Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dang v Chea [2013] NSWCA 80 Hearing dates: 13/02/2013 Decision date: 17 April 2013 Before: McColl JA at [1] Preston CJ of LEC at [2] Garling J at [3] Decision: (1) Appeal upheld. (2) Judgment of Balla DCJ set aside. (3) Order that the parties file agreed short minutes of order within 7 days of the judgment to reflect these reasons for judgment. If the parties are unable to agree on the orders to be made, then each party is to file their proposed orders together with a written submission in support of the orders for which they contend within 14 days of the judgment. (4) Respondent to pay the appellant's costs of the appeal. (5) Order that the respondent, if otherwise entitled, be granted a certificate under the Suitors' Fund Act 1951. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - negligence - motor vehicle accident - liability admitted. DAMAGES - whether the award for future accommodation and care was reasonable - the proportionate relationship between the health benefits obtained and future costs incurred - purpose of award of damages to fulfil reasonable, not ideal, requirements - no issue of general principle. Legislation Cited: Suitors Fund Act 1995 Cases Cited: Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649 Chulcough v Holley (1968) 41 ALJR 336 Sharman v Evans [1977] HCA 8; (1977) 138 CLR 563 McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536 Category: Principal judgment Parties: Thi Hue Chi Dang (Appellant) Siv Chea by tutor Chea Meng Ngo (Respondent) Representation: Counsel: K P Rewell SC / A J Stone (Appellant) S Norton SC / E E Welsh (Respondent) Solicitors: McCourts Solicitors (Appellant) Brydens Law Office LP (Respondent) File Number(s): 2012/172578 Decision under appeal Citation: Siv Chea by her tutor Chea Meng Ngo v Thi Hue Chi Dang Date of Decision: 2012-05-04 00:00:00 Before: Balla DCJ File Number(s): 2011/62695 Judgment 1McCOLL JA: I agree with Garling J's reasons and the orders his Honour proposes. 2PRESTON CJ of LEC: I agree with Garling J. 3GARLING J: The appellant, Thi Hui Chi Dang was, on 7 September 2007, the negligent driver of a motor vehicle which struck the respondent, Siv Chea, who was then a pedestrian in a car park on Hughes Street, Cabramatta, NSW. Mrs Chea was severely injured. 4On 4 May 2012 in the District Court of NSW, Balla DCJ delivered reasons for judgment in the proceedings for damages commenced by Mrs Chea against Ms Dang. After the parties reached agreement on various figures, on 11 May 2012, Balla DCJ entered a judgment in favour of Mrs Chea in the sum of $1,912,926. As well, she ordered Ms Dang to pay Mrs Chea's costs of the proceedings. 5On 31 May 2012, the appellant, Ms Dang, filed a Notice of Appeal. 6The appeal challenged a number of heads of damage, all of which relate to a single issue, namely the reasonableness of the award for the future accommodation and care of Mrs Chea. Mrs Chea 7Mrs Chea was born on 10 February 1924 in China. At the age of 18, she moved to Cambodia where she worked caring for the children of an official of the Cambodian Government. She subsequently married and had five children. 8In 1981, she emigrated to Australia, where four of her five children now live. At all times since being in Australia, and prior to her motor vehicle accident, she lived with one or other of her children in the homes in which they lived. Up to the time of her motor vehicle accident, she was essentially well, and independent in her daily living activities. At no time since arriving in Australia, has Mrs Chea worked. 9She is unable to speak English and speaks only Teochew, which is a dialect originating from the south-eastern Guangdong area of China. The Motor Vehicle Accident 10On 7 September 2007, Mrs Chea was struck by the appellant's motor vehicle. Ms Dang admitted that she was negligent. 11Mrs Chea was seriously injured. She was found, upon admission to Liverpool Hospital, to have sustained a left subdural haemorrhage, a non-depressed skull fracture involving the right parietal bone, and a fracture of the right zygomatic arch. She remained a patient at Liverpool Hospital for about a month, and then returned to live with her son. 12About two years later, whilst at home, Mrs Chea fell and fractured her left femur. She was admitted to Liverpool Hospital, where she underwent a left hemi-arthroplasty. On 8 September 2009, she was discharged from Liverpool Hospital and ever since has lived, and has been cared for, at the Canley Gardens Aged Care Facility ("Canley Gardens"). Mrs Chea's family had come to the conclusion that because of her limited mobility, and her tendency to fall, they could not care for her at home. Primary Judgment 13Proceedings were commenced in the District Court in February 2011 by Mrs Chea. Balla DCJ heard the proceedings in January and March 2012, and as I have said, delivered reasons for judgment on 4 May 2012, and entered judgment and associated orders on 11 May 2012. 14Since the appeal is limited to one issue of substance, it is only necessary to refer briefly to the primary judgment on other matters. 