Choy v Arnott
[2009] NSWDC 17
•4 March 2009
CITATION: Choy v Arnott [2009] NSWDC 17 HEARING DATE(S): 28, 29, 30 and 31 July 2008; 29; 30 and 31 July 2008
JUDGMENT DATE:
4 March 2009JURISDICTION: District Court - Civil JUDGMENT OF: Levy SC DCJ DECISION: 1. Verdict for the Plaintiff in the sum of $2,692,664.54;
2. The Plaintiff’s contributory negligence is assessed in the apportionment agreed at 20 percent;
3. Judgment for the Plaintiff in the apportioned sum of $2,154,131.60;
4. Defendant to pay the Plaintiff’s costs.CATCHWORDS: DAMAGES – personal injury – Plaintiff sustained a head and brain injury in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999. LEGISLATION CITED: Motor Accidents Compensation Act
1999
Uniform Civil Procedure Rules, 2005 : Schedule 7CASES CITED: Griffiths v Kerkemeyer [1976-1977] 139 CLR 164
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49
Stewart v Andri [1993-1994] 19 MVR 1
Strinic v Singh [2009] NSWCA 15
Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627PARTIES: Henry Choy (Plaintiff)
Demetrious Peter Arnott (Defendant)FILE NUMBER(S): 1647 of 2007 COUNSEL: Mr C Leahy SC (Plaintiff)
Mr J Turnbull (Defendant)SOLICITORS: Ron Kramer Associates (Plaintiff)
Holman Webb Lawyers (Defendants)
JUDGMENT
Nature of case
1. The Plaintiff brings these proceedings claiming damages for personal injuries he sustained in a motor vehicle collision that occurred at 4.00am on Thursday 29 January 2004 whilst he was on his way to work. He was driving a motor vehicle that was involved in a heavy impact collision with a prime mover truck that was towing a trailer at an intersection. The Plaintiff sustained a severe closed head injury and facial fractures. He has been left with frontal lobe brain damage.
Liability
2. The parties have resolved the issues of primary liability. The Defendant has conceded the issue of negligence. The Plaintiff has conceded the issue of contributory negligence and the parties have agreed that the apportionment on account of the Plaintiff’s contributory negligence should be at 20 percent. Accordingly, the matter proceeded to an assessment of the Plaintiff’s entitlement to damages.
Assessed heads of damage
3. A total of nineteen heads of damage required assessment. These are listed below together with paragraph references:
Head of Damage
Paragraphs (a) Non economic loss [60] - [62] (b) Past loss of earning capacity [63] - [81] (c) Fox v Wood [82] (d) Future loss of earning capacity [83] - [116] (e) Past loss of employer funded superannuation contributions [117] (f) Future loss of employer funded superannuation contributions [118] (g) Past domestic and attendant care services [119] - [151] (h) Future domestic care services [152] - [160] (i) Future treatment [161] - [178] (j) Case Manager [179] (k) Drop-in supervision by Case Manager [180] - [183] (l) Respite care [184] - [189] (m) Gymnasium membership and personal trainer [190] - [195] (n) Sex worker [196] - [199] (o) Additional vacation expenditure [200] - [205] (p) Back to base alarm [206] (q) Independent living, training and support [207] - [209] (r) Past out-of-pocket expenses [210] (s) Funds management charges [211] - [215]
4. The following witnesses gave evidence in the Plaintiff’s case:
(a) Henry Choy, the Plaintiff;
(b) Wai Ling Lo, the Plaintiff’s mother;
(c) Duc Huynh, a former employer of the Plaintiff;
(d) Yunhg Wang, the Plaintiff’s stepfather;
(e) Lu Hui Lian, the Plaintiff’s Aunt.
5. No medical witnesses were called to give evidence. No witnesses were called to give evidence in the Defendant’s case. An array of documentary exhibits was tendered including a large number of medical, paramedical and rehabilitation reports that required analysis to enable a quantum assessment.
The Plaintiff
6. The assessment of the Plaintiff’s entitlement to damages requires a review of the Plaintiff’s personal background, his educational and work history as well as the pre-injury plans he and his family had for his economic future. The factual evidence concerning the Plaintiff’s pre-injury situation was not disputed although there was some dispute over the significance of the Plaintiff’s pre-injury school results with regard to the Plaintiff’s economic future.
Background
7. The Plaintiff was born in 1985. At the time of his injury on 29 January 2004 he was aged almost 19 years. He was aged 23 years at the time of the trial. There is no suggestion within the medical evidence that the Plaintiff has anything other than a normal future life span. On the prospective life tables, at the age of 23 the Plaintiff has a probable life span of a remaining 62 years. He is the eldest of three siblings and he has a younger half-brother and half-sister. At the time of his injury he resided with his mother, his stepfather and his siblings. His mother and his stepfather operated a food supply business through a corporate entity. At the time of his injury the Plaintiff was employed in that business in a junior capacity and in addition had another job as a pizza delivery driver.
