Benjamin John Growden (a disabled person through his next friend Jennifer Gaye Simpson) v WILLIAMS

[2000] WADC 209

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   BENJAMIN JOHN GROWDEN (a disabled person through his next friend JENNIFER GAYE SIMPSON) & ANOR -v- WILLIAMS [2000] WADC 209

CORAM:   GROVES DCJ

HEARD:   1-4 NOVEMBER 1999

DELIVERED          :   15 AUGUST 2000

FILE NO/S:   CIV 1715 of 1999

BETWEEN:   BENJAMIN JOHN GROWDEN (a disabled person through his next friend JENNIFER GAYE SIMPSON)

First Plaintiff

JENNIFER GAYE SIMPSON
Second Plaintiff

AND

CARMEN ELIZABETH WILLIAMS
Defendant

Catchwords:

Damages - Negligence - Motor vehicle collision - Assessment - Closed head injury, spinal injuries, de-gloving of right arm and multiple lacerations - Unemployable - Twenty one year old male aged 16 at time of accident - Need for continuing future care - Public Trustee's management fees - Turns on own facts

Legislation:

Rules of the Supreme Court O 70, r 1 and O 70, r 12.

Motor Vehicle (Third Party Insurance) Act 1943 s 3C and s 3D

Result:

Total damages (excluding management fees and GST) assessed at $1,243,038.50 of which plaintiff entitled to judgment for 40 per cent

Representation:

Counsel:

First Plaintiff                :     Mr E M Heenan QC and Mr D Bailey

Second Plaintiff            :     Mr E M Heenan QC and Mr D Bailey

Defendant:     Mr P R Momber

Solicitors:

First Plaintiff                :     Moss Bradley

Second Plaintiff            :     Moss Bradley

Defendant:     Peter Momber

Case(s) referred to in judgment(s):

Black v MVIT [1986] WAR 32

Bowen v Tutte (1990) A Tort Rep 81‑043

Campbell v Nangle [1985] 50 SASR 161

Charlesworth v Holbrook, unreported; FCt SCt of WA; Library No 960587; 15 February 1996

Griffiths v Kerkemeyer (1977) 139 CLR 161

In Southgate v Waterford (1990) 21 NSWLR 427

Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997

Jongen v CSR (1992) A Tort Rep 81‑192

Kars v Kars 141 ALR 37

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Morris v Zanki (1997) 18 WAR 260

Newman v Nugent (1992) 12 WAR 119

Nominal Defendant v Gardikiotis (1996) 186 CLR 49

Paul v Render (1981) 34 ALR 569

Van Gervan v Fenton (1992) 109 ALR 253

Wilson v McLeay (1961) 106 CLR 523

Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997

Case(s) also cited:

Nil

1. GROVES DCJ:  The first plaintiff (who for ease of reference I will refer to as Ben) claims damages from the defendant as a consequence of injuries sustained in an accident involving a motor vehicle on 8 January 1996.

2. The second plaintiff (Ben's mother) claims for all special damages incurred for Ben's medical care.

3. On 13 August 1998 orders were made by this Court that:

   (i)the liability issue between the first plaintiff and the defendant be compromised on the basis of a 40 per cent/60 per cent apportionment in favour of the first plaintiff;

   (ii)judgment be entered for the first plaintiff;

   (iii)the defendant do pay the first plaintiff 40 per cent of his damages to be assessed;

   (iv)judgment be entered for the second plaintiff;

   (v)the defendant do pay the second plaintiff special damages to be assessed;

   (vi)the costs of the application and of the action to that date be reserved.

4. So far as order (v) is concerned these special damages have been agreed.  Thus the action proceeded by way of an assessment of the damages to which Ben is entitled.

5. Ben suffered serious injuries in a motor vehicle accident on 8 January 1996 when he was then aged 16 years and 5 months.  He was riding a bicycle from a private driveway on to Chester Pass Road, King River, when he came into collision with a motor vehicle being driven by the defendant.

6. Immediately following the accident Ben was taken by ambulance to the Albany Hospital in a coma.  Cranial CT scans showed scattered petechial haemorrhages, greater on the right than the left, and in the fronto parietal white matter.  He was sedated and incubated and transferred by Royal Flying Doctor aircraft to Sir Charles Gairdner Hospital, Perth.  He was transferred to Royal Perth Rehabilitation Hospital on 2 February 1996 and discharged from that hospital on 24 May 1996.  There followed 2 months of out‑patient care during August and September 1996.  There was a readmission in July/August 1996 under Dr Kagi for an exploratory operation.  In September 1998 there was tendon transfer surgery.

7. The principal serious injuries sustained by Ben were:

   (a)Closed head injury ‑ right pontine haemorrhage, corpus callousum haemorrhage, ponto haemorrhages in the right and left frontal lobe and the right parietal lobe.

   (b)Spinal injuries consisting of transverse fractures of T11 and T12 and a comminuted fracture of L1.  The posterior fragment of L1 encroached on the spinal cord requiring immobilisation in a Jewitt brace.

   (c)De‑gloving injury to the right forearm requiring debridement and a split skin graft from the left thigh.

   (d)Multiple lacerations including a serious laceration above the right trapezius.

   (e)Complications of chest infection due to bacterial infection.

Family background

1. Peter William Growden (Ben's father) was born and raised in the farming community in the Kondinin area.  His forbears had come from South Australia in the 1920's and settled in the area.  He and his brother worked on their father's farm and each eventually came to have their own farms.  Farming in the area is predominantly grain crops and sheep.  His first farm was Mallee Grove which comprised approximately 3700 acres situated some 16 kms from Kondinin.  More recently he farmed Maylands Farm of approximately 2800 acres which is 4 kms from town.  Since Ben's accident he has sold that farm and received one third of the sale proceeds with the balance being his parent's (Ben's grandparents) interest in the property.  He retained a house in which he lives with his family and approximately 10 acres of land..  He now describes himself as a semi‑retired farmer.

2. In January 1972 Ben's father was involved in a motor vehicle accident and was hospitalised for many months.  He suffered severe brain damage.  This event however has not prevented him from developing and maintaining an ongoing family life.  In 1974 he fathered a daughter who was put up for adoption.  The daughter did not meet Ben's father until approximately October 1993.

3. Ben's father married Jennifer Gaye Simpson and there are two children of that union, namely Ben (born 14 August 1979) and Ross (born 30 October 1981.  Ben's parents separated in January 1995 and are now divorced.

4. Ben's accident occurred whilst he and Ross were staying with their mother on school holidays at Albany.

5. Whilst Ben was in hospital in Perth his father moved to live in Perth and he purchased a truck and courier business.  He visited Ben in hospital every day for approximately eight hours per day and six days per week.  He spoke with Ben and comforted him and assisted Ben in his convalescence and in learning to walk again.  After the accident Ross returned to Gnowangerup Agricultural School to continue his education but after about 6 months got into trouble and was asked to leave.  He came to Perth and lived with his father.  The courier business failed.  After discharge from outpatient care Ben resided with his father in Perth and continued to attend at RPH Shenton Park Rehabilitation Centre.  Eventually in February 1997 they returned home to Kondinin.

6. Since then Ben has lived with his father at Kondinin.  Residing in the household now is Ben's father, his daughter Sarah Dawn Pegg (hereinafter Sarah) who is now 25 years and not married, her two children Ashley aged 6 and Tori aged 3 and Ben and Ross.  It is a large home comprising 5 bedrooms, 3 bathrooms, an office, lounge room, kitchen, etc.  Sarah does most of the housework including cleaning and washing, preparing lunch and cooking the evening meal.  The evidence indicates that it is a harmonious household.  Sarah has casual work at the Kondinin Bakery and does cleaning and bar work at the Country Club.  Ross is not working at the present time.  He was described by his father as being mechanically minded but not having any interest in farming although he did help his father when he had the farm.  Ben's father expressed the hope to develop a car wrecker's business on the 10 acres of land for Ross to operate and he expects that Ben could help Ross in that business.

7. It was the evidence of Ben's father that after completing his schooling Ben might have worked on other farming properties for a couple of years to gain experience before returning to work on his father's farm and that eventually he would take over and run the farm.  He said that Ben had always been interested in farming and in the right environment at Gnowangerup Agricultural School had displayed an aptitude for farming.  On the other hand Ross was not interested or motivated towards farming.  After returning to Kondinin after the accident Ben assisted in minor ways on the farm in that he drove the header whilst Ross took a lunch break, occasionally drove a tractor and sometimes drove a truck from paddock to paddock.  That was despite the fact that he did not hold a motor driver's licence.  Nevertheless such driving as he did was confined to the farm for relatively short periods of time and at low speed.  The decision to sell the farm was made after it had become apparent to Ben's father that Ben would not in the future be able or capable of working on the farm or of managing it himself.

8. Ben was offered work at a local service station doing menial chores but had difficulty and gave that up after a couple of days.  He made other attempts to get work but without success.  Ben's father described the changes in Ben both mentally and physically since the accident.  His concentration and speech were clearly affected, his personality changed in that whereas he used to think things through he now simply jumps to conclusions.  His walking and balance is affected although he can run but not well.  He is dependent on others so far as getting him organised is concerned.  His father indicated that Ben could continue to live in the family home and that the family would continue to look after him.  It was however up to Ben if he wished to stay or go to another town where there may be additional support services.  It was his considered opinion that Ben would not be capable of household budgeting or managing a large sum of money.

