New South Wales Supreme Court CITATION : Stack v AGL Gas Company (NSW) Pty Ltd & Ors [2003] NSWSC 488 HEARING DATE(S) : 14/04/03 - 15/0403 JUDGMENT DATE : 16 May 2003 JUDGMENT OF : Newman AJ at 1 DECISION : Judgment for the plaintiff in the sum of $4,093,089 plus costs. CATCHWORDS : Negligence - Damages - Allowance for care Gloria Ivy Stack - Plaintiff AGL Gas Company (NSW) Pty Limited - Defendant 1 State Rail Authority of NSW - Defendant 2 Arup Partner Pty Ltd T/AS -"Capital Works Management" -Defendant 3 Ove Arup Consult Pty Limited T/AS -"Capital Works Management"-Defendant 4 Ove Arup Pty Limited T/AS -"Capital Works Management" -Defendant 5 TMG International Pty Limited T/AS -"Capital Works Management"-Defendant 6 PARTIES : Edwards Madigan Torzillo Briggs Pty Limited T/AS -"Capital Works Management"-Defendant 7 Group One Interiors Pty Limited T/AS -"Capital Works Management"-Defendant 8 Abigroup Contractors Pty Limited - Defendant 9 Josep & Sons Contracting Pty Limited (In liquidation) - Defendant 10 Josef & sons Pty Limited -Defendant 11 Robert Josef - Defendant 12 Daniel Josef - Defendant 13 Barry Adler - Defendant 14 Robert Campbell - Defendant 15 FILE NUMBER(S) : SC 20737/97 COUNSEL : B J Gross QC / T J Boyd - Plaintiff R Sheldon - 1st, 8th, 9th,10th Defendant Carroll & O'Dea - Plaintiff Ebsworth & Ebsworth - 1st, 8th, 9th, 10th Defendant Tress Cocks & Maddox - 2nd Defendant SOLICITORS : Phillips Fox - 3rd, 4th, 5th Defendant Henry Davis York - 6th Defendant Minter Ellison - 7th Defendant Thompson Cooper Lawyers - 11th, 12th, 13th, 14th, 15th Defendant IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION COMMON LAW LIST NEWMAN AJ Friday 16 May 2003 20737/97 GLORIA STACK v AGL GAS COMPANY (NSW) PTY LIMITED & ORS JUDGMENT 1 HIS HONOUR: As a consequence of a gas explosion at Kogarah on 4 December 1995 the plaintiff, Mrs Gloria Stack, suffered horrendous injuries. Liability having previously determined, the only issue now remaining between the parties is the assessment of damages. 2 Indeed due to agreement between the parties there remain only three heads of damage which are in dispute. They are:- a future cost of domestic assistance; b cost of accommodation needs; and, c future cost of holidays. 3 The heads of damage upon which agreement has been reached are as follows:- 1. General damages $275,000 2. Interest on general damages $20,000 3. Past out of pocket expenses $391,000 4. Past economic loss, interest on past economic loss, future economic loss and loss of superannuation $120,000 5. Past domestic assistance and interest thereon $500,000 8. Future cost of handyman / gardener service $50,000 9. Future cost of equipment $9,094 10. Future cost of medical care $76,358 12. Future cost of occupational therapy $7,249 13. Fox v Wood claim $8,581 4 Having regard to the fact that the plaintiff is now 63 having been born on 20 February 1940, the agreed sum for general damages of $275,000 is indicative of the severity of the injuries suffered by the plaintiff. I should add that in my view the sum agreed for general damages was appropriate and I indicated this to counsel during the course of the hearing. 5 Because of the agreement reached and the narrowness of the remaining issues relating to damage, it is not necessary for me to detail the plaintiff's medical history following the explosion of 4 December 1995 as extensively as one normally would in a judgment such as this. Furthermore it is not necessary in view of the agreement reached as to economic loss to deal with plaintiff's work history in detail. 6 However for the purpose of the remaining issues here it is necessary to briefly describe the injuries originally suffered and their sequelae. I should add that there is little or no dispute relating to the findings I am about to make. 7 Following the gas explosion the plaintiff was initially admitted to St George Hospital for resuscitation. She was then transferred to the Westmead Hospital Intensive Care Unit. She remained as an in-patient at Westmead until 15 April 1996. On her admission to St George she was found to have burns to some 60 per cent of her body ranging in severity from partial to full thickness burns. They involved her face, both her arms and hands, and her torso. Such were the severity of the burns to her face that she lost the sight of her left eye and has difficulties in the right eye. During her time at Westmead Hospital she underwent no less than ten surgical procedures for the treatments of her burns by Dr Victor Zielinski, plastic surgeon. 8 Following her initial discharge from Westmead Hospital the plaintiff has undergone further surgical procedures. These procedures have involved surgery to her right eye to remove a basal skin cancer performed by Dr Worner on 9 October 1996; surgery by Dr Zielinski in November of 1996 sealing a trachyeostomy site and carrying out grafting procedures to relieve contractures in her left index and middle fingers; and, an operation at Royal North Shore Hospital by Dr Lam on 16 December 2000 to repair her pelvic floor in order to treat bladder and bowel incontinence. 