuarial factor (203) Mr McRae provided for the five year period from 4 May 1997 to 3 May 2002. The calculation produces a capital sum of $79,148. To this must be added superannuation and the difference between the capital value of a full salary and a part time salary for the next two years and eight months. Taking account of these considerations, although not explained, I think his Honour's assessment of $100,000 under this head can be justified and should not be disturbed. FEE FOR MANAGEMENT OF THE FUND OF VERDICT MONIES [85] Barr AJ calculated the fund, after excluding out of pocket expenses, at $1,848,973. He accepted that the respondent was an intelligent young woman who would be able to manage effectively every-day money problems but added: "That is not to say, however, that she could efficiently manage a lump sum of this order. I think that she needs outside advice. I think it reasonable to allow in the verdict the cost of professional management of the fund." The respondent said that she would get professional advice for the investment of the verdict because she did not really know what was available to invest in and what the risks were and what was involved. Asked whether her training equipped her for making financial decisions concerning investments she said she did one financial subject as a core subject and failed that "so finance is not my forte". Her only investment was a savings account. In Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522 this Court followed its decision in Brindall vy McDonald (unreported), Court of Appeal, 11 March 1987, and held that it was appropriate to include in the award of damages at least some part of the cost of administering the affairs of a plaintiff who was unable to attend to her own affairs due to intellectual and other disabilities suffered as a direct result of the tortiously inflicted injuries. Cases in Canada, South Australia and England were referred to in support of this 32 UNREPORTED JUDGMENTS proposition. At 528-9 Clarke JA said that the proper approach was to include within the damages an allowance for fund management which reflected the probable difference between the expenditure likely to be incurred by a person who was unable to manage his affairs as a consequence of the accident in question and the expenses which as a matter of probability, would be incurred by a plaintiff whose intelligence was unimpaired and who sought expert aid in the investment of the damages fund. Clarke JA, with whose judgment Mahoney and McHugh JJA agreed, was unable to accept the proposition that an injured plaintiff who received a large award of damages was entitled to have included in his award an element to compensate him for the need to expend moneys on the administration of the fund constituted by his verdict whether or not he suffered intellectual impairment as a result of the tort; 529. In Government Insurance Office of New South Wales v Rosniak (1992) 27 NSWLR 665 the plaintiff suffered injuries a significant aspect of which involved brain damage. At 684-5 Mahoney JA said there was no inflexible rule: [86] "Many, if not most, plaintiffs lack the appropriate skill to manage a large award. But that does not mean that, when the amount awarded is large, the management costs are to be seen as resulting from the defendant's negligence. Often, perhaps ordinarily, they will not. On the other hand where the defendant's negligence produces a particular incapacity in the plaintiff such that, because of that capacity, her affairs must be managed for her, that I think will be usually sufficient." Further at 686 his Honour said that he did not think there should be a deduction of the kind referred to by Clarke JA in Treonne. Meagher JA reached the same conclusion on the basis, as I understand it, that in this respect Treonne was wrongly decided; see 695 and 698. In these respects the President adopted or preferred the view of Meagher JA; 675. In Nominal Defendant v Gardikiotis (1994) 19 MVR 307 the plaintiff as the result of her injuries in a motor vehicle accident suffered the aggravation of a pre-existing condition of multiple sclerosis. Two members of the Court (Priestley and Sheller JJA) agreed with Meagher JA at 314 that it was reasonable that she be compensated for the need to manage a fund in excess of $1.5 million. Meagher JA said: [87] "She is certainly not mentally incapacitated (although, equally, she is not a genius) but is hardly fit to invest such a fund without outside advice. She has selected a branch of Westpac for that purpose. That, to me, seems quite reasonable. In principle, I cannot see why the defendant's tort has generated a reasonable need in a plaintiff for fund management, and that need is reasonably foreseeable, the plaintiff is not entitled to recover a sum representing that need by way of damages. In principle the situation seems quite clear; as far as authorities go, the only obstacle is some dicta by Clarke JA in Treonne Wholesale Meats Pty Ltd v Shaheen;...7 MVR 11, which should be regarded as overruled by GIO (NSW) v Rosniak.It might be, and indeed has been, suggested that a fee for fund management should not be allowed because it results from the verdict awarded not the defendant's