New South Wales Supreme Court CITATION : Tu Tran v Dos Santos (No 2) [2009] NSWSC 336 HEARING DATE(S) : 31 March 2009 (Submissions closed 16 April 2009) JUDGMENT DATE : 1 May 2009 JURISDICTION : Common Law JUDGMENT OF : Smart AJ DECISION : Plaintiff awarded damages (see from para 67) with costs on a party | party basis. CATCHWORDS : Assessment of Damages - Plaintiff not entitled to interest on past economic loss for impairment of earning capacity as did not come within s 137(4)(a)(i) of Motor Accidents Compensation Act 1999 - Future Medical Treatment and Pharmaceutical Items - Attendant Care Services - Physiotherapy - Cost of Fund Management - Indemnity Costs LEGISLATION CITED : Motor Accidents Act 1988, s72 Motor Accidents Compensation Act 1999, ss3, 128, 137(4)(a)(i) CATEGORY : Principal judgment Anthony Haywood v Collaroy Services Beach Club Limited [2006] NSWSC 566 Buckman v M & K Napier Constructions Pty Limited [2005] NSWSC 546 Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109 Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70 Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161 Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 CASES CITED : Marsland v Andjelic (1993) 2 NSWLR 649 Nicholson v Nicholson (1994) 35 NSWLR 308 (NSWCA) Rottenbury by his Tutor Wren v Rottenbury [2007] NSWSC 215 San v Rumble (No 2) [2007] NSWCA 259 South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2 Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 PARTIES : Tu Tran Maria Dos Santos FILE NUMBER(S) : SC 20210/06 COUNSEL : HJ Marshall SC and R Taylor (P) R Stitt QC and HM Stitt (D) SOLICITORS : Keddies Lawyers (P) Sparke Helmore (D) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Smart AJ 1 May 2009 20210/06 Tu Tran v Maria Dos Santos JUDGMENT 1 Following the principal judgment of 20 November 2008 I have heard arguments on a number or items relating to the issue of damages and the plaintiff's application for indemnity costs. 2 The following items are no longer in dispute, with one exception indicated: Non-economic loss $390,000.00 Out of pocket expenses $320,219.95 Past economic loss of earning capacity $141,220.00 Future loss of earning capacity (the plaintiff no longer pursues a claim for the 'lost years') $439,263.00 Past loss of superannuation $15,344.00 Future loss of superannuation $48,319.00 Future nursing care and Canterbury District Nursing Home fees $2,182,279.00 Future Hospitalisation $68,145.00 Attendant (gratuitous) care services (The method of calculation was not challenged but the plaintiff's entitlements to such an award was challenged.) $151,497.00 Miscellaneous: hairdresser $714.63 Miscellaneous: specialised chair $4,196.00 There was a contest over the following items: Interest on past economic loss for impairment of earning capacity 3 The defendant submitted that s 137 of the Motor Accidents Compensation Act 1999 precluded an award of interest. To obtain an award of interest the plaintiff must bring himself within s 137(4)(a)(i): "(a) Interest is not payable (and a court cannot order the payment of interest) on such damages unless: (i) information that would enable a proper assessment of the plaintiff's claim has been given to the defendant and the defendant has had a reasonable opportunity to make an offer of settlement (where it would be appropriate to do so) in respect of the plaintiff's full entitlement to all damages of any kind but has not made such an offer" 4 I dealt with the past loss of earning capacity of the plaintiff in paragraphs 383 to 413 of the judgment of 20 November 2008. 5 In their Amended Statement of Particulars, delivered on about 7 August 2007, the plaintiff at p 13 claimed amounts for loss of earnings which I regarded as excessive. I did not allow any of the weekly amounts claimed. On p 14 of the Amended Particulars the plaintiff specified the list of documents served in support of the claim for special damage and economic loss. 6 It was not until Mr Gush's return to the witness box on the sixth day of the trial that there was sufficient information available to enable a proper assessment of the plaintiff's claim for his past loss of earning capacity. As to the financial records relating to other employees which were produced those employees were not truly comparable. What they received was no more than a rough guide. In my opinion the requirements of s 137(4)(a)(i) were not satisfied and the plaintiff has not established an entitlement to interest on past economic loss. Future Medical Treatment and Pharmaceutical Items 7 This was dealt with at paragraphs 441 – 442 and 445 of the judgment of 20 November 2008. 8 The plaintiff has procured from Railway Square Chemist a Patient History Report as to the medications supplied for the plaintiff. The entries cover the period from 27 August 2007 to 21 November 2008. The heading on the five pages constituting the Report should be disregarded. The total for that period of about 15 months is $670.90. That works out at about $44.73 per month or $10.32 per week. The Pharmacy Guild of Australia has provided a costing. 