Best (by his next friend Catherine Elizabeth Jordan) v Greengrass
[2012] WADC 44
•29 MARCH 2012
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: BEST (by his next friend CATHERINE ELIZABETH JORDAN) -v- GREENGRASS [2012] WADC 44
CORAM: WAGER DCJ
HEARD: 19 - 30 SEPTEMBER 2011
DELIVERED : 29 MARCH 2012
FILE NO/S: CIV 1451 of 2006
BETWEEN: MARK ANTHONY BEST (by his next friend CATHERINE ELIZABETH JORDAN)
Plaintiff
AND
BRADLEY BRIAN GREENGRASS
Defendant
Catchwords:
Tort - Personal injury - Traumatic brain injury and physical injury - Degree of impairment - Level of care - Fund management expenses
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Judgment for the plaintiff in the amount of $2,914,475
Representation:
Counsel:
Plaintiff: Mr G Droppert & Mr T J Hammond
Defendant: Mr M H Zilko SC & Mr N P Lindsay
Solicitors:
Plaintiff: Slater & Gordon
Defendant: WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649
Bresatz v Przibilla (1962) 108 CLR 541
Burford v Allan (1993) 60 SASR 428
Chulcough v Holley [1968] ALR 274
Gray v Richards (No 2) [2011] NSWSC 1502
Gray v Richards [2011] NSWSC 877
Jones v Moylan (1997) 18 WAR 492
Jones v Moylan (No 2) [2000] WASCA 361
Jongen v CSR Ltd (1992) Aust Torts Reports 81–192
Kschammer v RW Piper & Sons Pty Ltd [2003] WASCA 298
Kula v Stuckey [2000] WADC 193
Lewis v Bundrock [2009] 1 Qd R 524; [2008] QSC 189
Morris v Zanki (1997) 18 WAR 260
Reece v Reece (1994) 19 MVR 103
Southgate v Waterford (1990) 21 NSWLR 427
Traeger v Harris [No 4] [2011] WADC 45
Wilson v McLeay (1961) 106 CLR 523
Wylde v Arriaza (1997) 25 MVR 539
WAGER DCJ: The plaintiff was a passenger sitting on the back of Mr Greengrass' utility with his leg dangling below the open and lowered rear metal tray. This meant that the plaintiff was not restrained in any way. The plaintiff's location combined with Mr Greengrass driving in breach of his duty of care to the plaintiff led to the plaintiff falling heavily from the utility onto his head. He suffered severe brain injury and other physical injuries that required him to be a patient in hospital and to re‑train through residential rehabilitation for a period of more than three years. The accident occurred when the plaintiff was 44 years old on 27 December 2004 and he returned to try to live independently in February 2008.
Liability has been agreed. Quantum is to be apportioned for contributory negligence which reduces the plaintiff's entitlement to damages by 30%. The degree of cognitive and physical impairment suffered by the plaintiff and the manner in which these injuries affect his functioning and the level and type of care he requires and will require are issues to be determined when assessing quantum.
The plaintiff's injuries
After being transported by ambulance to Bunbury Hospital the plaintiff was intubated and ventilated for a transfer to Sir Charles Gardiner Hospital. Significant swelling occurred resulting in a bilateral evacuation of a haemorrhage. An emergency bi‑frontal craniectomy was performed. The plaintiff remained in the intensive care unit for 12 days and developed secondary complications including seizures, bacterial pneumonia, post‑operative infection, bacterial infection of the centreline, hypertension and fungal infection. He stayed on the neurosurgical ward for 112 days.
On 19 April 2005 the plaintiff was discharged to the Shenton Park campus of Royal Perth Hospital for multi‑disciplinary rehabilitation returning briefly to Sir Charles Gardiner Hospital for cranioplasty. After discharge from the Shenton Park campus he had further rehabilitation at Brightwater facilities in Marangaroo and Oats Street and was ultimately discharged to live independently in the Bunbury area in February 2008 at the age of 47.
As a result of the accident, the plaintiff suffers from a condition of visual loss known as right sided homonymous hemianopia that means that he does not have peripheral vision. He is now completely deaf in his right ear, he has balance problems and experiences pain in his right knee. The traumatic brain injury's permanent effect includes that the plaintiff has a lower IQ than prior to the accident. He suffers from a wide range of deficits in memory, information processing, new learning and executive functioning. His impulse control, ability to initiate and his motivation is impaired, however the extent of the plaintiff's deficits and their impact on his ability to function are disputed.
The plaintiff before the accident
The plaintiff was born on 2 October 1960 and was the third youngest of seven children. His older brother, Mr Paul Best, describes his brother as enjoying school, having plenty of mates and always being punctual. He considers the plaintiff to have been well educated. The plaintiff was always prepared to help his mother and carried out his chores without any difficulty. He had a really close relationship with his father and Mr Paul Best considers that of the seven children in the family, the plaintiff was his father's favourite.
The plaintiff had a great sense of humour. He was a witty child who grew up to be a witty adult. He left school in later high school years in order to work on his brother's sheep station in Cobar New South Wales. Mr Paul Best describes how his brother jumped into fairly hard work straight away and how he found him to be competent at mustering, fencing and general farm work.
In his late teens through to early 20s the plaintiff completed an agricultural course and a wool classing qualification in Sydney. Mr Paul Best describes being very pleased with and proud of his brother's achievements and expertise as a wool classer.
In his 20s the plaintiff took up mining and worked on mines in Queensland before moving to Western Australia. After moving to Western Australia he continued to have a loving and close relationship with his many nephews and nieces and returned to Cobar on a yearly basis, usually at Christmas, unless his work commitments did not allow it.
The plaintiff's work history in Western Australia included being the manager of a gold processing plant, having employment on various mines and in related industries in the Pilbara and being employed by Worsley Alumina, his employer at the time of the accident, for approximately 13 years.
At the time of the accident the plaintiff was classified as a refinery process operator performing in the upper echelon of the mid‑point range making him eligible for a salary of between 100% and 120% of the salary structure for the role. Mr Harris, the human resource system's superintendent consultant at BHP Worsley, confirms that an employee who is 100% is generally a competent person within that role and someone who is 120% is ready for promotion to the next role.
The Worsley employment structure has changed since the date of the plaintiff's accident because it is now owned and run by BHP Billiton. BHP Billiton has introduced the position of senior refinery process operator. Qualifications that can be achieved through employment at BHP Billiton are now required in order for a worker to qualify as a senior refinery process operator. A senior refinery process operator who, on occasions, acts in the role of supervisor for a period, would now be considered for promotion to supervisor, a position that is attained by appointment rather than through qualification alone. Once appointed as a supervisor the employee is required to complete further courses and studies.
Although the regime was different during the course of the plaintiff's employment he had acted in the position of supervisor on occasion. However he had not been formally appointed to the full time position of supervisor.
Mr Harris confirms that the average age of retirement for a refinery process operator had been approximately 63 years of age, however at the time of trial it was recorded at the age of 67 years.
The plaintiff was very highly regarded in his employment. Mr Adrian Goff who was employed at Worsley Alumina as a refinery process operator worked with the plaintiff from 1994 until the time of the plaintiff's accident, being a period of 10 years. He describes the work relevant to the position of process operator as monitoring the plant, keeping it running and troubleshooting. Mr Goff is 6 foot 5 inches tall, weighs 112 kg and is 38 years old. He considers that the job of process operator or senior refinery process operator requires a worker to be physically fit. He estimates that the job entails about 20 km of walking each day and a requirement to open heavy valves and do shovelling and cleaning. Although fitness is required, women are able to carry out the employment so Mr Goff's very large size and degree of strength are not a pre‑requisite.
The plaintiff had been a mentor to Mr Goff and had used effective and appropriate teaching methods to teach Mr Goff everything that he knew about the job. Mr Goff had been supervised by the plaintiff in the plaintiff's capacity as acting supervisor. Mr Goff describes the plaintiff's performance as being very, very good. The plaintiff was cool, calm and collected when at the workplace. He had acted quickly in an emergency situation when Mr Goff had been injured thereby ensuring that Mr Goff was not fatally injured.
Mr Adrian Goff considers that it is without a shadow of a doubt that the plaintiff would be working as supervisor had the accident not occurred.
Mr Neil Goff is Mr Adrian Goff's brother. Mr Neil Goff is a 50‑year‑old construction supervisor with Worsley Alumina having worked at Worsley for 23 years and having been promoted to the position of supervisor after 13 years of employment. Mr Neil Goff also speaks highly of the plaintiff's work skills and performance. He notes that the plaintiff started work at Worsley about 10 years after him and that they therefore worked together for about 13 years. Although they were in different crews, Mr Neil Goff would hand over to the plaintiff's crew when the plaintiff was a refinery process officer and the plaintiff's crew would hand over to Mr Goff's crew. As a result they had contact in the workplace five or six times each week. From handover discussions, Mr Neil Goff assessed the plaintiff as being a good worker who was very knowledgeable and who had very good troubleshooting skills when problems happened at the plant and in the field. Mr Neil Goff also describes the plaintiff as being a good trainer with good communication and interpersonal skills. He notes that the plaintiff had a good rapport with just about everybody he worked with.
Mr Neil Goff also dealt with the plaintiff when the plaintiff worked as a control room operator, work that required him to operate the computers that run the process offsite, and Mr Goff recalls that the plaintiff was very competent in this field. The plaintiff had hands on experience and good management skills and, in Mr Neil Goff's opinion, would have qualified for the position of senior refinery process operator and been capable of taking up the role of supervisor had he remained in employment with BHP Billiton.
Mr Neil Goff is a strong, loudly spoken, confident man and it is clear from his evidence that he considered the plaintiff to have been his equal in the workplace. Mr Adrian Goff, who is a strong younger man, considers the plaintiff to have had knowledge, work skills and communication skills that were superior to his own. Given the 13 years that the plaintiff worked at Worsley Alumina prior to the accident I accept that he would have been a supervisor had he continued in employment.
Mr Adrian Goff and Mr Neil Goff also give evidence about the plaintiff's social and interpersonal skills and his level of intellectual functioning. They attended barbeques and after work drinks with him approximately every six to eight weeks and they both describe him as being a likeable fellow. Mr Adrian Goff recalls the plaintiff as being funny, with a quick wit, in a social situation.