9. Educationally the two boys had similar schooling with relatively similar outcomes.  Each attended Kondinin Primary School followed by Hale School as boarders where their father had attended.  Neither was academically inclined.  They each went on to Gnowangerup Agricultural School where Ben's interest in farming was readily apparent.  But for the accident he would have continued at that school for the 1996 year.  On the other hand Ross was not inclined towards farming.

10. Ben's father has close family links in farming in the Kondinin area.  His father's brother farms as do his own brother and three brothers‑in‑law.  They apparently all get on well together and comprise a close social network around the area.

11. Ben's mother, Jennifer Gaye Simpson, separated from her husband in January 1995 and does not now have contact with him or with his side of the family.  However she has had Ben to stay with her at Esperance where she now lives and speaks with him by telephone approximately weekly.  While in year 5 at primary school Ben was having learning and behavioural difficulties and this led to him being referred to the Education Department's Chidley Educational Centre for intensive remediation for his learning difficulties.  At that time he was diagnosed as having an attention deficit disorder (ADD).  He was prescribed medication which led to improvement in his behavioural attitudes.  He continued with the medication until he was 11 or 12 years of age.  It was Mrs Simpson's evidence that it had been the family's plans that Ben would eventually take over his father's farm as that was the only vocation which he had indicated a preference for.

12. After the accident Mrs Simpson visited Ben every day at Sir Charles Gairdner Hospital and also at the RPH Shenton Park Rehabilitation Centre until he regained consciousness.  She felt that Ben was encouraged by and responded to her presence by being there with him throughout that period.  She has also noticed the changes in Ben since the accident.  Knowing Ben as she does she does not consider that Ben would be able to look after and care for himself but would require ongoing support for his own safety.  She regards Kondinin as being a safe environment for him to live in as people there know him and there are many family members to assist if need be.

13. Sarah Dawn Pegg was born in 1974 and is thus five years older than Ben.  She is his half sister.  She commenced residing in her father's house in about July/August 1999.  She did not meet her father until October 1993 and has only had contact with Ben and Ross since 1997.  She manages the household and does most of the work around the house including cleaning, washing and cooking for the family.  She indicated that she intended continuing to reside with the family for at least the next seven or eight years whilst her own children are at primary school.  In the home environment she was well placed to comment on Ben's capabilities.  She said that Ben does not do much at all other than sit around and smoke.  He watches television and plays with her children.  He needs direction and organisation to get him to do anything.  He has been known to do clothes washing but since her arrival Sarah does this for him.  She had observed him driving vehicles on the farm but did not consider that he should drive on public roads because he was not alert enough.  In money matters she described him as hopeless in that within a couple of days of receiving his fortnightly disability pension it had all been spent.  She does not consider that he has any comprehension of managing money.  It was her evidence that she did not think that Ben would be capable of managing by himself because he was forgetful, would not be able to go shopping by himself, pay bills or otherwise manage his own affairs.  He does not have a circle of friends but he usually just hangs out at home with Sarah, her two children and Ross.  She acknowledged that in fact Ross doesn't do any more around the house than Ben although she did consider that Ross did have the ability to look after himself.

14. Ben also gave evidence and showed some signs of his undoubted impairment.  He enjoyed football and rowing whilst at Hale School.  He enjoyed Gnowangerup Agricultural School more so because there was not much formal tuition but rather more hands on farming work with sheep, seeding, harvesting and driving of machinery.  At that stage he knew that he wanted to engage in farm work with a view to one day going back to work on his father's farm.  Since his return to Kondinin he has driven vehicles and farm equipment on the farm and attempted work at a local service station but had difficulty using his injured right hand and arm.  He described his current daily activities as simply being having breakfast, watching TV, playing with the kids, hanging around with Sarah and seeing what Ross was doing.  He acknowledged that when his fortnightly disability pension is paid into his bank account he would withdraw all the money and spend it within about four or five days mainly on cigarettes and drink.  Whilst he does not spend much time in town he would go in at weekends with Ross and go to the pub.  If clothes were required usually Sarah or his father would accompany him shopping.  As to the future, he indicated that he wanted to continue living with the family, however there may come a time when he would want to move out.  He has had girlfriends and hopes one day to marry, and have children.  If he were to marry he would prefer to move out of home and perhaps move to Narrogin.  He would not like to live in Perth.  He acknowledged that whatever might transpire he would need help with buying groceries and managing a household as well as assistance with finance and planning.  He felt there was a need for someone to be there to look after him.  Usually there was always someone around at home and he didn't have to do things for himself, eg getting meals, washing and ironing clothes, etc.  Whilst there were others around he was not bothered to do much for himself.

15. It was my assessment that Ben has a higher regard for what he might be capable of achieving so far as his own affairs are concerned than was indicated by others.

Educational background

1. Ben's primary school education was undertaken at Kondinin Primary School.  As previously noted he presented with learning and behavioural difficulties.  While at the Chidley Educational Centre (1989) he was referred to Dr Kay Johnston, a consultant paediatrician, who gave evidence that she suggested the possibility of ADD and prescribed medication for him.  She described ADD as being a hyperactivity disorder operative in both the school and home situations which rendered Ben distractable, disorganised and inattentive.  On review three weeks after having prescribed the medication Dr Johnston noted that there had been a significant improvement in Ben's attention skills.  The guidance officer at Chidley also observed that he was more settled and less distractable.  Dr Johnston reviewed Ben in May 1992 when she reported that Ben had not taken the medication since the prior December and did not feel there was any difference.  Dr Johnston's evidence was that it was quite common for children to come off medication in puberty as it was then thought that the condition of ADD naturally improved at that time.  At the time of the last review Ben was 12½ years of age and she felt that he probably had improved spontaneously at puberty.  She noted however that Ben's later school reports indicated that he was still having problems with organisational skills, poor concentration and distractability consistent with ongoing problems of ADD in conjunction with academic difficulties.  However his report from the Gnowangerup Agricultural School for 1995 indicated that his performance was in the average to above average range in a course more in keeping with his academic potential.  She was of opinion that Ben could be expected to hold down a position in the work force as a farm worker, truck driver or labourer without any difficulty.

2. Dr Johnston reviewed Ben again on 8 September 1999.  Her report of 19 September 1999 states:

   "In summary, I would not attribute Benjamin's current difficulties with attention, organisational skills and sustained mental effort to a diagnosis of ADHD and would not anticipate any improvement with stimulant medication used in this condition."

3. After reference to examination of school reports she continues:

   "I would conclude that the head injury suffered by Benjamin in the accident of 8 January 1996 has resulted in significant impairment in intellectual functioning in addition to his physical injuries.  This is based on details of the closed head injury, results of CT scan and neurophysiological assessment.  Whereas prior to the accident Benjamin was a fit, healthy 16 year old with some minor learning difficulties who could be expected to pursue a career involving manual skills he is now unable to consider employment in the work force and requires assistance and supervision with daily living requirements."

4. In sum total it was Dr Johnston's evidence that Ben's condition now is as a result of the head injury and not that of any residual ADD.

5. Ben's year 7 (1991) school report indicates that he was having difficulty with most subjects although for science it was noted that he enjoyed practical work and that for physical education he had well developed skills.  As a general comment it was said that he was inconsistent and required very close supervision to ensure acceptable behaviour and work habits.

1. Reference was made in evidence by Ben's mother that Ben attended the first year of secondary school at Narrogin and presumably this was in 1992.  She felt that he did well at Narrogin.

2. Years 8 and 9 (1993/94) were spent at Hale School where he came under the care of the school psychologist, Michael Kilkenny.  It was Mr Kilenny's evidence that Ben was of at least average intelligence and orally he displayed good ability to learn and process information.  He did however present behavioural problems in the classroom.  Socially he interacted with other students well and away from class he was affable and courteous.  In some settings, such as Design and Technology, Ben was noted as enthusiastic and good value.  It was Mr Kilkenny's evidence that the goal for the two years while Ben attended Hale was to modify his social behaviour and to develop his academic skills to a level where he could aspire to entry to the Gnowangerup Agricultural School.  It was noted that Ben had a keen interest in agriculture and the school was aware of the likelihood that he would ultimately return to work on the family farm.  The school supported Ben's early move to the Gnowangerup Agricultural School and it was regarded as a career move for him.

3. In 1995 Ben attended at the Gnowangerup Agricultural School.  The principal, Mr John Pisan, gave evidence that the core business of the school is male students who were at educational risk.  The school had only 42 students who were generally dysfunctional, from dysfunctional families, physically abused or had no literacy and numeracy skills.  It was Mr Pisan's evidence that when Ben arrived at Gnowangerup he was belligerent but over time established trust and rapport with staff and other students.  Mr Pisan said that Ben took a keen interest in the school's cattle programme and had an affinity with animals, so much so that he became their leading student with cattle.  With that his self‑esteem grew and it gave him direction in his life.  But for the accident Ben would have returned to Gnowangerup for his final year of education.  Mr Pisan expected that he would have consolidated on his first year skills.  It was his expectation that upon completion of his schooling Ben would have gone on to employment in farming, probably involving cattle.