15Balla DCJ was satisfied that, consistently with her pleaded admission, Ms Dang was negligent. She was also satisfied that the allegation that Mrs Chea had, by walking in a carpark, been guilty of contributory negligence was not made out. 16Her Honour found that Mrs Chea's injuries were serious and that, as a consequence, she was no longer able to be independent in her care and required fulltime care throughout the day and evening. 17A significant issue with which her Honour dealt in the judgment, and which does not now form part of the appeal, was the anticipated life expectancy of Mrs Chea. This was a complex factual determination because of Mrs Chea's injuries, her advanced years and because of her progression to dementia. 18Her Honour resolved the question of the anticipated life expectancy largely in accordance with what Ms Dang submitted was appropriate. She found that Mrs Chea, who was 83 years old at the time of the accident, would be expected to live a further 3.5 years from the date of the trial. There is no appeal by Mrs Chea against this finding. 19Her Honour then dealt with the other main issue at the trial, namely, the future accommodation and care needs of Mrs Chea. On this issue, Mrs Chea submitted that the reasonable assessment of damages would require provision for her to live in suitable rental accommodation, and to be provided with an appropriate level of nursing care and assistance for 24 hours a day in that accommodation. Ms Dang, on the other hand, submitted that the reasonable assessment of damages should provide for a continuation of Mrs Chea living, and being cared for, in Canley Gardens. 20In considering these submissions, Her Honour concluded that the evidence established that there were advantages and disadvantages with each of the two options for Mrs Chea's care. 21When considering the care being provided to Mrs Chea in the nursing home, Her Honour concluded that because of her advanced dementia and cognitive deficits resulting from the brain injury received in the accident, Mrs Chea often showered more than once a day, which led to a risk of injury because she might fall in the shower. She identified that Mrs Chea frequently went to the toilet by herself, which again carried with it a risk of injury of her falling. She noted that apparently Mrs Chea did not like the food served in the nursing home and, as well, could not use the buzzer provided to her as a resident to summon help. 22Her Honour also noted a concern that whilst Mrs Chea was living at Canley Gardens in a single room, the possibility that she might be moved back into a shared room could not be completely excluded. 23On the other hand, Her Honour accepted that Canley Gardens was more likely to provide better care in particular areas. She found that it had better equipment, and that in emergency situations it had more staff members who could respond quickly, and they could provide a wider range of expertise which would be useful in such circumstances because of the employment of a variety of health professionals. 24Her Honour also found that there was likely to be significant upset for, and resultant confusion in, Mrs Chea being moved to rented accommodation because she would be confused about why she was in a new location, and she would be disturbed and distressed about coping with being in a new home. Her Honour found that this change in accommodation would escalate her psychological and behavioural problems, but she could not assess with any certainty for how long that destabilising effect would continue. 25As well, Her Honour noted that there were advantage and disadvantages with the proposal to accommodate Mrs Chea in private rented accommodation with the provision of 24 hour nursing and domestic care. 26She accepted that such an arrangement would be a complex process requiring considerable skill and resources to meet the plaintiff's care needs. Each carer, she found, would need to be familiar with the needs and care requirements of Mrs Chea who was a person with dementia and challenging behaviour. She found that without careful management Mrs Chea's behaviour might place her and her carers at risk. Her Honour also noted that falls with consequent injury, and assaults on staff were potential problems associated with the proposed regime for caring for Mrs Chea in private accommodation. 27Her Honour noted that whether Mrs Chea was accommodated in Canley Gardens or in rented accommodation, the care being provided to her by her family would continue and be of the same nature and kind. 28Her Honour considered and discussed some issues which affected the quality of life of Mrs Chea, but which she determined would not be affected by whether Mrs Chea stayed in the nursing home accommodation or moved to rented accommodation. Her Honour regarded those matters as, in effect, neutral. 29One of those features was that Mrs Chea had displayed aggressive behaviour. Her Honour concluded that such behaviour was a common issue with people with dementia and brain injury. Her Honour concluded that there was not likely to be any significant reduction in this behaviour simply because Mrs Chea was moved out of Canley Gardens to rented accommodation. As well, Her Honour found that, with the anticipated deterioration in Mrs Chea's state of dementia over time, it was likely that such behaviour would diminish so that Mrs Chea became less aggressive and less mobile over the ensuing few years. 