9 Dr Waran, a general medical practitioner who attended at the Canterbury Nursing Home, in an undated letter sought and received on 30 January 2009, has stated that the need for the current regime of medication is likely to continue for the remainder of the plaintiff's life. 10 Up until the time judgment is entered, the plaintiff's medication is subsidized by the PBS. After judgment he will not qualify for benefits under that scheme. The Pharmacy Guild of Australia, by letter of 28 November 2008, has provided a costing for that medication on an unsubsidised basis. The weekly unsubsidised cost of medication for the future is $35.38. That figure can be derived from a broad analysis of the figures in the letter and adjusting the figures to a 12-month period. For most prescribed medications the cost to the plaintiff after he had paid $1,141.80 would be $5.00 per prescription, but that subsidy only applies to items covered by the PBS. 11 The subsidy threshold is calculated by reference to a calendar year. It is not possible to determine with any accuracy from the Pharmacy Report for which part of the calendar year the plaintiff is likely to be entitled to subsidised prescription rates of $5.00 per prescription. 12 Over the 15-month period of the Pharmacy Report, the plaintiff acquired and paid for non-prescription medications not covered by PBS of about $3.25 per week. 13 On the available evidence, and accepting that it lacks precision, it is reasonable to proceed on the basis that about half the prescription medication required and used by the plaintiff in any calendar year would be at a subsidised rate and about half at the unsubsidised rate. On average about 83 prescriptions would have been filled in a calendar year and 21 of those would have involved medications not covered by PBS, leaving a balance of 62 prescriptions per calendar year to which the PBS threshold and subsidy system would apply. 14 On the basis that the cost of half of those 62 prescriptions totalled $1,141.80, the other half (31) would be charged at a rate of $5.00 each, making a total of $155.00 per annum. 15 The cost of medication that is not subsidised (that is, before the PBS subsidy threshold is reached) is about $21.95 per week. 16 I propose to allow the following: Costs of medication up to PBS threshold of $1,1480.00 - $21.95 per week x 412.9 (5% multiplier for 10 years) $9,063.16 Costs of non-prescription medications $1,205.67 $2.92 per week x 412.9 Costs of non PBS subsidised prescription medication $1,341.92 $3.25 per week x 412.9 Costs of subsidised prescription medication $5.00 per prescription after subsidy threshold reached $1,230.44 31 prescriptions at $5.00 = $155.00 per annum or $2.98 per week $2.98 x 412.9 $12,841.19 17 The fees of Dr Waran or another general practitioner attending upon the plaintiff will be bulk billed to Medicare and no claim is made in that regard. 18 I allow the amount of $12,841.19 for future medical treatment and pharmaceutical expenses. Domestic Assistance and Past Gratuitous Care – Attendant Care Services 19 The defendant requested that the provision made in the judgment for this item be vacated and that no further sum be allowed. 20 Senior Counsel for the Defendant was correct when he said that the issue of attendant care was not fully addressed previously. 21 Senior Counsel relied heavily on s 128 of the Motor Accidents Compensation Act 1999 and Nicholson v Nicholson (1994) 35 NSWLR 308 (NSWCA). Section 128 relevantly provides: "(1) Compensation, included in an award of damages, for the value of attendant care services: (a) which have been or are to be provided by another person to the person in whose favour the award is made, and (b) for which the person in whose favour the award is made has not paid and is not liable to pay, must not exceed the amount determined in accordance with this section." In following sub-sections there are limitations on the entitlement to compensation and the amount thereof. 22 By s 3, the definition section: " attendant care services means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services." 23 The defendant relied on the Court of Appeal's decision in Nicholson. That was based on s 72 of the Motor Accidents Act 1988 and Griffiths v Kerkemeyer [1977] HCA 45; (1977) 139 CLR 161, Van Gervan v Fenton [1992] HCA 54; (1992) 175 CLR 327 and Marsland v Andjelic (1993) 2 NSWLR 649. 24 The 1988 Act was concerned with the value of services of a domestic nature or services relating to nursing and attendance which have been or are to be provided by a member of the same household or family. The 1999 Act in s 128(1) is concerned with the value of attendant care services provided by another person. The reference to "a member of the same household or family" no longer appears. The major difference between s 72 of the 1988 Act and s 128 of the 1999 Act is the insertion in the latter Act in s 3 of the definition of attendant care services. The emphasis is now upon services that aim to provide assistance to people with everyday tasks. That is stated to include, for example, personal assistance, nursing, home maintenance and domestic services. 