4. Ben's brother Ross also attended at Gnowangerup for six months from the beginning of 1996.  He did not enjoy the physically demanding work and he apparently did not want to adapt.  His family was asked to take him out of the school after an incident involving a school motor vehicle.  It was after that that Ross went to Perth to live with his father whilst Ben was still in hospital.

Medical treatment

1. Post accident Ben was conveyed by ambulance to the Albany Hospital in a comatose state.  A cranial CT scan showed scattered petechial haemorrhage, greater on the right than on the left in the fronto parietal white matter.  Spinal x‑rays and CT showed T11, T12 and L1 fractures.  He was intubated and transferred via Royal Flying Doctor Service to Sir Charles Gairdner Hospital.  The closed head injury was managed conservatively.  The spinal injuries required him to wear a Jewitt brace for six weeks.  The degloving injury to the right forearm required debridement and a split skin graft from the left thigh.  The most serious laceration above the right trapezius was sutured with no complications.  On 2 February 1996 Ben was admitted to Royal Perth Rehabilitation Hospital.  In a report of 5 June 1996 to Ben's Kondinin doctor, it stated:

   "On examination he was disorientated in time, place and person.  He had generalised increased tone and unpurposely moved all limbs.  He had PEG tube inserted on 19.2.96 for feeding which was removed on 28.3.96.  Tracheostomy tube was removed.  He underwent intensive multidisciplinary rehabilitation programme for 5½ months.  He has gained significant improvement in cognitive function and physical function.  At present he is out of post traumatic amnesia.  He had formal cognitive assessment done (MSST) which showed he had verbal impairment, visual impairment and poor planning ability, short concentration span and poor memory. … He required supervision for his daily living activities and requires consistent prompts for planning tasks.  His current education level is at lower primary level. … He had some mild weakness on the right but good power in the rest of the limbs and was able to ambulate well.  He was unable to extend fingers at metocarpo‑phalangeal joint level on right hand.  A recent EMG study showed right posterior internal CS neuropathy.  He was reviewed by Mr J Kagi, orthopaedic surgeon, and surgical intervention was recommended but Mr Growden is not willing to stay in hospital any longer, therefore he will be reviewed in Mr Kagi's clinic in 2‑3 weeks time."

2. Ben was discharged from Royal Perth Rehabilitation Hospital on 24 May 1996.  He continued to reside in Perth at his grandparents home whilst continuing to undergo a daily rehabilitation programme.  He returned with his father and Ross to their home at Kondinin in February 1997.

3. Geoffrey Wayne Thomas is a consulting neurosurgeon.  Ben came under his care at Sir Charles Gairdner Hospital.  Computerised tomography of the cranium taken on 9 January 1996 indicated the presence of haemorrhage in a number of widely separated parts of the brain mostly in the cerebral hemispheres but also in the brain stem.  It was a diffuse injury.  Surgery was not required.  The treatment for this kind of injury is to try and make sure that the situation does not become worse by swelling of the brain which would cause pressure inside the patient's head.  As to the long term consequences of this head injury it was Mr Thomas' evidence that:

   "…he has sustained an undoubted reduction in his intellectual prowess as a result of this accident.  His capacity to fend for himself in society in my view is markedly limited as compared to the situation that would have prevailed before the accident and furthermore there has been a definite and ongoing physical effect whereby he has been left with a right hemiparesis. … but the brain injury … the degree of injury that he sustained is definitely severe."

4. Further it was his opinion that:

   •He did not consider that Ben had sufficient judgment or cognitive thinking ability to handle the management of money.

   •As to future employment there might be some circumstances where Ben could do some work but he would have to be heavily supervised and this would only be menial work under heavy supervision.

   •He should not be permitted to hold a motor driver's licence because the evidence of brain damage is such that his judgment is likely to be impaired in handling machinery.

   •He did not believe that Ben could independently run a home because of his brain injury and would require supervision and direction in managing ordinary domestic activities.

   •He does not consider that Ben's pre‑accident life expectancy has been diminished.

5. In considering the diagnosis of ADD when Ben was at primary school it was Mr Thomas' opinion that "no matter what the pre‑existing situation was he is highly likely to have lost function in the injury that he sustained.  In fact he could not escape losing function in a very significant way judging by what I know about his head injury."

6. In his report of 12 January 1999 Mr Thomas makes reference to the then most recent evaluation by Mr Michael Hunt which was indicative of borderline intelligence.  He goes on to state:

   "…although Mr Hunt has commented that the evidence in relation to Benjamin's mental function prior to his accident is that it was perhaps also on the low side it is my opinion with regard to all of the evidence of his injury especially his condition following the accident and the cranial CT scan done at the time that the head injury has very seriously affected his mental and physical functioning in a permanent manner."

7. Whilst at RPRH Ben's progress was overseen by Mr William Merrick, specialist in rehabilitation medicine.  It was his evidence that the radiological findings indicated quite a widespread series of haemorrhagic contusions within the brain tissue which indicated a severe head injury with the likelihood of significant disability.  He described the nature and purpose of Ben's management while at the rehabilitation hospital as follows:

   "He had problems with cognition.  He has physical problems and he had behavioural problems.  It was the control of behavioural problems that was part of the management procedure.  Cognitive rehabilitation was another part and physical rehabilitation of his hemiplegia and his cerebella ataxia were the other parts of his rehabilitation programme."

8. He went on to describe the cerebella ataxia as being a lack of coordination in the muscles allowing Ben to walk and retain balance such that there was some imbalance and some difficulty with the process of walking.  The right sided haemiplegia was indicated by a partial paralysis of muscles down the right side of the body involving both the arm and the leg.

9. As to the spinal fractures Mr Merrick indicated that they had resolved well although as a long term consequence there always remains the possibility of back pain in the future, arthritis or other degenerative disease which would manifest itself by pain and stiffness.  Intervention was not indicated.  In his report of 19 June 1998 Mr Merrick expressed the opinion which he stated in evidence that:

   "…(Ben) was compromised for work in the open work force and in my view I felt him to be totally and permanently unemployable and trainable.  I felt that he was compromised also for independent living so that there would be a need to put in place arrangements for his care when eventually his father was unable to provide that care for him.  I said that although he was independent for self care he required prompting to ensure that that was done in a timely fashion and I said also that he would require domestic help for things like house cleaning, laundering and guidance and assistance with budgeting, victualling, the ordering of stores for the house, household stores and cooking."

10. It was also Mr Merrick's evidence that:

    •Ben would require assistance in the management of any financial affairs because he did not think that Ben had the judgment or ability to handle or manage money matters.

    •He did not consider that as a result of injuries Ben's life expectancy was diminished.

    •Whilst Ben was eager to live an independent life and was resentful of any special arrangements that was characteristic of the sort of misjudgment that he would expect when he looked at Ben's cognitive profile.  It was his evidence that part of the cognitive disability often in cases following trauma is one of a lessening of awareness of one's own situation, one's own level of disability and it was understandable that a young man in Ben's position would want to be totally independent and that is why he would express those things as he had done in the past.

    •He did not consider that Ben was fit to drive a motor vehicle because of his slow ability to handle information and to respond to that information.  His impairment of speed of thinking and of handling information was too slow to enable him to safely drive a motor vehicle.

    •He considered that for reasons in relation to judgment and to speed of thinking and handling information Ben would have real difficulties in engaging in the operation of handling of farm machinery like tractors, headers and other major powered machinery.  He would disapprove of Ben driving or handling major machinery.

11. Mr Merrick described Ben's cognitive profile as indicating an intellectual disability:

    "partly contributed to by his head injury and partly by a pre‑morbid state called the attention deficit disorder which he is said to have suffered as a child and its quite impossible for me to know, quantify exactly how much is due to one of those things and how much is due to another of those things.  He has an impairment in situational assessments in judging the way in which he should respond to things in a social sense…"

12. As earlier mentioned it was Mr Merrick's opinion that Ben does not have the ability to live independently or participate in the running of the household.  Whilst there are members of the family around who are looking after those matters then such care will be provided by them.  However if such family care were not available Mr Merrick considered that it would be reasonable for a carer or supervisor to be employed for 24 hours a week for this purpose.  He considered that Ben could be left for periods of time by himself such that the carer might be engaged during week days leaving Ben by himself at weekends.  He would regard that as being acceptable.  He indicated that a carer's allowance of $20 per hour equating to an annual outlay of $25,000 ought to cover the cost of necessary support.

13. Mr Merrick also acknowledged that despite his intellectual disability Ben was capable of forming a relationship leading to marriage and living in a family situation outside his present home environment.  He considered that it was a real possibility that Ben may form such a relationship although it was difficult to know what contribution Ben would make to that process.  It was his opinion that if a partner could manage the household then Ben could live adequately in that situation with the necessary level of care that he needs.

14. In cross‑examination he again indicated the difficulty insofar as delineating between the diagnosis of ADD and the very serious head injury which Ben suffered.  Each is associated with disinhibition and it could not be said how much disinhibition comes from which source.  Accordingly he said one cannot know exactly what the causal basis for Ben's current behaviour is, whether it is in any part or wholly due to ADD, or a consequence of the accident related injury.