Mr Karl Hoesch was, and remains, a very close and loyal friend to the plaintiff. Mr Hoesch is a 41‑year‑old single man who has known the plaintiff since approximately 1996 when they met through mutual friends when socialising in Bunbury. They saw each other very regularly and they shared interests of crabbing, fishing, going to the beach and playing golf. They were both as physically active as possible and enjoyed the south‑west lifestyle, particularly in the summer months. Mr Hoesch describes the plaintiff as being academic and nice natured.
Mr Carl Fitzpatrick, who is a 45‑year‑old unemployed landscape gardener, has known the plaintiff for 15 or 20 years and describes him as having been bright and intelligent prior to the accident. In his view the plaintiff was a good conversationalist, easy going and everyone's best friend. In Mr Fitzpatrick's opinion the plaintiff would do a favour for anyone at any time and he displayed neither malice nor aggression. They played backyard cricket together and the plaintiff helped in the running of barbeques for the local soccer league club. The plaintiff was keen on football and followed the West Coast Eagles in the AFL.
Mr Adrian McKay is a 35‑year‑old operations manager for an engineering company who has known the plaintiff for 14 years. He describes the plaintiff prior to the accident as having been like an older brother for their group of friends and as being selfless in his behaviour. He recalls gatherings for barbeques or for a few beers. The group would go to Wellington Dam, to the beach, fish, play pool and mow each other's lawns on a regular basis.
The plaintiff had a few girlfriends, one of whom was in a relationship with him for a number of years. He had planned and committed to building a four bedroom, two bathroom home in Dalyellup prior to the accident.
I accept that the plaintiff was a leader amongst his work colleagues and his group of friends. He was a generous active man who enjoyed physical activities such as crabbing, fishing, surfing, swimming, golf and backyard cricket. He was physically fit and led a lifestyle that revolved around physical activity. He would have remained physically active and fit had the accident not occurred. The plaintiff's social life with friends and his girlfriend included socialising at the local hotel and barbeques. He had a lot of friends and enjoyed a very active social life. The plaintiff had chosen to live in the south-west and was building a substantial home in Dalyellup intending to make his employment at Worsley and his social life in the south‑west permanent.
The plaintiff's evidence
The plaintiff tried very hard to give his evidence to the best of his abilities. He commenced his evidence by saying that he was nervous and when asked why he said 'I'm not really sure. I think probably people think I'm stupid or silly or something like that' (ts 129). One and half hours into his evidence the plaintiff asked who was speaking when there was an exchange between judge and counsel. It was the first time since he had commenced giving evidence that the plaintiff had been aware of the judge, having mistaken a court officer for the judge in light of his limited vision and his hearing impairment. When the plaintiff left the witness box in order to take a short break, he stumbled over the step as he was exiting. It is apparent that he had difficulties with his surroundings and in navigating his way through an unfamiliar environment.
The plaintiff gave a personal history that was consistent with the history given by other witnesses, however, he frankly says that he is unsure whether a lot of the information comes from what he has been told after the accident or from his own memory. His last clear memory, attributed by him to 2001, was of his sister's funeral which was a very traumatic memory because his sister was the victim of murder. The date of his sister's death is however noted by his brother Mr Paul Best as being in around 2003.
The plaintiff's next memory after the accident is being in hospital at the Shenton Park rehabilitation centre towards the end of his period as an inpatient. He notes with sadness and with guilt that he cannot remember his friends and family visiting him prior to this time and that he has no memory of his father being present with him at hospital in the months before his father died.
The plaintiff accepts that he cannot return to paid employment but he understands that the reason why he cannot return to work at Worsley Alumina is solely as a result of his vision impairment because he does not have a motor drivers license rather than as a result of the combination of vision impairment and cognitive impairment.
He feels embarrassed about the lumps and bumps on his head consistent with the skull removal and other surgery and he says that the lumps get sore and make a gritty noise that he can hear. He has a scar from the tracheostomy. He learnt that he was totally deaf in his right ear when he was at the Shenton Park campus. He accepts (because he has been told) that he had a slight hearing impairment prior to the accident however he has no independent recollection of this and there is no evidence that this impacted on his life in any way. The plaintiff notes that his left knee gives him some grief. His balance and his strength are poor.
The plaintiff does not challenge that prior to his accident he could work a 12‑hour shift at Worsley Alumina and then go on to socialise and carry out physical activities. He now has a daily 'nanna nap' at 3.00 pm and goes to bed at approximately 9.00 pm. He usually wakes at about 2.00 am and then experiences poor sleep until he rises at approximately 7.00 am to 7.30 am. His day will usually commence with breakfast of soup that he eats in his garage while waiting for his carer to arrive and while watching the television programme 'Sunrise'. When he had a computer he would enter data relevant to football while waiting for his carer or he would wait for his carer to bring the football information to him on a Monday morning. Under the supervision of his carer, the plaintiff pays household bills as soon as they arrive in the mail. He goes supermarket shopping on a regular basis and purchases items that fill approximately three shopping bags. He goes to the gym but he notes that he stopped going to the gym for about a year. He does not know why.
The plaintiff is aware that he learnt to cook simple meals independently such as spaghetti bolognaise and shepherd's pie when he was at Brightwater in rehabilitation, however, he no longer attempts to cook these dishes. He has difficulties with cooking such as dropping eggs down the side of the pan, and into the stove or cutting himself. He ate potatoes on a very regular basis until he was told that they were not the best food. He eats fruit and vegetables, simple sandwiches such as cheese and vegemite and he may have a boiled egg and salad in the evenings or, on occasion, leftovers from the fridge. He acknowledges that he is cautious with money but he says that he is not a spendthrift. However, he considers that ice coffee and milkshakes are luxuries and says 'I haven't had these luxuries for a long time' (ts 186).
Apart from Mr Hoesch, the plaintiff does not appear to have regular visitors. He states by way of explanation that Mr McKay and his other friends stopped visiting because of the distance they were required to travel and because they have wives and kids and work commitments.
The plaintiff speaks of having barbeques, however, on the one occasion that his neighbour came over to his home to join in with a barbeque the neighbour brought his own meat. The plaintiff has been to the neighbour's house three times over a period of 3 1/2 years for barbeques. The plaintiff recalls going fishing three or four times since his accident and going swimming on four or five occasions, however, evidence from friends, Ms Jordan and Mr Calgaret, does not support this.
The plaintiff enjoys working at the wildlife park in Bunbury. He gives evidence that both he and his voluntary supervisor Mr John Pugh had a lot of input into the performance of the old pond pump and that the old pond pump stopped working because of a part being worn. I accept the evidence of Mr Jackson from the wildlife park that in fact the old pump was broken by the plaintiff when he attempted to fix it without supervision.
The plaintiff also speaks in detail about the actions of a man called Chris at the wildlife park who used a chainsaw to cut up old wooden benches and stacked wheelbarrows with the wood requiring quite a few trips in order to clear the lengths of wood. I accept Mr Jackson's evidence that the benches were moved to a new location when they were replaced with aluminium ones and that the wooden benches were never cut up.
I accept without reservation that the work at the wildlife park is one of the highlights of the plaintiff's week. He says that what he enjoys most is 'probably getting out and doing a bit. Just interacting really. Just getting out of the house, socialising with people, interacting with them and learning. Learning what can be done and what not' (ts 168).
The plaintiff acknowledges that although he has been trained to catch the train from Bunbury to Perth he has been lost on arrival at Perth. Prior to his accident he did not get lost. The plaintiff cannot say why he has not been to visit his family in New South Wales for the last two Christmas holiday periods, however he notes that he has concerns about matters related to the court. The plaintiff has been able to mow his lawn, however, he clarifies in re‑examination that a friend mowed his back lawn being the larger area and that he has done the front. He keeps his laundry process simple by putting dirty clothes in one basket and taking clean clothes directly from a clean basket, however, he sometimes forgets that he has washing in the washing machine. He assesses that it is hard for his home to get dirty because he lives there by himself. He vacuums and mops however the carer also helps and he is aware that he misses areas when attempting these tasks alone.
The plaintiff remains keen on football. Despite this when discussing the football season in re‑examination he says that the season started in June. When questioned further he is able to work out that the season started earlier than that, in May, April/May. He says 'offhand I probably – I should know but … well perhaps if I had a bit more time and tried to work it out, I'd probably be able to give you a closer answer' (ts 219).
Despite the plaintiff's cognitive deficits he uses complex vocabulary referring to restrictions on his work at the wildlife park if the weather is 'inclement' and demonstrating knowledge about the 2011 floods in Queensland and north Western Australia impacting on the price of bananas. Consistent with the market at the time of his trial, the plaintiff was able to state that bananas were $13.98 per kilo. The plaintiff is also aware and able to comment upon the disaster in Fukushima, Japan.
The plaintiff's circumstances after the injuries
The plaintiff's family and friends who visited when he was at Sir Charles Gardiner Hospital were shocked at his appearance. Mr Hoesch describes crying when he first saw the plaintiff because tubes were hanging out of him and there was a bandage around his head where he had no skull. Mr Hoesch says that the plaintiff looked 'shocking, like a skeleton'. Mr McKay saw the plaintiff two days after the accident. He describes him as looking terrible and lifeless. The plaintiff's family and friends were unable to communicate with him for the whole of the time he was at Sir Charles Gardiner Hospital.
Ms Catherine Jordan who was the plaintiff's niece and next friend in these proceedings, learned that the plaintiff had had the accident in December 2004 when she was requested by Mr Paul Best to care for the plaintiff's parents who were her nan and pop because the parents had to travel from country New South Wales to Perth in order to be with the plaintiff. Ms Jordan settled the plaintiff's parents in Perth and she started weekly contact with the plaintiff. She would assist the plaintiff's parents by taking them shopping and to the hospital and she would sit with them when she had the time available. The plaintiff's family was advised that his condition was likely to be fatal. There were distressing set backs including a problem with the plaintiff's tracheotomy that required a return to ICU.
The plaintiff's parents initially visited for about four months and then returned to Cobar, New South Wales for about six weeks before returning to Western Australia for a further four months. The second time the plaintiff's parents visited the plaintiff's father became ill, requiring the father to return to New South Wales. His father passed away a few months later.
The plaintiff's mother returned to Perth after her husband's death. Ms Jordan kept visiting the plaintiff on a weekly basis and she understands that the plaintiff's mother visited him on a daily basis. Ms Jordan's commitment to the plaintiff started from the time when she was first notified about his accident. This commitment is selfless and commendable particularly given that the plaintiff is her uncle from her birth family rather than from her family of adoption. Further, at the time of the accident she had recently given birth to her first child, she had work commitments and, soon after the accident, she separated, thereby taking on the responsibility of being the main care giver for her child.
