Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Ridolfi v Hammond (No 2) [2012] NSWCA 67
• Hearing dates: On written submissions
• Decision date: 04 April 2012
• Before: Beazley JA at 1; Campbell JA at 2; Sackville AJA at 3

Decision

1. Order that judgment be entered for the appellant in the sum of $243,406.62.

2. Order the respondent to pay the appellant's costs of the appeal.

[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: DAMAGES - attendent care services - Motor Accidents Compensation Act 1999 s 128 - whether appellant satisfied statutory requirement that services must be provided for at least 6 hours per week.
• Legislation Cited: Civil Liability Legislation Amendment Act 2008; Motor Accidents Compensation Act 1999
• Cases Cited: Hill v Forrester [2010] NSWCA 170; Miller v Galderisi [2009] NSWCA 353; Ridolfi v Hammond [2012] NSWCA 3
• Category: Consequential orders
• Parties: George Ridolfi (Appellant); Lisa-Maree Hammond (Respondent)
• Representation: Ms S Norton SC and Ms M Fraser (Appellant); Mr R Bartlett SC and Mr W Fitzsimmons (Respondent); Brydens Law Office (Appellant); Sparke Helmore Lawyers (Respondent)
• File Number(s): 2010/81646

Decision under appeal

• Date of Decision: 2010-03-12 00:00:00
• Before: Gibb DCJ
• File Number(s): 2201 of 2004

Judgment

1 BEAZLEY JA: I agree with the reasons and orders of Sackville AJA.

2 CAMPBELL JA: I agree with Sackville AJA.

3 SACKVILLE AJA: In a judgment delivered on 23 February 2012, the Court made the following orders:

"1. Appeal allowed.

2. Set aside orders 1, 2 and 3 made by Gibb DCJ on 12 March 2010.

3. Direct the appellant on or before 1 March 2012 to file written submissions, not exceeding ten pages in length, addressing the following issues:

(a) whether the appellant agrees with the figure of $17,500 in respect of past loss of earnings and, if not, the figure that is proposed;

(b) the quantum of damages for loss of future earning capacity, calculated in accordance with the reasoning in this judgment;

(c) the amounts, (if any), that should be awarded by way of damages in respect of past and future attendant care services (including the question of whether the threshold requirements of s 128(3) of the [Motor Accidents Compensation Act 1999 ('MAC Act')] are satisfied; and

(d) costs.

4. Direct the respondent, on or before 12 March 2012, to file and serve written submissions, not exceeding ten pages in length, in reply."

Ridolfi v Hammond [2012] NSWCA 3 ("Principal Judgment").

4 The figure of $17,500 as damages for past loss of earnings (or, more accurately, past loss of earning capacity) was based on a finding in the Principal Judgment (at [157]) that the appellant was entitled to damages for the period from 15 November 2008 until the date of the primary judgment (12 March 2010). The Principal Judgment made it clear (at [156]) that the calculation was based on the proposition that the appellant's pre-accident earning capacity was to be assessed at $256 net per week.

5 The appellant now submits that the figure of $256 net per week should be adjusted. However, this submission goes beyond the terms of the judgment and the orders. The only issue on which submissions were invited was whether the calculation was correct. On this basis, I accept the respondent's calculation that the correct figure is $17,638. Thus the primary Judge's award for past economic loss should be increased from the sum of $100,000 allowed by her Honour to $117,638.

6 The Principal Judgment concluded (at [158]) that the appellant was entitled to damages for future economic loss, to be assessed on the basis that the appellant's earning capacity was $256 net per week, but that an allowance of 40 percent should be made for the vicissitudes of life.

7 The appellant also sought to vary the figure of $256 net per week for the purposes of assessing damages for future economic loss. For the same reasons I have already given, this submission travels beyond the terms of the judgment and the orders. It therefore must be rejected.

