VAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER and BEAZLEY JJA 17 July 1997, 5 August 1997 [1997] NSWCA 329 Damages — domestic assistance — superannuation benefits — No error of principle. The appellant was injured when the motor cycle on which he was a passenger collided with a motor vehicle. He sustained permanent frontal lobe brain damage with no prospect of further recovery. The appellant's substantial and continuing disability arises from the brain damage, which has resulted in adverse personality and behavioural changes. He suffers from sudden mood swings, sudden loss of temper, violent and aggressive behaviour, impatience, impulsive and agitated behaviour, inability to tolerate delay, inability to complete tasks due to restlessness and boredom, an inability to maintain interpersonal relationships, he cannot organise or plan his work he lacks insight, has severe memory problems, and suffers post-traumatic headaches. The appellant is able to carry out basic self-care - preparing simple meals, bathing, dressing and toileting - but requires prompting and direction. It was accepted that the appellant is permanently totally incapacitated for any form of productive work. Liability was admitted, and it was agreed that the appellant was 17.5% contributorily negligent. The matter proceeded on the assessment of damages only. The appellant appealed against the award of damages. In particular, it was contended that the awards for loss of superannuation benefits and past and future domestic assistance involved appealable error. HELD: (1) Appeal dismissed (2) The amount allowed for domestic assistance was not outside the exercise of a sound discretionary judgment. (3) No error was demonstrated in the calculation of loss of superannuation benefits. Mason P I agree with Beazley JA Meagher JA I agree with Beazley JA. Beazley JA This is a plaintiff's appeal against certain aspects of the trial judge's award of damages for injuries sustained by the appellant in a motor vehicle accident on 16 July 1989. The award of damages is governed by the provisions of the Motor Accidents Act 1988. The plaintiff was born on 18 October 1964 and was aged 24 at the date of accident and 32 as at the date of judgment. On 16 July 1989, the appellant was a pillion passenger on a motor cycle which collided with a motor vehicle at the intersection of Uranus and River Roads, Revesby. Liability was admitted and the matter proceeded to trial by way of assessment of damages only. The parties agreed that the appellant was 17.5 per cent contributorily negligent for the accident. The appellant suffered severe head injuries in the accident, with a fracture to the base of the skull and bilateral cerebral contusions, as well as a fracture of the left thumb and numerous abrasions and lacerations. He has back and neck 2 UNREPORTED JUDGMENTS problems arising from the accident, as well as problems with his left hand and wrist and left ankle and knees. His substantial injury and continuing disability however, arises from brain damage, which includes a frontal lobe disorder. The brain damage has resulted in a personality change, which manifests itself in sudden loss of temper, violent behaviour, impatience, impulsive and agitated behaviour, inability to tolerate delay, an inability to complete tasks because of restlessness and boredom, an inability to maintain interpersonal friendships, lack of ability to plan and organise his work, lack of insight, significant memory problems, vertigo and post-traumatic headaches. He also demonstrates dysarthric speech, which has improved over time and he has severe gait ataxia. His thinking has become rigid, he cannot be reasoned with and has long periods of severe depression and withdrawal. He has also had significant periods of sleep disturbance, pre-occupation somatic concern and suicidal ideation. The appellant is able to care for himself in a basic way, in the sense that he can attend to his personal needs of bathing, having meals, dressing and toileting. However, he needs prompting and direction in regard to these matters. He can undertake elementary domestic tasks, such as making himself a light breakfast or a cup of tea or coffee or heating food in a microwave. He can also engage in shopping of a simple nature, such as buying a lunch, or buying a small number of items from the local shops. He can be moody and at times is aggressive. There appears to be no particular trigger for such behaviour. He is able to drive a car, but if he is in a particular mood, he drives erratically, and on occasions his mother has hidden the car keys from him. The appellant's brain damage is permanent with no prospect for further recovery. He has a normal life expectancy but because of his personality disturbance, he would be unable to enter into an effective relationship as a husband or parent. Although he has had periods of employment since the accident, it was accepted that because of his inappropriate aggressive behaviour, impulsivity, lack of insight, restlessness, aggression and mood swings, he is effectively permanently, totally incapacitated for any form of productive work. He is able to engage in a wide range of physical activities, such as lawn mowing and gardening, although lack of organisation and restlessness means that any task undertaken is usually left incomplete. The trial judge made an award of damages in the sum of $1,509,276.00, subject to a deduction of 17.5 per cent for contributory negligence. The appellant challenges the trial judge's award of the following heads of damage: Future