25 At 323 of Nicholson, Kirby P expressed these views: "The respondent should not have to compensate the appellant for the cost of the full hospitalisation as well as for gratuitous services provided in that time by his sister. Griffiths v Kerkemeyer (1977) 139 CLR 161 aims to compensate relatives for the cost of the gratuitous nursing services provided. This view is supported by the following passage in Van Gervan (at 332): '… [i]n Donnelly, the Court of Appeal made it clear that the plaintiff's loss was 'the existence of the need'. The approach of Gibbs J is also inconsistent with what Stephen J called 'the principle that it is for the plaintiff's loss, represented by his need, that damages are to be awarded' and with the statement of Mason J that the plaintiff's 'relevant loss is his incapacity to look after himself as demonstrated by the need for nursing services'.' Section 72 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. Her Honour was entitled to find that the appellant's sister's services did not represent services within Griffiths v Kerkemeyer ." 26 I make these comments: (a) Since Kirby P penned those views circumstances have changed. It should no longer be assumed that the nursing staff in public hospitals can provide all necessary services. Such hospitals are no longer staffed to the levels where they can provide all necessary services, such as extended massaging and application of creams, sufficiently often and to a sufficient extent to prevent or at least reduce the incidence of bed sores. Nor are nursing homes staffed to the levels to be able to treat and look after patients (or clients) who require an extraordinary amount of care as this plaintiff needs as a result of his devastating injuries. (b) At para 418 of the judgment of 20 November 2008 I wrote, "With the limitations on staffing at the nursing home, the care of the elder brother and the mother was valuable, and probably essential". I adhere to those views. (c) Mr Tran said that he visited the plaintiff, his younger brother, every day at Liverpool Hospital. He washed the plaintiff's face, cleaned his mouth, talked to him, massaged him if he felt sore and sometimes helped to change his nappy. The plaintiff was bed bound, so the massaging is important. The elder brother said he had to change the nappies and clean the plaintiff. This is a task that would take two people for a man of the size of and limited understanding of the plaintiff (T 26 – 27). Mr Tran said that after the plaintiff was transferred to the Canterbury Nursing Home he continued to do all "those things" for the plaintiff that he had done at Liverpool Hospital to look after him. Mr Tran said that his mother gave the plaintiff a drink (put sponges in his mouth which he sucks – the sponges are on a stick). She also took all his dirty clothes back to the family home and cleaned and washed them. Mr Tran said he also gave his brother a drink via a sponge saturated with water and placed on the plaintiff's tongue. (d) Ms Mukundwi, who was the registered nurse at the Nursing Home from about 2004 to 2006 looking after the plaintiff, and since 1 January 2007 the Director of Nursing, said that, apart from the plaintiff who was aged around his late 30s or 40, the patients were elderly. The plaintiff has special needs to which she attended. She described him as a high needs patient who was fully dependent on the staff for everything. Since admission to the nursing home he has improved – it was a gradual process. The home has facilities for 106 residents and operates mostly at capacity. Ms Mukundwi, as asked, detailed the staffing levels. They were modest. With 106 patients there was a limited time which could be spent with each patient. She said that the plaintiff can now sit up in a special chair, which is beneficial, for 4 or 5 hours, so long as there is someone with him. The home does not have staff available for the plaintiff to be supervised in his chair for four to five hours per day. He is showered twice a week. The home does not have the staffing capacity to shower him daily but on those days on which he is not showered he received a "bed bath". Aroma therapy is not carried out as often as is desirable. He does not receive music therapy on a daily basis. She pointed out that the staff cannot cope with everything that needs to be done so time has to be allocated. The plaintiff is taken out into the courtyard of the home on occasions for fresh air, but that is not a daily occurrence. There are not enough special chairs to do so. If the plaintiff remains in the home for the remainder of his life expectancy, the quality of his care would be enhanced by additional staff to interact with the plaintiff. She emphasised the importance of being able to spend time and communicate with a patient. It is necessary to look after the patient as a whole. It is not a matter of just looking at them physically and providing for their physical needs. So much is obvious. She welcomed the provision of a special chair and the provision of a suitable full-time carer. She said that the plaintiff could benefit form receiving better care than he is receiving (T 247). Ms Mukundwi believed that Mr Tran should be transferred to another home with more rehabilitation facilities because in a nursing home there are limited resources and there were some areas of his care that were not addressed properly. She instanced the need for physiotherapy to be done by a trained physiotherapist 4 - 5 times per week (T 255). See also T 255, line 50 – T 256, line 4. See also paragraphs 367 – 372 of my earlier judgment. (e) In the earlier judgment I found that additional nursing care should be provided for the plaintiff in a nursing home from 6.00 am to 10.00 pm seven days per week by an Assistant in Nursing. The evidence in the present case establishes that the services provided by the brother and the mother were of importance to the welfare of the plaintiff. They did not simply improve the plaintiff's level of comfort. In this case, the detailed evidence available satisfies me that the allowance previously made for past attendant care should stand. On the facts, this case differs from Nicholson. Spending time with and communicating with a patient is not an option but part of his or her proper treatment. 