The plaintiff was able to communicate verbally approximately one month before he moved from the Shenton Park campus to the Brightwater facility at Marangaroo. Ms Jordan sadly notes that the plaintiff became more verbal after he became aware that his father had passed away.
When visiting the plaintiff, Ms Jordan would feed him, talk to him and assist him. Ms Jordan states that she continued with her commitment to the plaintiff because she loved him and because she believed that the contact would let him know that there was someone there who cared. She saw herself as being a representative of the family.
Weekly contact continued when the plaintiff moved to the Oats Street facility, however, the time she spent with the plaintiff increased from two or three hours per week to longer periods so that she could take him on outings and he could leave the facility. Ms Jordan commenced assisting the plaintiff with his administrative tasks. She notes that discussions could be and still can be quite slow and tedious, particularly if she is talking to the plaintiff about administrative type issues because the plaintiff is likely to get stuck on a certain point.
Ms Jordan also took over the construction of the plaintiff's house at Dalyellup as a result of a request by his mother who wanted to make sure that the plaintiff would be able to eventually move to the dream home that he had planned and contracted to build prior to the accident. The work Ms Jordan performed on behalf of the plaintiff also included liaising with his former employer in relation to his pay conditions, payment of all accounts, negotiations with the bank and negotiations and communications with government agencies and healthcare professionals. Ms Jordan's care and management of the plaintiff continues to be strong and emotionally and practically supportive, although more support is now given by telephone contact rather than face‑to‑face contact given that Ms Jordan lives in Perth and the plaintiff is in Dalyellup.
The plaintiff's many work colleagues and social friends visited him on a very regular basis during his period of hospitalisation and during his subsequent rehabilitation at the Brightwater facilities. Mr McKay visited every weekend and spent two solid weeks visiting the plaintiff in rehabilitation and Mr Hoesch together with Mr Greengrass, his brother and his brother's wife would go to Perth every weekend to see the plaintiff when the plaintiff was at Sir Charles Gardiner Hospital. Mr Hoesch continued to maintain contact every second weekend when the plaintiff moved to the Shenton Park campus. Mr Hoesch visited on one occasion only at Brightwater in Oats Street.
Mr Hoesch also assisted the plaintiff by moving him into the home in Dalyellup following discharge from Oats Street. The process took most of a weekend and an hour or so each day for the following week. Mr McKay also describes involving Mr Greengrass and others in packing the plaintiff's gear up and moving it to Dalyellup where he assisted Mr Hoesch. Mr Paul Best and his partner came to Western Australia specifically to assist the plaintiff and the plaintiff's friends to move the plaintiff from Oats Street to Dalyellup in February 2008.
Contact with family and friends after the move to Dalyellup
It is clear from the history provided in expert reports that given the number of visitors the plaintiff received while in hospital and in rehabilitation and the enthusiasm and commitment of friends and relatives to assist the plaintiff there was an expectation that the plaintiff would continue to receive ongoing support from family and friends once he had moved to his Dalyellup home.
The plaintiff was confident that he would be able to manage domestic and recreational activities with the support and encouragement of his friends, however, as a result of the plaintiff's significant brain injuries his behaviour and demeanour have made social interaction with him very difficult for those who had known him prior to the accident and who speak so highly of the qualities he had as a friend, mentor and colleague before he sustained the traumatic brain injury.
Mr McKay commenced visiting the plaintiff twice weekly after assisting to set up the plaintiff's house in Dalyellup. He says that others including his wife, Douglas Hall, Karl Hoesch, Nathan Carol, Brad Greengrass, Emma Jorgenson, 'Dave' and 'Hancey' would also visit. He describes how they would sit out in the garage of the Dalyellup home, having a few beers, smoking cigarettes, watching football, chatting and listening to music. Mr McKay suggested to the plaintiff that he go fishing with him, however, the plaintiff did not want to go even when Mr McKay bought a bigger boat. Mr McKay notes that the plaintiff then became very reclusive and never wanted to leave his home. Mr McKay describes how the plaintiff's responses to him were good to start with but that the plaintiff then started to drink too much alcohol requiring Mr McKay to suggest a reduction from full strength beer to light beer. Over the six to nine‑month period following the plaintiff's move to Dalyellup, the plaintiff became very aggressive and would start arguments even between friends for reasons that were unknown. Mr McKay says (ts 523):
I don't know why but he does … very aggressive, very reclusive. He doesn't leave home at all. I have invited him around for tea many a time and he will not leave his house.
Mr McKay describes the plaintiff as being angry, being always right and never wrong. Everyone is stupid because they do not agree with what the plaintiff is saying (ts 523). Mr McKay last had contact with the plaintiff in December 2009. On that occasion the plaintiff went 'absolutely ballistic' because of an oil leak that, unknown to Mr McKay, was coming from Mr McKay's car and caused a mark on the plaintiff's driveway. He describes the plaintiff swearing at him, being abusive and charging him money to clean the driveway. Mr McKay says that after this point it became too hard 'to see a bloke who used to be the way he was the way he is now, and the arguments, the aggression, I don't need that in my life' (ts 524).
Mr Hoesch is the only member of the plaintiff's group of friends from prior to the accident who has continued to visit the plaintiff on a regular basis. Mr Hoesch has tried very hard to remain a close and loyal friend by committing to an ongoing visit every Friday, however Mr Hoesch describes with frustration how the plaintiff does not want to go out on a Friday and how it is only if he whinges that he will receive even a party pie to eat during the course of the Friday night visit. The two men will mainly spend the Friday afternoon/evening from about 3.00 pm until 10.00 pm or 11.00 pm in the plaintiff's garage. They will watch the football and argue which, Mr Hoesch says, is something that the plaintiff would never have done before. Mr Hoesch describes the arguments as being ridiculous and just 'hen pecking' (ts 290). Mr Hoesch is clearly distressed by the changes in the plaintiff and candidly and with heartfelt emotion describes the plaintiff now as (ts 290):
He's fragile looking, unstable, meaning physical … he's moody, just hen pecks for ridiculous things … he's not the same bloke like as I knew him beforehand, like, to be quite honest, he's like a 'slowy' and he doesn't recognise it as yet, you know. I've nearly got tears in my eyes just saying it, but yeah he changed, you know.
As a 41‑year‑old unemployed single man Mr Hoesch is clearly frustrated by the prospect of spending every Friday night in a garage, having to pay for a taxi fare, buy his own beer and, on occasion, food when he could use the time and the money to take a girl out for a meal in Bunbury and socialise. Sadly, it may not be in Mr Hoesch's best interests to continue the weekly Friday night contact. I consider that Mr Hoesch is likely to remain loyal to the plaintiff but that he will substantially reduce the contact that he has with the plaintiff in the future.
Mr Hoesch has also described with sadness that the plaintiff became involved in an argument at Mr Hoesch's family Christmas function. As a result, the plaintiff is no longer welcome at the Hoesch family functions, however he is welcome to visit Mr Hoesch's mother who cooks him occasional meals and provides social support.
The plaintiff's neighbour also became part of the plaintiff's social group after the plaintiff's return to Dalyellup. On occasion the neighbour and his brother have come to the plaintiff's home, however the contact appears to be sporadic. Although the neighbour retains contact with the plaintiff, there is no suggestion on the evidence that this is a regular commitment or that the neighbour takes any active responsibility for the plaintiff.
Mr Paul Best arranged for the plaintiff to stay at the family home in Woodburne, New South Wales for Christmas in 2008. He says that he observed that the plaintiff was a lot slower and more cautious and that he hung around the shed rather than taking part in functions such as family barbeques on the back lawn. Mr Paul Best states that the plaintiff was not the outgoing type of bloke that he had been before and he just took things slowly. He describes how the plaintiff sat around and made everyone else go to him rather than the other way around.
Although the plaintiff has been invited back to be with his family for the last two Christmases, he has chosen not to go to New South Wales. Mr Paul Best had indicated that the family would assist financially, however, he gained the impression that the plaintiff did not want to come. Mr Paul Best notes that his brother has lost his sense of humour prior to the trial however there was a degree of humour at Christmas 2008. He is aware that the plaintiff has difficulty hearing as a result of deafness in his right ear. He also notes that the plaintiff appears disengaged when shopping or going on an outing.
Ms Jordan met a number of the plaintiff's friends when they visited him in hospital and at rehabilitation. She has accompanied him to a friend's house where a group had gathered following his return to Dalyellup. On a later date Ms Jordan drove the plaintiff past the same group of friends and the plaintiff commented that the group was at a friend's home. She suggested that they call in for a social visit, however, the plaintiff did not want to do this. Ms Jordan was under the belief that the plaintiff's neighbour provided greater assistance to him and that his friends maintained greater social contact than they actually have. It was only in preparation for trial that she became aware of the extent of the plaintiff's isolation.
Day to day living
Since moving to Dalyellup the plaintiff has had a number of carers provided through Baptistcare. Mr Calgaret, who is employed through Baptistcare, was the plaintiff's carer for approximately 12 months ending in March 2011. When Mr Calgaret commenced he worked for four days per week however this was reduced to three days because of the plaintiff's work at the Big Swamp Wildlife Park, being from 9.00 am or 10.00 am until 3.00 pm for a period of 15 to 18 hours per week. Mr Calgaret understood that his position was to guide the plaintiff and to help him. He was to support the plaintiff in anything that the plaintiff needed to do that he could not do himself.
Mr Calgaret noted a rigidity in the plaintiff and a reluctance in him to vary his routine. The plaintiff would usually be in his garage when Mr Calgaret arrived in the morning. The garage is an area at the side of the house with roller doors that contains an old lounge suite, a television on the wall, a stereo, a bar fridge and various tools and items of handyman and garden equipment. On Mondays, Mr Calgaret would assist the plaintiff to enter data related to the football onto the plaintiff's computer however the plaintiff's computer broke down and although his neighbour gave him another one (their old one), the replacement computer was not sophisticated and did not have a programme that would allow data to be entered in the same format. Data entry by the plaintiff then ceased.