medical expenses $ 17,975.00 Loss of earnings to date $159,932.00 Loss of superannuation benefits $ 13,658.00 Past domestic assistance $124,013.00 Future domestic assistance $ 42,705.00 Home alterations $ 25,000.00 Home maintenance $ 19,000.00 However, the major attack on the award of damages was in respect of the provision made for past and future domestic assistance and the amount awarded for loss of superannuation benefits. The error in the "Loss of earnings to date" calculation was in respect of a clerical error only, which is not disputed. The appropriate award for that head of damage should have been $161,569.00. The WAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ an@ ANOR (Beazley JA) (Beazley JA) challenge to the amount awarded in respect of home alterations and home maintenance was dependent upon a successful challenge to the amount awarded in respect of future domestic assistance. Domestic Assistance The appellant's post accident condition can conveniently be considered in four distinct periods: 1. The period of hospitalisation; 2. The period post discharge until January 1991; 3. The period from January 1991 until January 1994; 4. The period from January 1994. The appellant was hospitalised in Royal North Shore Hospital immediately post accident. He was in a comatose condition for ten days and was treated in the intensive care unit. On 21 August 1989 he was transferred to the Princess Alexandra Hospital in Brisbane. The appellant's behaviour, whilst being transferred between hospitals, was so aggressive that, initially, the airline refused to transport him. Eventually, he was sedated and transferred to Brisbane. During his stay at the Princess Alexandra Hospital, he showed such anxiety and aggressiveness that the hospital threatened to place him in a mental institution. His parents, not wanting this, took him home and cared for him, but he continued under hospital day care until 13 October 1989. For a period of about 18 months after his discharge from hospital the appellant was very difficult to control. He was hyperactive and aggressive. On one occasion during this period the appellant 'just snapped" and drove off in his car at about 100 miles an hour and aimed at a telegraph pole. Fortunately, just prior to impact, he 'snapped" out of it and avoided the pole, ending up in a ditch. There have been no further similar incidents and the appellant said he no longer had thoughts (presumably suicidal thoughts) like those he had on that occasion. In January 1991, the appellant's parents sold their suburban Brisbane home and moved to a two acre block in a semi rural setting. They found that the appellant's behaviour and mood swings improved markedly after this move. It appears that he had felt constrained by the smallness of the Brisbane house and found the "open spaces " of the new property to his liking. He continued to have untriggered mood swings in this period, but no significant episodes were recorded in the evidence. In January 1994, the appellant was placed upon a daily dose of Prothiaden. This contributed to a further improvement in the appellant's behavioural pattern. In particular, he has not been so aggressive. Since the appellant's discharge from hospital, his parents have continued to provide virtually full time care, supervision and assistance. His Honour summarised this assistance in these terms: "This included some periods of merely being around in case anything developed, or doing things, such as Mrs Van Doore cooking meals, which she or they would have done in any event. In particular, they said they spent about 8 to 10 hours a day doing things for him or being available and kept an eye on him the rest of the time in so far as they were generally in the house including when he was asleep in case he had one of his turns during the nights. " At trial, the appellant's case was that he required the services of a paid carer on a permanent 7 day a week basis for a substantial period each day. Initially, the appellant's case was that this would be for a minimum of 10 to 12 hours per day, based upon the opinion of John Kennedy-Gould, social worker, who gave 4 UNREPORTED JUDGMENTS evidence for the appellant. During the course of Mr Kennedy-Gould's oral evidence he. stated that ideally, the appellant should have 24 hour care. This evidence was the foundation for the appellant's case on appeal, that he was entitled to 24 hour care by a paid "minder". The award of damages for home care services is governed by s72 of the Motor Accidents Act, which provides that compensation for home care services is not payable for the first six month period after an accident: subs2. Nor is compensation payable if the services would have been provided to the person even if the person had not been injured by the accident: subs3. Compensation is not payable unless the services provided are not less than 6 hours per week and an award may only be made in respect of services provided after the first 6 hours: subs4. Compensation is not payable for more than 40 hours per week: subsS. There was no dispute as to the trial judge's determination that during the period until the beginning of 1994, the damages to be awarded for domestic assistance should be calculated on the basis that the parents' care of the appellant involved more than 46 hours per week, so that damages should be assessed at the full rate up until the beginning of 1994. His Honour held that from the beginning of 1994 until the date of trial, an appropriate allowance was for paid assistance of 3 hours per day, 7 days a week. In