Supreme Court New South Wales Medium Neutral Citation: Grills v Leighton Contractors Pty Ltd (No 3) [2014] NSWSC 349 Hearing dates: In chambers Decision date: 28 March 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Parties to bring in final orders. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. Catchwords: COSTS - future care calculations - form of orders Cases Cited: Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951 Category: Costs Parties: Adam Lee Grills (Plaintiff) Leighton Contractors Pty Ltd ABN 98 000 893 667 (First Defendant) State of New South Wales (Second Defendant) QBE Insurance (Australia) Limited (Third Defendant) Representation: Counsel: Mr BJ Gross QC with Mr KO Earl (Plaintiff) Mr MJ Windsor SC with Mr S E Torrington, counsel (First Defendant) Mr G Parker SC (Second Defendant) Mr R Bartlett SC (Third Defendant) Solicitors: Baker & Edmunds Solicitors (Plaintiff) Thompson Cooper Lawyers (First Defendant) Turks Legal (Second Defendant) Michael Sofoulis(Third Defendant) File Number(s): 2008/317603 Publication restriction: None Judgment 1Judgment was given in this matter in December 2013 (see Grills v Leighton Contractors Pty Ltd (No 2) [2013] NSWSC 1951). Following discussion between the parties, the plaintiff filed proposed orders, the calculation of which was largely agreed. 2The orders proposed by Mr Grills were: "1 The Court determines that the calculation of the Award of damages in accordance with the Court's Principal Judgment dated 20 December 2013 is as set out in the 6 page document headed "Plaintiff's Calculations dated 12 March 2014". 2 The Court determines that for the purpose of giving effect to the Court's Principal Judgment dated 20 December 2013, judgment is to be entered against the First Defendant for $1,254,492 and judgment is to be entered against the Second Defendant for $1,041,799. 3 Verdict and Judgment for the Plaintiff against the First Defendant for $1,254,492. 4 Verdict and Judgment for the Plaintiff against the Second Defendant for $1,041,799. 5 The First Defendant and the Second Defendant will discharge the Plaintiff's judgments against them by payments in the following amounts, less any deductions which are required by law: a. The First Defendant $ b. The Second Defendant $ 6 First Defendant to pay the Plaintiff's costs. 7 As between the Plaintiff and the Second Defendant, each party to pay his and its own costs. 8 Verdict and Judgment for the Third Defendant against the Plaintiff. 9 The Plaintiff to pay the Third Defendant's costs on the Plaintiff's claim against the Third Defendant. 10 The third cross-claim is dismissed. 11 The First Defendant to pay the Third Defendant's costs on the Third cross-claim between the First Defendant (cross-claimant on third cross-claim) and the Third Defendant (cross-defendant to third cross-claim). 12 In respect of the First and Second cross-claims between the First and Second Defendants, noted that those Defendants do not seek any order from the Court. 13 In respect of the First and Second cross-claims between the First Defendant and the Second Defendant, no order as to costs." 3The third defendant, QBE insurance (Australia) Limited agreed with the orders proposed as to it (orders 8-11). Mr Grills and the second defendant the State reached an agreement in relation to the orders, but there were a number of issues between then and the first defendant Leightons Contractors Pty Ltd. 4There was also some measure of agreement with Leightons, which proposed orders: "1. The Court determines that the calculation of the Award of damages in accordance with the Court's 'Principal Judgment' dated 20 December 2013 is as set out in the 2 page document headed "First Defendant's Calculations dated 14 March 2014". 2. Judgment for the Plaintiff against the First Defendant for $689,756.00 3. Judgment for the Plaintiff against the Second Defendant for $552,153.00 4. The First Defendant to pay the Plaintiff's costs on the Plaintiff's claim against the First Defendant as agreed or assessed. 5. As between the Plaintiff and the Second Defendant, each party to pay his and its own costs. 6. Verdict and Judgment for the Third Defendant against the Plaintiff. 7. The Plaintiff to pay the Third Defendant's costs on the Plaintiffs claim against the Third Defendant. 8. The First and Second Cross-Claims, being cross claims between the First and Second Defendants, are dismissed with no order as to costs. 9. The Third Cross-Claim is dismissed. 10. The First Defendant to pay the Third Defendant's costs on the Third Cross-Claim between the First Defendant (Cross-Claimant on Third Cross-Claim) and the Third Defendant (Cross-Defendant to Third Cross-Claim) as agreed or assessed." The future care calculation 5A calculation of the figure for future care and gardening which was agreed between the plaintiff and the second defendant, the State, was not accepted by Leightons. 6The plaintiff contended that it should be calculated as $131,500. Leightons' case was that it should be $1000,000. Resolution of this controversy has some consequential impact on other calculations. 7In the December judgment I said at [394] - [403]: Future care 394 Mr Grills submitted that the evidence established his need for future care, some of which required a house keeper or babysitter to be engaged. At the time of hearing his children were aged 6 and 1. He finally pressed a figure of $131,350, being a $100,000 buffer for all future care, paid or voluntary, incorporating both child care or care of the plaintiff in relation to his needs to look after the children, plus $31,500 calculated by reference to $33 per week for gardening. 395 Such an order was not opposed by the State. 