The plaintiff had usually completed his housework by the time Mr Calgaret arrived. On occasion there would be dirt still on the floor where it had been missed in sweeping or mopping and cobweb marks on the walls. Mr Calgaret does not suggest that the plaintiff needs any assistance in grooming or dressing because the plaintiff is proficient in these tasks. Mr Calgaret describes being frustrated because the plaintiff would not engage in any meaningful activity until the postman had arrived for the day or until the plaintiff had received an expected telephone call from his niece, Ms Jordan. It is for this reason that Mr Calgaret started at 10.00 am rather than 9.00 am because the mail delivery would arrive at 10.00 am at the earliest. On occasion the mail would be as late as 1.30 pm thereby delaying any outings until the early afternoon. If the mail delivery included any accounts to be paid then the plaintiff would immediately want to go to Bunbury in order to make the payment.
Although Mr Calgaret accompanied the plaintiff to the shops regularly, the plaintiff was independent in pushing his trolley and would usually choose his own items from a list he wrote in his diary. On occasion due to vision impairment the plaintiff would ask Mr Calgaret to find an item or would seek Mr Calgaret's advice on an item. Mr Calgaret considers that the plaintiff was definitely too picky and too fixed in his routine in relation to matters such as shopping. He gives the example that if a brand of party pies was not available, then the plaintiff would become fixated on that particular brand and would not want to choose a substitute. Mr Calgaret considers that this was more than just a matter of preference or taste.
The plaintiff ate soup for almost every meal. Mr Calgaret notes that usually it was tinned soup but on two occasions over the year he saw the plaintiff cut up vegetables to put in soup. However, even when the vegetables were cut up a tin of soup was added to the mix. The plaintiff would also cook up vegetables and then store them in the fridge for a few days. On occasion the vegetables would start to smell.
Mr Calgaret showed the plaintiff how to cook a roast chicken in a bag and, although other chickens were purchased, he did not observe the plaintiff eating or cooking chicken on any other occasion. The plaintiff kept bread in the freezer and would make himself a sandwich. This was observed by Mr Calgaret on a couple of occasions.
Ms Jordan raises concerns about the plaintiff's diet. Although she and her son have only stayed with the plaintiff in Dalyellup on a few occasions, she notes that his kitchen fridge and his bar fridge were full of beer and soft drink and did not contain food. Mr Calgaret confirms that there was Hahn light beer in both fridges together with soft drink, however, he said that the kitchen fridge also contained raw vegetables, a container of cooked vegetables and milk. Mr Calgaret did not see any jars or condiments of the type that are usually found in a domestic fridge.
Ms Jordan also notes that on occasions when the plaintiff stayed with her in Perth in order to attend appointments he remarked on how lavish the meals that she prepared were although these meals were simple dishes of fish or meat and salad. She recalls that when Chinese takeaway food was purchased for the plaintiff to share he would eat very large quantities that were over and above the quantity he would require. I accept that his enthusiasm for Chinese takeaway food is likely to arise from the frugal and monotonous diet he usually consumes. When the plaintiff stays in Perth with Ms Jordan he purchases beer. She notes with concern that on occasion he drinks about a dozen beers over a couple of hours before falling asleep.
Although the plaintiff enjoys a warming bowl of soup for breakfast, the items that are in his kitchen fridge are very basic and provide little variety being mainly vegetables. It may be that the plaintiff is drinking too much Hahn light beer, however I accept that he may also keep beers and soft drink in his fridge in the hope that others may call in for a visit and he would therefore be able to offer them a drink. This is consistent with Ms Jordan's evidence that he offers to buy beer when he stays with her and with the plaintiff's evidence that socially he would always pull his weight and not be a bludger. There is no evidence about the number of bottles or cans of beer that have been bought or consumed that allows me to assess the quantity consumed by the plaintiff on a regular basis.
During the course of care Mr Calgaret offered to take the plaintiff fishing and swimming however the plaintiff would not go. Mr Calgaret describes it being a waste of time trying to encourage the plaintiff to go fishing or swimming because the plaintiff would want to wait at home for a telephone call and would be happy doing that. Mr Calgaret would not be able to get the plaintiff to change his mind.
Ms Jordan also attempted to take the plaintiff fishing on one occasion to a non-threatening environment at Point Walter when only she and her son were present. The plaintiff did not want to take part and told Ms Jordan that this was because he did not want to show them up, referring to his fishing skills, however in evidence the plaintiff says that he is keen to go fishing and swimming and keen to go on outings to places of natural or historical interest.
Mr Calgaret notes that the plaintiff loves his garden and that he is prepared to spend money on garden products. The plaintiff attempts to weed and to mow his lawn, however, he misses patches and is limited in his ability to carry out gardening tasks due to his impaired vision.
The plaintiff is unsure why Mr Calgaret stopped being his carer, however he understands it is in relation to comments he made to Mr Calgaret in respect of a gym routine. Mr Calgaret confirms that the plaintiff mistakenly believed that Mr Calgaret had sworn at him and became fixated on this. The plaintiff also misinterpreted Mr Calgaret's suggestion that the plaintiff vary his gym routine as being an attempt by Mr Calgaret to override the advice of physiotherapists or other health professionals. A hostile situation developed between Mr Calgaret and the plaintiff as a result of these misunderstandings and, consistent with the behaviour of a person with a severe brain injury, the plaintiff became fixated on the issues.
Although the plaintiff is able to meet his own personal hygiene needs and a number of his cleaning needs without supervision, Ms Jordan refers to occasions when his feet have smelt and the plaintiff has been reluctant to remove his shoes. I consider that this is management of care issue. The plaintiff does not require day to day assistance in respect of personal care.
Given the dangers posed by some aspects of cleaning and the limitations on the plaintiff due to his impaired vision, the plaintiff needs assistance with whipper‑snippering, cutting back plants in the garden, gutter cleaning and some lawn mowing. He also requires assistance and supervision in relation to some aspects of domestic cleaning.
Big Swamp Wildlife Park
The plaintiff was referred for unpaid work to the Big Swamp Wildlife Park approximately two years ago through the Commonwealth Rehabilitation Scheme. Presently he attends on Tuesday and Wednesday of every week between 10.00 am until 12.00 pm and he has been specifically trained to catch a bus from Dalyellup to the wildlife park and back on these days. Mr Jackson who is the facilities maintenance officer and volunteer team leader at the wildlife park gives evidence that the plaintiff requires constant supervision and does a lot of talking, mainly to the volunteers, during the course of his work period. He describes the plaintiff as being a likeable fellow who attempts to tell a joke but who is not very successful. Mr Jackson notes that the plaintiff is welcome to come to the park. At ts 253 he says:
He is welcome to come to the park for two hours. To me, my role is – I encourage people with disabilities, injuries, to actually come and do volunteer work. To get out of the house and get – in that depressed state just giving them something to do. So if he goes home at 12 o'clock and he feels as though he's achieved something I've done my job. I'm pretty happy with that. Whether he picks up one stick of wood or gives us all the shits for a couple of hours. But at least he's – he's out and about and being – being social. Which I think is more of a thing for Mark, its more of a social aspect for him to converse with men.
Mr Jackson describes the plaintiff as having a very limited ability to participate in maintenance and upkeep tasks. He notes that although the plaintiff is punctual he will, on occasion, turn up on the wrong day or he will come to the park to advise that he is not available to work. Sometimes he works only for 1 1/2 hours or less. Mr Jackson describes that the plaintiff will be 'pretty well knackered' by then (ts 252).
Mr Jackson is a straightforward man who speaks using the vernacular. He describes the plaintiff as 'talking a lot of crap' and 'giving us the shits' (ts 252), however he considers the plaintiff to be a good bloke.
Although Mr Jackson has completed a Certificate III in Aged Care and Disability Services, he does not have specific skills relating to the care of people with traumatic brain injuries, nor has he been provided with any background or briefing in relation to the plaintiff's condition. Mr Jackson states that he takes a volunteer as he finds him and that he knows nothing about the volunteer's life outside of the wildlife park unless the information is provided. He does not know anything of the plaintiff's circumstances.
Counsel for the defendant submits that Mr Jackson's evidence should not be accepted because of the derogatory terms that he uses to describe the plaintiff's performance at the workplace and because of the lack of documentary evidence in relation to the hours worked, however I do not accept that these are reasons to disregard Mr Jackson's evidence. I consider that the words used by Mr Jackson to describe the plaintiff and the frustration that the plaintiff causes to others in the workplace are a genuine response from a man who is dealing with a volunteer with a traumatic brain injury when he has no understanding of the condition. In this sense Mr Jackson is no different from the plaintiff's former friends who express frustration in relation to the plaintiff's conduct, in part out of ignorance about the plaintiff's condition.
I accept that when he is at the wildlife park the plaintiff does require full‑time supervision that is usually provided by a volunteer named Mr Pugh and that Mr Jackson and other volunteers do experience feelings of frustration given the plaintiff's conduct.
Mr Carl Fitzpatrick is a thoughtful and considerate man who is a volunteer at the wildlife park and who knew the plaintiff prior to his accident. He describes the plaintiff as being much slower in his movements since the accident and he states that he can sort of see the cogs turning over when the plaintiff is thinking about an action, whether it is a simple action or not (ts 303). Mr Fitzpatrick says that the plaintiff's movement is a shuffle rather than a clean movement and he is aware that the plaintiff's hearing is poor. The plaintiff's appearance is a bit of a shock physically and Mr Fitzpatrick describes the plaintiff's eyes as looking sort of crossed and looking away and the plaintiff's whole demeanour as looking hunched and tense. Mr Fitzpatrick describes the difference in the plaintiff as being that he now looks a bit 'thunderbird‑ish' in relation to his walking action and that he just does not look right.
Mr Fitzpatrick does not consider that the plaintiff upsets others at the wildlife park directly or indirectly because the plaintiff does not have a bad bone in his body. Mr Fitzpatrick does not accept that the plaintiff would give everyone 'the shits' or 'talk a lot of crap' (ts 305), being the phrases used by Mr Jackson to describe the response of other volunteers to the actions of the plaintiff.
Although there is no evidence that Mr Fitzpatrick has expertise or training in relation to traumatic brain injuries, he is a more intelligent and thoughtful person than Mr Jackson. Mr Fitzpatrick is aware of the plaintiff's disability and he is able to attribute the plaintiff's conduct to his injury. For this reason Mr Fitzpatrick describes the plaintiff as being a bit sort of slow on the conversational arc, rather than describing the plaintiff as exhibiting conduct that upsets others. I also note that Mr Fitzpatrick does not work as a volunteer on a full‑time basis. His contact with the plaintiff is limited generally to interactions on a Wednesday when he might offer to give the plaintiff a lift home. Accordingly, I accept the evidence of both Mr Jackson and Mr Fitzpatrick in relation to the plaintiff's conduct at voluntary work.