15. John Hilton Kagi is a consultant orthopaedic surgeon and in May 1996 he was called in to advise with regard to the lack of extension of fingers and thumb of Ben's right hand.  In July 1996 exploratory surgery was undertaken and the damaged portion of the right radial nerve was replaced with three sural nerve cables taken from Ben's right leg.

16. There was only partial recovery.  In September 1998 Ben was readmitted to hospital where Mr Kagi performed a transfer of his right flexor carpi ulnaris tendon to extensor digitorem communis tendons.  Ben is right hand dominant.  As a result of the operation Ben has regained good function of the hand although he has a slight disability when the wrist is fully extended back in that there is some loss of full extension of the fingers.  His manual dexterity in the hand has been preserved.  There remains extensive scarring of the forearm both traumatic and iatrogenic.  No further treatment is required.

17. Michael John McComish is a consultant physician to whom Ben was referred for an independent medical assessment of his condition and prognosis.  He was also provided with reports from Mr Merrick, Mr Michael Hunt and Mr Kagi and also reports of Ben's in‑hospital treatment at Sir Charles Gairdner Hospital.  He concluded that Ben's major disability is related to his diminished intellectual abilities consequent upon his head injury.  He has recovered fully from the spinal injuries although he may be subjected to degenerative changes, osteoarthritis or back pain in later life.  The degloving injury has left Ben with some irritation and difficulty in coordinating the right hand which Ben finds most frustrating.  He also noted a right sided minimal weakness due to the damage that was done on the left side of the brain.  It is a mild spasticity on the right side so that coordination is affected to some extent.  Consistent with others he would not recommend that Ben drive a motor vehicle nor did he consider that Ben would be able or capable of managing a large sum of money.  His life expectancy might be reduced mainly because his slow movements and delayed reaction time and reflexes which may put him at greater risk.  Mr McComish is of opinion that Ben needs supervision and expressed concern that if care were not available Ben may not be able to cope with day to day household chores or feeding in a sensible way.  He did not consider that Ben needed a full time carer domiciled with him but rather someone who would see him regularly to ensure that his general condition and environment were not deteriorating.

18. Mr McComish also noted reference in some of the reports to dysarthria which he explained refers to a disability of speech due to coordination of speech.  In the same way as Ben has difficulty coordinating his arm and leg movements so he has difficulty coordinating his laryngeal movements.  It causes a mild slurring of speech which is not a difficulty with word finding but a mechanical problem.  He did not consider that this would be responsive to speech pathology.

19. Mr McComish concluded that if left alone Ben would probably live in a rather dishevelled and untidy state, probably would not eat correctly and consequently his general condition would deteriorate.

20. Paul Wilfred Skerritt is a psychiatrist to whom Ben was referred in June 1999.  In his report of 15 October 1999 he notes the conflicting information regarding the previously diagnosed ADD disorder vis a vis the accident caused injuries.  He concluded that "there might be some evidence that (Ben's) behaviour had changed and if this is the case the head injury must be implicated".  In evidence he indicated that he was not inclined to put a great deal of reliance on the supposed attention deficit disorder.  He considered that certain aspects of Ben's behaviour which have changed since the accident are due to damage to the frontal regions of the brain.  He was of opinion that Ben could manage many aspects of day to day life but his quality of life would be better with assistance in that his organisational ability needs help.  He was of opinion that it would be difficult for Ben to manage a large sum of money.  He did not consider that his life expectancy has been diminished.

21. On behalf of the defendant, Michael Warwick Hunt, senior clinical neuropsychologist at Royal Perth Hospital, gave evidence.  Ben was seen by Mr Hunt on 8 May 1997 and reviewed on 18 June 1998.  In his report of 8 May 1997 he concluded:

    "Overall Ben tested within the borderline range of intellectual functioning as assessed by the WAIS‑R.  Given his academic background and the nature of his test profile it is most likely that his pre‑morbid cognitive functioning revealed signs of abnormality relative to his relevant age group. … With this in mind it is difficult to delineate the nature and degree of any strictly accident related cognitive dysfunction.  Irrespective of the cause his current test profile revealed relative weaknesses in visio‑spatial functioning, expressive language, short term memory for verbal and visio‑spatial material and higher level executive or frontal lobe guidance functions, within the context of a generally poor level of cognitive functioning."

22. At the time of preparing that report Mr Hunt was not aware Ben had been diagnosed with ADD when at primary school.  Mr Hunt acknowledged that the tests which he administered do not allow him to discriminate between the accident caused head injury and the pre‑morbid condition as the cause or the degree of cause of Ben's present disabilities.  It was his view that the pattern of results was generally one of low performance which he was not able to say was solely attributable to the frontal lobe injury.  Whilst the test results are consistent with a poor learning background it was not possible to disentangle or discriminate as to what might be accident caused head injury difficulties.

Earning capacity

1. Evidence by way of signed proofs were received by consent as to the earning capacity of farm labourers and truck drivers.  As to farm labourers, Robert James Shadbolt runs a company called Rural Enterprises which was established in 1958 to provide farm labourers, managers and consultants to the farming community of Western Australia.  He has owned and run the company since 1983 and is well aware of employment needs on farms in all areas of Western Australia.  He deposes that labourer's rates for a skilled farm labourer can range between $30,000 to $40,000 per annum.  A reasonably skilled farm labourer with experience with farm machinery and animal husbandry would be likely to receive approximately $36,000 per annum gross plus accommodation and other benefits such as telephone allowance, fuel allowance and food allowance.  Those additional benefits would range between $5,000 to $10,000 per annum.  He states that at present the demand for skilled labourers outstrips supply and that there are a number of farms in the Kondinin area to whom he provides farm labourers.

1. Neville John Matthews operates Matthews Transport & Traders, a trucking business operating from Kojonup.  He has run the business for the past 25 years.  He deposes that truck drivers work on an enterprise agreement with his company.  Most truck drivers average approximately $50,000 gross per annum in his employ.  To obtain employment it is necessary for a truck driver to have a "C" class driver's licence.  Mr Matthews prefers to employ workers who have a farming background as they will have experience in the handling of grain and livestock which forms the bulk of his business.

Future care requirements and facilities

1. In his present home environment the level of care and assistance needed by Ben is provided by family members.  In the three or four months prior to trial, that is since Sarah has come to live at the house, Ben has relied to a large extent on her support in regards to domestic duties.  Prior to that and now to a lesser extent he relied on his father and Ross.  That situation undoubtedly will change in the future and consideration must be given to Ben's future care requirements.  Sarah indicated that she may stay in the home for 7‑8 years until her own children have completed primary school.  On the other hand Ben expressed the desire to live independently and that may mean moving to a larger centre of population, possibly Narrogin.

2. The consensus of medical opinion is that Ben is not capable of fully independent living and that he will require some supervision to ensure that he is not placed at risk and will adequately look after himself.  He would need assistance both from a household and personal organisational view point as well as ensuring that he maintains himself.  The expert medical evidence does not support the conclusion that Ben will require a full time live‑in carer 24 hours per day.

3. Kerry Jones is an occupational therapist employed by Community & Industrial Health Services.  At the request of Ben's solicitors she reviewed medical reports and attended at Ben's home to investigate his circumstances and to interview him for the purposes of trial.  It was her evidence that Ben's primary needs as far as maintaining his independence in the community now and in the future, relate to his requirements for behavioural management.  She did not consider that there were any significant physical limitations restricting his capacity to live independently within his existing social set‑up but she did consider that there was clear evidence that Ben required constant supervision and monitoring by people responsible for his care.  In the absence of the current family supports it was her considered opinion that Ben would "most certainly require full time carer support, ie 24 hours a day."

4. Evidence was led from officers from the Disability Services Commission, a State government department, as to the services which that Commission provides to persons with disabilities.  The Commission's local area coordinator based at Narrogin has apparently been in touch with Ben's family.  The Commission is not in a position to provide services at Kondinin.  However, should the situation require carer support for Ben, the local area coordinator would look to the local area for a person to provide whatever care might be necessary.  This might be a day care/buddy or companion type arrangement.  DSC currently pays $18.30 per hour for management and coordination costs for home support.  There is no means test applicable, however DSC's position is that if an individual has received court ordered compensation, then that person would pay for any services on a full cost recovery basis.

5. Bruce John Dufty, Director of Service Design & Development with DSC, gave evidence as to the costs of different levels of care with which he is familiar through his work.  The three levels he described as:

   •Supplementary day programme where family support is available would range from $10,000‑$30,000 per annum.  Additional would be a day programme supplement of between a further $3,600 to $6,000 per annum which provides recreation and other activities separate from the caring family.

   •The companion arrangement provided if family care is not available and there is need for live‑in support.  This may involve two or three companions who live in the home and work in cycles.  The cost for this service ranges from $34,000 to $56,000 per annum.  On top of that would also be any day cost programmes ranging from $3,600 to $6,000 per annum.

   •If there are severe behavioural difficulties requiring supervised training and support and the individual is a difficult one to deal with then constant 24 hours support would cost in the range from $62,000 up to as high as $135,000 per annum.

6. Mr Dufty understood at the time of trial that the payment to an individual for domestic services would attract Goods and Services Tax (GST).