396 Leightons' position was that it accepted the calculation for gardening, but otherwise its position remained unaltered. It had earlier submitted that this assessment had to have regard to the concurrent evidence of Ms Hammond and Ms Ravagnani. They had a fundamental difference in approach, given Ms Hammond's assessment that Mr Grills required domestic assistance of only some 1.5 hours per week from 2008 and Ms Ravagnani that he would require 6.6 hours. They also differed in their opinions as to the role such work played therapeutically, although they agreed that it was important for Mr Grills to continue to pursue such activity, as it would assist him. They also agreed that it would assist him to have another trial of vocational rehabilitation. 397 Leightons submitted that the evidence did not establish that Mr Grills would exceed the statutory threshold in s 15 of the Civil Liability Act for gratuitous care and that it would be concluded that only the heavier domestic tasks are beyond Mr Grills, as Ms Hammond had assessed. Section 15 relevantly provides: "15 Damages for gratuitous attendant care services: general (1) In this section: attendant care services means any of the following: (a) services of a domestic nature, (b) services relating to nursing, (c) services that aim to alleviate the consequences of an injury. gratuitous attendant care services means attendant care services: (a) that have been or are to be provided by another person to a claimant, and (b) for which the claimant has not paid or is not liable to pay. (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services unless the services are provided (or to be provided): (a) for at least 6 hours per week, and (b) for a period of at least 6 consecutive months." 398 In the result it was submitted that 1.5 hours per week would be allowed into the future for heavier tasks, plus an allowance for lawn mowing, which would then reduce, it being accepted that while some tasks would cause discomfort, that would be therapeutic and could help deal with Mr Grills' emotional problems. Thus a buffer of some $29,976.62, would be awarded, that being calculated by reference to Ms Hammond's assessed annual cost of $5,835 for 5 years. 399 Leightons also relied on State of New South Wales v Perez [2013] NSWCA 149 where the construction of s 15B of the Civil Liability Act arose to be considered. There a claim for domestic services provided by the respondent to his wife and grandchildren was in issue. It was concluded that the respondent was entitled to an award in respect of the loss of his capacity to provide such domestic services to his wife and to his grandchildren, on an hourly basis for the time he was no longer able to spend providing such services. As to the evidence, it was observed at [32] that 'the fact that one service provider has been replaced with another may well provide cogent evidence of the "need" for the particular services'. 400 Mr Grills did not press such a claim and thus this needs no further consideration. 401 Leightons also relied on Miller v Galderisi [2009] NSWCA 353 where it was observed at [18] that '[t]here is no reason in principle why, if the evidence justifies it, damages may not be awarded in respect of a need for commercial domestic assistance likely to arise in the future after the availability of gratuitous assistance ceases.' 402 The evidence of Mr Grills and his wife, if accepted, would meet the s 15 threshold, as the State accepted. I can see no basis upon which their evidence would not be accepted, notwithstanding the views expressed by Ms Hammond. Further, Leightons' acceptance of the gardening calculation of $31,000 finally pressed for Mr Grills, demonstrated that the buffer figure calculated by reference to Ms Hammond's assessment could not be accepted. 403 Given the difficulties in assessing what the future might hold for Mr Grills and when his needs might reduce over time, I accept that an order based on a buffer is appropriate and that the buffer figure which Mr Grills and the State agreed, should be accepted." 8Leightons submitted that in the result, the "buffer" referred to at [403] was the $100,000 identified at [394], so that only $100,000 could be ordered in Mr Grills' favour. The other parties contended that the order should reflect a figure of $131,350 referred to at [394]. 9The controversy must be resolved on the basis agreed by Mr Grills and the State. 10The claim Mr Grills pressed in this regard had two aspects, firstly "a figure of $131,350, being a $100,000 buffer for all future care, paid or voluntary, incorporating both child care or care of the plaintiff in relation to his needs to look after the children" and "$31,500 calculated by reference to $33 per week for gardening." ([394]). The claim was accepted by the State in its entirety ([395]). Leightons accepted the calculation for gardening, but the buffer was in issue ([396]). That issue was resolved in Mr Grills' favour at [403]. 11In the result the orders must reflect the sum of $131,350 for which the plaintiff and the State contended. That conclusion must be reflected in the orders made against Leightons. The form of the orders 12Mr Grills accepted the State's submission that orders 1 and 2 which he proposed were unnecessary; that the figure at order 5(a) should be $552,153; and that the cross-claims should be resolved as the State proposed, it submitting that: "5. Proposed order 12 does not dispose of the cross claims between the first and second defendants. The cross claims should be either dismissed or judgments on the cross claims entered." 13Mr Grills opposed the form of the orders sought by Leightons as to apportionment, pressing for orders in terms agreed with the State. The orders should take the form agreed between Mr Grills, the State and QBE, with order 12 providing that the cross-claims be dismissed. 14The parties should now bring in final orders in these terms. 15All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined. ********** 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: 28 March 2014