What is very clear from the evidence is that the plaintiff enjoys his work at the wildlife park very much and feels pride and satisfaction from his employment and from the social interaction. The employment at the wildlife park is vital for the plaintiff. If for any reason it was not possible for him to continue at the wildlife park than alternative unpaid employment placing the plaintiff with a group of men in a partially physical role would be appropriate. I note however that there is no suggestion that the wildlife park position will not remain open for the plaintiff in the future.
The plaintiff's transportation
The plaintiff accepts that he is unable to obtain a motor driver's license because of his visual impairment, however even if the plaintiff did not suffer from visual loss, his brain injury would preclude him from being a competent driver because he is not able to be flexible or to anticipate the actions of others.
If trained the plaintiff, can follow a rigid routine. The plaintiff is able to catch the bus to and from the wildlife park in Bunbury, however the plaintiff cannot transfer these skills to catch other buses to and from Bunbury. He has been trained to catch the train from Bunbury to Perth, however on occasion, when attending medical appointments in Perth, he has failed to meet Ms Jordan, becoming lost and not recognising the regular meeting place. The plaintiff says that this has happened more than once.
Although he has always been a punctual person, the plaintiff is now unable to fill in time appropriately between the time when his transport arrives at a particular location and the time set for an appointment. I accept Ms Jordan's assessment that this results in the plaintiff being inappropriately early for appointments.
Mr Paul Best confirms that the plaintiff flew from Perth to country New South Wales and back for Christmas 2008. A change of flight was required in Sydney. Airline travel requires flexibility and the ability to adapt and change one's plans. Given the delays in flights, the rigid security requirements and the complex nature of travel transfers, it was, in my view, more good luck than good judgment that the trip to New South Wales was successful and that the plaintiff reached his destination.
The occasions when the plaintiff can safely travel independently are restricted to trips in taxis when the start and end points are known by the plaintiff and to the bus and train routes for which he has received specific training.
Medical evidence
Two very experienced consultant physicians in rehabilitation medicine, Dr Buckley on behalf of the plaintiff and Dr Burke on behalf of the defendant give evidence about the plaintiff's condition and future needs.
Both were provided with the plaintiff's medical history and with other expert reports prepared for his trial. The eminent neurosurgeon Dr Vaughan's summary of the plaintiff's injury in his report (exhibit 41) as being 'extensive skull fracturing with then brain damage through the brain, the temporal and frontal regions, the so‑called contracoup injury and (that) a part of an horrific general head brain injury' and his further description of 'massive skull fracturing with contracoup lesioning … leading to a total brain injury usually non‑recoverable and often fatal' is, according to Dr Buckley, accurate (ts 464) and is not challenged by Dr Burke.
Dr Buckley notes that the plaintiff was not transferred to rehabilitation until after a period of nearly four months and that he remained incontinent and with confusion. Dr Buckley considers incontinence to be an almost certain indicator of continuing post‑traumatic amnesia. Progressive post‑traumatic amnesia testing was either not carried out or was not recorded during the plaintiff's period in hospital and in rehabilitation. One test is however noted. It is dated 26 July 2005 and has a post‑traumatic amnesia score of 3/7 on the demographic data in relation to location. Dr Buckley says that a score of 3/7 is consistent with the plaintiff suffering post‑traumatic amnesia on the date of testing being seven months after the date of the accident. Dr Buckley adopts the academic studies of Marosszeky et al (the PTA protocol; Guidelines for using the Westmead Post‑Traumatic Amnesia Scale (1998) page 16; Wild & Woolley Publishers) and asserts that the length of post‑traumatic amnesia correlates with the severity of the brain injury suffered.
As a result of testing carried out by Dr Buckley, including tests created by Dr Buckley, he assesses the plaintiff's brain injury as being in the extremely severe range with such severe deficits and states that the plaintiff is best described as having traumatic dementia, a description that he accepts is not popular with all rehabilitation physicians.
The tests that Dr Buckley carried out on the plaintiff in relation to mental state examination relevant to his diagnosis of traumatic dementia are the subject of significant cross‑examination. Dr Buckley noted in his report that in relation to the test results the plaintiff was not able to identify the day on which the tests occurred, however he could identify the calendar month and the year. When the plaintiff had been sitting in interview for a period of 70 minutes without access to a clock he was asked to estimate how long the time period had been and he estimated 40 minutes. He knew that the President of the United States was a 'negro man' but could not recall his name without prompting. He was able to identify Mr Obama's family, however he did not know the ages of Mr Obama's daughters. He knew that the economy was not good and he had some general opinions regarding the economy. He was able to score five out of five for testing relating to reverse spelling and five out of five on serial 7 deduction testing. His explanation of the meanings of proverbs was sound.
Dr Buckley considers that the errors the plaintiff made in this testing were sufficient, together with other material and assessment, to support his diagnosis.
Dr Burke does not favour the use of the term 'traumatic dementia' nor does he agree with Dr Buckley's diagnosis of post‑traumatic amnesia and the assessment of the brain injury as being in the extremely severe range. Dr Burke's assessment of the plaintiff's injury is of a severe brain injury. Specifically at page 7 of his report dated 4 April 2007 Dr Burke said:
I've seen no evidence that a period of post‑traumatic amnesia was recorded which is probably the most useful prognostic sign as to the severity of the brain injury but given the description of his CT brain scan findings and his very slow and prolonged recovery time I would be satisfied that his injury was a severe brain injury in the absence of any information about the length of post‑traumatic amnesia.
Dr Burke clarifies in evidence that the plaintiff has indeed suffered a severe brain injury but that he does not use the term 'extremely severe' to describe the injury because he considers the term 'severe' without further embellishment describes the serious nature of the injury. He also considers that the use of the term dementia that is favoured by Dr Buckley should be restricted to patients with Alzheimer's type dementia and considers it to be an unhelpful term in relation to a severe brain injury. He does not agree that the plaintiff is not orientated in relation to time and place.
Although the two experienced physicians disagree in relation to the labelling of the plaintiff as suffering from post‑traumatic dementia, they both agree that the plaintiff sustained a severe brain injury that has left him with significant deficits involving memory and concentration and that he has difficulties with planning, organisation and problem solving. It is not challenged that the period of meaningful rehabilitation was for the first two years after the plaintiff sustained the injury and that the plaintiff now requires skilled support so that he is able to function as well as he can in the community. It is recognised that this must be provided by a supportive team trained in relation to the needs of those suffering from traumatic brain injury. It is further recognised by both doctors that if this does not occur then the plaintiff is likely to lose the gains he made in early rehabilitation. Dr Burke stated in his report (exhibit 27, page 3):
In the case of Mr Best I would agree that he is well and truly beyond the community based rehabilitation phase at this stage (being 26 August 2011), this having been probably completed at the time of my previous assessment of Mr Best when I reviewed him for the second time with his occupational therapist Janet Lawson (on 20 March 2009). That is not to say that there should not be some continuing involvement of an occupational therapist to supervise his progress in the community and to support the support workers or carers as well as the occasional reviews, if required by physiotherapists and social or speech pathologists, not hugely in a treating sense but more in a review role, again, working in conjunction with the patient's carers. This is not to deny that there will be an occasional need for short verse? of further physiotherapy and perhaps speech therapy and certainly there will be a need for intervention from time to time by an occupational therapist with respect perhaps to upgrading community skills, for example with reviewing abilities to drive or work, or perhaps the ability to move from one form of accommodation to another, as well as regularly reviewing and recommending equipment needs.
I would agree that an ongoing case manager role is vital to these people on a long‑term basis, but the frequency of involvement by case manager will obviously decrease over time, and the case manager's role would be to act as a supervisor of the patient's progress in the community and to liaise as required with other health professionals, including doctors, the funding body, but acting on behalf of the patient and family.
In evidence Dr Burke accepts that the plaintiff's case management appears to have broken down. Dr Burke and Dr Buckley agree that ideally a case management team should be comprised of a rehabilitation physician, a case manager, a coordinator and a number of case workers to ensure that dependency on one is not too great in the event that a particular case worker is no longer available to work with the plaintiff. Given the lack of supervision of the support workers in the plaintiff's case Dr Burke agrees that a stronger management role is required. Both physicians agree that the plaintiff should not travel on his own unless he has been trained on a particular route and that it would be inappropriate for the plaintiff to attempt air travel on his own in the future. Both Dr Burke and Dr Buckley agree that the plaintiff is vulnerable to exploitation and requires qualified care to ensure that he is not exploited.
There is further agreement between Dr Burke and Dr Buckley in the assessment that the plaintiff ought not to be housebound on weekends. The plaintiff is unlikely to form new friends and neither doctor is surprised that the plaintiff's group of friends has shrunk to a reliance on mainly one person.
Although Dr Burke considers Ms Williams' occupational therapy assessment of 'meaningful activity' to be subjective he accepts that fatigue could contribute to a reduction in the plaintiff's cognitive functions. Dr Burke agrees in general terms with the proposition that in order to provide the plaintiff with greater opportunities for leisure and social activities additional care hours may be required. However apart from agreeing with the proposition that six hours of activity per day is probably the plaintiff's limit given his limited energy, Dr Burke does not recommend a particular number of hours per week that would be appropriate to cover the plaintiff's needs. Dr Burke notes that given the breakdown of the plaintiff's case management it is difficult to precisely assess the plaintiff's current and future needs in relation to the provision of care.
Neither Dr Buckley nor Dr Burke is surprised that the plaintiff is resistant to trying new activities and reluctant to embrace change and both consider the plaintiff's desire to go on outings yet his failure to take up opportunities to be consistent with the nature of his brain injury. Dr Buckley describes that it is common for a person with the plaintiff's disabilities to want to stay at home rather than go out and try new activities because the lowest common denominator, being the least active position, is the one that is 'right now just today most comfortable' (ts 469). The plaintiff requires a carer of sufficient skill and with sufficient education directed at managing a person with traumatic brain injury to assist him by gently but firmly encouraging him to actually do the activities suggested. This is a slow process that takes time even when implemented by a skilled and trained carer.
Dr Buckley describes the plaintiff's failure to take up exercise at the gym again after he dropped out for a while and his resistance to go fishing and swimming as being consistent with his impairment. Similarly, the plaintiff's attendance at the wildlife park on occasion just to advise Mr Jackson that he would be unable to attend is consistent with the unpredictable behaviours of people with the type of brain injury suffered by the plaintiff.