27 I turn now to the evidence for the period 10 November 2008 – 30 April 2009. Tam Tran, the plaintiff's tutor and brother, has given evidence that he has visited the plaintiff at Canterbury District Nursing Home since 2 May 2008 every day, seven days per week and spent at least two hours per day washing his face, cleaning his mouth, talking to him, massaging him and generally providing attendant care services. He spends at least one hour per day travelling from his home in Woolloomooloo to Canterbury District Nursing Home. He has never signed the Visitors' Book – he was not aware that he should do so. Tam Tran is devoted to the plaintiff's welfare. 28 Anh Thi Tran, the plaintiff's mother, has given evidence that since her son has been a resident of the Canterbury District Nursing Home, she has attended to him every second day of the week and spent two hours with him, generally providing attendant care services to him. She spends at least one hour per visit travelling from her home in Woolloomooloo to Canterbury District Nursing Home. She did not sign the Visitors' Book at the nursing home. 29 The Director of Nursing at the nursing home has written that the brother and mother have not signed the visitors' book "due to not understanding the procedure. … I can however state that his brother and mother visit Tu Tran 4 – 5 times a week. During their visit they spend time talking to him, conducting oral care and sponge bathing him." I regard the letter as providing support for the claim for attendant care. I would not expect any of the staff at the nursing home to be working seven days per week or always to be at the nursing home when the plaintiff's brother and mother attend the plaintiff. 30 I reject the Defendant's submission that travelling time should not be allowed as that is not providing attendant care. There is a need for the brother and mother to travel so that they can provide the necessary attendant care. The travelling is an incident of the provision of attendant care. 31 I accept that the plaintiff's brother attends at the nursing home seven days per week and his mother every second day. I also accept that during the period from 20 November 2008 to 30 April 2009 each has provided attendant care services. As to the period, I allow the following for attendant care services (previously referred to as past gratuitous care) using the method of calculation set out in paragraph 425 of the earlier judgment. (a) Travel time of brother $33,222.00 as per judgment of 20 November 2008 23 weeks from 20 November 2008 to 30 April 2009 at $147.00 per week $3,381.00 (b) Care by brother $66,444.00 as per judgment of 20 November 2008 $6,762.00 23 weeks at $294.00 per week (c) Travel time of mother $16,724.00 as per judgment of 20 November 2008 $1,602.00 23 weeks at $74.00 per week (d) Gratuitous care by mother $33,448.00 as per judgment of 20 November 2008 $3,304.00 23 weeks at $148.00 per week (e) out of pocket travel expenses incurred by brother and mother as per judgment of 20 November 2008 $1,659.00 Total $166,546.00 Physiotherapy 32 I touched upon this matter in paragraphs 346 – 354 of the earlier judgment. 33 The defendant submitted that she is only liable to pay the reasonable and necessary treatment expenses in respect of future physiotherapy services. I agree and it is on that basis that I have approached the related questions of what physiotherapy treatment is reasonably necessary, by whom it should be provided, and the costs thereof. 34 The letter of 22 January 2009 from Principal Aged Care, which now runs the Canterbury District Nursing Home, states that a physiotherapist attends the home twice per week to review the residents and that the plaintiff is reviewed by the physiotherapist only every two months. The plaintiff is treated by physiotherapy aides in accordance with the physiotherapist's instructions, such treatment being afforded to the plaintiff twice a week. The defendant relied on the entries in the nursing home notes. She pointed out that the cost of these services were included in the nursing home fees. 35 I do not regard the regime referred to in the notes as reasonably adequate. The plaintiff's contractures are severe and require much attention. I adhere to the views I expressed in paragraphs 353 and 354 of the earlier judgment. 