7. Peter Edward Dunn is the Managing Director of My Place (WA) Pty Ltd which assists individuals who have a disability to remain living in the community.  Mr Dunn has 20 years experience in working directly with people who have a disability, including 10 years working with the Disability Services Commission as a senior member.  He investigated Ben's circumstances and presented two reports providing different options.  The first report dated 3 August 1998 gave a costing to provide personal attendant care, educational support and recreation support for Ben.  This took into account the need of the family for respite and day to day personal assistance with Ben.  The report comprehensively details the assistance which would be provided.  It was Mr Dunn's advice that the services of a personal assistant for at least 30 hours per week was required which would cost $39,000 per annum.

8. The second scenario presented in his report of 3 March 1999 was to provide personal care in the event that Ben's family is not in a position to continue to provide the voluntary support and personal assistance which they are currently providing.  To provide full time 24 hour per day care would cost $80,625 per annum.  This assessment was made on the basis of a day time hourly rate of $16, evening activities three nights per week at $15 per hour and a co‑resident to provide overnight companionship and attendance should Ben require this assistance at $4 per hour.  It might be observed that the estimate of costs given by Mr Dunn are broadly in line with the range of care services which Mr Dufty indicated.

9. Judith McKenzie Wilson is a Case Manager for the State Head Injury Unit with the Health Department of Western Australia at the Sir Charles Gairdner Hospital.  It was her evidence that opportunities for institutionalised accommodation for persons with disabilities were diminishing.  She indicated that the current trend with accommodation for young people with disabilities is for them to live in their own home, usually a unit, either purchased with their compensation or rented from HomesWest.  Without family or companion support the employment of carers would be necessary to assist with daily living and recreation.  By employing one's own carers the cost is $12‑$15 an hour, plus workers compensation.  If carers are employed through an agency the cost is $18‑$22 an hour.

10. Trevor Saleeba is a practising architect with a special interest in designing homes and accommodation for persons with disabilities.  Whilst he had not undertaken a personal assessment of Ben and his needs, he was able to make an assessment of Ben's requirements on information provided to him.  He was asked to indicate the most economical approach to housing requirements should Ben require the need for a full time live‑in housekeeper/supervisor.  He considered the best approach was to modify a standard project home which in the city would cause an additional capital cost of $56,100.  In a country area an additional 10‑15 per cent should be allowed.  Additionally, operating, maintenance and replacement costs in the order of $2,430 per annum would be incurred.

11. Arleen Sharon Osborne is a speech pathologist who practises from the Communication Aid Service at the Independent Living Centre of Western Australia at Shenton Park.  Ben was referred to her shortly prior to trial for assessment regarding his speech.  It was her evidence that the predominant feature was that Ben's speech is dysarthric so that at times he is reasonably intelligible but at other times it becomes more and more slurred to the point of being quite difficult to understand.  It was her recommendation that speech pathology could improve the intelligibility level of Ben's speech.  She also recommended a TAFE literacy and numeracy course to assist in those areas.  Whilst she agreed with Dr McComish that speech pathology would not improve the underlying mechanical problem, she did however consider that by adopting the strategies it would improve Ben's confidence and communication on a daily level and also improve his vocational situation.  She considered that Ben was somebody who could be employed in a supported situation provided that his literacy and numeracy skills were improved.  Having regard to Ben's educational history and his post accident prognosis I consider it most unlikely that any level of improvement will be achieved and his prospects of any form of employment are remote at best.

The heads of damages

1. The assessment of damages proceeds as an award without apportionment at this stage.  I propose to make a full assessment (save for the fund management fees) and then will make the apportionment.  Fund administration expenses will then be quantified on the basis of the apportioned award.

General damages

1. An award of damages in this case should recognise the pain, discomfort and anxiety associated with the injuries, repeated hospital admissions, surgery, immobilisation, convalescence and other matters generally referred to as the loss of amenities.

2. The award of damages for loss of enjoyment of life and amenities generally requires a consideration of s 3C of the Motor Vehicle (Third Party Insurance) Act 1943 (as amended) ("the Act"). This section imposes limitations upon an award of damages for non-pecuniary loss and it applies to the present case. Section 3C(3) provides that the maximum amount of damages that may be awarded for non-pecuniary loss is at the present time $219,000 and that amount may be awarded "only in a most extreme" case.

3. In Wylde v Aristondo 'Arriaza, unreported; FCt SCt of WA; Library No 970359; 23 July 1997 the Court adopted the same approach to the Act as the New South Wales Court of Appeal did to the Motor Accidents Act 1988 (NSW).  In Southgate v Waterford (1990) 21 NSWLR 427 at 440 the Court said:

   "There are a number of ways by which trial judges could approach the task of apportionment required by s 79(2) and s 79(3).  It is inappropriate in this case for this Court to mandate any particular way of arriving at the 'proportion' required by s 79(2).  But clearly because the task in hand is that of awarding damages for 'non economic loss' it is appropriate for the trial judge to consider and make findings on those elements in the evidence which are relevant to such loss.  This will require the judge to consider and make findings on the evidence relevant to those heads of damage formerly considered in the award of general damages.  Then it is necessary for the judge to conceive 'a most extreme case'.  Only for such a case may the maximum amount provided by s 79(3) be awarded.  Opinions of what constitute 'a most extreme case' will doubtless vary.  But clearly quadriplegia would fall into that class.  The amount to be awarded must then be apportioned somewhere between nil and $180,000; but in a ratio which the judge fixes keeping in mind the fact that the cap of a statutory maximum is retained for a 'most extreme case'."

4. For the purpose of this assessment I repeat all of my findings in relation to the nature of the plaintiff's injuries, the evidence as to his hospitalisation and treatment and the prognosis for the future.

5. Pre‑accident Ben was fit and healthy, not academically inclined but certainly able to pursue physical pursuits.  He has now been deprived of that opportunity and therefore will be denied a number of the pleasures and conveniences of life.  He is not able to pursue any vocation or any sporting activity.  Although it was Ben's evidence that he would like to resume playing football that having regard to his circumstances has to be regarded as unlikely.  He is denied the opportunity of developing a circle of work mate friends or sporting activity friends.  He has been condemned to a life of social isolation and alienation.  The consensus of medical evidence is that he should not drive a motor vehicle.  He will be dependent therefore on others both so far as transport is concerned and insofar as his personal care and management is concerned.  His quality of life has been substantially diminished.

6. On the other hand there was evidence of a relationship with a female and the fact that he is capable of engaging in a relationship which might lead to marriage and to a family.  His prospects to that end however must be taken also as being substantially diminished as it will require a special person who would be willing to not only be a wife and partner but also to be responsible for the day to day management, care and direction of Ben.  So whilst it is possible those prospects are somewhat reduced by reason of his disposition.

7. Having regard to all those matters I place Ben's case at 70 per cent of a most extreme case.  This percentage of the maximum amount that may be awarded of $219,000 equates to $153,300.

8. Under this heading I additionally include an allowance pursuant to the head of claim established in Wilson v McLeay (1961) 106 CLR 523. The Full Court in this State commented in Morris v Zanki (1997) 18 WAR 260:

   "In Wilson v McLeay (1961) 106 CLR 523 Taylor J at 527 thought it proper to 'make some allowance to permit the plaintiff to provide for the reasonable attendance of her parents' at the hospital because her injuries were serious 'and such as to call for such comfort and consolation as her parents could provide'. Chan v Mills, unreported; SCt of WA; (Steytler J) Library No 950589; 3 November 1995 is to the same effect.  There are three things to note about this.  First, the award approved by Taylor J was part of general damages to compensate the plaintiff for providing for the visits.  Secondly in Wilson and in Chan there was medical evidence to establish that the visits were 'of some importance in the alleviation of her condition'.  Thirdly in both cases the award covered costs and expenses (such as travel, fares and accommodation) rather than an allowance for time spent."

9. Both of Ben's parents came from country centres to Perth to be with him during those critical times whilst he was hospitalised.  They visited daily and were no doubt of comfort to him particularly having regard to his youthful age.  His father continued to assist while Ben undertook rehabilitation both before and after his discharge from the rehabilitation centre and no doubt that was of support to him.  Generally a nominal amount would be allowed under this head but in the circumstances here I consider that the allowance should be more reasonable.  An amount of $6,700 will round the award for general damages up to $160,000.

10. The consensus of medical evidence was that there was no diminution in Ben's life expectancy although because of his residual cognitive impairment he may be at greater risk of accident.  The rounding up of general damages as above makes sufficient allowance for this prospect.

Economic loss

1. The plaintiff seeks damages for loss of earning capacity and as Deane, Dawson, Toohey and Gaudron JJ pointed out in Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 3 that imposes upon him an obligation to satisfy the Court of two things:

   "The first of those requirements is the predictable one that the plaintiff's earning capacity has in fact been diminished by reason of the negligence caused injury.  The second requirement is also predictable once it is appreciated that damages for loss of earning capacity constitute a head of damages for economic loss awarded in addition to general damages for pain, suffering and loss of enjoyment of life.  It is that the 'diminution of…earning capacity is or may be productive of financial loss'.  (Graham v Baker (1961) 106 CLR 34 at 437."

2. In Paul v Render (1981) 34 ALR 569 at 471 Lord Diplock said:

   "…and the assessment of future economic loss involves a double exercise in the part of prophesying not only what the future holds for the injured plaintiff but also what the future would have held for him if he had not been injured."