8. The Plaintiff described himself pre-injury as having a quick mind, with a very good memory and being at ease with strategic thinking. He had a calm temperament and was not prone to panic. His mother described his pre-injury organising skills as being very good. The Plaintiff’s mother stated that before his injury she had not noticed limitations in the Plaintiff’s range of activities. His mother described how, before his injury, the Plaintiff was a hard working person with a happy personality with friends and a social life. She went on to describe how, following the Plaintiff’s injury, his character changed. He had become very irritable, he had no perseverance, he had poor memory and he was a little bit more violent. In context I infer this to mean that after his injury he had less control over his temper, such that he would chase and beat his younger siblings whereas before his injury he would only hit them lightly in the manner some siblings relate to each other. His mother described how when he spoke, the content of the beginnings and the ends of his conversations had little co-relation. The relationship between the Plaintiff and his mother had deteriorated since his injury.
Educational history
9. The Plaintiff attended Robert Townson High School at Raby in western Sydney. He completed Year 11 but he left school in August 2003 without completing Year 12. He said his reason for doing so was he did not like to study. He said that he had reached the stage of not wanting to study at school any more and this was reflected in his school marks. He said in evidence that at an earlier stage of his schooling he was one of the top students in his class and had even attended camps for gifted and talented students. The post-injury neuropsychological testing aimed at estimating the Plaintiff’s pre-morbid intellectual functioning revealed this to be in the high-average range.
10. The Plaintiff’s Year 2000 School Certificate test report was tendered. The Plaintiff’s test results were 83 for mathematics, 72 in English and 80 in Science. His record of achievement for Part A of the School Certificate, using the performance grading descriptors, indicated that in the graded subjects his performance was in the high and substantial range. In the ungraded subjects his performance results were satisfactory.
11. Whilst the Plaintiff’s mother acknowledged that prior to his injury the Plaintiff was not coping with his Year 11 studies and was often late for his school in Year 11, this was not inconsistent with the Plaintiff’s own evidence that he had lost interest in his studies, a circumstance that was reflected in his school marks.
12. The Defendant sought to make much of the Plaintiff’s pre-injury poor school performance in the lead up to the Plaintiff leaving school without completing the higher school certificate. In my view the Plaintiff’s pre-injury school performance is of marginal if any relevance. I accept that the Plaintiff lost interest in continuing his schooling. The critical issue is whether the Plaintiff had the ability to achieve his potential if he was motivated to do so. In this regard, it is relevant to note that Dr John Smith, a neuropsychiatrist who had examined the Plaintiff at the request of the Defendant’s solicitors and who was asked to comment on the Plaintiff’s school records stated that the records confirmed that the Plaintiff had above average potential. I accept that portion of Dr Smith’s commentary as it coincides with my own overview of the evidence and the Plaintiff’s school records.
13. The Plaintiff’s school records for the years 1997 and 2002 were analysed by Mr Mark Ravagnani in a report dated 15 January 2008. Mr Ravagnani is a vocational psychologist who was retained by the Plaintiff’s solicitor to examine the Plaintiff’s school records. Mr Ravagnani summarised his overview of the significance of the Plaintiff’s school records to his pre-injury vocational potential in the following terms:
Mr Choy’s educational background suggests a turning point in mid to late adolescence where his interest in school waned and his academic performance dropped off. He persisted with Year 11 despite problems with truancy, lateness and poor submission of work but left before completing Year 12. I note a report by Dr Smith (28 September 2006) in which it was posited that Mr Choy’s deterioration in performance may have be (sic) result of developing depression after a friend died during Year 9. Despite his limited interest in school, Mr Choy was motivated to find work upon leaving and was undertaking two part-time jobs at the time of his accident. As stated in my previous report Mr Choy hoped to eventually progress to a managerial role in the family business. Even if he did not follow this path or self-employment he should (sic) been able to secure full-time stable work within a range of elementary to intermediate occupations related to sales, clerical or service applications.”“Summary
14. I accept Mr Ravagnani’s above quoted interpretation of the Plaintiff’s school records and the relationship between these records and the Plaintiff’s vocational potential. I reject Dr Smith’s quoted comment concerning the possible link between the Plaintiff’s depression and the death of a friend and the link Dr Smith sought to make between that event and the Plaintiff’s lowered school performance as being speculative.
Work history and Plaintiff’s plans for his economic future
15. Having left school in August 2003, in November 2003 the Plaintiff commenced work in the family business known as Green Star Enterprises Pty Ltd. Before leaving school the Plaintiff had previously carried out some part-time work for the family business on the weekends. That company was owned and operated by the Plaintiff’s family, mainly his stepfather, at Prestons. The principal business of that company was to source, process, package and supply chicken meat and frozen seafood for the restaurant trade as well as supplying hospitals and government departments. The factory premises comprised both factory and warehouse activities. Before the Plaintiff’s injury some 20 to 25 people were employed at the premises whereas at the time of the trial some 40 people were employed.
16. Whilst the Plaintiff was still at school he worked in the business as a storeman and packer on Saturday mornings. He later worked in more menial positions in the company, including working as a labourer. Whilst working in that capacity he came to realise he wanted to work himself up into a higher position within the company and move into a management position.
