Nicholson v Nicholson & Ors S1/1995 [1995] HCATrans 355 (13 October 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S1 of 1995

B e t w e e n -

RONALD MORTON NICHOLSON

Applicant

and

FLORENCE LORNA NICHOLSON

First Respondent

and

ANGELA SAVOURY

Second Respondent

and

MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LIMITED

Third Respondent

Application for special leave to appeal

BRENNAN CJ

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 OCTOBER 1995, AT 12.15 PM

Copyright in the High Court of Australia

MR A.S. MORRISON, SC: May it please the Court, I appear with my learned friend, MR D.J. HOOKE, for the applicant. (instructed by Stacks - the Law Firm, with Goudkamp Mahony)

MR J.D. HISLOP, QC: May it please the Court, I appear with my learned friend, MR G.J. PARKER, for the respondents. (instructed by McCulloch & Buggy)

BRENNAN CJ: Mr Morrison.

MR MORRISON: Your Honours, this application concerns the approach to the assessment of what is the single most important head of damages for the catastrophically injured, that is care. The primary matter which we bring to this Court's attention is a matter determined on the common law in New South Wales, that is the Motor Accidents Act does not impinge upon the determination. There is a second matter which is affected by the terms of the Motor Accidents Act in relation to past gratuitous care but that is subsidiary to the main issue upon which the applicant seeks relief.

The matters which we say are relevant to the consideration are these: first of all, the findings were that the applicant was an incomplete quadriplegic at C4/5 who had suffered a degree of frontal lobe brain damage. The consequence of this was that he had a loss of sensation below the level of the lesion; he had a degree, albeit mild, of impaired decision making. One of the consequences was that he smoked, and smoked heavily and indeed continues to do so, posing a real danger to himself and any other persons in the household. His body was said, on the evidence accepted by her Honour, to be covered with scars where he had burnt himself, the cover of his bead similarly full of holes, the carpet of his flat similarly placing him and others at risk.

The trial judge's findings are to be found at page 209, commencing at line 26, and based upon what I have just put to your Honours she found that:

he is at considerable risk of accident at home on his own.

Her Honour then found that she considered:

the plaintiff's problems are such that he should have someone living in his house with him. His needs do not extend - at least at present - to twenty-four hour care or supervision, but someone should be with him overnight, and ideally also at various times during the day in addition to the nursing care which he should continue to receive each morning. Accordingly, assuming that the plaintiff's children were living with him in order to meet this need, then the plaintiff would be entitled to compensation on that account. This, at least, is the submission which was made -

That goes on to deal with another point. What her Honour then did is to be found at 219. At page 219 at about line 18:

Accordingly, as a matter of principle, I find that the plaintiff does need live-in supervisory care and I thus propose to allow him a large part of the amount he claims under this head.

I say "a large part" for this reason. The amount claimed by the plaintiff assumes that he will require supervisory care for twenty-four hours a day, seven days a week. Such intense supervision is not necessary in his case, as it might be in the case of a full quadriplegic.

Then she rejects the suggestion he might take in a boarder, but says down at 45:

However, I am confident that he will be able to arrange for appropriate live-in supervisory care, together with suitable day-time domestic assistance, at a cost of considerably less than the $1,000 per week which is presently claimed under this head. After all, this service has been rendered until now by his own young children (as well as by nurses who have been carrying out domestic chores). Accordingly, I think some reduction must be made to the amount claimed.

What her Honour then did, commencing at line 15, was to discount by a little over 25 per cent the evidence which had been adduced as to the cost of care. Now, that cost of care was for the cost of commercial care to which the applicant was entitled. There is no reduction pursuant to section 72 in respect of future commercial care. What her Honour did was to set aside the unchallenged evidence that the applicant bought before the Court in favour of her personal opinion that it could be done more cheaply.

GAUDRON J: But the evidence was, the cost evidence was for 24-hour a day supervisory care and her Honour found that that was not necessary. It was overnight and at some times during the day, not 24-hours a day, seven days a week.

McHUGH J: And add to that, what is there special about this? It will take something to convince me that there was even an arguable special leave point in this case, Mr Morrison. This seems to me another one of these cases that should never have been brought to this Court.

