CLA: Gratuitous care (agency costs), general damages (pre-existing condition) & life expectancy

AAI Limited v McQuitty [2016] QCA 326

Dalton J with Gotterson and Morrison JJA concurring:

Further to the earlier post which sets out the facts and reasoning of Jackson J the trial judge, the respondent/defendant appealed in relation to the basis for the awards of general damages and gratuitous care, together with life expectancy.

The decision has been awaited in particular over whether agency fees should be included in awards for gratuitous care and the ‘divergence’ from Waller v Suncorp Metway Insurance Ltd. Turning to this issue first, her Honour held as follows:

[26] It was said that the trial judge erred in not awarding damages for past care on the basis of what had actually been provided – an average of 5.5 hours per day – rather than on the basis of what was needed – an average of 6.5 hours per day.

[27] The judgments in Van Gervan v Fenton[18] might reasonably give rise to the view that the High Court supported the approach taken by the trial judge, particularly the statements that Griffiths v Kerkemeyer damages were to be assessed on the basis of need, and not as special damages. Nonetheless, the comments which the High Court made in that case were in the context of reexamining the basis for awarding Griffiths v Kerkemeyer damages – need, rather than the legal or moral obligation to pay persons who had provided services before trial. And in CSR Ltd v Eddy[19] it does seem that the High Court interpreted the statements in Van Gervan v Fenton as meaning that compensation is limited to services in fact provided to a plaintiff, notwithstanding that there was an unfilled need for services before trial. These latter statements are obiter, so it seems to me that there is uncertainty about the law in this respect. This point need not be determined in this case for if the primary judge erred, the discrepancy was a small one and based on factual findings which were themselves conclusions of “best-fit” on evidence which was based on estimation rather than precise calculation. This Court should not interfere.[20]

(b) Rate applicable to Past Care

[28] The rate at which past care was assessed was also challenged. The trial judge awarded compensation based upon the commercial cost of care, rather than say, the amount which the care agencies paid their workers. The appellant based this ground of appeal on its interpretation of Waller v Suncorp Metway Insurance Ltd.[21]

[29] The proper basis to assess compensation for services to be provided to an injured person is the market value of those services. That will in every case be a question of fact.[22] There are no arbitrary rules.[23] In Waller there was evidence that carers could be engaged directly, ie, not through an agency, for a price which was lower than the agency rate. Waller was a case where constant care was needed. In both these respects the facts proved in Waller were unlike the facts proved in this case. While there was cross-examination as to the amounts which the agency paid its carers, this evidence did not establish that Mr McQuitty could have employed carers by paying them that rate, much less that he could have employed them regularly and reliably for the times he required them. The trial judge’s decision as to the rate at which past services ought be compensated was correct. He did not mistake the onus of proof, but made a decision based on all the evidence before him.

Ground 3: Future Need for Care

(a) Rate applicable to Future Care

[30] The evidence was that Mr McQuitty intended to buy a home with the judgment sum awarded to him and that he had arranged for one of the gentlemen who had cared for him in the past to continue to care for him and live in that home. There was no evidence as to whether this carer would be paid by Mr McQuitty. The existence of this plan was argued by the appellant to justify an award for future care based, not on the agency rate, but upon a lesser value.

[31] This proposition must be rejected. The trial judge referred to the uncertainty attending the duration of the proposed arrangement for the future, and in this regard similar comments were made in Shaw v Menzies & Anor.[24] Even aside from that uncertainty, how Mr McQuitty spends money he is awarded as compensation is a matter for him, and his guardians and administrators. It does not determine the measure of his loss. This evidence was no basis for departing from the market value of the care which Mr McQuitty could be expected to need for the remainder of his life as the proper measure of his loss. The trial judge used agency rates to calculate the compensation of future care in an entirely orthodox way which, in my opinion, was correct on all the evidence before him.

Turning to the last issue of life expectancy, her Honour dealt with the imprecision in the evidence by taking into account that the trial judge assessed life expectancy by reference to the Australian Bureau of Statistics Life Expectancy Tables and a contingency of 20%. When applied to the life expectancy it more than adequately addressed the appellant’s contention.

As to general damages, the issue was the assessment of a pre-existing condition that was aggravated by the injury claimed for by reference to Section 61(1)(a) of the Civil Liability Act 2003 (Qld) (the Act) and Schedules 3 and 4 of the Civil Liability Regulation 2003 (the Regulation).

The appellant contended the trial judge did not take into account the plaintiff’s “pre-injury challenging and permanent personality traits” as a pre-existing condition within the meaning of s.7(1) of Schedule 3 of the Regulation.