17. The Plaintiff’s pre-injury work history demonstrates that he had a strong work ethic. In addition to rising at 3.30am to start work in the family business at 4.00am and then working for about three and a half hours per day, he also started work in another part time job as a pizza delivery driver on four to six days per week, starting at around five o’clock in the afternoon and finishing at about midnight, depending on the amount of custom that business had at any given time.
18. The Plaintiff said that before his injury his plans were to attend a TAFE college to undertake a business administration course as a first step to joining the family business. The reason underpinning that plan was that he had been offered to manage the family business with a view to taking it over. To that end, the Plaintiff planned to enrol in a business administration course at Liverpool TAFE. In fact he had planned to travel there with a friend to enrol in that course on the very day of his injury but the collision had prevented him from attending on that day.
19. The Plaintiff’s evidence concerning his pre-injury plans to undertake a TAFE course in business administration in order to assist him to take over his parents’ business was at odds with the history recorded by his treating rehabilitation specialist to the effect that before his injury the Plaintiff wanted to pursue a TAFE course with the aim of becoming a motor mechanic.
20. This conflicting evidence was not explored or explained at the trial. The Plaintiff’s evidence as to his plans to work in the family business was corroborated by his parents’ evidence. In my view, the conflicting note in the rehabilitation specialist’s letter is based on an incorrectly recorded history evidenced by an erroneously recorded statement that it was the Plaintiff’s pre-injury plan to return to his work as an apprentice motor mechanic. The Plaintiff had not pursued such work before his injury and had only attempted it later as part of his attempts at rehabilitation. I therefore find the reference to the pre-injury aim of the Plaintiff to work as a motor mechanic to be an error of summation. I accept the evidence of the Plaintiff and that of his parents to the effect that prior to his injury the Plaintiff had planned to enter the family business with the aim of positioning himself for a managerial role.
History of a previous injury
21. When the Plaintiff was aged 9 years he had attended Liverpool Hospital for treatment of an injury to the face. That injury occurred because the Plaintiff had been hit in the face by a rock. The treatment for that incident is recorded in the hospital notes that were tendered in evidence. That injury left the Plaintiff without lasting problems. Before his injury the Plaintiff was quite fit, he exercised regularly and had, as he put it, a “natural buzz for life”.
Injuries
22. The Plaintiff was on his way to work at the family business when the collision occurred. He was unable to recall the details of the collision in question. The ambulance report described the Plaintiff as having been found sitting slumped forward in his seat, unconscious, with left-sided facial swelling, haemorrhaging from the nose and mouth, cerebrally agitated with a Glasgow coma score of 7. That score later deteriorated to 6 as was noted in the hospital records. Other injuries were also noted in the ambulance report. These consisted of a contusion to the right shoulder and chest, abdominal tenderness and contusions and abrasions to the right shin. Intravenous midazolam was administered to reduce the Plaintiff’s cerebral agitation.
23. The hospital notes detailed the Plaintiff’s other injuries which included a closed head injury, multiple factures to his facial bones, lacerations to his left eyelid and chin as well as soft tissue injuries to his neck, right shoulder, chest and right shoulder. An initial CT scan revealed the Plaintiff to have a right frontoparietal brain contusion, a right-sided subdural haematoma and facial fractures consisting of fractures of the left orbit and the maxillary antrum. Subsequent imaging revealed post-traumatic abnormalities in the frontal lobes of the Plaintiff’s brain.
24. The Plaintiff had no memory of the collision. His first post injury memory is of being aware that he was strapped to a hospital bed. The Plaintiff described himself as being aware of physical pain of a muscular nature in the areas of his neck, shoulders and back.
Treatment, rehabilitation and residual disabilities
25. The Plaintiff was transported by ambulance to Liverpool District Hospital where he was admitted to the intensive care unit and then later transferred to the Brain Injury Unit. The Plaintiff remained in hospital for a total of 68 days between 29 January and 7 April 2004. The brain injury and associated swelling was treated with a burr hole craniotomy to allow for the insertion of an intra-cranial pressure monitor and an extra-ventricular drain. The Plaintiff was thought to have seizures in the acute phase of his admission. He was also intubated. On 13 February 2004 the Plaintiff underwent an operation for open reduction, elevation and internal fixation of the left maxilla. Whilst an in-patient he was medicated for behaviour control because of his cerebral irritation. The severity of the Plaintiff’s head injury can be gauged from the fact that he had a period of post-traumatic amnesia that covered 43 days which Dr Smith described as indicating a persistent dysfunction at the level of the brain stem. The Plaintiff also had incontinence of both urine and faeces in the acute phase of his recovery. He also developed hemiparesis and pneumonia. Fortunately he has recovered from these latter conditions.
26. On 24 February 2004, once the acute phase of his treatment had concluded the Plaintiff was transferred from the Brain Injury Unit ward of the hospital to the Brain Injury Rehabilitation Unit. Whilst he was there he had physiotherapy treatment, he obtained concentrated help from psychologists and occupational therapists as well as from other disciplines including the specialist medical practitioners who worked in that unit. During this time he was noted to be sexually disinhibited, impulsive and tactless.