9 On 14 June 2001 Dr Stephen Buckley, a rehabilitation specialist, saw the plaintiff. He summarised his examination results as follows:- "Examination of the right shoulder revealed a substantially full range of movement. Examination of the left shoulder revealed abduction restricted to 90 o (180 o ) and flexion to 100 o (180 o ). There was good internal and external rotation. Examination of both elbows and wrists revealed a full range of movement. Examination of the left hand revealed restricted ranging as follows: Left little finger : There is an amputation at the middle of the proximal phalanx with the MCP joint flexing from full extension to 50 o of flexion. Left ring finger : There is an amputation at the middle of the middle phalanx with the MCP joint flexing from full extension to 50 o of flexion. Left middle finger : There is an amputation of the distal end of the distal phalanx with deformity of the nail. The MCP flexed from full extension to 60 o and the proximal interphalangeal joint flexed from minus 45 o of extension to 115 o . The index finger had a deformity of the nail. The MCP joint flexed from full extension to 60 o and the proximal interphalangeal joint from full extension to 95 o . The distal interphalangeal joint was fused in full extension. Left thumb : The left thumb had abduction of 45 o , extension of 40 o and normal flexion. Examination of the right hand revealed the following: Right little finger : There is an amputation of the middle of the middle phalanx. The MCP joint flexed to 110 o from full extension. Right ring finger : There was amputation of the distal end of the distal phalanx with no nail. The MCP joint flexed from full extension to 90 o . The PIP joint flexed from full extension to 70 o . The DIP joint was fused in 25 o of flexion. Left middle finger : The middle finger had splitting and deformity of the nail. The MCP joint flexed from full extension to 90 o . The PIP flexed from full extension to 90 o and the DIP flexed from –20 o of extension to 30 o of flexion. The left index finger : The finger is normal. The MCP joint flexed from full extension to 90 o and the PIP from full extension to 90 o . The DIP joint flexed from full extension to 10 o . The right thumb had a full range of movement." Because these examination findings by Dr Buckley are consistent with the findings made other medical practitioners who examined the plaintiff, I adopt them as my finding in the matter. 10 Not only does the plaintiff suffer mobility problems as a consequence of her injuries, problems with manual dexterity and a continuous need for treatment to her surviving eye as a result of it developing a Herpes simplex ulceration but also she suffers from bowel incontinence of a most embarrassing type. 11 Not surprisingly, the plaintiff has become depressed as a consequence of the constellation of disabilities from which she suffers as a consequence of the accident. Accordingly it is no surprise to find that the eminent forensic psychiatrist, Dr Rod Milton, diagnoses such a condition – a diagnosis shared by two other eminent psychiatrists, Drs Ellard and Maguire. 12 Of the many problems the plaintiff has as a consequence of her disabilities one in particular was highlighted by her at the conclusion of her evidence in chief. When asked about her husband providing substantial care, she gave a slightly non-responsive but illuminating answer to the question. It was this:- "It's too much, I can't use my hands, my hands are the greatest difficulty, it's not that I lost fingers, it's the skin. The skin breaks and I can do nothing. Having a shower, having to wash my hands from going to the toilet, that is as much as my hands can cope with. I can't cook meals, I can't do vegetables, I can't do anything like that. It is putting a great deal of pressure on my husband. That is why I would have people in, it would make out life much easier." 13 I turn then to the disputed heads of damage. Care 14 There was no issue between the parties that the plaintiff requires a carer. Initially an issue emerged as to whether the plaintiff would require either a single live-in carer for the remainder of her life or a couple acting as carers. In the event following Dr Buckley's evidence it became apparent that this issue had itself narrowed. Dr Buckley's evidence was to the effect that the plaintiff needed a single live-in carer full-time for the rest of her life. Accordingly, I would base my assessment under this head of damage on that concept. The issue then remained as to whether the single full-time carer should be engaged on one of two bases. They are:- a that the plaintiff will directly employ and pay carers who have been referred by an agency; or, b she will contract an agency to manage her care meaning that the agency will pay and employ the carers and then invoice the plaintiff. The difference in cost between these two concepts is considerable. If concept "a" was adopted the actuarial calculation of that cost for the remainder of the plaintiff's lifetime is $1,892,924. If the second of the two concepts were adopted the cost comes to $2,425,225. 15 It is of course trite law that in awarding damages of this type question of reasonableness arise. If I could use the language of the motor trade you would not provide a Holden Caprice when a Holden Commodore will do. However in this instance I have concluded that damages should be awarded on the basis of concept "b". 