3. The following statement by White J at p10 of his judgment in Jarvis-Vagg v Eldrid, unreported; FCt SCt of WA; Library No 970405; 15 August 1997 is apposite in a case such as this:

   "His Honour had to make an assessment as best he could as to the likely future which would have been enjoyed by the appellant had he not been injured and to compare that with the likely future which he would in fact have following his injuries.  There could be no uncertainty as to either of the assessments."

4. In Jarvis-Vagg v Eldrid (supra) Kennedy J set out the following at pp3-4 of his judgment:

   "In assessing the damages for future or potential events it is necessary to bear in mind the observations of Deane, Gaudron and McHugh JJ in Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 642-643:

   'When liability has been established and a common law court has to assess damages its approach to events that allegedly would have occurred but cannot now occur or that allegedly might occur is different from its approach to events which allegedly have occurred.  A common law court determines on the balance of probabilities whether an event has occurred.  If the probability of the event having occurred is greater than it not having occurred the occurrence of the event is treated as certain; if the probability of it having occurred is less than it not having occurred it is treated as not having occurred.  Hence in respect of events which have or have not occurred damages are assessed on an all or nothing approach.  But in the case of an event which it is alleged would or would not have occurred or might or might not yet occur the approach of the Court is different.  The future may be predicted and the hypothetical my be conjectured.  But questions as to the future or hypothetical effect of physical injury to degeneration are not commonly susceptible of scientific demonstration or proof.  If the law is to take account of future or hypothetical events in assessing damages it can only do so in terms of the degree of probability of those events occurring.  The probability may be very high - 99.9 per cent - or very low - 0.1 per cent.  But unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the Court will take that chance into account in assessing the damages.  Where proof is necessarily unattainable it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring but to ignore altogether a prediction which has a 49 per cent probability of occurring.  Thus the Court assesses the degree of probability that an event would have occurred or might occur and adjusts its award of damages to reflect the degree of probability."

Pre‑accident prospects

1. As to the pre‑accident prospects and earning capacity, defence counsel in closing acknowledged that Ben does not have the capacity to work in a paid structured employment environment.  The question posed is whether or not pre‑accident he did have that capacity.  From all accounts his pre‑accident intelligence level was in a low normal or high abnormal range.  Dr Kay Johnston who was the only doctor to see Ben both pre and post accident acknowledged that he was in the borderline range of intellectual functioning.  His educational record is detailed elsewhere.  Suffice to say that he had difficulty in most subjects, was easily distracted and was disruptive, was immature for his age and generally speaking not given to learning.  Mr Michael Hunt concluded that given his academic background it was most likely that Ben's pre‑morbid cognitive functioning revealed signs of abnormality relative to his relevant age group.  With that in mind he was of opinion that it was difficult to delineate the nature and degree of any strictly accident related cognitive dysfunction.  The issue raised by defence counsel is that notwithstanding the accident Ben's work capacity was not compromised by reason of his accident related injuries.

1. I am not of opinion that that conclusion is supported by the weight of evidence.  On the one hand whilst he was not academically inclined he was competent in other practical ways.  He was an active participant in sport and was a keen participant in outdoor activities whilst at Hale School.  In his year at Gnowangerup Agricultural School his interest in farming was recognised and he did well.  Having come from a farming background that was most probably to be expected.  It was also expected by all who knew him that he would go into farming once he had completed his education.  He was destined towards that career path, he displayed his interest in farming at the agricultural school and he had the opportunity through his father to take over his farm.  Having regard to details of the closed head injury and the specialist medical opinion, I am of opinion that the head injury suffered by Ben has resulted in significant impairment in his intellectual functioning.  Whilst he did have learning difficulties that of itself would not have prevented him pursuing a career involving manual skills.  Ben is not now able to consider employment.  I find therefore that but for the accident Ben did have prospects of working as a farm labourer and managing and running a farm.  He was destined by reason of his family circumstances to follow that pursuit.  By reason of his accident related injuries he has been denied that opportunity and is left with no earning capacity.

Past loss of earning capacity

1. Ben was 16½ years of age at the date of the accident.  It was intended that he would have spent 1996 at Gnowangerup Agricultural School.  He would have thus been 17½ years at completion of his schooling.

2. There is really no room for doubt but that Ben would thereafter engage in farming or in an occupation related to farming such as truck driving or carrier operations in a rural setting.  That is the basis upon which Ben's claim is put forward and I accept that as being the most probable scenario.

3. Accordingly I allow the claim for loss of earning capacity at the rate of $300 net per week (being the amount claimed in the plaintiff's economic loss schedule) from 1 January 1997 to date of judgment.

   188 weeks at $300 net per week = $56,400.

Interest on past economic loss

1. I calculate the sum of interest by use of the following formula:

   Interest = half of (total loss x annual rate of interest x total time in years).

   Therefore interest = half of ($56,400 x 6% x 3.61 years).

   Interest =    half of ($3,384 x 3.61).

   =    $6,108.12.

2. I award the plaintiff damages for interest on past economic loss in the sum of $6,141.96.

Future economic loss

1. As at the date of judgment Ben is 21 years of age.  He has sought future economic loss on the basis that he would have worked until he was 65 years of age.  No issue was taken on this particular point at trial and I propose to assess future economic loss on that basis.  The 6 per cent multiplier for 44 years is 827.

2. Ben had the capacity to earn income at least at the average rate for an Australian male ($30,000 approximately per annum) but for his injury.  It was likely that Ben would have obtained employment such as a farm labourer (annual income with benefits $35,000‑$50,000 per annum) or as a rural truck driver (annual income $50,000 average per annum).  I adopt an earning capacity of $40,000 per annum being the mid range between the average Australian male rate and the truck driver average.  It is also near the mid range for a farm labourer.

3. Therefore adopting an earning capacity at $769 gross per week ($608 net per week) the calculation of the award for future loss of earning capacity is as follows:

   Earning capacity   = multiplier x net per week

   = 827 x $608

   = $502,816

4. I now turn to consider whether there should be any discount for contingencies.

5. In Black v MVIT [1986] WAR 32 at 34 Wallace J (Burt CJ and Brinsden J concurring) set out:

   "It is erroneous always to make a deduction for contingencies as Windeyer J had to say in Bresatz v Przibilla (1962) 108 CLR 541. The Court should in each case have regard to the facts of that case, that very learned Judge continued at 543-544 -

   'It is a mistake to suppose that it necessarily involves a "scaling down".  What it involves depends not on arithmetic but on considering what the future may have held for the particular individual concerned.  He might have fallen sick from time to time, been away from work and unpaid.  He might have become unemployed and unable to get work.  He might have been injured in circumstances in which he would receive no compensation from any source.  He might have met an untimely death.  Allowance must be made for these "contingencies" or the "vicissitudes of life" as they are glibly called.  But this ought not to be done by ignoring the individual case and making some arbitrary subtraction. … Moreover the generalisation that there must be a "scaling down" for contingencies seems mistaken.  All "contingencies" are not adverse: all "vicissitudes" are not harmful.  A particular plaintiff might have had prospects of changes of advancement and increasingly remunerative employment.  Why count the possible buffets and ignore the rewards of fortune!  Each case depends upon its own facts.  In some it may seem that the chance of good fortune might have balanced or even outweighed the risk of bad'."

6. In Bowen v Tutte (1990) A Tort Rep 81‑043 at 68,083 Malcolm CJ stated:

   "The normal discount rate for the usual contingencies ranges between 2 per cent to 6 per cent although each case depends on its own facts: Black v Motor Vehicle Insurance Trust [1986] WAR 32 at p34 per Wallace J; and see Bresatz v Przibilla (1962) 108 CLR 541. It is necessary to assess the plus factors and the minus factors in the individual case."

7. Black v MVIT (supra) was referred to in Charlesworth v Holbrook, unreported; FCt SCt of WA; Library No 960587; 15 February 1996 wherein it was said that a discount of 5 per cent might be regarded as generous to the respondent.

8. Accordingly whilst there are plus and minus factors I consider in the circumstances that a discount of 5 per cent is justified for contingencies.  Further, I find Ben has no retained earning capacity and there is no discount made for such.  I therefore calculate the plaintiff's future economic loss as follows:

   Loss of earning capacity  $502,816

   Retained earning capacity  $ nil

   $502,816

   Less 5 per cent for contingencies  $  25,140

   Future economic loss  $477,676

Loss of superannuation benefits

1. Anthony Charles Miller, a consulting actuary of William M Mercer Pty Ltd was instructed on behalf of Ben to calculate superannuation benefits which he would have expected to earn had he been a member of the work force to age 65.  An actuarial report was prepared and tendered.  The basic assumptions which were worked upon were that Ben would receive the statutory required contributions to age 65.  The expected contributions were accumulated over a period of that working life time allowing for expected costs and at interest rates that were thought were reasonable to assume for such a superannuation fund.  An assuming earnings rate of 6.4 per cent per annum was allowed after allowance for tax and investment expenses.  That figure is referable to what was known as a Capital Stable Fund which is a typical investment portfolio for superannuation funds.  The report assumes a range of salaries between $25,000 to $45,000 gross.  A 6 per cent compounded discount rate has been used to arrive at a present value.  Taxation has been allowed in the calculations.