27. The Plaintiff was discharged from hospital on 7 April 2004. At the pre-discharge meeting on 7 April 2004 his post-injury problems were surveyed. His disinhibition had settled to some degree. It was noted that the Plaintiff had major issues with expressive language in that he added irrelevant detail to his conversation. He also had difficulty reading emotions and situations. His attention span was noted to fluctuate and he would “go off topic” and have difficulty with “specificity”. He required extra time for visuo-spatial scanning and needed the assistance of checklists, cues and prompts. It was recommended that he not drive or use alcohol. In fact his licence had been cancelled due to his brain injury. He was cautioned to avoid risk-taking behaviour and not to use power tools or machinery. He was allocated a case manager with the Head-2-Work organisation to allow for rehabilitation follow-up following his discharge from hospital.
28. Initially, following his discharge from hospital the Plaintiff felt he was normal. He described how when he was at home he did not feel normal and found that carrying out tasks that were previously second nature to him became more difficult for him after his injuries. Examples of such tasks included the simple tasks of brushing his teeth and having a shower. These were activities that he noticed were taking him longer than was the case before his injuries.
29. The Plaintiff noticed that after he was discharged from hospital he noticed he was sleeping a lot. He noticed that since his injury he was experiencing memory problems and found difficulty remembering names and his banking personal identification number. He also began to experience difficulty concentrating. His thinking processes changed so that he found himself lingering and taking time on single ideas or issues that then became “split” into fragmented ideas or issues. He became obsessive so that the pre-existing perfectionist trait in his character began to cause him problems with his intellectual and daily functioning whereas this was not the case before his injury.
30. His emotional state also changed after his injury. After his discharge from hospital and as part of his rehabilitation he began to see a psychologist. The Plaintiff found difficulty in putting his thoughts down in writing. He experienced difficulty understanding the written word and had difficulty with comprehension. He noticed he was forgetting or misunderstanding the meaning of words. He expressed difficulty with reading and understanding what he had read. He also found he was experiencing problems with mental arithmetic whereas before his injury he did not have these problems. He became depressed when he started to realise the extent of the problems he was experiencing. He found himself becoming easily angered and frustrated and vented this frustration by punching walls. His younger siblings became scared of him because of this behaviour.
31. Dr Smith took a history of the Plaintiff’s psychological outlook on discharge from hospital, which he recorded in his report in the following terms:
“When I asked what his mood was like when he was first discharged home he stated:
‘I felt like a normal person. I was happy I was alive. It was only after a time I realised what problems I had. Then I started going into a depressed stage … I didn’t want to live anymore. I wanted to kill people.’”
32. The Plaintiff became less confident and his friends began to regard him differently and he experienced deterioration in his social life. His own perception was that he had become a different person from which I infer that he underwent a change of personality. His mother described how he had expressed suicidal thoughts. A psychiatrist noted that the Plaintiff had nihilistic attitudes. His relationship with his mother has deteriorated. His mother described how after his injury, at times the Plaintiff needed to be reminded to eat. Sometimes he needed reminders to pay his bills. He often needed reminders for doctors’ appointments. His mother described how a post-injury attempt at work in the family business resulted in the Plaintiff making mistakes and mixing up different types of products that required sorting and packing. From the vantage point of her familiarity with the Plaintiff’s post-injury situation and condition his mother felt he could not manage caring for himself and could not holiday unaccompanied because he is forgetful and was not good at finding his way. As part of the regime for managing the Plaintiff’s condition, at times he went to stay at a residential respite hostel at Chipping Norton that was run by the Brain Injury Unit.
33. In April of 2004 the Plaintiff enrolled at Mt Druitt TAFE in a motor mechanics course. The motivation for enrolling in this course was that the Plaintiff had a life long interest in motor vehicles and the rehabilitation assessment was that the Plaintiff had a need to find something to do for work. He also undertook this course at the suggestion of the Head-2-Work rehabilitation organisation so as not to sit around and waste time whilst he was recovering from his injuries. The Plaintiff completed this course but was not awarded a certificate of completion because he had failed to attend a number of classes. In addition, he had not completed some of the coursework and he had not completed the work experience portion of the course requirements. He was found to have been too slow and unable to adjust to the pace of work required of him in the trial of employment Head-2-Work had arranged for him to attempt as part of the course work. The transcript of his 2004 academic record at TAFE for the Automotive Mechanical course he had undertaken showed he had failed to complete some aspects of the course yet he achieved passes and credits in other aspects.
34. Whilst the Plaintiff was undergoing rehabilitation the suspension of his driver’s licence by the RTA for medical reasons led to him experience travelling and mobility problems which in turn affected his TAFE attendances. Without his driver’s licence, the Plaintiff found it difficult to travel from his home to Mt Druitt in order to attend classes. The Plaintiff’s failure to complete the practical course work was due to problems he was experiencing with muscle pain in the neck, shoulders and back which he was experiencing at the time. Additionally, his doctor at the Liverpool Brain Injury Unit had advised him not to undertake mechanical tool work.