relation to the future, the trial judge considered that an allowance of 3 hours a day was also appropriate. This allowance was based upon the evidence of Professor Broe to which I shall refer shortly. His Honour considered, however, that some allowance should be made, additional to that recommended by Professor Broe, having regard to evidence of Dr Davidson, the appellant's psychiatrist, who considered that if the appellant commenced to live independently of his parents, greater assistance would be required at least for some time. In addition, his Honour considered it appropriate to make provision for a facility for a crisis counsellor to be available on call. Counsel for the appellant submitted that his Honour's award for the period from January 1994 to date of trial and for the future revealed error as it entirely ignored the supervisory aspect of the care provided by the appellant's parents. It was submitted that in this regard, his Honour's judgment was inconsistent, as his Honour had clearly accepted the appellant's parents' evidence as to the extent of care they provided. It was further submitted that his Honour erred in purporting to base his award on the evidence of Professor Broe, but in doing so had misinterpreted Professor Broe's report. Before turning to Professor Broe's report, it is convenient to refer to the other evidence as to the extent of care required by the appellant. There was no dispute that the appellant needed domestic assistance. Dr Davidson expressed this need as a requirement to have someone help the appellant "to structure and maintain the routine tasks of daily living and the supportive advice within his family for the rest of his life." When asked in cross-examination as to the number of hours of assistance such a person should provide, he rejected the proposition that it would be sufficient for someone to be available for a couple of hours in the morning and again in the evening, although he agreed that there would be some days on which that would be sufficient care. He considered that, at least initially, a much longer regime would be appropriate. Ms McCluskey, occupational therapist, recommended 10 hours care a week. Dr Voss thought that 2 hours a day would be sufficient and Associate Professor Jones considered 7 hours a week to be sufficient. There was thus, a range of opinions as to the extent of care that was required. Except to the extent that the trial judge accepted Dr Davidson's WAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ an@ ANOR (Beazley JA) (Beazley JA) evidence that initially, longer periods of care would be appropriate, his Honour does not expressly prefer the evidence of any of the experts on this question. It would seem, however, that he did accept the evidence of Professor Broe, as he not only structured his order around Professor Broe's recommendation, he also extracted the following passage from Professor Broe's report in his judgment: "Tn terms of long term care, I believe Anthony should live in the community in his own home and that his care should no' be carried out by his parents... Anthony would not survive in the community and maintain his nutrition hygiene and instrumental activities of daily living without a permanent minder seven days a week. Such a minder would need to spend three hours a day supervising Anthony's needs in terms of cooking, housework, shopping and providing him with an evening meal, as well as cleaning up the house and doing other housework. Anthony would also need a handyman gardener to carry out all home maintenance and gardening activities. Whilst it is obvious that Anthony is physically capable of carrying out these activities on a one-off base, his frontal lobe damage is such that he will be unable to maintain and persevere in any of these activities to maintain himself in the community". Counsel for the appellant submitted that his Honour misunderstood Professor Broe's report because the recommendation contained in it was for a 'permanent minder 7 days a week" Counsel for the appellant submitted that this meant 24 hours a day, 7 days a week. I do not agree. It is clear that Professor Broe was there referring to the continued need for a "minder" on a daily basis. In other words, it was a need that was permanent - that is, it would continue for the rest of the appellant's life. In Professor Broe's opinion, that "permanent... 7 days a week" need would be fulfilled by a minder spending 3 hours a day supervising the appellant. Counsel for the appellant further submitted that the trial judge erred in not providing for supervision which was consonant with that which had been provided to date by the appellant's parents. I do not agree that his Honour erred in this regard. His Honour specifically rejected the need for a full time carer, or one who would spend at least 10 to 12 hours a day with the appellant, holding that "having a 'minder' hanging around the plaintiff for 10 to 12 hours with very little if anything to do most of the time would be counter-productive, and more likely to induce a crisis panic attack or a surge of aggression on the part of the plaintiff ". In reaching this view, his Honour accepted the evidence of Dr Davidson, the appellant's psychiatrist and that of Associate Professor Jones, Professor of Rehabilitation Medicine, who provided a medico-legal opinion for the respondent. In particular, Dr Davidson agreed that the appellant resented intrusions into his independence and that the more intrusions there were, the more reactive the appellant became to them in terms of his