8 On this basis, I accept the calculation of damages for future economic loss put forward by the respondents, which can be summarised as follows:

The appellant was 46 years of age at the date of the judgment. He therefore had a further 19 years of working life (to age 65). The multiplier for 19 years is 646.2. After an allowance of 40 per cent for vicissitudes of life, the award for future economic loss is $99,256.32.

9 The Principal Judgment invited further submissions on the question of attendant care services for the following reasons:

"159. As the appellant submitted, the finding that the accident materially contributed to the deterioration in the appellant's degenerative neurological condition undercuts the primary Judge's finding that the appellant's need for future care is wholly unrelated to the accident. However, the parties' written submissions only touched briefly on the question of what consequences should follow. The oral submissions did not carry matters any further.

160. In my opinion, this Court is not in a position, without further assistance, to determine on the available material whether the appellant satisfies the threshold test laid down by s 128 of the MAC Act and, if so, the appropriate award of damages in respect of future attendant care services.

161. I think it appropriate to give the parties the opportunity to make further submissions as to the award of damages (if any) that should be made in respect of future attendant care services and the basis for doing so.

162. I propose that the same approach be taken in relation to damages for past attendant care services, for much the same reasons."

10 The starting point for a consideration of the appellant's claim for attendant care services is s 128 of the MAC Act. Section 128 relevantly provides as follows:

"(1) Compensation, included in an award of damages, for the value of attendant care services:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

must not exceed the amount determined in accordance with this section.

(2) No compensation is to be awarded if the services would have been provided to the person even if the person had not been injured by the motor accident.

(3) Further, no compensation is to be awarded 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."

11 Section 128(3) in its current form was inserted by the Civil Liability Legislation Amendment Act 2008, s 4, Sch 2. The amendment was given retrospective effect (Sch 1, cl 32) and thus applies to the present case.

12 Section 128(3) raises difficult questions of construction. In Hill v Forrester [2010] NSWCA 170, this Court unanimously held that the requirement that services be provided (or are to be provided) for at least six hours per week is ongoing (at [1], per Tobias JA; at [26], per Handley AJA; at [98], per Sackville AJA). Thus the appellant in the present case is not entitled to recover damages in respect of any period during which gratuitous services were not provided (or are not to be provided) for at least six hours per week.

13 Hill v Forrester also decides that a claimant cannot recover compensation for attendant care services unless such services have been provided for at least one period of six consecutive months: at [2], per Tobias JA; at [105], per Sackville AJA. The question of whether the qualifying period of six months is satisfied if services are provided throughout that period, albeit at a rate of less than six hours per week, was not decided in Hill v Forrester: see at [4]-[11], per Tobias JA; at [106]-[108], per Sackville AJA.

14 Neither party's submissions suggest that the question of compensation for attendant care services should be remitted to the primary Judge. Whatever the difficulties of resolving this question, it is obviously in the interests of the parties to avoid a further hearing in a case which has already been prolonged.

15 The appellant invites this Court to review his evidence and that of his sister, Ms Ridolfi, about the level of care he required as a consequence of his injuries. He also refers to a range of medical evidence and reports of occupational therapists. The appellant's submissions recognise that neither he nor Ms Ridolfi gave an estimate of the hours of care provided to him before the trial. Nonetheless, the appellant repeats the submission at trial that he should be awarded compensation for his past need for attendant care services on the basis of six hours per week for 9.5 years, a total of $59,280.

16 The appellant relies on a report prepared by Dr Buckley, a consultant physician in rehabilitation medicine, to support his claim for compensation for future attendant care services. The amount claimed is $173,184, calculated on the basis of eight hours care per week at the rate of $40 per hour for 902 weeks, less the allowance for vicissitudes of 40 per cent. The claim is put on the basis that the appellant will require ongoing care paid for on commercial terms.