35. In January 2005 as part of his automotive course, he commenced an apprenticeship with Henry Wilson Autos, a small suburban automotive business, with the aim of becoming a motor mechanic. This entailed working five full weekdays and a half-day on Saturdays. He found his concentration and memory impairments impeded his ability to carry out the work required of him which in turn annoyed his employer. He found he could not cope with the work and resigned from this employment after persevering for one month.
36. In April 2005, after a number of failed attempts, the RTA re-issued the Plaintiff with a driver’s licence restricted to driving automatic vehicles. Subsequently after further efforts he was re-issued with his full licence.
37. Towards the end of 2005 he obtained a trial of employment in the automotive field with a company named Midas. His work with that company entailed carrying out relatively minor automotive repair and servicing jobs such as cleaning parts, and carrying out minor and easy servicing tasks. That position concluded after one week of a trial of employment. Following that trial he was not offered a position with that employer.
38. In January 2006 the rehabilitation provider Head-2-Work arranged for him to have a job interview with the Motor Traders Association. This entailed taking an aptitude test however no offer of employment followed. He continued to receive assistance from Head-2-Work to seek employment but was not been able to obtain a job. He has attended labour hire agencies and has also made many job applications, enquires and telephone calls to seek employment in the automotive field but without success.
39. The Defendant has submitted that the Plaintiff has failed to take reasonable steps to mitigate his loss of earning capacity. I am required to give consideration to the steps undertaken by the Plaintiff to mitigate his loss : Motor Accidents Compensation Act, 1999 s.136(2). The onus of proving the assertion that the Plaintiff has not mitigated his loss lies with the Defendant : s.136(4) of the Act.
40. The Plaintiff said he has not actively sought work just prior to the hearing of his case because, as he explained, in my view reasonably, he did not want the requirements of the current litigation to interfere with his attempts to find stable employment. The Plaintiff also described that he felt he could not deal with the requirements of a job and also deal with the requirements of his case. Given the sequelae of the Plaintiff’s head injury I consider that explanation to be a reasonable one and, properly understood, it does not constitute a failure on the Plaintiff’s part to mitigate his loss. I find that his actions in this regard are in keeping with his obsessive traits that have been influenced by his injury and they have been made more pronounced.
41. Further, I consider that the Plaintiff’s regular attendances at the Brain Injury Rehabilitation Unit and the Head-2-Work organisation, together with his post-injury attempts at work in the family business and at the other places he has been sent, when taken together represent more than reasonable attempts to mitigate the claim for loss of earning capacity.
42. The Plaintiff regularly attended the Head-2-Work organisation between 13 May 2004 and 17 January 2007 for work rehabilitation assistance. After extensive attempts to find suitable employment for the Plaintiff, as is documented in the 14 very detailed reports prepared by the Head-2-Work organisation which worked in conjunction with the Brain Rehabilitation Unit and the workers’ compensation insurer, further attempts at finding suitable work for the Plaintiff were abandoned by Head-2-Work in January 2007. In these circumstances, in the context of his brain injury, I am satisfied that the Plaintiff has made more than reasonable attempts to mitigate his loss of earning capacity and I reject the Defendant’s submission to the contrary. In my view the same can be said of his compliance with treatment recommendations. It is difficult to envisage what else could have been reasonably done by the Plaintiff or the rehabilitation provider to attempt to find work for him before accepting that his employment prospects were severely curtailed. I reject the submissions that the Plaintiff has failed to mitigate.
43. Despite the practical realities of his situation, the Plaintiff does not seek to convey the impression that he cannot work. His experience of his attempts thus far to obtain work have led him to feel, I find realistically so, that any future employment options he may have, if there are any, will be limited to menial physical and repetitive factory type work that will not place cognitive demands on him as he finds such demands to be very stressful. Realistically, in view of the problems he had with his memory and concentration, his self-assessment was that he thought he could not manage the full time work required of a storeman and packer. This has been borne out by the evidence of the Plaintiff’s mother to the effect that he made mistakes in sorting and packing chicken pieces in the family business. He had no such difficulty performing these duties satisfactorily prior to his injury.
44. The Plaintiff said he intends to actively seek work. He acknowledged that be could perform labouring work such as digging ditches. In my view such concessions made by the Plaintiff have to be viewed in context of the Plaintiff’s cognitive and emotional difficulties that will undoubtedly have an adverse overshadowing impact on his ability to gain and sustain any form of remunerative employment. These concessions also have to be viewed in the context of the Plaintiff’s over-confident manner.
45. The Plaintiff’s own summation of his cognitive difficulties provides a useful insight to his functioning and, I infer, his prospects of finding employment:
“Q. What is it about using your brain that you don’t like or that you’re unhappy with?
A. It’s just when I use my brain it’s hard to concentrate and I get very stressed and it’s not that good anyway.
…..