30Having reviewed all of the elements, Her Honour concluded that a balance of all of the issues did not lead her to favour one of the proposals about Mrs Chea's accommodation over the other. 31However, Her Honour then went on to consider the issue of the falls that Mrs Chea had sustained whilst in the nursing home. It was this factor that seems to have swayed Her Honour's view that a reasonable assessment of damages required Ms Dang to provide for the costs of rented accommodation and 24 hour nursing and domestic care. 32Her Honour said this: "However the records of the nursing home show that Mrs Chea has sustained many falls. She has not always been injured. On separate occasions however she has sustained bruising to the back of her head, her left cheek and her right hand. On one occasion, she was bleeding from the nose and on another occasion she was bleeding from the back of her head and was taken by ambulance to hospital. It is clear that she is frequently going to the bathroom by herself to shower or use the toilet without any staff member noticing. I accept that it is not realistic to suggest that there is a solution which would completely eliminate the risk of Mrs Chea falling. However, one on one care must mean that it is more likely that help will be nearby when Mrs Chea is in a position of danger. Professor Cameron [Ms Dang's expert geriatrician] agreed that the risk of falling should be reduced as much as possible. She should be supervised getting in and out of bed and in the bathroom. ... I take into account that providing Mrs Chea with paid care and rented accommodation is much more expensive than if she stayed in the nursing home. However the cost must be matched against health benefits to Mrs Chea. For the reasons I have given, I am satisfied that there are real and significant health benefits in maximising the chance of avoiding Mrs Chea being injured in a fall which outweigh that difference in cost." 33Accordingly, Her Honour concluded that she should assess damages on the basis of Mrs Chea's proposal, namely that it was reasonable for her to be provided with rented accommodation and 24 hour care rather than remaining in Canley Gardens. 34Ultimately, when orders were made to give effect to these findings, Her Honour allowed for the following items: Item Rate Total Rent $250.00 per week $41,900.00 Initial nursing care (daily for 2 weeks) $180.00 per day $2,520.00 Ongoing nursing care (1 day per week) $180.00 $30,168.00 Daily care - week days $4,287.50 per week $718,585.00 Daily care - weekends $902.50 per day $302,518.00 Total: $1,095,691.00 35The total award for damages made by Her Honour was $1,912,926.00. It will be observed that the provision for future accommodation and care amounted to a significant proportion (about 50%) of the overall award of damages. Appeal 36Although expressed rather more compendiously in the Notice of Appeal, the substance of the appellant's submissions propounded the appeal on two bases, namely: (a)that Her Honour's finding that "... there are real and significant health benefits ..." for Mrs Chea being transferred from her present nursing home accommodation to private rental accommodation, was erroneous; and (b)that the balancing exercise undertaken by Her Honour to determine whether the damages she found to be reasonable were in fact reasonable, was flawed because Her Honour gave excessive weight to the "real and significant health benefits" and wholly inadequate weight to the additional costs and expense involved in the option which she accepted. 37Another way in which Ms Dang put the submissions on appeal was that the award of damages in respect of future accommodation and care was manifestly excessive. Relevant Legal Test 38The relevant test to be applied in considering the question of what damages ought be awarded to a plaintiff in a circumstance such as Mrs Chea found herself, is in Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649. In that decision, Barwick CJ held that the aim of an award of damages was not to fulfil the ideal requirements for an injured plaintiff, but rather the reasonable requirements. 39In Chulcough v Holley (1968) 41 ALJR 336 Windeyer J said at 338: "A plaintiff is only entitled to be recouped for such reasonable expenses as will reasonably be incurred as a result of the accident. What these are must depend upon all the circumstances of the case - including the particular plaintiff's way of life, prospects in life, family circumstances and so forth. It does not follow that every expenditure which might be advantageous for a plaintiff as an alleviation of his or her situation or which could give him or her happiness or satisfaction must be provided for by the tortfeasor." 40In Sharman v Evans [1977] HCA 8;(1977) 138 CLR 563, when considering the cost of providing nursing and medical care to a plaintiff, and what was reasonable in the circumstances, Gibbs and Stephen JJ said at 573: "The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits. When the factors are more evenly balanced no intuitive answer presents itself and the real difficulty of attempting to weigh against each other two incomparables, financial cost against relative health benefits to the plaintiff, becomes manifest." 