2. Adopting from the report an income of $40,000 per annum gross the report indicates that on maturity the recipient would receive a superannuation payout the net current value of which is $61,035.

3. There was no cross‑examination on Mr Miller's report.  The methodology used takes into account those matters which were raised by Anderson J in Jongen v CSR (1992) A Tort Rep 81‑192.

4. In the circumstances therefore I allow for loss of future superannuation benefits the sum of $61,035.

Gratuitous services

1. The legal principles in respect of gratuitous services were summarised by Franklyn J in Newman v Nugent (1992) 12 WAR 119 at 122 when he said:

   “As I understand the law, any compensation payable to the respondent in respect of gratuitous services must be compensation for her ‘incapacity to look after herself as demonstrated by the need for’ (emphasis added) the services provided for her:  see Griffiths v Kerkemeyer (1977) 139 CLR 161 at 192, Mason J. The incapacity to look after herself must arise out of the injuries sustained as a result of the appellant’s wrong doing. The compensable loss is the existence of the need for those services: Donnelly v Joyce [1974] QB 454, Megaw LJ (at 462) adopted by Stephen J in Griffiths v Kerkemeyer (at 173) when he said:

   ‘“The critical point is his Lordship’s affirmation that when a plaintiff, as a result of his accident-caused injuries, becomes in need of goods or services, that need is itself a loss suffered by him, for which he may recover damages against the defendant.”  It is then, his Lordship said, irrelevant to his entitlement to those damages that the need has been satisfied by the gratuitous supply to him of the needed goods or services.’

   That that is proper principle has now been put beyond doubt by the recent High Court decision Van Gervan v Fenton (1992) 175 CLR 327. In that case the court upheld and favoured the approach by Stephen and Mason JJ in Griffiths v Kerkemeyer and the adoption of the principles stated in Donnelly v Joyce over that taken by Gibbs CJ in Griffiths v Kerkemeyer.”

2. His Honour Franklyn J emphasised the point that the need must be the plaintiff’s need.  At p129 his Honour Ipp J after referring to Griffiths v Kerkemeyer (1977) 139 CLR 161 and Van Gervan v Fenton (1992) 109 ALR 253 said:

   “It is apparent from these remarks that the loss is constituted by the diminution of the claimant’s capacity to look after herself, usually by being unable to provide nursing or household services for her own needs.  In the words of Gaudron J in Van Gervan v Fenton:  ‘The real loss for which damages are awarded is the loss which gives rise for the need for care or services.’ ”

3. These principles have been recently affirmed in Kars v Kars 141 ALR 37.

4. An award for damages for gratuitous services where the cause of action arose on or after 1 July 1993 is subject to the provisions of s3D of the Motor Vehicle (Third Party Insurance) Amendment Act 1994 (“the Act”). Sections 3D(1) and 3D(2) provide as follows:

   “(1)This section limits the damages that may be awarded for the value of gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance that have been or are to be provided to the person in whose favour the award is made by a member of the same household or family of the person.

   (2)No damages are to be awarded for the value of the services if the services would have been or would be provided to the person even if the person had not suffered the bodily injury.”

5. The accident in this case occurred on 8 January 1996 and therefore comes within the operation of s 3D of the Act.

6. The provisions of s 3D limit the effect of the decision of Van Gervan v Fenton (supra), in so far as that case decided that a defendant was liable for the cost of services provided to a plaintiff if they were provided voluntarily prior to the accident, but after the accident were required to be provided by reason of injury (see the judgment of Mason CJ, Toohey and McHugh JJ at p291).

7. When assessing gratuitous services it is necessary to determine two questions.  They are, first, what are the services required to satisfy the plaintiff’s need resulting from the defendant’s wrong and secondly, what is the value of those services?

Past gratuitous services

1. Since his discharge from Royal Perth Rehabilitation Hospital in August/September 1996 Ben has resided with his father firstly in Perth and since February 1997 at his father's home in Kondinin.  It was the evidence of Ben's father that after their return to Kondinin it was he who looked after the house and kept an eye on everyone.  Since Sarah's arrival in the home it has befallen her to undertake the domestic household chores including cooking, ironing, vacuuming and cleaning.

2. In large part those domestic services would have been provided to Ben regardless of the fact of his accident.  To that extent those services are not compensable ‑ see s 3D(2).

3. What then are the services which have been required to satisfy the plaintiff's needs resulting from the accident?

4. Ben's major disability is related to his diminished intellectual disabilities consequent upon the head injury.  From a medical viewpoint his organisational and decision making processes have been impaired.  He needs supervision and assistance in these areas and also in behavioural management.  These assessments are consistent with the evidence of Ben's father and Sarah they being the ones who are in the best position to observe and understand what is required for Ben's management.  Their evidence indicates that the extent of that assistance involves getting him organised at the beginning of each day, directing him in the daily routine, directing and supervising him in undertaking any tasks which might be given to him and assisting him when it comes to any decision making so far as spending money and buying clothes are concerned.  General household shopping and payment of bills are not an issue at this stage as that is part of the general household management.  It would however be an issue if Ben were to live independently.

5. It was not the evidence of either Ben's father or Sarah that Ben required constant supervision every minute of the day or that he was demanding for his needs to be met promptly.  He is capable of doing things around the house if directed to do so, eg keeping his own room tidy, clothes washing, getting his own breakfast and snack type meals.  He is also able to be entertained either by watching television, playing with Sarah's children or otherwise assisting with whatever activities Sarah and Ross might be doing around the house or by going to town with them.

6. The plaintiff's counsel raised the proposition that much of the services and support which the family members in the household are providing goes beyond "gratuitous services of a domestic nature or gratuitous services relating to nursing and attendance…" as prescribed in s 3D(1).  If that were the case then the restrictions on damages for provision of home care services is not applicable.  I am not able to accept that proposition.  In my view services of a domestic nature goes beyond preparation of meals, washing, ironing, cleaning, etc.  The services extend to the whole ambit of activity which goes on in and around the household environment.  The general assistance and direction which is being provided on a daily basis so far as organising Ben and endeavouring to manage his affairs are part of the household activity.  So too would be taking Ben for a drive to town or elsewhere or even to a movie.  Those activities are all part of the incidents of providing gratuitous services of a domestic nature.  Accordingly I consider that the services being provided to Ben to satisfy his needs resulting from the accident are properly categorised as being of a domestic nature.  Therefore the limit prescribed by s 3D is applicable.

7. Neither Ben's father nor Sarah were asked to approximate how many hours per day or per week would be involved in organising/supervising Ben and providing services to satisfy his needs over and beyond the services which would have been provided had he not suffered the injury.  Undoubtedly upon his discharge from RPRH the demand on Ben's father would have been at its greatest.  After their return to Kondinin there would have been a settling in period before any sort of household routine was established.  With the passage of time and with Sarah's arrival in the home these demands will have reduced and in a sense levelled off.

8. In the plaintiff's economic loss schedule the claim for past gratuitous services is put on the basis of the need for a full time carer 24 hours per day 7 days per week.  Having regard to what has already been said and what will follow so far as future care services are concerned I do not accept that what is required to satisfy Ben's needs resulting from the accident is full time care services.  As noted earlier in these reasons Mr Merrick considered that if family care were not available it would be reasonable for a carer or supervisor to be employed for 24 hours a week.  Even though family care has been provided to date I consider that by balancing the greater demands in the earlier stages of rehabilitation against the lesser demands now that 3 hours per day or 21 hours per week would provide a proper allowance for the provision of gratuitous services of a domestic nature which have been required to satisfy Ben's needs resulting from the accident.

9. In terms of s 3D(5) I am required to apply an hourly rate of 1/40th of the average weekly total earnings of all employees in Western Australia for each quarter from the date of discharge from hospital to date.  For the August 1996 quarter the average weekly total earnings was $549.90.  For the February 2000 quarter (the latest available figure) the average total weekly earnings is $591.70.  As the rate has steadily increased over that period I propose to take the average between those amounts for the purpose of these calculations.  The average is $570.80 of which 1/40th is $14.27.

   21 hours per week x $14.27 = $299.67 per week.

   From date of discharge from RPRH to judgment is 205 weeks

   205 x $299.67 = $61,432.35.

10. Accordingly I allow for past gratuitous services the sum of $61,432.35.

Interest on past gratuitous services

1. Applying the same formula for interest as that used in calculating interest on past economic loss:

   Interest = half of ($61,432.35 x 6% x 4 years)

   Interest = half of ($3,685.94 x 4)

   = $7,371.88

2. I award the plaintiff damages for interest on past gratuitous services in the sum of $7,371.88.

Future care services

1. There is no doubt that Ben's physical disabilities are permanent.  There is no doubt he will always require some assistance and care.  It is the plaintiff's contention that although Ben has achieved a commendable degree of mobility and self‑reliance he nevertheless remains significantly incapacitated and is in need of frequent assistance.  The pattern of living which has enabled him to function as well as he has since the accident depends on the availability of his father in the home.  The appropriate regime for his future care is that which has been followed successfully to date of having a caring adult available for much of the day and whose attentions are needed at periodic intervals throughout the whole of the day.  It is contended that in cases where relatively small amounts of care are needed it is appropriate and adequate to measure such need by determining the time spent (in hours) in satisfying the need and determining the commercial cost of obtaining carers to perform those services at commercial rates.  However where an injured claimant requires considerable care but at intervals spread over the entire day and into the night it is contended that it is obviously impractical to aggregate a series of episodes spread over the entire day and cost them as if one carer were present for an uninterrupted period.  If care is needed at periodical intervals then it may be necessary to have someone present or at close call in order to be able to respond when needed.  In those cases the assessment of damages for the care component is almost universally conducted on the basis of a carer being present all the time even if, for much of the period, in a supervisory capacity or at call.