anger or depression. Associate Professor Jones spoke in more general terms stating "Often intervention, in my experience, by well meaning carers has actually incited aggression whereas the aggression will often pass off extraordinarily quickly" if the person is left alone. He added that: "[T]his type of [aggressive] behaviour when it is really overt tends to disappear as quickly as it arises and interference is counter-productive ". The trial judge's award under this head of damage discloses no error of principle. There was evidence to support the findings made by his Honour and, contrary to the submission of counsel for the appellant, there was no 6 UNREPORTED JUDGMENTS inconsistency in his Honour accepting the role played by the appellant's parents and the more limited order for care and supervision which he made. The appellant's submission fails to recognise that whilst the appellant's parents were present in the home almost continuously and were in a position to observe the appellant's conduct, for the most part they were not able to influence that conduct. Thus, if the appellant became moody, he would take himself off to his room. Alternatively, he would go for a drive in the car. Except on some occasions when the appellant's mother confiscated the car keys, the parents did not attempt to interfere with the appellant's conduct. Further, since the appellant has been on Prothiaden, he has been in control of his behaviour. His mother gave evidence that in the year preceding the hearing, the appellant had learnt to recognise when he was not in a proper mood for driving and on those occasions, did not drive. She said that his driving no longer gives her any cause for concern, that "he seems relaxed when he 's driving". He had also got to the stage when he would inform his mother when he felt he needed to see Dr Davidson. He would take himself to his general practitioner when he considered it necessary. To the extent that the appellant, from time to time, did require someone to talk to or counsel him, in addition to merely attending to his needs and structuring his daily life, the trial judge allowed for this by making provision for access to a crisis counsellor. Accordingly, the amount awarded by his Honour has not been shown to be outside the exercise of a sound discretionary judgment and no other error of principle has been demonstrated. Accordingly the challenge to this head of damage must fail. Home Alteration and Home Maintenance. As the claim in respect of these heads of damage was dependent upon the appellant being successful in his claim for domestic assistance, it is not necessary to deal with them further. Loss of Superannuation Benefits. Counsel for the appellant submitted that the trial judge was in error in reducing the amount awarded under this head by 15 per cent for vicissitudes. It was further submitted that his Honour erred in applying the 5 per cent deferral multiplier to the amount calculated in respect of past loss of superannuation benefits. At trial, the appellant proposed a particular method of calculation of superannuation. The trial judge accepted this approach, subject to several modifications. In order to understand the claim now made in respect of superannuation, it is convenient to set out the basis of his Honour's calculation. His Honour stated: "(a) I take as my starting point the total shown in the schedule (Column Q) namely $109,556 (b) I do not deduct the figure of $5,340 shown in Amended Annexure 6 for loss of superannuation benefits to date, and do not award that amount as a separate sum for the reasons advanced on behalf of the defendant. (c) I reduce the starting amount of $109,556 by one-third to reflect the difference between $41,531 and $26,520 referred to above, making $73, 037. (d) I adjust this amount by applying the 5 per cent deferral multiplier for 31 years (0.22) to reflect the fact that the loss will not accrue for 31 years, making $16, 068 WAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ and ANOR (Beazley JA) (Beazley JA) (e) Finally I discount this sum of $16,068 by 15 per cent for the conventional vicissitudes, making a nett figure for loss of superannuation benefits (past and future) of $13, 658." A number of explanations of this passage are required: 1. The sum of $109,556.00 (para(a)) was based upon a schedule produced by the appellant's accounting expert, being the value of the superannuation loss based upon a current gross salary of $41,531.00 per annum. However, his Honour had assessed the appellant as having a notional current gross income of $26,520.00 per annum, or approximately two thirds of that claimed by the appellant. It was thus necessary for his Honour to reduce the amount of $109,556.00 by one third to reflect the trial judge's finding relating to the loss of earning capacity. He did this in para(c). 2. His Honour did not accept that it was necessary to draw a distinction between past and future loss of superannuation benefits, as the appellant had contended: (para(b)). 3. His Honour adjusted the combined amount of past and future loss by applying the 5 per cent deferral multiplier for 31 years as specified: (para(d)). It is implicit in his Honour's approach that he applied the deferral multiplier for the past superannuation loss as well as for the future. 