Q. What do you mean it’s not that good anyway?
A. Well, my memory is not as good as it was before and the speed – the reaction that I have is not as fast and you could basically say my brain now – the process is if you could compare it to a computer, my brain is – the processor is slower than the processor I had before. I guess that the best way you could describe it – is like a computer”
46. The Plaintiff described how he gets anxious and stressed when assigned tasks. Although he has learnt strategies to try and help him to cope with such stresses these strategies are not always successful for him. For example, one of his coping strategies is to write things down or draw diagrams but the problem emerges later when he draws a different meaning from the words he had written down when compared with what was intended by the process so that the strategy is effectively rendered unsuccessful. I find that these difficulties will remain as a permanent impairment to the Plaintiff’s employment prospects and they will therefore severely and permanently impair his earning capacity.
47. The Plaintiff’s neck and shoulder pain has resolved about a year after his injury and this has left him without lasting problems in these areas. His incapacity for work is therefore largely influenced by cognitive, emotional and behavioural issues.
48. Before his injury the Plaintiff enjoyed a good social life with plenty of friends. Since his injury he continues to see a group of friends about once per week but does not enjoy that interaction because he cannot see the humour of some of the things they say to him and he feels unable to respond appropriately or in a dynamic or timely way. He feels his friends laugh at him about this and this makes him feel depressed and upset. Before his injury he had a girlfriend and he enjoyed a good personal and sexual relationship but no longer has the benefits of such arrangements.
49. Since his injury he has not been on holidays and is too apprehensive to go on holidays alone because he harbours a fear of some injury related event occurring which may cause him some problems. He is able to operate a modest bank account and a credit card account by himself and he seems to be able to manage his modest pocket monies.
50. He no longer enjoys reading and he no longer has an interest in participating in sports. He is no longer motivated to exercise with weights and this has affected his weight and his fitness. Before his injury he was much lighter and fitter than he is now.
51. He now finds that his vocabulary has become limited and he has difficulty finding appropriate words when he is speaking whereas beforehand this was not the case. He has difficulty thinking and expressing himself adequately and this causes him difficulty with his interaction with others and with his social relationships. He also experiences noise intolerance. He has required a considerable background supervisory domestic presence and has needed assistance to organise himself. He feels he could not look after all of his daily living needs were he to live alone in the future. I consider that to be a reasonable self-assessment on his part.
52. The Plaintiff still remains under the intermittent care of the Brain Injury Unit at Liverpool District Hospital where he continues to have contact for advice, treatment, management and occasional residential respite care. I infer from this that he still needs such assistance even though his condition has been stable for some time. From this ongoing contact I infer and find that such needs will remain permanently.
53. Although the Plaintiff appears to presently receive follow-up contact without charge I think it is unsafe to assume he will receive treatment and care without charge after he is compensated. I interpret the situation to be that the follow-up contact is without charge but the therapies and respite care costs are not, as is evidenced by the fact that these costs have been charged to the workers’ compensation insurer. Further, it is well known and beyond dispute that such public resources are stretched to straining point. I therefore find that after the Plaintiff receives his compensation from this case he will not be able to receive such services without cost. I will address these costs when dealing with the individual components of the damages claim.
54. The Plaintiff will continue to adversely suffer from the cognitive, emotional and behavioural effects of his head injury. That injury has caused gliosis or scarring of the brain from the shearing forces involved with his head injury. The post-haemorrhage scarring of his brain has affected both of the Plaintiff’s frontal lobes. At page 14 of his report dated 28 June 2006 Dr Smith’s neuropsychiatric opinion was that the initial injury caused the Plaintiff to suffer compromise bilaterally to the long motor fibres that emanate in the frontal lobes and traverse the brain stem to terminate in the contra-lateral aspect of the spinal cord. Whilst the initial disturbance to the Plaintiff’s motor function improved, Dr Smith’s summation was that the Plaintiff suffered from damage to the right frontal lobe and its connections.
55. Dr Smith summed up his neuropsychiatric assessment in the following terms:
“He told me that it was in mid 2005, when he realised that he had changed, that he started to become depressed. He then started thinking about killing people and harming himself. He started to neglect his hygiene and he started drinking on a daily basis. In September 2005 Dr. Veerabangsa started him on Avanza but it would seem that he has taken it sporadically. Nevertheless he told me that his depression is now much better so that he feels down only for a few hours at a time and about two or three times a week. Fortunately he stopped using alcohol some months ago.
His IQ did not change after the accident. Testing shortly after the accident showed that he had mild memory problems, particularly of a visual type which is consistent with his right cerebral hemisphere damage; he told me that his memory has improved since. However, it would seem that his mentation is slower and he has difficulty coping with too much information at once, and during his Driving Assessment it was noted that he lacked insight and reasoning. This constellation is consistent with damage to the frontal lobes but the degree of cognitive impairment is mild.”Of concern, however, is the fact that he started gambling after the accident. His disinhibition and depression may have contributed to this tendency. He admits that it is an addiction and he has not been able to control it. He apparently has not told anybody else about this but I would advise that (sic) see a behavioural psychologist who could help him overcome this habit.
56. The description of the Plaintiff’s impairments as being “mild” must be seen to be a relative one. Of greater relevance is the practical impairment to the Plaintiff’s day to day functioning which adds meaning and context to the medical description of his condition. In this regard I have taken into account and accept the evidence of the Plaintiff’s problems as he described them, as his mother, aunt and stepfather have described them and I have also taken into account the histories of the Plaintiff’s problems as were provided to the various medical examiners whose opinions are in evidence.
