24 hour nursing care – balancing reasonableness/proportionate

Dang v Chea [2013] NSWCA 80


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.

The plaintiff was 83 when severely injured by a motor vehicle. Since the accident the plaintiff fell and broke her femur and moved to a retirement facility. The plaintiff also suffered from progressive dementia. A claim was made for 24 hour nursing care to avoid further falls. It was one of the matters on appeal.

Garling J with McColl JA and Preston CJ concurring:

Relevant Legal Test


The 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.


In 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.”


In 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.”


This 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.”



It 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.”


I 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.


In 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.


Those 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.


There 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.


On 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.


The 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.


In 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.


In 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.


In the face of this error, it is necessary for this Court to examine the evidence to see if the award of damages was excessive.


As 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.


This 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.


But 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.


This 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.


But 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.


This 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.


In 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.


As 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.


In those circumstances, I am satisfied that Her Honour’s balancing exercise miscarried, and that Her Honour’s award of damages was manifestly excessive.


I 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.


It 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.


David Cormack – Brisbane Barrister

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