41This Court, in considering a similar issue, has identified as a further matter for consideration, the question of proportionate relationship. In McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536, Basten JA (Beazley JA agreeing) said at [155]: "[A]n assessment of what is reasonable in the circumstances of a particular case, may well involve some consideration of the significance of the expenditure, as a proportion of the likely overall award, as well as the difficult assessment of the relationship between the additional proposed cost and the anticipated benefit." Submissions of Ms Dang 42First, Ms Dang submitted that the primary judge misunderstood, or else misinterpreted, the factual evidence as to the falls which Mrs Chea had whilst resident at Canley Gardens. 43She submitted that the records of Canley Gardens, contrary to the finding of her Honour, provided acceptable evidence of only six falls in 2010 and 2011, three of which were in January 2010, a fourth of which occurred in June 2010, and the last two of which were in 2011. Ms Dang submitted that on five of those six occasions, Mrs Chea had suffered only minor injuries and that the frequency and timing of the falls showed that whilst the risk of falls remained, they were becoming less frequent rather than more frequent. As well, Ms Dang submitted that it was relevant that only minor injuries were sustained in the falls. 44Secondly, Ms Dang argued that having regard to the significant disadvantage which the trial Judge had found, which would be occasioned to Mrs Chea when she moved, and the very large differential between the cost of Mrs Chea remaining in Canley Gardens and the cost of her being accommodated independently, which she submitted was in excess of $800,000, the assessment performed by Her Honour was erroneous because in accordance with appropriate legal principles, it was not reasonable. Mrs Chea's Submissions 45Mrs Chea submitted that the trial Judge had correctly interpreted the factual evidence and that there were, as she had found, in fact evidence of falls sufficient to substantiate the trial Judge's finding that the nursing home records showed that Mrs Chea had sustained many falls. 46Further, Mrs Chea's counsel submitted that the trial Judge had correctly applied the relevant legal principles and that her conclusion was, on a balance of all of the factors, well within her discretion. Counsel submitted that the appeal ought be dismissed. Discussion 47It will be recalled that the trial Judge's finding was that "... the records of the nursing home show that Mrs Chea has sustained many falls. She has not always been injured". It is also to be recalled that Her Honour placed significant weight on the chance of Mrs Chea being injured in a fall. She said: "For the reasons I have given, I am satisfied that there are real and significant health benefits in maximising the chance of avoiding Mrs Chea being injured in a fall which outweigh that difference in cost." 48I have concluded that Her Honour has fallen into error in the manner in which she dealt with the falls which Mrs Chea had, and in valuing far too highly the "real and significant health benefits ..." to be obtained by avoiding injuries to Mrs Chea if she fell over. 49In the particular circumstances of this case, the contemporaneous notes kept by Canley Gardens are likely to be the most accurate source of the information as to the extent of Mrs Chea's falls, and the consequence of them. 50Those notes contain descriptions of events that clearly demonstrate that Mrs Chea has fallen over. The notes record falls as having occurred on the following dates: 6 December 2009, 16 January 2010, 18 January 2010, 29 January 2010, 30 January 2010 and 13 December 2011. On another occasion, namely, 30 June 2010, the notes record that Mrs Chea was transferred to Liverpool Hospital after falling over. 51There are a number of other occasions when Mrs Chea was found sitting on the floor, but there is no note that she had fallen over or else had suffered any injury. Having regard to the fact that falls are specifically noted, the absence of a specific note to that effect, on these occasions give rise to the clear inference that the staff could not determine that a fall had in fact occurred. 52On one other occasion, namely, 8 February 2010, that Mrs Chea was taken to hospital, it would appear that it was consequent upon an assault by another resident which had probably resulted from Mrs Chea becoming aggressive in her behaviour towards that resident. 53The significance, for the purposes of this appeal, of Mrs Chea falling is that such falls in a woman of her age and limited agility would be an occasion for, and would thereby increase, her risk of injury. However, by relying upon the Canley Gardens notes, it would be unsafe to conclude, in the absence of supporting evidence, that the mere fact that a woman of Mrs Chea's age was found sitting on the floor meant that she had to have fallen down and ended up in that position. Such a record, where no injury is noted, is also consistent with Mrs Chea choosing to sit on the floor, or in effect, by lowering herself to the floor in a way which was intentional and unlikely to cause injury. 