36 Mr A Papas, a Musculoskeletal and Sports Physiotherapist, has advised that the costs of: (a) 4 treatments a week for 13 weeks – calculated at $90.00 per visit $4,680.00 (b) Monthly supervisory visits – calculated at $90.00 per visit or session $8,578.00 ($10.77 per week x 413 – multiplier for 10 years) $13,258.00 37 I allow $13,258.00 for physiotherapy. Cost of Fund Management 38 There was a contest as to the amount to be paid by defendant for the cost of fund management. The defendant correctly submitted that its liability is confined to paying a sum which represents the reasonable cost of fund management. The defendant submitted that the court should allow the fees that would be charged by the Office of the Protective Commissioner (OPC) if it became the fund manager and the plaintiff submitted that the court should allow the fees that would be charged by ANZ Trustees Limited if it became the fund manager. I have the following material: (i) Letter of 17 April 2008 from ANZ Trustees; (ii) Report of Deloitte (Mr DS Watt) of 12 March 2009 reporting on the costs charged by the OPC if it became the fund manager and the costs charged by ANZ Trustee if it became the fund manager; (iii) Letter of 7 April 2009 of ANZ Trustees in reply (iv) letter of 16 April 2009 of Sparke Helmore in reply 39 These facts should be noted: a) The plaintiff will not be able to confer with the trustee because of his injuries or make his wishes known and all discussions by officers of the fund manager will probably have to be held with the brother and tutor of the plaintiff; b) the plaintiff, his brother and mother are Vietnamese and that is their preferred and first language. The elder brother and tutor speaks some English but his command of English is limited, he has had very limited education and he was not acute when it came to financial matters. The tutor needs a lot of patience and support; c) there will be some difficult choices to be made because the plaintiff is only entitled to 40% of the money awarded. These choices will include: i) whether the special chair the plaintiff needs should be supplied; ii) what physiotherapy should be arranged; iii) for how many hours per day an assistant in nursing should be employed to provide the additional care which the plaintiff needs; and iv) making arrangements with the relevant Commonwealth Department as to the payment of Nursing Home Fees. Because of the limited proportion of the money awarded being paid on behalf of the plaintiff, it is unlikely that there will be enough money to meet the nursing home fees for the full 10 year life expectancy of the plaintiff. 40 I expect that the tutor will have difficulty in dealing with these issues, amongst others, and will require much attention. Many of the issues which I foresee arsing are as a result of the contributory negligence of the plaintiff. On the other hand the costs of fund management are usually calculated on the size of the fund to be managed. 41 The amount awarded prior to any deduction for contributory negligence was a total of $3,802,335.00. Forty per cent of that amount is $1,520,934.00. In his submissions of 18 March the plaintiff submitted that these further sums would have to be deducted as these are repayable, namely: Liverpool Hospital $6,371.40 Medicare repayment (to 30 December 2008) $250,293.71 $256,665.11 42 The final amount to be invested, apart from the costs of fund management and any solicitor/ own client costs would be: $1,520,934.00 $256,665.00 $1,264,269.00 Solicitor / own client costs could be quite substantial. 43 The differences between the ANZ fees and those of the OPC include: a) OPC charges an establishment fee of about $2,200,000.00 whereas ANZ Trustees charges an establishment fee of $10,000.00 b) ANZ Trustees have assumed that the fund will earn income and attract capital growth; c) ANZ Trustees have assumed that it will be the Private Manager. This brings an additional amount into the calculation, being the income commission charged by the OPC for supervising a Private Manager. While OPC may charge a 4% commission on income earned, on 1 April 2009, this fee was capped at $2,000.00 per annum; d) the fee scale levied by the OPC (1.6%) on the average value of the fund is slightly lower than that charged by ANZ Trustees (1.65%); e) Deloitte calculates the total present value of the cost of fund management by OPC on $1.2 million as $82,300 and on $1.4 million as $95,618. ANZ Trustees calculates its costs as Private Manager under the OPC as $109,828 on $1.2 million, $117,603 on $1.3 million and $125,386 on $1.4 million. 44 Deloitte (via Mr DS Watt) did not include a calculation of earnings on the fund in determining the future value of the fund management costs. Mr Watt added: "My opinion is based on the assumption that the plaintiff is entitled to be compensated for fees that relate to the management and investment of the initial sum only and that the Court (and the defendant) need not concern themselves with the earnings and subsequent management and investment of those earnings nor the fees associated with those tasks." 45 Mr Watt relied on Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402 at 412 and Rottenbury by his Tutor Wren v Rottenbury [2007] NSWSC 215 at [50] – [53]. Mr Watt thought that in effect the discount rate of 5% used to determine the present value makes allowance for earnings on the damages. 46 Mr Watt also disagreed with the earnings rate of 7.65% assumed by ANZ Trustees and that drawings should be increased at the assumed inflation rate of 3% per annum. He thought that no allowance for future inflation should be made in the calculations. He relied on the statement made by Gibbs CJ in Todorovic v Waller, supra, at 409. 