2. Great weight was placed by the plaintiff on the reports and evidence of Kerry Jones (occupational therapist) and Peter Dunn (My Place WA Pty Ltd) and their assessment that what is needed is 24 hour care for Ben.  Having regard to the evidence as detailed above I am not able to accept that proposition.  The gist of their reports is that Ben is fairly independent especially in the areas of self care and moving about and the activities of daily living.  It appears that Ben is capable of doing many things in the course of every day living.  He is fairly independent in terms of mobility.  He is able to carry out most activities of personal hygiene.  What is required is organisation to ensure that he is mobilised into doing those activities.  It is the case that in home management he will require assistance when it comes to handling money and for purchase of household supplies and home management.  He will require assistance in home maintenance.

1. The medical evidence briefly re‑stated was to the following effect.  Mr Merrick said that Ben was compromised for independent living and there would need to be put in place arrangements for his care when eventually his father is unable to provide that care for him.  He considered that the need would be for a carer for 24 hours per week.  Mr McComish considered that Ben needs supervision but does not need a full time carer domiciled with him but rather someone who would see him regularly to ensure that his general condition and environment were not deteriorating.  Likewise, Mr Skerritt who said that Ben can manage many aspects of day to day life but his quality of life would be better with assistance in that his organisational ability needs help.

2. Considering the future needs requires a certain amount of crystal ball gazing.  There are a number of possibilities.  Ben may continue to reside with his father for a number of years.  He is in a safe and protected environment where his needs are met.  Sarah may leave home in six or seven years but on the other hand she may leave sooner or stay longer.  If and when she leaves then undoubtedly Ben's father and Ross would continue to provide for Ben's needs so long as they are able to.  Of course in the case of Ross he may leave home sooner or later.  Then again for Ben's part he may seek to live independently elsewhere.  He may wish to move to a larger centre of population and reside in a new environment.  Of course if he leaves home then his needs so far as services of a domestic nature are concerned will need to be met other than by a member of the same household.  On the other hand Ben is hopeful that he will marry and have his own family.  The evidence indicates that he has the ability to do that.  The opportunity may be reduced by reason of his disability.  Nevertheless that contingency must be taken into account.  Of course if he does marry then the gratuitous services of a domestic nature will then be provided by a member of the same household and the provisions of s 3D would apply.

3. One cannot avoid making a comparison between Ben's situation when looking towards the future and that of his own father's circumstances in the past.  Ben's father suffered permanent injuries as a result of a motor vehicle accident back in 1972 when he was 19 years of age.  He was in Royal Perth Hospital for five weeks before going to RPRH where he remained for about 4½ months.  He suffered brain damage which took him back on his evidence from a 19 year old to a 4 year old.  When asked whether that still affects him in some ways he responded:

   "Well it did get for a while there.  I was very angry and I just get angry very quick and I wouldn't take much notice of what people were saying things like that."

4. Nevertheless he went on to undertake farming activities no doubt with the assistance of his father and other family members who were farming in the same area.  He married and that relationship subsisted for about 15 years.  There are two children of that relationship, namely Ben and Ross.  The boys continue to live in his home.  While there are similarities insofar as their respective accidents are concerned that is not to say that Ben's future family life will necessarily mirror that of his father.

5. For the reasons previously stated I do not accept the necessity for Ben to be provided with 24 hour care should he choose to live independently and unmarried.  Mr Merrick and Mr McComish have indicated the level of care which they consider would be necessary.  The sort of carer/companion needed would be the kind of person which the DSC local area co‑ordinator might identify as being able to provide such care and to satisfy the necessary needs and who could be "on call".  Ben would necessarily have to look to someone else, eg DSC if not family to locate and engage for him such a person.  That person might be a day care/buddy or companion type arrangement of the sort which DSC could organise.

6. The issue then becomes what is the value of the services which will be required to meet the future needs.  With family support Mr Dunn considered a personal assistant for at least 30 hours per week costing $39,000 per annum would be appropriate.  DSC provides a supplementary day programme at between $10‑$36,000 per annum with day programme supplement.  If family care is not available and there is need for live in support then the DSC companion arrangement would cost $34‑$62,000 per annum with day programmes.  Mr Merrick considered assistance of 24 hours per week costing $25,000 per annum would be appropriate.

7. Whatever level of arrangements will be necessary allowance has to be made for the various contingencies which may arise.  Thus it is not appropriate that future care costs be assessed on the basis that Ben will leave the family home immediately and live independently unmarried for the rest of his life.  Nor on the other hand can it be expected the current family caring arrangements will be available or continue for the rest of his life or that in the event that he marries the marriage will continue for the remainder of his life.  Having regard to the contingencies really makes any attempt at an arithmetic assessment most dubious.  However being as fair and reasonable as I can I consider that by taking an average of $25,000 per annum that would be an appropriate amount at which to value the cost of future care services.  In saying that I "take an average" I have regard to my assessment for past gratuitous services (21 hours per week x $14.27 per hour = $15,582 per year), Mr Merricks estimate of $25,000 per annum and also the DSC middle range or companion arrangement.  In regard to the latter that is on the basis of the need for live in support which I find is not necessary and therefore the cost of services at that range is reduced nearer to the top of the supplementary day programme range.

8. Ben is aged 21 years and according to the Australia Bureau of Statistics Life Expectancy Table 1994‑1996 has a life expectancy of 55.21 years.  The 6 per cent discount multiplier for 56 years is 859.  Damages for future care services are calculated at the rate of $480.77 per week ($25,000 per annum) for the balance of Ben's life expectancy.

   $480.77 x 859 = $412,981.43.

Accommodation costs

1. I do not accept the proposition that there will necessarily be incurred additional accommodation costs.  In his present living environment it is not required.  If Ben moves to live independently elsewhere either in a flat or Homeswest accommodation then on my findings a live‑in carer is not necessary.  Accordingly no allowance is made for accommodation costs.

Speech pathology

1. Ms Arleen Osborne indicated that with assistance Ben's articulation will be improved and his reading and writing ability likewise improved.  She proposed speech pathology over a period of time and also consideration be given to TAFE or other courses to improve Ben's literacy and numeracy.  As I have indicated earlier I do not accept that there is a necessity for speech pathology and in fact this is contra indicated by Mr McComish in his evidence to which I have already referred.  Nor do I consider having regard to Ben's educational background that further assistance in literacy and numeracy will necessarily assist his skills in that area.  Accordingly no allowance is made under this head.

Fund management expenses

1. All witnesses who were asked gave the opinion that Ben could not adequately manage large sums of money because of his cognitive disability and lack of capacity to protect himself from unscrupulous others.  They included Mr Thomas, Mr Merrick, Mr McComish, Ben's father and Sarah.

2. The next friend, Ben's mother, has expressed a preference that investment of funds on behalf of Ben be with the Public Trust Office. That of course is consistent with O 70, r 12 of the Supreme Court Rules.

3. Evidence was given by Phillip Ho, the Investments Manager at the Public Trustee Office as to the investment policies and fee structures of that office.  The cost of administration of the Fund is compensable: Campbell v Nangle [1985] 50 SASR 161; Nominal Defendant v Gardikiotis (1996) 186 CLR 49 and Morris v Zanki (supra).

4. There is no doubt that in the circumstances of this case fund management fees and fees for financial advice for investment will be incurred.  In determining the cost of fund management it is therefore necessary first to identify the portion of the judgment sum to which the calculation will apply.  I propose to request the parties to provide a schedule of the fees which will be incurred.

5. I note that since the hearing of this matter the fees of the Public Trustee have increased and the calculations will be at the increased rate.  (See Government Gazette 30 June 2000).

Goods and Services Tax

1. Since the hearing of this matter the Commonwealth Government has introduced a Goods and Services Tax and it would seem that in relation to services that the plaintiff will require in the future then some allowance must be made for GST.  This aspect was not addressed at the hearing other than that the witness Mr Dufty then understood that GST would be applicable.  I propose to invite the parties to consider the application of GST to any part of the judgment sum.

Summary

1. For the foregoing reasons I assess damages as follows:

   General damages  $160,000.00

   Past economic loss  $  56,400.00

   Interest on past economic loss  $    6,141.96

   Future economic loss  $477,676.00

   Loss of superannuation benefits  $  61,035.00

   Past gratuitous services  $  61,432.35

   Interest on past gratuitous services  $    7,371.88

   Future care  $412,981.43

   Fund management expenses  To be determined

   Goods and services tax  To be determined

   Total (subject to above additional items)                $1,243,038.62

Conclusion

1. In terms of the earlier order of this Court judgment will be entered for 40 per cent of the assessed damages.