57. Dr Smith reviewed the results of psychological testing carried out by Dr Gilandas and made the following comment:
“Dr. Gilandas’ testing indicated that Mr. Choy has an above average IQ but his memory functioning remains impaired, especially for non-verbal tasks, and this is consistent with his right cerebral hemisphere damage. There is also evidence from other sources that he has difficulty coping with too much information at once and has some problems with insight and reasoning and such features are consistent with a mild degree of damage to the frontal lobes.”
58. I accept that the Plaintiff has the limitations that I have summarised and which are described in the evidence I have summarised. The Plaintiff’s neck and shoulder pain has resolved about a year after his injury and this has left him without problems in these areas. I accept that the remaining cognitive, emotional and behavioural problems cause the Plaintiff considerable difficulty and frustration. I accept that these problems are permanent and will prevent him from working in the capacity of manager in the family business. I accept that he could not take on the stresses and pressures of managing the family business or its equivalent. I also accept that they will adversely operate on any attempts the Plaintiff may make in seeking to exercise an earning capacity in the future.
Assessment of damages
59. I now turn to the assessment of the individual heads of damage claimed by the Plaintiff.
Non-economic loss
60. In my view the survey of the Plaintiff’s residual problems that I have set out in the preceding paragraphs calls for a significant award of damages for non-economic loss to compensate the Plaintiff for the considerable loss of the amenity of his life. This relates not only to his frontal lobe brain damage and the emotional and cognitive sequelae of such damage but also to the change in his personality and his loss of the previous “buzz” of life that he had previously experienced and which is now lost to him. The Plaintiff’s pre-injury high intelligence makes him acutely aware of the change in his situation caused by the described impairments and this undoubtedly fuels his frustrations. The Plaintiff's residual facial scarring is not a significant problem for him but I also take this factor into account.
61. The Plaintiff submits that a substantial award for non-economic loss is warranted and submits that an award of $225,000 would be appropriate. The Defendant submits that an award of $150,000 would be an appropriate sum for non-economic loss. I regard the sum submitted by the Defendant to be a manifestly inadequate sum to compensate the Plaintiff for his injuries, disabilities and the resultant loss of the amenity of his life caused by the effects of his injuries.
62. Having regard to the far reaching nature and extent of the Plaintiff’s ongoing disabilities and impairments that impact on every aspect of his life and which I have surveyed over the preceding paragraphs, I consider that an appropriate award for non-economic loss has to be in the amount submitted by the Plaintiff. I therefore assess non-economic loss in the sum of $225,000.
Past loss of earning capacity
63. The Plaintiff’s mother gave evidence that before his injury the Plaintiff was a healthy, hardworking and happy young man with an active social life. She described how, before he left school he had worked in the family business on weekends. She described how he had performed his work well in a reliable manner and had showed good organisational skills when tasks were delegated to him. She described how, before the Plaintiff left school she and her husband had planned to let the Plaintiff take over the family business. The detail of her evidence on these matters was not relevantly challenged and I accept that but for the Plaintiff’s injury he would have worked his way up to a managerial role in the family business. The evidence of his pre-morbid intellectual functioning certainly supports this view.
64. Mr Wang, the Plaintiff’s stepfather gave evidence to the effect that prior to his injury the plaintiff performed his work in the family business quite well. That work comprised mainly despatching goods in addition to some simple management duties. He described how over time the business had grown from having 20 employees to having a workforce of 40 employees. The nature of that workforce was not explored either as to any full and part time components or as to the distribution of tasks. Mr Wang confirmed that before the Plaintiff’s injury the intention was for the plaintiff to take over the family business. He said he was not worried about the Plaintiff taking over the business however he said the Plaintiff would obviously have to acquire some familiarity or training with some aspects and divisions in the business if he took it over. This evidence was not relevantly challenged and I accept it.
65. Mr Wang acknowledged that if the Plaintiff were to have taken over the family business he and his wife would no longer have expected to receive income from the business. He said that they had other savings and other business plans to pursue. I accept the unchallenged evidence Mr Wang gave concerning these matters.
66. The Plaintiff tendered as Exhibit “B” a forensic accountant’s report dated 24 January 2008. This was prepared by Mr Lance Kahler from Vincents, chartered accountants. The underlying mathematical assumptions upon which that report was based were not in dispute.
67. Mr Kahler prepared his economic loss calculations on the basis of two alternative assumptions. The first assumption was that the Plaintiff would have taken over the management of the family business and would have derived income commensurate with that level of responsibility after a suitable period of training. The second and alternative assumption was that the Plaintiff’s loss of earnings should be calculated according to the net value of the rate specified for Average Weekly Earnings of Full-Time Adult NSW Males.