47 In the present financial circumstances the expectation of future investment earnings at a rate of 7.65% per annum and capital growth may be slightly optimistic. I have noted that the investment process of ANZ Trustees "is designed to deliver long term, tax efficient yield focused portfolios that are created to produce capital growth and income streams that grow over time in excess of inflation". That is laudable, but what I have to determine is that for which the defendant is reasonably liable to pay. 48 There are other matters which should be considered. The fund manager will have to work in close conjunction with the tutor. That will not be easy because of his limited understanding of English and his limited education. That will involve face-to-face contact as I doubt if electronic methods will be satisfactory. Useful direct contact by the fund manager with the plaintiff will not be possible. It is probable that the tutor and the mother will want to continue to help the plaintiff, visit him daily and provide services. These will have to be in liaison between the nursing home, the assistants in nursing, the fund manager and the plaintiff's brother. ANZ Trustees has stated that the family's direct contact with ANZ Trustees will be with a dedicated Client Relationships Manager in its Sydney Office (20 Martin Place Sydney). The tutor and his mother live at Woolloomooloo. The main office of the Protective Commissioner is at Parramatta. With the tutor living at Woolloomooloo and attending the plaintiff at Canterbury there would be difficulties and expense for the tutor travelling to Parramatta. 49 ANZ Trustees is able to provide a highly personalised service to its clients. Its Client Relationship Managers have significantly less cases to handle that their counterparts in the OPC and are able to spend more time on each client. This fund management is likely to be time consuming. 50 In their letter of 14 April 2009 the solicitors for the plaintiff have written that the tutor is aware of the costs and methodology differences between the OPC and ANZ Trustees and given the advantages provided by the ANZ Trustee, and specifically those referred to on pages 3 and 4 of their letter of 7 April 2009, he wishes the fund to be managed by ANZ Trustee. The defendant has submitted that the matters raised in the tutor's instructions do not constitute any adequate reason for imposing upon the defendant the higher costs charged by ANZ Trustees and that the preference of the tutor should convey little, if any weight to the decision making process. 51 Given the circumstances of the tutor and the plaintiff I can well understand the preference submitted on behalf of the plaintiff. I have to weigh the lesser financial burden of fund management by the OPC and the need for the fund manager to be able to spend time with those acting on behalf of the plaintiff and others (including the nursing home) to resolve the difficulties which are likely to arise. While financial considerations are important, there are also other factors. In all the circumstances, I allow $98,000.00 for the costs of fund management. That represents the reasonable cost of funds management and does not include services the defendant should not be required to meet. Indemnity Costs 52 The plaintiff has sought indemnity costs. On 27 February 2008 the plaintiff served an offer of compromise in these terms: 1 The Defendant to pay the Plaintiff $1,100,000 being a verdict of $2,200,000 less a reduction of 50% for contributory negligence in full and final satisfaction of the claim. 2 The Defendant to pay the Plaintiff's costs as agreed or assessed. 53 The Plaintiff has done better than the offer of $1,100,000 but the percentage reduction for contributory negligence is 60%. 54 I have found that the Plaintiff is entitled to the amount of $3.8million on his claim but that the percentage reduction for contributory negligence should be 60%. 55 The Defendant while pointing to the words "unless the Court otherwise orders" in the Rules accepted that the onus was on her to persuade the Court that indemnity costs should not be ordered and in so doing must demonstrate the basis on which an order should be made denying the entitlement to indemnity costs. In her written submissions the Defendant contended that there were three bases upon which the Court would decline to make an order for indemnity costs: a) the exceptional factual circumstances; b) the Court finding 60% contributory negligence as against 50% in the offer; c) the evidence of Grant Johnston, the Plaintiff's road traffic expert differed from the terms of his report in December 2006. 56 I did not regard the evidence as to loss on impairment of earning capacity and the consequent loss of income as being in any way able to be used until the evidence of Mr Gush was received. A moderately accurate assessment could not reasonably be based on the records which had been produced upon subpoena. 57 I did regard the factual circumstances of the case as exceptional. They are set out in my judgment. Ms Brown of the insurer refers to some of them in para 7 of her affidavit of 11 March 2009. 