16 I have come to this conclusion for the following reasons. The plaintiff is now 63 and her husband 66. While both are plainly intelligent and honourable people the fact is that the plaintiff amongst other things suffers from a depressive illness related to the accident and her husband has a cardiac condition which is not insignificant. In my view the engagement of an agency to take care completely of the employment and engagement of both the full-time carer and his/her replacements is essential because of the age and health of both the plaintiff and her husband. I have thus come to the conclusion that I should award damages on the basis of concept "b" under this head, that is, in the sum of $2,425,225. Accommodation for the plaintiff 17 There again is no issue that the plaintiff is entitled because of both her disabilities and the need to provide extra room in her present home for a carer that it is necessary for substantial alterations to be carried out to the plaintiff's present home at Sans Souci. It is agreed that her physical problems require the provision of a heated pool. The issue which emerges under this head is between the views of the architectural experts whose reports were tendered by both parties – Mr John Watts on behalf of the plaintiff and Mr Michael Hesse on behalf of the defendant. 18 The total cost of home modifications as calculated by Mr Watts comes to $311,010, those of Mr Hesse come to $224,761. 19 Oddly enough there is little difference between the calculations of costs of the modifications to the present swimming pool between Messrs Watts and Hesse. The principle difference between the two relates to the modifications necessary to provide accommodation for a twenty four hour live-in carer. 20 In this regard the views of experts as to the needs of carers should be taken into account. Dr Buckley in a report of 10 April 1999 adverted to the need of the carer to have a one-bedroom flat. Mr Hesse did not include the costs of modifying the plaintiff's present house to include a living room for the carer's use whereas Mr Watt did. I am of the view that Mr Watts' calculation is based upon the opinion of a rehabilitation expert whereas Mr Hesse's is not. For this reason I prefer the views of Mr Watts. Therefore I accept his view that I should allow the sum of $44,372 for the costs of modifying the plaintiff's house to cater for the needs of the carer. That figure includes architect's fees. 21 The only other principle departure between Messrs Watts and Hesse involves the provision of level thresholds. Mr Hesse assesses the costs of so providing at $3,745 where Mr Watts costs theses modifications at $12,780. Mr Watts allows for three such installations whereas Mr Hesse allows but two. Secondly, Mr Watts believes that the modification he suggests is a more efficient one than that proposed by Mr Hesse and the quantity surveyor Mr Hesse engaged for the purposes of making his calculations. In this instance I have no yardstick to assist me in determining which is the more appropriate assessment of costs. As I propose to do with other matters of disparity, I would make an assessment which would fall somewhere between the two experts. 22 Indeed when one compares the two reports and indeed when one considers the reply made by Mr Watts to Mr Hesse's calculations it is apparent that they agree on the principle concepts to be adopted in the modification of the house. In a number of instances Mr Hesse does not make allowance for architects' fees. I believe Mr Watts criticism of this omission to be valid. 23 Doing the best I can I am of the view that finding as I do that Mr Watts should be accepted as far as the modification to the carer's needs are concerned and finding that probably the correct calculation of the cost of modifications otherwise is somewhere between the two, I would find altogether that the cost of modifications to the plaintiff's house should be allowed in the sum of $280,000. 24 The total cost of future maintenance of pool and air-conditioning and electrical fittings made necessary by the modifications to the accommodation to which I have just referred to comes to $170,582. That calculation is based upon the present cost on an annual basis projected actuarially forward on three per cent tables for the balance of the plaintiff's life. Holiday costs 25 I accept that the plaintiff obtains relief from her depressed state by going on holidays away from Sydney. In the future when such holidays are taken it seems to me reasonable that the plaintiff's carer will accompany her as well as her husband on such holidays. In evidence a calculation by an actuary was tendered that the present cost of the plaintiff going on holiday accompanied by a carer would be $118,677. That calculation was based on the plaintiff taking an annual holiday of two weeks at the Gold Coast. Admittedly the calculation initially was based on the plaintiff being accompanied by two carers. 26 However the plaintiff's husband deposed that sometimes they go to a holiday cottage on the South Coast for vacations. For myself I find it difficult to accept that the plaintiff will undertake holidays for the rest of her life on the basis suggested in the actuarial report tendered. I believe that this is one of those occasions when the court rather than making a calculation based upon actuarial method should make a general allowance for the future cost of holidays. 27 The allowance I make is $40,000. I tabulate the plaintiff's damages as follows: 1. General damages $275,000 2. Interest on general damages $20,000 3. Past out of pocket expenses $391,000 4. Past economic loss, interest on past economic loss, future economic loss and loss of superannuation $120,000 5. Past domestic assistance and interest thereon $500,000 8. Future cost of handyman / gardener service $50,000 9. Future cost of equipment $9,094 10. Future cost of medical care $76,358 12. Future cost of occupational therapy $7,249 13. Fox v Wood claim $8,581 14. Care $2,425,225 15. Accommodation for the plaintiff $170,582 16. Holidays costs $40,000 Total $4,093,089 28 There will be judgment for the plaintiff in the sum of $4,093,089 plus costs. 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