Her Honour noted that the appellant properly conceded that the evidence concerning the plaintiff only amounted to personality traits as opposed to a recognised psychiatric personality disorder and on this basis, it was proper to exclude it from the meaning of pre-existing condition within s.7(1) of the Schedule 3 of the Regulation. Her Honour noted that the trial judge took account of the personality traits and while not expressly discussing s.9 of Schedule 3 of the Regulation, it was taken into account in fixing the injury scale value.

It is, however, useful to recite the principles her Honour relied upon when considering general damages:

[9] In interpreting the words of ss 7 and 9, it is as well to begin with the consideration of the purpose of an award for general damages. Luntz refers to Phillips v London & South Western Railway Co where Field J spoke of “the pain and suffering to [the plaintiff]” and what would be “fair compensation for the pain, inconvenience and loss of enjoyment which he has sustained.” On appeal Cockburn CJ spoke of “the bodily injury sustained; the pain undergone; the effect on the health of the sufferer, according to its degree and its probable duration as likely to be temporary or permanent.”[3] Luntz goes on to refer to Teubner v Humble in the High Court as to the object of general damages, in Windeyer J’s words, “Insofar as the possession of money can in a particular case give pleasure or provide comfort, money can properly be said to compensate for pain and suffering.”[4]

[11] Loss of enjoyment of life is, “the non-economic consequences of the destruction or diminution, permanent or temporary, of a faculty, which deprives the injured person ‘of the ability to participate in normal activities and thus to enjoy life to the full and to take full advantage of the opportunities that otherwise it might offer’”.[5] The law awards damages under this head having regard to the subjective feelings of the plaintiff[6] with the consequence that when it comes to awarding compensation under this head no “two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals.”[7] What enjoyment or amenities any particular plaintiff has lost will be a question of fact, in any particular case. The cases and text are replete with examples: the loss of a leg will cause more loss of enjoyment of life to a ballet dancer than to a scholar.[8]

[12] In assessing general damages in a case where a plaintiff has a preexisting condition, whether at common law, or having regard to ss 7 and 9 of Schedule 3 to the Regulation, the Court compensates only for the additional loss, or aggravation, which the defendant proves is caused by the accident. Once a plaintiff makes a prima facie case that incapacity has resulted from a defendant’s negligence, the defendant bears the onus of proving that the incapacity was wholly or partly the result of some pre-existing condition.[9] It was accepted by the appellant that in accordance with this principle the onus lay on it to show what part of Mr McQuitty’s loss was not caused by it.[10]

[13] Section 7 of Schedule 3 to the Regulation uses the words “pre-existing condition”. They are familiar in this area of the law – see eg, the High Court judgment in Purkess v Crittenden.[11] They are not technical words. Similarly, aggravation is an ordinary English word commonly used in cases dealing with this area of the law. I do not think it should be given an artificially narrow interpretation. Before the Act, the Courts had regard to what Luntz terms “aggravating and mitigating features”[12] in assessing what enjoyment and amenities had been lost. In personal injuries law, the idea of an injury aggravating a preexisting condition is a familiar one: degenerative lumbar discs may be aggravated by a back injury; arthritis may be aggravated by a knee injury; a plaintiff who had lost one leg will no doubt find his or her condition aggravated by a loss of the other leg. To some degree the propositions relevant to assessment of general damages in this case seem unfamiliar because they deal with a pre-existing disorder of the mind, rather than of the body. I cannot see that this changes the task which the Court must perform.

[14] In the example concerning the ballet dancer and the scholar, it is the scholar’s mental predisposition, or personality, which mitigates the loss of amenities of life. A plaintiff whose self-esteem and satisfaction in life came predominantly from the practice of a profession, might well suffer a greater loss of enjoyment from an accident which prevented him or her working, than a happy-go-lucky loafer, whose reaction to a similar accident was to exploit and enjoy time away from work. A pessimistic plaintiff might well suffer psychological sequelae to an accident when an optimistic plaintiff might not. In each case it is personality which aggravates or mitigates the loss of enjoyment of life, and consequently impacts upon the award of general damages. Yet in none of these cases would we refer to these personality factors as “conditions”, let alone conditions which are “made worse by the injury”. These personality factors are relevant to the assessment of general damages, and accordingly within the bounds of s 9 of Schedule 3 to the Regulation, but they do not, in my view, fall to be considered in terms of s 7.

The appeal was dismissed.

David Cormack – Brisbane Barrister & Mediator

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