17 The respondent points out that the primary Judge considered whether the appellant had satisfied the minimum six hours requirement laid down by s 128 of the MAC Act, albeit in respect of a closed period of eight and a half years ending on 25 November 2008, rather than the full period of nine years and four months between the date of the accident and the conclusion of the trial. The respondent supports her Honour's finding that the appellant had not shown that attendant care services had been provided for at least six hours per week, or for a period of at least six consecutive months.

18 The respondent further submits that there is insufficient evidence to justify a claim for future attendant care services to be provided by commercial providers. The respondent says that the evidence does not support a finding that the appellant will live otherwise than with his family or that he will rely on commercial service providers. Alternatively, the respondent contends that the appellant cannot satisfy the minimum requirements imposed by s 128 of the MAC Act.

19 The primary Judge dealt at some length with the evidence relating to the appellant's claim in respect of attendant care services. Her Honour accepted that the appellant's sister provided services in the household of which the appellant was a member, but pointed out that there is a difference between services provided out of love and affection and a need for domestic assistance. Her Honour considered that the evidence in support of the appellant's claim was:

"rather vague, focussing upon what is done for him by his sister, with whom he lives, rather than what he needs."

The primary Judge referred to medical reports which indicated that the appellant was "entirely independent in self care", including reports dating from shortly after the accident.

20 The primary Judge noted that Dr Costa, an occupational health consultant, had reported in April 2003 that the appellant needed help with home handyman work, housework, carrying heavy shopping and with "semi regular supervision and this will be round the clock - but say 12 hours per week". Her Honour considered this to be "exaggerated on any analysis":

"By 2003, the [appellant] had been examined by a range of medico-legal specialists, and told them that he could cope with basic domestic tasks."

21 The primary Judge also noted that Dr Buckley had suggested in a report of October 2005 that the appellant required five hours of housekeeping assistance and three hours of handyman assistance per week. However, in the same report, Dr Buckley had recorded the appellant's indication that he was "independent in ordinary activities of daily living". Moreover, Dr Buckley's opinion rested on the basis that the appellant would choose to live alone in an average size suburban cottage, a situation that had not occurred. Her Honour concluded as follows:

"Taking Dr Buckley's recommendations at their highest, ignoring the lack of causal nexus, the [appellant's] need for care failed to reach the statutory minimum given the absence of actual need for handyman services in the context ...

The measure of domestic care fails both requirements for causal nexus and need; and the statutory requirement 'for at least 6 hours per week'."

22 The primary Judge rejected the appellant's claim for future attendant care services, for two reasons. First, the claim was founded on the proposition that the appellant would like to live alone, but in view of the appellant's history, her Honour did not consider this to be a "particularly likely outcome". Secondly, the appellant's needs were no longer accident-related. The second reason cannot stand in view of the conclusions reached in the primary Judgment.

23 The appellant's submissions do not identify where her Honour was in error in her assessment of the evidence for the purposes of dealing with the claim for past attendant care services. The submissions refer to the evidence given by the appellant and Ms Ridolfi and to various medico-legal or occupational therapy reports. But these were taken into account by the primary Judge in making her findings. For example, the appellant relies on an extremely lengthy report prepared by two occupational therapists (Ms Alach and Mr Fortin), which compared the appellant's pre-accident and post-accident activities and responsibilities. However, as the primary Judge pointed out, the report was carefully qualified by this statement:

"Past gratuitous care recommendations are based on [the appellant's] and his sister's report of assistance provided to him at various periods since his accident. Because of the length of time since his injury, and the varying amount of assistance that [the appellant] has required on different days because of his varying pain levels, average amounts of gratuitous care provided for extended periods have been documented. It is up to the court to decide whether this amount of assistance was reasonable and necessary given his circumstances."

24 My review of the evidence given by the appellant and Ms Ridolfi confirms that it was not directed to demonstrating that the appellant, during any particular period or periods, had a need for attendant care services for more than six hours per week. Nor do I think that the primary Judge misconstrued the medical or occupational therapy evidence in making her findings. There is little doubt that the appellant, during some or all of the period between the accident and the trial, had a need for assistance in his daily life. But her Honour was entitled to find that the evidence did not establish that at any particular time the appellant required more than six hours of attendant care services per week.