54In those circumstances, with respect to the trial Judge, I think that a conclusion that Mrs Chea had sustained many falls is an erroneous one. The falls that she sustained, by the time of trial, were largely, although not entirely, historic. There had not been an increasing incidence of falls. On the contrary, there had been a decreasing incidence. 55In any event, what was significant for the purposes of this assessment, which the trial Judge was undertaking, was not whether the falls would cease entirely if Mrs Chea was placed in private accommodation, which was not Mrs Chea's case before the trial Judge, but whether the incidence of falls would be reduced to a significant extent and thereby form a beneficial feature of being accommodated in private premises with oneonone nursing, rather than in a facility such as Canley Gardens. 56In the face of this error, it is necessary for this Court to examine the evidence to see if the award of damages was excessive. 57As a review of the falls which Mrs Chea actually had demonstrates, by the time of the hearing, there had only been in the recent past, a very small number of falls. Her Honour accepted, correctly, on the basis of the evidence, that the risk of falls would not be eliminated entirely if Mrs Chea moved into private accommodation. In considering the health benefit to be derived from a reduction in the number of falls, an important factor to be considered was that as Mrs Chea advanced in age, and her dementia progressively increased, she was becoming less mobile, less active and was more likely to be confined to bed. The occasions when she might fall were, accordingly, likely to be reduced in the future, and the circumstances in which she would fall if unsupervised in Canley Gardens would become progressively fewer. Her Honour does not seem to have taken this factor into account. 58This was important because it was this identified health benefit which was to be compared to the cost differential. The cost differential, which had to be taken into account, was not specifically identified in the judgment below. This is hardly surprising. The parties at trial did not undertake the relevant assessment in order to assist the Court. 59But what was required of her Honour was that she make an assessment in money terms of the differential cost between the alternatives, and it was necessary for her to keep in mind and give weight to the proportionate relationship between that monetary assessment and the overall assessment of damages. 60This exercise was not undertaken. The parties did not provide the calculations necessary for her Honour to attempt the task. Rather the parties were content for her Honour to approach the matter on a basis which was far too general, and not what the authorities required. 61But what does the evidence show? After the provision of supplementary submissions by the parties at the request of the Court, it is apparent that the cost of the option which Her Honour awarded, was $6,092.50 per week. The cost of remaining in Canley Gardens was $1,680 per week. If these figures were extrapolated over the plaintiff's life expectancy at the time of trial, then the difference between the alternative proposals was $781,745. 62This is a very significant difference. As has earlier been pointed out, the overall award of damages was a little over $1.9M. This sum represents a significant proportion of that overall award. 63In my assessment, the claim made by Mrs Chea's counsel in this case, that she be accommodated at the expense of the tortfeasor in rental accommodation with the provision of 24 hour nursing and domestic care at the cost proved before her Honour, represented very much an ideal circumstance, rather than a reasonable one. 64As well, the detriment to the plaintiff of being moved was significant. The benefit to be gained from moving out of Canley Gardens care was small, but the cost differential was high. 65In those circumstances, I am satisfied that Her Honour's balancing exercise miscarried, and that Her Honour's award of damages was manifestly excessive. 66I would uphold the appeal and order that the damages be recalculated to give effect to accommodating the plaintiff in Canley Gardens for the balance of her life. 67It is appropriate for the parties to calculate precisely, and agree upon the sum in which it will be appropriate for this Court to enter judgment. Orders 68I propose the following orders: (1)Appeal upheld. (2)Judgment of Balla DCJ set aside. (3)Order that the parties file agreed short minutes of order within 7 days of the judgment to reflect these reasons for judgment. If the parties are unable to agree on the orders to be made, then each party is to file their proposed orders together with a written submission in support of the orders for which they contend within 14 days of the judgment. (4)Respondent to pay the appellant's costs of the appeal. (5)Order that the respondent, if otherwise entitled, be granted a certificate under the Suitors' Fund Act 1951. ********** 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. Decision last updated: 18 April 2013