Dr Buckley considers that a severely disabled person such as the plaintiff can only receive 'too much care' if that care is provided inappropriately. If skilled carers provide and introduce activities consistent with the plaintiff's brain injuries then there is no reason why he cannot have a quality of life that is more like the life he led prior to the accident. Dr Buckley recommends activities which are mentally stimulating because a lack of mental stimulation leads to depression and other psychological problems within a brain injured person.
Dr Buckley considers that the plaintiff requires two hours of housekeeping per day, being 14 hours per week, and four hours of activities five days per week, being 20 hours each week. He considers that this regime best mirrors the 40‑hour working week and the activities that the plaintiff would have undertaken had he not received a severe brain injury.
Dr Buckley proposes that the housekeeper who attends for two hours each morning assists the plaintiff with personal hygiene, domestic hygiene and meals and that the plaintiff has four hours a day of activities until approximately 2.00 pm or 3.00 pm when he would have a two‑hour rest. Although alone at home in the afternoon, the morning carer would have assisted him with an exact plan as to what to have for dinner, how to prepare it and where it was so that the plaintiff would be able to care for himself after his rest period. Alternatively, Dr Buckley suggests that the two hours of housekeeping could be rescheduled so that the time is divided with a period in the morning and a period in the evening.
Dr Burke does not see any reason why a housekeeper would be required to perform domestic tasks nor why a registered nurse would be required to provide the plaintiff's care. Dr Burke notes with concern that the reports prepared by Ms Van Gronigan and Dr Buckley appear to be pro forma documents. He has had access to similar documents before in relation to other patients who have been assessed by Ms Van Gronigan and by Dr Buckley and says that the current reports are from the same template.
Dr Burke considers that case management can adequately be performed by a nurse, social worker or occupational therapist because there is no formal training for case management. A registered nurse would only be required if a patient had day‑to‑day physical needs that required nursing assistance such as being a paraplegic, having to use a catheter or being a diabetic.
Dr Burke agrees that the plaintiff requires some assistance with heavy housework and gardening. Dr Burke also agrees that the hours of care provided by a skilled and trained carer should include the possibility of a weekend outing or activity. I prefer the evidence of Dr Burke and accept that four hours per week of housekeeping duties is appropriate together with an allowance for heavy cleaning and gardening. The hours of care should be extended to include a weekend component.
Although Dr Burke agrees that the current care appears to be inappropriate he cannot assess the precise number of hours of care required. I find that his evidence is consistent with a trained carer patiently helping the plaintiff on an almost daily basis. I accept, doing the best I can and deducting the days when the plaintiff is performing voluntary work that this is for approximately six hours a day.
The plaintiff needs to see both a general practitioner and a neurologist (in light of the possibility of seizures given the unpredictability of the plaintiff's medical condition). The need for physiotherapy and occupational therapy are recognised by both Dr Buckley and Dr Burke as being medical services required by the plaintiff both now and in the future.
The plaintiff's case management
Ms Roberts of Network Case Management Services is an experienced case manager who is a registered nurse and who has a degree in social work. Ms Roberts has had an ongoing role in the plaintiff's care and management for a period of six years. She is the only healthcare professional who has had extensive dealings with the plaintiff, his family, friends and medical team from the time when he was an in‑patient at Shenton Park Hospital through until the date of trial. Ms Roberts drafted care plans in relation to the plaintiff's transition from Shenton Park rehabilitation hospital to Brightwater Marangaroo and from Brightwater Marangaroo to Brightwater Oats Street. She also drafted the care plan relevant to the plaintiff's move to Dalyellup. I note that although the care plan drafted for Oats Street related to a period of active rehabilitation and cannot therefore be compared with the plaintiff's current and future needs, Ms Roberts included an additional four hours per day of care as being required seven days per week over and above his structured rehabilitation to allow the plaintiff the opportunity to take part in daily recreational activities.
Ms Roberts initially considered 12 hours of daily supported care to be appropriate for the plaintiff on his return to Dalyellup and she noted that he had made an amazing recovery to be able to perform as well as he now does with significantly less care. A draft plan including 12 hours of care per day relevant to Queensland or New South Wales was also prepared in case the plaintiff chose to move in order to be closer to his extended family however due to the very limited services available for traumatic brain injured people in country areas this option was not considered to be the best option.
Ms Roberts assesses that the plaintiff has high level social skills. As a result of his social skills and his capacity to cover up for his deficits the deficits are not easily observable except by people who are experienced in working with individuals with acquired brain injuries.
Ms Roberts was concerned about the plaintiff's lack of insight prior to his return to the Bunbury area that he would be returning to work at Worsley Alumina and that there would be no problems. The plaintiff did not have any understanding that he had deficits and he still has very limited understanding of his condition.
Ms Roberts assesses the plaintiff as being highly vulnerable and this vulnerability has been demonstrated throughout her involvement with him because he does not have the capacity to make decisions or to follow through on actions or to engage in or execute planning or process.
Ms Roberts assesses that the carers needed by the plaintiff must be properly trained in assisting people with traumatic brain injuries. If not trained the carer would not be able to get the best out of the plaintiff. She notes that a number of carers have been allocated to the plaintiff over the past 3 1/2 years and questions in hindsight the appropriateness of the carers given that one carer attempted to move in with the plaintiff and another carer left the plaintiff on his own in the gym indicating a fundamental misunderstanding of the carer's role. She notes the plaintiff's increased isolation and inactivity.
A carer for the plaintiff needs to understand the plaintiff's tendency to confabulate and needs to ensure that the plaintiff carries out his own housework with a level of encouragement and with sufficient assistance because of the plaintiff's poor vision and balance. Assistance needs to be extended to activities that require vision such as heavy gardening and mowing the lawn. The carer needs to encourage the plaintiff to carry out activities for himself for reasons of self‑worth.
Ms Roberts assesses that the issue of care relates to both quality and quantity. The quality must be managed by the case manager on a weekly, fortnightly or monthly basis with the coordinator communicating with the carer on a weekly basis at a minimum. Although the carer should be trained in the very specific needs and circumstances of a patient with a traumatic brain injury, no two brain injured people are alike so it is important that the case plan is tailored specifically for the plaintiff.
Ms Roberts assesses that the plaintiff would benefit from an additional four hours per week with an activities coordinator or personal carer so that he could have a recreational outing on the weekend. The service required on the other days is consistent with 20 hours care being six hours daily on, three days with an additional two hours or alternatively four hours per day five days per week. Case management requires four hours per month. Ms Roberts adopts Dr Buckley's recommendation of eight hours per month for the first six months of any significant new arrangement, say every five years, and for four hours per month thereafter. Given the breakdown in case management and the lack of appropriate case managers in the Dalyellup area although four hours per month may be excessive in some cases it is an appropriate period for the plaintiff.
Ms Roberts also adopts Ms Van Gronigan's assessment from her report dated 13 September 2011 (exhibit 34.1) that 14 hours domestic or housekeeper home help per week including lawn mowing, heavy cleaning services, and spring or seasonal services would meet the plaintiff's needs. However I consider that this period recommended by Ms Van Gronigan is not supported by Ms Roberts evidence in light of Ms Roberts' assessment that the plaintiff should continue to carry out domestic and garden duties when he can provided that he is supervised. I consider that Ms Roberts' assessment is more consistent with a period of four hours per week housekeeping and additional periods for heavy cleaning and garden maintenance.
Ms Roberts confirms the need for the plaintiff to continue attending the gym. She does not believe that there is a cut‑off age in relation to the benefits from gym attendance and sees exercise as being a life long commitment for the plaintiff. Ms Roberts confirms that the plaintiff requires taxi vouchers because he does not have the capacity to use public transport unless he has been trained for an established route. I note that she does not refer to the plaintiff needing to have his own car.
Ms Roberts notes that the Commonwealth Rehabilitation Service charged $149.10 per hour (a total of $3,250) in relation to the Big Swamp Wildlife placement. Although there is no suggestion that the plaintiff will cease attending the wildlife park, the importance of voluntary work to the plaintiff is recognised by Ms Roberts. She agrees with Ms Van Gronigan that the sum of $5,000 for a further once only placement allowance would be appropriate because the sum of $5,000 would only guarantee one additional placement. At best it may provide two.
Baptistcare coordinator – Ms Gunson
Ms Gunson was assigned by Baptistcare to be the plaintiff's coordinator and actively undertook the role from 20 August 2011. She notes that she had difficulty placing staff with the plaintiff and that two young support workers stayed for only approximately six weeks each, the second leaving in a state of distress. Neither of the carers had specific training in assisting people with traumatic brain injuries.
Ms Gunson had provided care assistance to the plaintiff for a couple of hours on one occasion when his regular carer did not turn up. She notes that the plaintiff was put out because she could not provide the scheduled six hours of care, however he could not actually tell her what it was that he needed from the six hours of support.
I find that the plaintiff's response in being unable to tell Ms Gunson how he allocated his time is consistent with having a traumatic brain injury. His inability to articulate how he considers six hours should be spent is not evidence in support of the submission that he should receive any less than six hours of trained care daily.
Ms Gunson confirms that she contacted Ms Roberts, the case manager, just prior to trial. It is clear that the plaintiff's care had gone off the rails and that Ms Gunson as coordinator, Ms Roberts as case manager and untrained carers were not adequately providing services for the plaintiff. Ms Gunson's evidence is of limited assistance in relation to an assessment of how much support the plaintiff needs because it is apparent that the plaintiff needs qualified carers and qualified carers are difficult to attract to the Bunbury area. Accordingly, more aggressive coordination and case management is required.
Ms Gunson's evidence is that a carer is paid 75 cents per km for driving the plaintiff during the period of care. I accept that a charge of $45 per hour applies to care provided on the weekdays and $52 per hour applies in respect of weekend hourly care.
Dr Collins, cognitive neuropsychologist
Dr Collins is a highly qualified cognitive neuropsychologist who has worked in private practice and as an academic.
She assessed the plaintiff cognitively and psychologically in March 2011 and provided a detailed, accurate and thoughtful report of 19 pages setting out a summary of reports relevant to the assessment, the plaintiff's history, current concerns, presentation and affect. She has also included test results and assessment of memory and learning, executive function, behavioural assessment, an emotional state summary and conclusions.