58 I am satisfied that: a) the Defendant gave the offer careful and serious consideration; it was not treated lightly. b) the Plaintiff's case was properly assessed by the decision maker, Ms Brown, on behalf of the insurer. She gave consideration to the private interests of the insurer and the defendant and the public interest. c) Mr Gordon on whose evidence so much of the Defendant's case depended was spoken to on the telephone in Western Australia. It was not practicable for him to be interviewed personally prior to the trial. He was an honest witness who did his best to tell the truth. He was a valuable witness but I thought that some important aspects of his evidence did not correctly reflect what had happened. The manner in which he gave his evidence was of considerable assistance in assessing it. d) The first report of December 2006 of Grant Johnston, the expert accident reconstruction engineer consulted by the Plaintiff and made available to the Defendant contained significant errors. He thought that the observation of the man in the yellow shirt (Van Le) was observation of the Plaintiff and he proceeded on that basis. From his first report (December 2006) it did not appear, with the errors it contains, that Mr Johnston had made a careful and adequate factual investigation. In his second report of July 2007 Mr Johnston acknowledged the additional information provided in Mr Keramidas' report. Ms Brown was entitled to take the view that Mr Johnston's reports and evidence were unlikely to be accepted in full and in significant respects. I found Mr Johnston's explanations for the errors in his first report unconvincing. Mr Johnston agreed that in his second report (July 2007) he again proceeded on the premise that it was Mr Tran around whom Mr Gordon swerved. That was an incorrect premise. He continued to rely on the defendant's statement as to how far she was behind the vehicle in front of her. She was too close. He agreed that some of his conclusions in his second report needed to be adjusted. While he was not familiar with the details of Mr Gordon's evidence given earlier at the hearing, not all aspects of Mr Gordon's evidence were accepted as accurate. e) On the materials before Ms Brown it was not unreasonable to think that the Plaintiff's case would not succeed nor to take the view that she preferred the Court to decide the issue of liability. 59 I do not regard my assessment of contributory negligence at 60% and the offer of compromise specifying 50% as a factor to be given weight when considering the issue of indemnity costs. The critical factor is the amount of money to be paid to the plaintiff. I reject the contention of the defendant that I should decline to make an order for indemnity costs for this reason nor do I think it is a factor to be taken into account with other reasons for declining to make an order for indemnity costs. 60 During the course of submissions I was referred to many authorities including Buckman v M & K Napier Constructions Pty Limited [2005] NSWSC 546; Anthony Haywood v Collaroy Services Beach Club Limited [2006] NSWSC 566; Coombes v Roads and Traffic Authority & Ors (No 2) [2007] NSWCA 70; San v Rumble (No 2) [2007] NSWCA 259; Caine v Lumley General Insurance Ltd (No 2) [2008] NSWCA 109. 61 In South Eastern Sydney Area Health Service & Anor v King [2006] NSWCA 2 Hunt AJA, with whom Mason P and McColl JA agreed said at [84]-[85]: [84] Although the Court may take into account the particular features of a case and the difficulty of putting an accurate estimate on its value in advance of the litigation, those considerations do not provide a basis by themselves for denying the party making the offer an order for indemnity costs: Hillier v Sheather (at 423). In Maitland Hospital v Fisher [No 2] (1992) 27 NSWLR 721 at 725, it was said that a miscalculation in a case with large imponderables, where the course taken by the party to whom the offer was made may have been perfectly reasonable, would provide a basis for denying an order, but the subsequent decision in Hillier v Sheather suggests that, whilst "large" imponderables may be a relevant factor in the particular case in denying an order for indemnity costs, in the general case a party's reasonable belief as to his own chances of success does not alone provide a basis for denying an order for indemnity costs. [85] In the present case, the respondent has submitted that the judge had wrongly considered that a belief that the appellants had reasonable grounds for defending the claim constituted exceptional circumstances disentitling her from an order for indemnity costs. However, the fact that the plaintiff's case had changed significantly between the date of the plaintiff's offer and the trial in which the judgment obtained is higher than the amount of the offer does provide a sufficient basis for an order denying the plaintiff's entitlement to indemnity costs: Maitland Hospital v Fisher [No 2] (at 725). The very nature of the situation itself demonstrates that it would be unfair to a defendant to make an order for indemnity costs when the evidence at the trial is different from that known to the defendant at the time of the offer. Whether or not this is an "exceptional" situation does not matter. 