negligence; I do not see how such a view can be entertained in circumstances where the incurring of a fee is a necessary, reasonable and foreseeable result of the negligence which led to the verdict: in general, see Mahony v J Kruschich (Demolitions) Pty Ltd (1985) 156 CLR 522." In Todorovic v Waller at 442 Mason J said: "First, as we have seen, investment in equities as a hedge against inflation has not been a completely successful strategy; it entails some risk of capital loss. A plaintiff injured by a defendant's negligence should not be expected to encounter that risk in a substantial degree \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shel&S JA) unless to take that risk appears to be a reasonable course in order to participate in the prospect of countervailing financial advantages. There is no sound reason for. saying that the injured plaintiff is to be likened for all relevant purposes to the citizen who has to live on his capital. The task of the court is to fairly and adequately compensate the injured plaintiff by awarding him that sum that, so far as is possible, will put him in the position that he would have occupied had he not been injured. In the vast majority of cases the injured plaintiff will be without investment capacity or experience, he will be dependent on others for advice and if he obtains expert advice he will have to pay for it." At 448-9 his Honour said: [88] ~The historical pattern before 1970 of real interest rates appears to have supported the existence of an average real interest rate of 3 percent, or between 2 and 3 percent, based on ten year or long term government bond rates. The pattern was distorted by the experience between 1970 and 1980 when an average rate of minus 1.14 percent per annum emerged. As we have seen this experience was affected by a combination of two factors not now present - the existence of an exceptionally high rate of inflation and government action to depress interest rates below the market level. By way of contrast, though inflation continues at a level of 10 percent approximately, the real interest rate on long term bonds is currently 5 percent per annum. In the circumstances I am not persuaded that we should proceed on the footing that the discount rate should be directly related to the real interest rate and still less that the latter rate is 2 percent per annum or less. At the same time, it seems to me that we should take account of the conditions now prevailing in which an injured plaintiff who receives a large award can invest in long term government bonds with a maturity of twenty to twenty-five years yielding 15 percent per annum, which is for Australia an exceptionally high rate of interest for government securities. We should also take into account that semi-government securities now yield 15.5-15.7 percent and well regarded fixed interest securities yield 16 percent, though generally their term is very much shorter than that of long term government bonds. The plaintiff who obtains a large verdict is more likely to invest in a range of investments, including bonds, debentures, shares and real estate, in accordance with professional advice, for the likely consequence that his real return (including capital appreciation) would be somewhat higher than the yield on bonds, after allowing for the cost of professional advice." The second passage demonstrates, by comparison with current interest rates, the divergence between the returns available on investments from time to time. S71 of the Motor Accidents Act 1988 requires the Court to use a higher statutory discount rate, 5 percent, than the rate the High Court considered appropriate. On this basis it is more likely that a plaintiff, without investment capacity or experience, will be dependent on others for advice at a cost. In Luntz, Assessment of Damages, para4.1.10 the author observes, after referring to the second passage I have quoted from Mason J's judgment: [89] "If this is so, no further allowance may be made in the award of damages for professional fees payable for advice on the investment of the award by a plaintiff who is not under any disability affecting such investment. However, where a plaintiff is unable to manage the award because of being a minor or suffering from mental incapacity (whether due to the injuries sustained or from another cause), there is likely to be an additional cost payable to the manager of the fund. A series of South Australian cases sought to distinguish such additional cost and awarded damages in respect thereof Campbell v Nangle (1985) 40 34 UNREPORTED JUDGMENTS SASR 161; Brodie v Creek (1985) Aust Torts Reports 80-699; Beasley v Marshall [No 1] (1986) 40 SASR 544; Masinovic v MVIT (1986) 42 SASR 161. The inclusion of an amount in respect of the charges of the Public Trustee in the Supreme Court of Queensland was not challenged in the appeal in Dair v Butler (1986) 66 ALR 335 and other Queensland cases have allowed recovery of a management fee; Wegert v Dittman [1988] 2 QdR 228; Mullins v Duck [1988] 2 QdR 674." The High Court has granted special leave to appeal in Gardikiotis. The appellant submitted formally that the case was wrongly decided and that the opinion of Mahoney JA in Rosniak was to be