4. Finally, his Honour discounted the whole of the sum thus ascertained by 15 per cent to take account of vicissitudes. Counsel for the appellant submitted that the Court should approach the calculation of loss of future superannuation benefits on a different basis. He maintained the position taken at trial, that past and future loss should be dealt with separately. Counsel submitted that there was a usual, short hand approach to the calculation of loss of superannuation benefits whereby the appellant's gross earnings were calculated and 8 per cent of that gross sum was then determined, the figure of 8 per cent being a rough and ready calculation of the increase in employer contributions from 5 per cent to 9 per cent for which legislation has been enacted. It was then submitted that no deduction should be made for vicissitudes as the net earnings, which formed the source of the calculation of gross earnings for superannuation purposes, had already been subjected to a deduction in that regard. Counsel for the appellant conceded that this approach was different from that which had been propounded by the appellant below. He submitted, however, that as no factual issue arose, and as there was identifiable error of principle in his Honour's approach to the calculation of this head of damage, it was an appropriate case for the Court to deal with the matter afresh on the basis of the newly propounded approach. In my opinion, the Court should not embark upon a recalculation of the loss of superannuation benefits upon the basis now proposed. The so called "generally accepted short hand approach" was not asserted on behalf of the appellant at trial, which was conducted only 12 months ago, with judgment being given 6 months ago. The respondent did not concede that there was any generally accepted short hand approach. Further, this approach is not known to the Court. The approach suggested by counsel for the appellant may or may not be correct. The Court has no way of knowing and in the circumstances the appellant should not be permitted to depart from the approach taken at trial. Further, I am not persuaded that the appellant has otherwise shown any error of principle in the trial judge's calculation. There was no error as alleged in respect of the deduction for vicissitudes. His Honour based the calculation of 8 UNREPORTED JUDGMENTS future loss of superannuation benefits on his determination of the appellant's annual loss of earning capacity prior to the deduction for vicissitudes. Finally, I am not satisfied that his Honour erred in combining the past and future loss of superannuation benefits. In any event, the proportion of the past to the future was so small as not to warrant interference with his Honour's judgment on that ground alone. Future Medical Expenses. Counsel for the appellant submitted that his Honour erred in failing to allow for the future costs of consultation with a general practitioner and a chiropractor. In respect of the general practitioner, it was submitted that his Honour should have made allowance for a visit to a general practitioner at least on average of 1.5 times per annum, giving rise to a total future loss of $947.00. The trial judge dealt with this claim as follows: "Although Dr Davidson did see some value in maintaining what he called 'a base line ' with a general practitioner and with a neurologist, the plaintiff over the last 6 years has only been seeing neurologists for medico-legal assessments and there is no evidence that he had been seeing a general practitioner in respect of any matters relating to the accident on any regular basis, or at all, and accordingly I do not allow anything in relation to future visits to a general practitioner or a neurologist. " Notwithstanding that there was evidence upon which his Honour could have made an award in this regard, no error in principle is shown in his Honour's refusal to do so. Counsel for the appellant claimed that allowance should also be made for a monthly attendance at a chiropractor. It was submitted that the allowance of this claim was in accordance with his Honour's findings that the appellant had suffered back strain in attempts to re-establish himself in employment or when assisting his father because he tended to overdo the physical effort on such occasions. His Honour rejected the claim for chiropractic treatment because the appellant had not seen a chiropractor until 8 years after the accident and concluded that it had not been shown that the need for chiropractic treatment was related to the accident or the appellant's long term care needs. In my opinion, this finding was open to his Honour and no error of principle has been shown. Except for the question of the past loss of earnings, in respect of which his Honour made a clerical error - a matter which can be attended to under the slip tule - the appellant has not been successful on the appeal. Accordingly, the orders which I propose are that the appeal be dismissed with costs but that the judgment sum be amended under the slip rule so as to increase the amount allowed for loss of earnings to date by $1,837.00 to $161,569.00. The parties should bring in appropriate short minutes of order to reflect this adjustment. 1. Appeal dismissed 2. Direct that the parties bring in Short Minutes of Order to reflect the adjustment required to the judgment sum due to clerical error so as to increase the amount allowed for past Loss of Earnings by $1,837.00 to $161,569.00. 3. The appellant to pay the respondent's costs of the appeal. Counsel for the appellant: A Morrison SC/J Renwick Solicitor for the appellant: Blessington Judd WAN DOORE (BY HIS TUTOR THE PROTECTIVE COMMISSIONER) v MENDEZ an@ ANOR (Beazley JA) (Beazley JA) Counsel for the respondent: F McAlary QC/H Marshall Solicitor for the respondent: Abbott Tout