62 I have not relied on the Defendant's reasonable belief as to her own chances of success as alone providing a basis for denying an order for indemnity costs. I had regard to the material mentioned earlier as showing that serious consideration was given to the offers and that it was not unreasonable to arrive at the conclusions mentioned as a result of such serious consideration. 63 I have taken into account the particular features of this case and the difficulty of putting an accurate estimate on its value in advance. There were "large" imponderables in this case on the issue of liability. They were unusual. The Plaintiff was heavily intoxicated with a blood alcohol reading of 0.154 at 10.30pm on the evening of the accident, that is just over half an hour after the accident. He had been running and walking along the side of an arterial road at night where the speed limit was about 80kph in an area which was dark. There was a reserve on one side of the road and a golf course on the other side. The Plaintiff was being chased by a man who was wielding an implement and had been so chased for some distance. The Plaintiff was in fear of his life. He was calling 000 for help on his mobile telephone as he moved along. He was close to his friend Van Le. The Plaintiff was unable to tell the 000 operator of his location. It seems that shortly before the accident he was probably on the side of the road and that at some time he moved onto the roadway proper in the lane for south bound traffic where he was struck by the Defendant's vehicle travelling in the opposite direction to him. He was probably attempting to flag down a vehicle. He needed assistance but the area was one in which vehicles were unlikely to stop at night unless the vehicle contained a number of men. I considered the physical and expert evidence and the remainder of the evidence including the statement of the Defendant. I reached the conclusions stated in my earlier judgment. The circumstances were truly exceptional. 64 As to damages there were not truly comparable employees and the records produced provided but a rough guide. It was the evidence of Mr Gush that enabled an assessment to be made. The low offer of compromise made reveals that allowance had been made in it for the Plaintiff's negligence and that his case on his future care might not succeed. Quite a lot of time was lost during the hearing because of the unavailability of witness and the Plaintiff's late notification of evidence it intended to call. The Defendant had to be given an opportunity to consider and meet such evidence. 65 In my opinion, primarily because of the exceptional circumstances, the Defendant has discharged the onus resting upon it and no order for indemnity costs should be made. 66 The Defendant should pay the Plaintiff's costs of the proceedings on the ordinary basis not including the time lost when the Plaintiff was unable to proceed. 67 As a result of my rulings the Plaintiff is entitled on his action to the following sums: Non economic loss $390,000.00 Out of pocket expenses $320,219.95 Past economic loss of earning capacity $141,220.00 Future loss of earning capacity (The Plaintiff no longer pursues a claim for the lost years) $439,263.00 Past loss of superannuation benefits $15,334.00 Future loss of superannuation benefits $48,319.00 Future nursing care and Canterbury District Nursing Home fees $2,182,279.00 Attendant care services (previously referred to as Past Gratuitous care) $166,546.00 Future Medical Treatment and Pharmaceutical items $12,841.19 Hospital costs for future hospitalisation $68,145.00 Miscellaneous: hairdresser $714.63 Miscellaneous: specialised chair $4,196.00 Physiotherapy $13,258.00 Total $3,802,335.77 68 However, because of the Plaintiff's contributory negligence of 60% the Plaintiff is not entitled to the sum mentioned but to $1,520,934 being 40% of the larger sum mentioned. I have borne in mind that this sum will be reduced by $256,665 (Liverpool Hospital, $6,371.40 and Medicare repayment (to 30 December 2008) of $250,293.71), that is, the Fund will be reduced to $1,264,269. To this I add the sum of $100,000.00 being the cost of fund Management allowed. I would request the solicitors for the parties to check my figures and calculations and bring to my attention any error over $100. I have allowed a period of 7 days for this to be done and to raise any objections to the terms of the orders. 69 I make the following orders: 1 Final judgment for the Plaintiff in the sum of $1,520,934. Such judgment to take effect from 1 May 2009. 2 Order that the defendant is at liberty to deduct therefrom and pay direct to Liverpool Hospital and Medicare the amounts due to them respectively, namely $6,371.40 to Liverpool Hospital and $250,293.71 to Medicare. 3 The sum of $1,364,269.00 be paid at the election of the Plaintiff, by his tutor, either to ANZ Trustees Limited pursuant to s 77(3)(l) of the Civil Procedure Act 2005 or the Protective Commissioner as Manager of the Plaintiff's estate to be held and applied by the Manager as part of that estate. 4 Costs of Plaintiff to be paid by the Defendant on a party and party basis not including any costs thrown away by the Plaintiff not being in a position to proceed on the appointed hearing days. 5 Direct that these orders take effect as from 1 May 2009 but direct that they not be entered prior to 11 May 2009. 6 Liberty to apply on 3 days notice. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.