On assessment using the Wechsler Adult Intelligence Scale, 4th ed (WAIS‑IV) Dr Collins noted that the plaintiff's performance was at the bottom of the average range for full scale IQ (being at the 27th percentile) and that his IQ was significantly lower than his General Ability Index (GAI) score which was also in the average range, but at the 47th percentile. Her estimate of his pre‑morbid intellectual function was in the average range. In evidence Dr Collins agrees that if the plaintiff's IQ prior to the accident was higher than she had anticipated then his position post‑accident being at the 47th percentile would represent an even more significant drop.
The WAIS‑VI index scores provide information about cognitive functioning in different domains. The plaintiff's percentile rank was extremely low in respect of his information processing speed. Although his working memory was tested as high average, this was because he could keep information in the front of his mind for about a minute. As time passed, however, his retention of the information was very poor consistent with his results in the Wechsler Memory Scale ‑ IV (WMS‑IV) in which his immediate memory rank was borderline and his delayed memory rank was low/average.
Dr Collins noted in her report that the plaintiff had a significant mismatch between memory and ability. She notes in evidence that he uses strategies that he has learned in order to function because his executive function is affected in such a way that his brain does not know where to look for information even if given cues. This assessment was reached partly as a result of the plaintiff's scores on the WMS‑VI assessment.
The approach taken by the plaintiff to tasks was very slow and fragmented. The more he was asked to do the more confused he became and the worse his memory became. Dr Collins noted in her report that the plaintiff's auditory memory and learning had improved since 2007 however she states in evidence that this is due to practice occurring as a result of the plaintiff being required to undertake the same test on a number of occasions since 2007. His improvement on the test in 2011 is therefore not consistent with cognitive improvement.
Dr Collins clarifies that the plaintiff completed the assessments under quiet and controlled conditions and that he attempted one task at a time. He was observed to apply strategies he had learned in his rehabilitation in relation to his memory. Dr Collins noted that in more complex environments his ability to apply the strategies would be likely to be poorer and this in turn would impact on the amount of information he could retain (page 12).
The plaintiff's performance on tests relevant to his executive function revealed poor impulse control, perseveration and a slowness to initiate responses.
In testing relevant to behavioural assessment that involved both the plaintiff and Ms Jordan the results indicated that the plaintiff has problems with inhibitory control. Dr Collins noted (page 14):
People with elevations on this scale can be impulsive, socially inappropriate and irritable. Mark demonstrated problems with impulse control during the assessment and made socially inappropriate requests and suggestions despite feedback. Clinically he appeared to become irritated when I did not give immediate feedback on his performances. His support worker has also reported such behaviours.
Future vocational care
The plaintiff is only seeking the sum of $2,319 for further vocational support in relation to a future placement. I accept that it is vital for the plaintiff to be in appropriate unpaid employment. I accept that due to the plaintiff's location in Dalyellup it was difficult to find the placement at the wildlife park. I accept that, consistent with the evidence of Ms Roberts and Ms Williams, the future costs for vocational placement may be greater. Applying a deferred multiplier of .665 to $5,000 a sum of $3,325 is allowed.
Interest on past loss
Interest on past loss is agreed at a rate of 3% per annum.
Interest is to be paid to the plaintiff in respect of past loss of earnings and past loss of superannuation and for past care and support.
A sum is to be deducted for interest on the relevant percentage of the amount owing on the ICWA agreement.
Schedule Start End Years Half Gazetted Interest Rate Total $ Interest 2.8 1
July 2005
March 2012 6.73 0.03 $619,775 $125,132.57 4.12 1
January 2005
March 2012 7.23 0.03 $44,522 $9,656.82 Total $134,789.39 Less May 2006 March 2012 6 0.03 $138,745 - $24,982 Total $109,807
Interest on past loss in the sum of $109,815 applies.
Deductions
Department of Social Security – Centrelink
The plaintiff is unable to provide a precise figure in relation to past Centrelink benefits and submits that a formal notice cannot be obtained from Centrelink prior to judgment. Given the delays in this matter (as a result of the provision of a draft judgment) a final judgment figure must be set in order for there to be finality.
Insurance Commission of Western Australia past payments
By letter dated 11 May 2006 (exhibit 186) the Insurance Commission of Western Australia (ICWA) made the following offer to the plaintiff:
We refer to your client's claim for personal injuries. Although liability is still to be resolved the Insurance Commission is prepared to fund the reasonable costs associated with your client's injury on the basis that:
1.The treatment/services/equipment are required as a result of the injuries received by your client in the motor vehicle crash on 27 December 2004.
2.The payments made by the Insurance Commission for the cost of any treatment/services/equipment at 100% are on a without prejudice and without admission of liability basis.
3.From the amount of any settlement or judgment in respect of your client's claim shall be refunded to the Insurance Commission such portion of the costs of the treatment/services/equipment paid by the Insurance Commission as is appropriate in accordance with the resolution of the issue of liability as agreed between the parties or as is determined by the court.
The terms of the offer were accepted by the plaintiff on 24 May 2006.
The defendant's pleadings in relation to special damages are in general terms. The defendant did not specifically plead in respect of this sum nor did it make detailed submissions until after a draft judgment dated 24 January 2012 had been provided to the parties on a confidential basis. Any order in respect of the agreement is opposed by the plaintiff.
Mr Edwardes who is an officer of the ICWA gives evidence as part of the defendant's case in relation to the ICWA motor vehicle personal injury division claim payment summary form prepared in respect of the plaintiff as at 28 September 2011 (exhibit 185) which is a 30 page summary of payments made in respect of the plaintiff or related to the trial. Mr Edwardes was unable to clarify a number of entries and agreed in cross‑examination that the form included entries for medical reports obtained by ICWA and costs related to the provision of expert material to ICWA.
Counsel for the plaintiff submits that the summary also includes sums that relate to the period between 27 December 2004 and 11 May 2006. I note however that payment has been made or the amount has been entered in respect of a date after 11 May 2006 for a number of items.
It is disappointing that the parties could not agree the relevant sums claimed by the defendant given that Mr Edwardes' evidence made it very clear that not all of the sums itemised on the form related to the agreement of May 2006. However, I do not consider that it is appropriate for me to ignore the claim given the nature of the agreement and given that evidence has been led in relation to it.
I have therefore included amounts that have been paid on or after 11 May 2006 even if the service was provided prior to 11 May 2006. I have not included sums relevant to amounts invoiced in respect of the defendant's trial preparation that is the subject of cross-examination of Mr Edwardes including sums relevant to the services of Ruth Jodrell, Lighthouse Health Group, Holcroft Daly Process Services, ICWA or for related reports. In summary the claim allowed is as follows:
Page No. Description Amount Page 1 Lord Noordhoek Elizabeth (physiotherapist)
8 May 2008 to 25 November 2008
$806.60 Page 1 Toyne Zoe (physiotherapist)
17 September 2009
$160.15 Page 2 St John Ambulance Perth
19 April 2005 paid 31 May 2006
$449.00 Page 3 – 5 Pharmacy expenses
3 October to 26 September 2011
$627.20 Page 7 Hamilton Robert (dentist)
30 August 2006 to 6 September 2006
$1,373.00 Page 8 Brennan SN (doctor)
7 February 2005 paid 25 May 2006
$675.00 Giles Emma (specialist anaesthetist)
27 February 2005 paid 25 May 2006
$202.20 Page 9 Kermode A (doctor)
5 March 2005 paid 25 May 2006
$235.00 Path Centre
9 January 2005 to 18 May 2005
$6,744.20 Rennie Darryn (doctor)
14 March 2008 to 17 July 2009
$266.25 Page 11 Baptistcare Communities for Life
18 February 2008 to 1 October 2010
$94,032.75
Brightwater Care Group (head office)
9 February 2006 to 1 February 2008
$295,200.20 Page 13 Sir Charles Gardiner Hospital
18 May 2005 paid 31 May 2006
$478.40 Page 14 Noordhoek Elizabeth (physiotherapist)
29 April 2008
$59.50 Page 15 Sir Charles Gardiner Hospital
3 February 2005 to 17 May 2005
paid 3 July 2006 and 25 May 2006
$1,934.65 Page 16 CRS Australia
31 October 2008 to 19 June 2009
$3,488.17 Page 17 Network Case Management Services
8 June 2006
$225.00 Network Rehabilitation Services
9 November 2005 paid 31 May 2006 to 3 May 2006 paid 6 July
$592.84 Page 18 E reports
13 June 2011
$592.84 Dennis Stephen (doctor)
5 August 2011
$590.00 Hannay Peter Douglas (doctor)
17 July 2006
$33.40 Lawson Janette (occupational therapist)
24 July 2008 to 15 June 2009
$1086.85 Network Case Management Services
30 June 2010
$150.00 Page 20 Brightwater Care Group (head office)
3 August 2006 to 28 February 2011
$1,216.77 City of Bunbury
31 May 2008 to 28 February 2011
$2,163.00 Page 21 Lawson Janette (occupational therapist)
22 February 2008 to 10 December 2009
$20,323.78 Page 23 Leslie Stephen (optometrist)
7 June 2006 to 22 April 2008
$1,450.00
Page 23 – 25 Network Case Management Services
5 July 2006 to 31 August 2011
$16,770.00 Page 25 Soul Pattinson Chemist
20 October 2006 to 27 April 2007
$54.00 Page 27 Baptistcare Communities for Life
18 February 2008 to 1 October 2010
$9,056.18 Page 28 Lawson Janette (occupational therapist)
31 August 2009 to 10 December 2009
$446.85 Page 29 Network Case Management Services
20 September 2006 to 10 September 2008
$478.10 Network Rehabilitation Services
8 December 2005
$5.28 Total $461,967.16
By agreement the plaintiff is required to refund 30% of this sum. A deduction of $138,590 applies.
Medicare
An agreed deduction of $2,532 applies.
Fund management expenses
Given the nature of the plaintiff's injuries and the fact that the State Administrative Tribunal has appointed Ms Jordan to be the plaintiff's administrator, it is agreed that any award of damages made must be placed in a trust fund to be administered by a trustee. The choice of trustee is a critical factor. In Morris v Zanki [293] the court said:
Obviously the selection of the trustee is going to be a critical factor in any case where the discretion falls to be exercised. The security of the fund in the long term will be of the upmost importance to the interests of the beneficiary. It is probably trite to say that the discretion to place the funds with an entity other than the Public Trustee could only be exercised where satisfactory evidence is produced as to the financial and structural security of the proposed trustee. Safeguards must be in place.