preferred. In addition the appellant sought to distinguish the case on the basis that there the plaintiff was a person of limited abilities. In the present case the respondent was aged about twenty-five and had achieved a degree which involved passing in some cases with distinction or credit various courses concerned with business skills. However her evidence was that her training did not equip her for making financial decisions about investments. I would not dissent from what I take to have been the trial judge's view that her investment capacity or experience was such that she would be dependent on others for expert advice. In my opinion we should follow the decision of the Court in Gardikiotis. His Honour considered the evidence of the cost of management and adopted the formula set out in the judgment of Meagher JA in Rosniak at 699. This produced an outgoing of some $93 per week the present value of which was $91,671 to which his Honour added $24,500 as an establishment fee. The total produced of $116,171 was discounted to take account of future depletion and the possibility that some part of the fund would be used to purchase a block of land, in the eastern suburbs if possible. His Honour said that the funds might fall quite quickly to $1.5 million or thereabouts. "After making allowance for the chance of an early substantial withdrawal from the fund and for the opportunity the plaintiff will have to find the best rates available in the market, I think that a reasonable amount to allow for fund management is $90,000." I think this figure fell within the range of a proper exercise of his Honour's discretion and I would not disturb it. CROSS APPEAL [90] The respondent cross appealed on seven grounds. Two grounds, 5 and 7, were not pressed. Grounds | and 2 concerned the allowance the trial judge made for future care. I have dealt with these and concluded that the amount awarded should be adjusted to allow for an hourly rate of $14.91 instead of $13 and the cross appeal allowed to that extent. PAST CARE [91] The respondent submitted under grounds 3 and 4 of the cross appeal that his Honour's award of $18,650 for past care was too low. S72 (2) of the Motor Accidents Act provided that no compensation should be awarded unless the services of a domestic nature or relating to nursing and attendants provided by a member of the same household or family were provided, or were to be provided, for not less than six months and might be awarded only for services provided or to be provided after the six month period. Barr AJ found that the respondent was in hospital full time from 26 December 1989 until 25 May 1990. He said: [92] "The plaintiff's father, Mr Pasquale Pelosi, visited her throughout her long stay in one hospital and another. He stayed overnight when she was in intensive care. That happened, he said, 'all the time (the plaintiff was) in hospital'. The plaintiff's mother, Mrs Maria Pelosi, visited as well. They took her morning tea, \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shel&& JA) lunch and afternoon tea. She did not like the hospital food, they said, and ate very little of it. I accept the evidence of the plaintiff's parents that they visited her for such long and repeated periods of time throughout the whole of the time the plaintiff was in hospital. However, while the plaintiff was in hospital all the services necessary for her maintenance and rehabilitation and all necessary medical services were provided by the hospital and the professional and other staff who attended her. Furthermore, the defendant became liable to pay for those services. I do not think that the services provided by the plaintiff's parents qualify in the circumstances to be described as relevant voluntary domestic or nursing services. I have come to this conclusion because, although voluntary domestic and nursing services may qualify if rendered in hospital (see Marsland v Andjelic at 172 A-E) I do not think that the services rendered by Mr and Mrs Pelosi fulfilled any relevant need. (cf Nicholson v Nicholson) Accordingly, I think that the six month period which it is necessary to compute for the purposes of s72 began when the plaintiff was discharged on 25 May 1990. Accordingly, I would allow the plaintiff's claim for a reasonable level of voluntary domestic and nursing services rendered by her family on and after 25 November 1990." This part of the respondent's cross appeal was based on the submission that shortly after she entered hospital she received services of the nature s72 described and the period of six months started then. Counsel drew out attention to the respondent's evidence about her time in Prince Henry Hospital: [93] "Well, it is not the nicest place to hang for five months but it was okay. I mean you had a routine of physiotherapy in the mornings and occupational therapy in the afternoons. I had Mum come in most mornings to shower and help me get dressed, to help and bring me food from home and that kind of thing to help ease. [94] Q. While you were in Prince Henry Hospital what assistance were you getting from your mother and family? A. While I was in intensive care they were there virtually the whole day. When I moved into ward 1 Mum would come in in