Palmer v RTA & Ors

Wood CJ at CL : Following delivery on 20 December 2001 of my reasons for proposed judgment in this matter, the parties have now prepared and provided an agreed damages schedule. This schedule records the itemised heads of damage in accordance with those reasons, as agreed by the parties, with the single exception of the head of damages concerning fund management.

Further submissions have been received in relation to that matter, it being submitted, by Mr Toomey QC for the plaintiff, that the damages should be assessed in a general way by reference to the decision in Gardikiotis and upon the basis that a strict application of that decision would sound in a sum in the order of $970,000, which would then be discounted by 50% to $485,000, in order to reflect the considerations identified at paragraphs 513 – 539 of my reasons for judgment. In coming to that figure the fund available for investment has been reduced so as to allow for the immediate capital outlay required for repayment of the Workers Compensation insurer, as well as for the items referred to in paragraphs 11.1a, 12a and 13 of the Agreed Schedule.

The defendants do not disagree with the arithmetic components employed for this calculation, but they submit that such an approach would not properly reflect the reasons for judgment. In order to do so they submit that the sum awarded under this head should be calculated by reference to an ongoing annual cost of $13,000 to reflect the fees of accountants or advisors calculated at the rate of $250 per hour, to which would need to be added the costs of preparing a taxation return. Mr Toomey QC does not require proof of those components, and accepts that, on this basis, it would be fair to assume an ongoing cost for fund management annualised at $13,000, which would then sound in a loss in the order of $300,000.

It is that sum which the defendants submit would be an appropriate sum to be awarded in respect of this head of loss. Mr Toomey, however, submits that there should be an additional sum added to it, by way of a buffer, to allow for the contingency that the plaintiff’s condition may deteriorate, either permanently or for intermittent periods, such that she would not be able to participate at all in the management. If so, that would inevitably lead to an increase in the costs to be incurred in this respect.

There is some force in this submission, although equally there is force in the proposition that with the benefit of time and experience, particularly if a comprehensive and effective scheme for management is implemented, such that she may be able to occupy a greater role, or such that less contribution is required from her advisors.

Like all future losses in this case, an assessment of the damages to be awarded calls for a disquieting exercise in crystal ball gazing. It is next to impossible to predict the future in a case such as the present and the chances of any award for damages for future losses precisely matching the plaintiff’s future needs are probably slight. However, doing the best I can, I consider that the proper approach is that advanced by the defendants, and I accordingly assess this head of loss in the sum of $300,000. It follows in those circumstances that there will be a verdict and judgment in favour of the plaintiff against each of the defendants in the sum of $16,347,477.91 made up as follows: - 1. General Damages $420,000 2. Economic Loss 2.1 Past Economic Loss Agreed:- $77,500 2.2 Future Economic Loss:- Agreed $475/wk to age 65 less 20% (contingencies) $454,708 3. Interest 3.1 – Interest on General Damages 27/2/97 – 31/1/02 (4.9 yrs) @ 2% = 9.8% of $126,000 $12,348 3.2 – Interest on Past Economic Loss Agreed: $6,600 4. Loss of Superannuation 4.1 – Past Superannuation Agreed $4,462 4.2 – Future Superannuation Agreed: $386,045 5. Past Out of Pocket Expenses : Revised Figures: Workers Comensation - $2,062,840.66 HIC - $1,404.25 Total: $2,064,244.91 6. Domestic Care (paid) - future 6.1 – Case Co-Ordinator Claim: 1.5 hrs per week @ 120/hr Agreed: $180/wk x 1191.2 $214,416 6.2 – Full time (24 hr) Registered Nurse Claim: 24 hr care by registered nurse Agreed: $6,375.84/wk x 1191.2 $7,594,901 6.3 – Additional Carer to assist Registered Nurse Claim: 4 hrs per day by enrolled nurse Agreed: $817.88/wk x 1191.2 $974,259 6.4 – Third Nurse for Tracheostomy Tube Change, domestic assistance (commercial) Home maintenance, and van driver Claim 21 hours per week @ $24.50 Agreed: $514.50/wk x 1191.2 $612,872 7. Domestic Assistance – Past Gratuitous Claim: Agreed: $75,570 8. Domestic Assistance – Future Gratuitous Claim:- Agreed: $200.00/wk x 1191.2 $238,240 9. Future Equipment Requirements : Claim: Special equipment in accordance with report Paraquad 21/6/01 @ $59,306.58/annum Agreed: $1,140.50/wk x 1191.2 $1,358,563 10. Motor Vehicle : Claim Difference in running costs and associated Expenses between VW Transporter and, say Toyota Camry Agreed: $ 100/wk x 1191.2 $119,120 11. Personal Computer and Environmental Control Equipment : Claim: 11.1 - Computer (a) Set up costs at $20,000 Agreed: $20,000 (b) Annual allowance $250/wk x 1191.2 $297,800 12. – Environmental Control Eq . (a) set up costs Agreed: $34,852 (b) annual allowance - $5,228 Agreed: $100.54/wk x 1191.2 $119,763 13. Housing Claim: Cost of suitable house in Bathurst region Less cost of average dwelling in region Agreed: $270,000 Plaintiff also claims house maintenance Agreed: $145.00/wk x 1191.2 $172,724 14. Future Medical Consultations 14.1 – Medical Practitioners Agreed: $34.70/wk x 1191.2 $41,335 14.2 – Professional Health Carers: Agreed: $72.29/wk x 1191.2 $86,112 14.3 – Medications: Agreed: $73.66/wk x 1191.2 $87,744 15. Holidays Claim of annual holiday for plaintiff and carers Agreed: $250/wk x 1191.2 $297,800 16. Nanny – care for child disallowed 17. Fund Management: $300,000.00 18. Fox v Wood $5,499 TOTAL:- $16,347,477.91

I require the parties to bring in short minutes to reflect these reasons, which should include the orders to be made in relation to all cross claims, save for the cross claim of the third defendant against QBE Insurance. In respect of that matter judgment remains reserved. Similarly, the question of costs is reserved. I will receive further submissions in relation to that aspect of the case and also in respect of any application by the defendants for a stay at a time to be fixed.