25 Although this point was not made in the appellant's submissions, the primary Judge indicated that insofar as the appellant needed assistance, his needs may have been unconnected with the consequences of the accident. However, her Honour expressed her findings independently of any issue of causal nexus. I do not think any error has been shown in her analysis.

26 For much the same reasons, I do not think that the evidence establishes that the appellant will require attendant care services for more than six hours per week in the future. The difficulty confronting the appellant is shown by this portion of his cross-examination:

"Q, Mr Ridolfi, I also want to suggest to you that in terms of domestic duties, that you're quite capable certainly of looking after yourself. Do you agree?

A. To a certain extent.

Q. Well, you're capable, for example, of driving yourself.

A. Yes.

Q. You're capable of shopping for yourself.

A. No, my sister does the shopping.

Q. Well, you're capable, I suggest; whether your sister does it or not is another thing. You are capable of going out and if need be, doing shopping yourself.

A. It depends what kind of shopping.

Q. Food shopping.

A. Groceries?

Q. Yes.

A. Only if it's just biscuits or something light. I can't actually carry heavy bags of groceries. I would have to put them in the trolley.

Q. I suggest to you you could carry sufficient groceries for yourself, couldn't you?

A. Yes, yes.

Q. I suggest to you that at home you could do your own, for example, dishes, washing - dishes?

A. Yes.

Q. Cooking your own meal?

A. I don't actually cook, but --

Q. You can do it, though; you have the capacity to do it, don't you?

A. It depends what sort of - what you mean by cooking.

Q. Cooking a meal for yourself to eat. You can do that.

A. I cook like noodles; two-minute noodles. Stuff like that; very simple. I make sandwiches; simple things like that.

Q. You can prepare meals for yourself, can't you?

A. Yes

Q. You can - I suggest - clean up your own room.

A. To a certain extent; just keeping it tidy, not actually cleaning it.

Q. You could do vacuuming, couldn't you?

A. No.

Q. You have done vacuuming since the accident, haven't you?

A. Yes.

Q. You told Doctor Buckley back in 2001 that you could cope with vacuum cleaning.

A. Yes.

Q. And the position is you could continue to cope with vacuum cleaning, couldn't you?

A. In 2001?

Q. Now. You could do vacuum cleaning.

A. Just - just for my room, not the whole house.

Q. And I suggest you could clean up the bathroom if you needed to.

A. No, I can't do that.

Q. Why do you say you can't do that?

A. Because that requires scrubbing and bending over."

There is nothing in the evidence to suggest that any disabilities revealed in this passage require the appellant to receive attendant care services for more than six hours per week.

27 Although it is not necessary to decide, I would accept the respondent's submission that the evidence does not establish that the appellant is likely to acquire attendant care services on a commercial basis. The appellant's submissions do not identify any evidence indicating that he is likely to take that course. His apparent reluctance to envisage being elsewhere than with his sister suggests that he is unlikely to utilise commercial care services in the future. No submission is made that an award should be made by reference to the chances that the appellant may require and utilise attendant care services in the future: cf Miller v Galderisi [2009] NSWCA 353, at [14]-[24], per curiam.

28 For these reasons, I do not think that the damages awarded to the appellant should include compensation for attendant care services.

Costs

29 The respondent does not dispute that he should pay the costs of the appeal.

Orders

30 In addition to the orders made on 23 February 2012, I propose that the following orders be made:

(1) Order that judgment be entered for the appellant in the sum of $243,406.62, comprising:

Past economic loss : $117,638.00

Future economic loss : $ 99,256.32

Past out of pocket expenses : $ 21,512.30

Future out of pocket expenses : $ 5,000.00

(2) Order the respondent to pay the appellant's costs of the appeal.

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Decision last updated: 04 April 2012