the mornings and help me shower, once I got up. She would bring me food and then come again at lunch time and in the evenings." The respondent's mother said that while the respondent was in intensive care she would arrive at the hospital at 8.30 in the morning, stay there until 11 0'clock or midday, return at 2 or 3 o'clock in the afternoon and remain until 8.30 at night. She would sit and talk to the respondent. On occasions she would be called back at night because the respondent was stressed and screaming. On two or three occasions she stayed overnight. After the respondent was transferred from intensive care her mother visited her every day. She would be there every morning for breakfast to make sure that she ate, would bring food and would stay until 11 o'clock in the morning. She would go home and cook a meal for her and bring it back because the respondent could not eat hospital food". A second visit would last from midday until 4 o'clock in the afternoon. The respondent's mother would then return at 5 or 5.30 and remain there until 8.30. This routine lasted for four to five months. When the respondent was able to get about in a wheelchair her mother, in addition to taking meals into her, would help her with her shower and help her to dress. This continued until the respondent went home. I agree with the respondent's submission that it is not an inevitable consequence of a plaintiff being in hospital that services of the sort described in s72 are not or cannot be provided. Kirby P and Meagher JA made this plain in Marsland v Andjelic at 171-2. However, as their Honours pointed out, the amount of care the hospital staff provides will affect what amount or what value of 36 UNREPORTED JUDGMENTS compensable services can be successfully recovered. Attendance by a parent at a hospital may be of insufficient duration or of a nature inappropriate to give rise to a successful claim. In that case the Master found that the appellant's mother attended hospital for between six and eight hours a day after the appellant's admission. She became closely and actively involved in his therapy. She had devoted much of her time and effort to the welfare of her son. The Court concluded that the Master had erred in holding that past voluntary domestic care could not be compensated until six months after the date of the appellant's discharge from hospital. In Nicholson v Nicholson at 61,823 Kirby P, with whom on this the other members of the Court agreed, said that the respondent defendant should not have to compensate the appellant for the cost of the full hospitalisation as well as for gratuitous services provided by the appellant's sister. "S72 itself refers explicitly to services of a domestic and nursing nature. The services performed by the appellant's sister, which certainly helped improve his level of comfort, could not be classified as fulfilling a relevant 'need' in view of the fact that the appellant was already enjoying full time hospitalisation. Although it may not be realistic to expect the nursing staff at all times to apply the creams to the appellant, the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant's sister as well for their minor activities." Not for one moment could one characterise the services the respondent's mother provided as of a minor nature. I would not downgrade them in any sense at all. The presence of a loving and caring parent at the side of a sick or injured child in hospital is very important to the child's well being and prospects of recovery, if not indispensable. Even so, Barr AJ found that all the services necessary for the respondent's maintenance and rehabilitation and all necessary medical services were provided by the hospital and the professional and other staff who attended her. It is entirely understandable that a parent would be anxious to assist in treating and caring for the child in any way possible and that hospitals and professional staff should allow this to happen. However, I do not think that such services are of a kind which are compensable in the circumstances found in this case on the principles for which Griffiths v Kerkemeyer (1977) 139 CLR 161 stands; compare the decision of Taylor J in Wilson v McLeay (1961) 106 CLR 523 at 527 and Luntz, Assessment of Damages, para4.7.3. The need for the services with which that case and s72 are concerned was met by the hospital and paid for by the appellant. The services the respondent's mother provided were of a different nature and, in my opinion, not compensable. Accordingly I agree with the trial judge that the six month period required by s72 (2) did not start until the respondent was discharged from hospital on 25 May 1990. Ground 3 of the cross appeal fails. Barr AJ found that the respondent's parents had spent no fewer than five hours per day from before 25 November 1990 to the date of trial giving her the assistance they considered she must have. His Honour said: "The plaintiff is indeed fortunate to have such devoted parents. Every since her accident they have spent countless hours visiting her, encouraging her and doing things for her. They both gave evidence and were very impressive. They are hard workers. They work hard in the sandwich business they jointly