MR MORRISON: What we say about it, your Honour, is that the cost of commercial care was the cost of providing supervisory care. It was not care on the basis of attendance upon him every minute of the day. There was no cross-examination of the applicant's expert evidence on this question. The applicant tendered a report; no contrary evidence was adduced; no challenge was made to that report; no cross-examination was directed to the suggestion that it could be done more cheaply if there were periods during the day when the applicant was not under the immediate supervision of the person who was living in. The cost of care was in fact, on the evidence, that which provided a degree of supervision, but not supervision on the basis of being with him minute by minute. That was never suggested and it was never part of the Dial-an-Angel report. It is that suggestion which her Honour seems to derive in the absence of any challenge to that evidence, borne of, in some way, her own experience, which leads to this application. We say that in principle it is wrong for her Honour to substitute for the evidence her own opinion that the matter can be dealt with more cheaply.

GAUDRON J: What her Honour was doing was rejecting your claim. That is what happened, but she allowed something less. She rejected your claim because your claim was based upon a need that she found did not exist, namely the 24-hours a day seven days a week supervisory care.

MR MORRISON: We say that that demonstrated error because there was no evidence that it could be done more cheaply than the commercial cost of what was clearly supervisory, rather than minute by minute care.

GAUDRON J: You might have ended up with nothing.

MR MORRISON: The reality is simply otherwise on the report. It was not care on the basis that someone be with him all the time, and the evidence before her Honour showed that.

BRENNAN CJ: What if she did make some error? Where is the special leave point?

MR MORRISON: The special leave point is in the question of whether or not a judge should substitute her own opinion for that of the expert evidence in a way which does not allow the applicant to challenge that opinion by way of evidence because of the way in which the matter was conducted. It would be a different matter if there had been contrary evidence as to a cheaper rate - - -

BRENNAN CJ: I find it difficult to spell out any question of principle in that enunciation.

MR MORRISON: It relates to the conduct of a trial judge.

McHUGH J: That does not make it a special leave point.

BRENNAN CJ: We know how a trial judge should conduct a trial. There is nothing novel about those propositions. A trial judge does not substitute his or her own views for the evidence. On the other hand, a trial judge is not obliged to accept the evidence that is put before him or her according to its tenor.

MR MORRISON: Can we say this about that: the Court of Appeal said that it was open to her but it assumed, in the passages found at 273 to 275, that her Honour had discounted for the likelihood the services might in part be provided by the applicant's children. We say that that in the Court of Appeal in itself revealed error because her Honour allowed nothing for future gratuitous care and nor did the Court of Appeal. Her Honour, accordingly, could not have made the assumption which the Court of Appeal assumed to be the case in dismissing the original appeal on this point.

The second matter is a matter which arises out of the difficulties of section 72(3) of the Motor Accidents Act in relation to the assessment of past gratuitous care. Section 72(3) modifies the common law by providing that unlike Van Gervan, if the services would have been provided in any event, then the applicant is not entitled to the cost of them. Now, what her Honour did was to say that because the applicant's children were not shown to have moved in to live with him and provide the necessary supervisory care because of the accident - that is, they may have moved in for unrelated reasons or for their own benefit - her Honour does not find they did not provide the supervisory care that her Honour found was needed but rather found that their motives may have been different. In those circumstances, her Honour said that brought section 72(3) into play. We say that that involved a clear error of principle because there is a difference between determining whether the applicant's children would have moved in with him but for the accident and determining whether or not they would have provided the services but for the accident. It is the latter which is the test and the latter which should have been applied.

Her Honour had a second reason for rejecting the applicant's case in that regard and that was she said it had not been particularised. The Court of Appeal corrected her in that regard and said it clearly had been particularised but, in essence, agreed with her view in regard to the other aspect.

McHUGH J: All it means, Mr Morrison, is that accepting your argument that the Court of Appeal erred in upholding her Honour, the Court of Appeal has wrongly upheld her on a question of fact. That is what it comes to. There is just no special leave point in the case.

MR MORRISON: We would, with respect, say that the 72(3) question, that is whether or not the motive of the part providing the care is to be taken into account in determining whether or not the care would have been provided but for the accident, reveals an error of principle in itself and one of significant importance for the construction of an important part of the Motor Accidents Act. We say in those circumstances the error needs to be corrected with regard to catastrophic injury cases generally in New South Wales. Those are our submissions, your Honours.

BRENNAN CJ: Thank you, Mr Morrison. We need not trouble you, Mr Hislop.

This case raises no question of principle which warrants a grant of special leave. Special leave is accordingly refused.

MR HISLOP: I ask for an order for costs, your Honour.

MR MORRISON: Nothing to say, your Honour.

BRENNAN CJ: Refused with costs.

AT 12.28 PM THE MATTER WAS CONCLUDED