Counsel for the plaintiff submits that the National Australia Trustees (NAT) are the most appropriate trustees in this case. The national manager, Mr Hughes, says that the trust manages many trusts on behalf of brain injured people and administers 80 court appointed trusts in Western Australia. Mr Hughes has already had a meeting with Ms Jordan and with the plaintiff, during which the plaintiff asked questions from a written list and deferred to Ms Jordan in relation to the information received. NAT provides a diversified portfolio that includes but is not limited to investing in cash, fixed interest equities and wholesale managed funds. A portfolio is tailored for the individual who is the subject of the trust.
A draft amortisation schedule relevant to the plaintiff with a 35‑year life expectancy and 6% discount has been prepared by Mr Plover, an actuary employed by Cumpston Sargeant Consulting Actuaries. NAT has an establishment fee of $15,000 and an ongoing fund management fee of 1% of the first $1 million, 0.62% of the next million dollars and 0.42% on any balance. The total fund management fee at 6% discount over 35 years is the sum of the estimated indirect cost of investing (ICR) and the management fee for the trust. On $2 million this is $429,802 being 21.5% of the total fund.
The defendant submits that ANZ Trustees Limited should be appointed as trustee. The business development manager in Western Australia for ANZ Trustees Limited (ANZ), Mr Stanley, gives evidence that using a 6% discount ratio over a 35‑year period, a fund management fee would be required, however no ICR would be charged. A brokerage fee would apply to any shares that are purchased which, given the structure of the trust, is likely. Brokerage is presently charged at a wholesale cost of between 0.22% and 0.33% being 0.275%. Presently if $2 million was invested in shares than a brokerage fee of $11,000 would apply on both the purchase and on any subsequent sale. On initial funds of $2 million the ANZ fees, without taking into account brokerage fees, would be $401,966 being 20.1% of the fund. If a number of share purchases were made then the total fee would increase to take into account those brokerage fees.
ANZ have had a Western Australian office for the last two years however they operated out of Melbourne for a period of 12 to 18 months prior to that. ANZ services two court appointed trusts in Western Australia for people with acquired brain injury. The total sum managed in relation to all of the court appointed trusts in Western Australia is approximately $17 million.
Mr Stanley says that he regularly visits members of the two brain injured people's families and that he does home visits to the brain injured person. There is no evidence in relation to whether the brain injured people live in Perth or in country areas. There is no suggestion that Mr Stanley has visited the plaintiff, nor that he has factored in arrangements to visit the plaintiff at his home in Dalyellup being approximately 200 km from Perth.
The fees charged by the Public Trustee of Western Australia on an initial fund of $2 million are $479,290 being 24% of the fund. The NAT and ANZ trustees are linked to large banking organisations and are registered as trustee companies. There is no reason, given the cheaper rates offered by NAT and ANZ that the Public Trustee of Western Australia would be favoured in this case.
With the addition of brokerage fees there is little difference between the fees charged by the NAT and ANZ. NAT manages funds on behalf of a greater number of court appointed trusts in Western Australia and the plaintiff and Ms Jordan clearly felt comfortable with the services that are offered and the contact and communication that has been provided. For these reasons I find that any award of damages should be placed in a trust fund to be administered by NAT.
Both Mr Hughes and Mr Stanley confirm that the fees charged by their respective companies are calculated on the total sum under fund management being the award of damages together with the fund management fees. Accordingly, an additional management fee is charged in respect of the sum invested relevant to fund management. Counsel for the plaintiff submits that these additional management fees for the fund management on fund management fees should also be allowed.
Mr Plover, who is a highly qualified and experienced actuary, provided a detailed report and gives evidence supported by amortisation scales that include a mathematical calculation in relation to management fees on management fees. The calculation commences the fund at year zero and takes it through to the commencement of a 36th year, being the end of the plaintiff's life expectancy. The finishing total on Mr Plover's calculation is zero.
Counsel for the defendant refers to a number of decisions including Lewis v Bundrock [2009] 1 Qd R 524; [2008] QSC 189 [16] and to the decision from this court of Schoombee DCJ in Traeger v Harris [375] to [380], in which Schoombee DCJ adopted reasoning consistent with Lewis v Bundrock, being that the logic of paying management fees on management fees would require a never ending series of calculations because each additional amount of management expense would require further management expenses to be paid. Such a calculation is too convoluted because and that it is not appropriate to try and make an exact mathematical calculation of the damages to be awarded.
In that case no evidence was given in relation to the mathematical calculation of management fees on management fees. Schoombee DCJ referred to a report prepared by Mr Plover and received as an exhibit. In [378] her Honour says that:
The valuation methodology employed in this report is to uplift the fund by an amount that ensures the balance is not depleted by fees and charges prior to the end of the plaintiff's life expectancy.
There was however no examination of a calculation in evidence. Accordingly, Schoombee DCJ did not agree that it was appropriate or necessary to allow the plaintiff any management fees upon management fees.
After the decision in Traeger v Harris had been delivered McCallum J in the Supreme Court New South Wales Common Law Division delivered the judgment in Gray v Richards [2011] NSWSC 877. In that case Mr Plover gave evidence of a similar type to the evidence that he has given in the present case in relation to the measurement of the management fees on management fees. At [30] McCallum J said:
I do not think that should be an impediment to the plaintiff's claim. The starting point is to observe that the cost of future fund management is a recognised head of future loss, the entitlement to which is beyond question, having been affirmed by the High Court: Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49; Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627 (the latter was decided after the decision in Buckman). It is difficult to understand why the nature of its calculation (being repetitive and ever diminishing) should preclude the grant of an award adequate to compensate the plaintiff for a recognised loss.
McCallum J distinguished earlier decisions noting that discrete analysis of the issues that were being argued had not been previously considered. In Gray v Richards McCallum J rejected the submission that management fees on management fees should be excluded. McCallum J said [34] ‑ [36]:
Martin J analysed the reasoning of Burchett AJ in Buckman and expressed his agreement with it, noting that an award of damages is only ever an estimate of the fair and reasonable compensation required. His Honour specifically referred, as Burchett AJ had, to the fact that the calculation required to give effect to the plaintiff's claim 'could be extended indefinitely, with ever decreasing increments'. ([15])
At most, that is a reason for insisting on a measure of approximation at the tail end of the plaintiff's calculation (there would be no sense in taking it beyond the smallest denomination of the currency in any event). I do not think it is a reason for keeping the plaintiff out of the award that is necessary to meet an identifiable future cost.
I do not think I am constrained by any obligation of comity on this question, since I am faced with a choice between two lines of authority in decisions of single judges (albeit that one of the lines is a single point). For the reasons explained above, I prefer the reasoning of Hunter J in Bacha.
I accept that evidence had been led in that case and has been led in this case that management fees to be paid on management fees are a calculable loss. The fees are a loss that will be suffered by the plaintiff and that this sum should be the subject of compensation. Mr Plover has expertise and qualifications as an actuary that enable him to carry out a mathematical exercise that calculates the cost of future fund management in respect of the whole of the sum (being damages and management fees) as accurately as possible. As with all assessments relevant to a plaintiff's loss, it is impossible to provide an exact calculation, however Mr Plover's calculations are not challenged as being mathematically inaccurate. I accept Mr Plover's evidence that (ts 676):
The intention of this calculation is to determine a total amount which is to be awarded and invested such that that amount can meet both the drawings for the heads of damages as identified in the $2.65 million, as well as meeting the fees that will be paying from time to time to National Australia Trustees in this instance. So the idea is to calculate a fund that is self-sufficient to meet both of those components.
The plaintiff's claim for the management fees on the management fees is allowed.
Trustee fees
Counsel for the defendant submits that although the plaintiff's trust fund of choice is NAT reference should be made to the fund management expenses (incorporating an allowance for fees on fees) in relation to ANZ because trust management fees are a class of special damages. The assessment is militated by conditions of reasonableness and is not made based on what the plaintiff would consider to be ideal. It is submitted that the defendant is not liable for every expenditure that would be advantageous to the plaintiff. Counsel for the defendant relies on the decisions of Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 [661] per Barwick CJ; Burford v Allan (1993) 60 SASR 428 [436] and Chulcough v Holley [1968] ALR 274 [279] per Windeyer J. Counsel for the defendant submits that consideration of the appropriate sum for trust management fees is similar to the assessments made in relation to the costs of medical treatment to injured persons and that the same principles apply.
Counsel for the plaintiff submits that given the significant traumatic brain injury suffered by the plaintiff, the evidence of Ms Jordan and the matters clarified in evidence in respect of NAT, the trustee's fees for NAT are reasonable and consistent with Gray v Richards (No 2) [2011] NSWSC 1502 the NAT rate should apply.
I consider that if the discrepancy is significant then a reduction of the NAT rate is reasonable. In order to assess the reasonableness of the trustee's fees sought I need to calculate the sum of damages on which the fees are to be based and compare the percentage that would apply to NAT with the percentage that would apply to ANZ.
Summary of damages allowed
Head of damage Amount allowed General damages (non-pecuniary loss) $297,500 Loss of past (pre-judgment) earning capacity $491,406 Loss of past superannuation $87,132 Loss of HBF entitlement $10,949 Loss of Bankwest mortgage subsidy $19,701 KPI one off bonus $9,599 Loss of future earning capacity $872,818 Loss of future superannuation $141,233 Loss of future HBF benefit $20,087 Loss of future mortgage benefit $30,208 Wilson v McLeay damages $6,577 Family and friends gratuitous care $7,010 Past gratuitous services Ms Jordan $30,935 Future housekeeper $135,872 Future support worker $959,596
Future handyman/heavy cleaning $165,679 Aids and appliances $772 Case management $101,904 Home modification $5,000 Ongoing care Ms Jordan $20,844 Future treatment needs $58,501 Future holiday expenses $55,401 Future transport expenses $77,200 Future vocational care $3,325 Interest on past losses $109,807 Total $3,719,056 Deductions for 30% contributory negligence $2,603,339 Deduct ICWA $138,590 Total $2,465,749
The NAT fund management percentage for $2,400,000 is 20.4%. The trustee fees for ANZ for $2,400,000 is 13.8%. A sum that recognises the plaintiff's preference for NAT but that is reasonable in the circumstances is, in my view, 19%.
Damages $2,465,749 Cost of administration $448,726 Total $2,914,475
Judgment is awarded to the plaintiff in the amount of $2,914,475.
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