operate. They have helped their daughter enormously. I think that if they did not have to go to work they would spend even longer hours attending to her." \WROMMERCIAL UNION ASSURANCE COMPANY OF AUSTRALIA LTD v PELOSI (Shelfi# JA) However the trial judge did not consider it reasonable to require the appellant to pay for all those hours. Regard must be had to the opinion of specialists as to how many hours it was reasonable to allow for such services. Dr Yeo thought the respondent needed no fewer than twelve hours per week of domestic services, 5 rising to twenty hours per week later in life. His Honour found that it would be fair to allow the claim for domestic services already rendered to the respondent by her family as equivalent to twelve hours per week reduced by six hours in accordance with s72(2). Applying the rate of $13 per hour that produced $18,650. The respondent cross appealed claiming that this was too low and that there 10 was some inconsistency between the hours allowed weekly for past and future care. I do not agree that there was any inconsistency. When he came to consider the future the trial judge had to bring into account the degree of probability that the respondent would marry and have children and that as she grew older the need for care would increase. His Honour carefully reviewed the evidence about 15 the care the parents provided and I am not satisfied that any reason has been shown for interfering with his conclusion. Ground 4 of the cross appeal fails. LEVO COMPACT LC ELEVATING WHEELCHAIR [95] Barr AJ referred to Ms Hargreaves' evidence that this item might be required but said that it had been superseded by the Walkabout Gate Device for which he allowed $26,515. The respondent submitted that the trial judge should have made some allowance for the possibility that this item would be required because it was not completely superseded by the Walkabout Gate Device. We were taken to no evidence on the basis of which it could be said that his Honour erred in rejecting this claim. I would not interfere with his Honour's conclusion. Ground 6 of the cross appeal fails. CONCLUSION [96] The appellant succeeded in part on its appeal and in part on the cross appeal. In my opinion the amount of the verdict should be varied by reducing the 30 amount allowed for future economic loss by $22,313 and for loss of superannuation benefits by $2,397, future medical and hospital expenses by $34,550, the amount allowed for training, education and rehabilitation expenses by $10,200 and the amount allowed for home alterations, construction and maintenance by $61,500, a total reduction of $130,960. On the other hand the 35 tespondent succeeded in her cross appeal and the amount allowed for home care should be increased by $33,976. The respondent also succeeded in resisting a large number of the appellant's grounds of appeal. The adjustment to the total verdict is that the amount of $2,082,865.90 should be reduced by $96,984 to $1,985,881.90. This table demonstrates how the final adjustment of the verdict is 40 reached. Amount Awarded by Barr AJ. Amount Awarded on Appeal General damages $222.000.00 $222.000.00 Out of pocket expenses $126,840.90 $126,840.90 45 | Past economic loss $ 52,037.00 $ 52,037.00 Future economic loss $364,000.00 $341,687.00* Superannuation benefits $ 39,000.00 $ 36,603.00* Future medical and hospital expenses $242,045.00 $207,495.00* 50 | Training, education and rehabilitation expenses $ 65,470.00 $ 55,270.00* Home alterations, construction and maintenance $371,960.00 $310,460.00* 38 UNREPORTED JUDGMENTS Transport requirements 51,495.00 51,495.00 Nursing care 8,118.00 8,118.00 Homecare 249,900.00 283,876.00* 5 | Handyman/Gardener assistance 60,000.00 60,000.00 Vacations and Travel 40,000.00 40,000.00 Loss of financial benefit and support of 100,000.00 100,000.00 husband Fee for management of the fund of verdict 90,000.00 90,000.00 10 | moneys TOTAL 2,082,865.90 1,985.881.90* (*Awards varied on appeal) COSTS 15 [97] In my opinion although it succeeded in part on its appeal the appellant should not have an order for all its costs of the appeal. Similarly the respondent should not have an order for all the costs of her cross appeal. A substantial part of the appellant's attack was directed to the amount allowed for future economic loss and for home care. On these grounds it failed completely. It achieved 20 relatively small reductions in the amounts allowed for future economic loss, future medical and hospital expenses, training education and rehabilitation expenses and home alterations, construction and maintenance. All in all I am inclined to the view that this is an appropriate case to order that each party pay its or her costs of the appeal.I propose the following orders: 1. Appeal and cross appeal-allowed; 2. Set aside the verdict for $2,082,865.90 and substitute $1,985.881.90 to take effect from 28 February 1995; 30 3. The appellant to pay the respondent's costs of the trial; 4. No order as to the costs of the appeal or cross appeal. Counsel for the appellant: BMJ Toomey QC/CJ Callaway Solicitors for the appellant: Henry Davis York Counsel for the respondent: BJ Gross QC/WJ Rocke Solicitors for the respondent: Carroll and O'Dea