68. Before approaching the task of assessing the claim for past loss of earnings it is necessary to briefly review the situation of the family business. Green Star Enterprises Pty Ltd was incorporated on 10 March 1997. The business of the company was the processing, distribution and sale of chicken meat and then later, seafood as well. At the time of the Plaintiff’s injury the Plaintiff’s stepfather Mr Wang was the sole director and shareholder. At the time of the Plaintiff’s injury the company operated by contracting out the processing side of the business so that its principal activities were in the areas of sales and distribution. At some time prior to the Plaintiff’s injury Mr Wang had planned to transfer the business to the Plaintiff which meant that he and his wife would then direct their energies to other forms of business. To facilitate the transfer of the business to the Plaintiff a new company was formed called Green Star Food Service Pty Ltd. That company was incorporated on 26 November 2003. To this end the Plaintiff was appointed sole director and shareholder. These events occurred before the Plaintiff was injured. The financial figures for these businesses were extracted and set out in Mr Kahler’s report.
69. The evidence was that plans for the Plaintiff to run the business continued to remain in place even after the Plaintiff was injured and whilst the Plaintiff was still undergoing rehabilitation treatment for his injuries in the expectation that he would make a good recovery and would ultimately be in a position to run the business as planned. I accept the evidence of the Plaintiff’s mother and stepfather to the effect that their plan was for the Plaintiff to take over the family business as outlined above.
70. During the Plaintiff’s rehabilitation treatment and as a result of the effects of his injuries the newly formed business of Green Star Food Service Pty Ltd was restructured so that the sales function was contracted out to leave only the distribution side of the business for the Plaintiff to operate when and if he made a sufficient recovery. As things turned out the Plaintiff did not make a sufficient recovery to enable him to pursue and take on the business responsibilities that were being planned for him. As a consequence, subsequently the Plaintiff’s stepfather resumed the task of full-time management of the company which has continued to trade in its restructured form.
71. In order to provide a basis for estimating the Plaintiff’s claim for loss of earning capacity as the operator of the Green Star businesses Mr Kahler has analysed the profit and loss statements and tax returns of Green Star Enterprises Pty Ltd between 30 June 2001 and 30 April 2004. He undertook a similar exercise in respect of Green Star Food Service Pty Ltd for the period 1 May 2004 to 30 June 2006. He also carried out some adjustment calculations to reflect the fact that rent for the business premises was being paid to the Plaintiff’s mother as she owned the property from which the business was conducted.
72. In making that estimate, and after allowing for the offset of the Plaintiff’s relatively modest post-injury earnings, Mr Kahler has estimated the Plaintiff’s loss of earning capacity based on projected Green Star earnings between 1 July 2004 and 31 January 2008 in the sum of $127, 334 net as set out in Table 1 in his report Exhibit “B”. That table makes no additional allowance for the probable earnings that the Plaintiff would have derived whilst working in his pre-injury position between 30 January 2004 and 30 June 2004, a period of some 22 weeks. Mr Kahler’s calculation also requires some upward adjustment for an additional period of 25 weeks of loss being between the date of the calculation date in the report, namely 1 February 2008 and the commencement of the trial on 28 July 2008.
73. A question arises as to whether the sum of $127,334 as adjusted in the manner I have identified, derived as it has been from assumptions concerning the continued and profitable successful operation of a business by the Plaintiff, represents a fair and reasonable method of assessment of the Plaintiff’s past loss of earnings in this case. For a number of reasons I come to the view that such an approach is not reasonable in this case.
74. First, the Plaintiff had no relevant management experience in the industry in which his proposed business was to operate. Notwithstanding the Plaintiff’s pre-injury intelligence and motivation, I consider that this factor casts doubts and uncertainty over his ability to sustain the business at a level to continue to maintain income and profits in the period leading up to the trial. Secondly, a business that was limited to sales and distribution and which depended for its viability on outsourcing the cost of labour for processing its food products would, in my view, remain hostage to the vagaries of labour market conditions and this would be likely to serve to undermine the profitability and viability of the business.
75. In view of those factors I think that Mr Kahler’s alternative approach to estimating past economic loss, namely, using the yardstick of rates for Average Weekly Earnings of Full-Time Adult NSW Males represents a reasonable approach to assessing the value of the Plaintiff’s past loss of earning capacity.
76. No precise evidence was given of the Plaintiff’s net earnings whilst he was working in the part-time position of storeman with Green Star Enterprises Pty Ltd. Similarly, there was no precise evidence of his level of earnings in his part-time employment as a pizza delivery driver. The answers to questions in the claim form filled out on the Plaintiff’s behalf suggests a total combined earnings of about $540 per week gross. I find that in respect of the period 30 January 2004 and 30 June 2004, consistent with the plan for the Plaintiff to take over the business, in this period, the Plaintiff would probably have gravitated to full-time employment with the company and this would have led to him leave his work as a pizza delivery driver in order to derive a higher rate of earnings as an employee of the family business and in order for him to properly attend to his envisaged role in that business. This still leaves the question of what would have been his likely net earnings in this period.
77. In the absence of precise evidence as to actual earnings in this period, and accepting that the Plaintiff was a motivated and industrious worker, I infer from these facts that the Plaintiff’s earnings would be no less than the rates applicable to adult storemen as has been identified by Mr Kahler.
78. An analysis of Mr Kahler’s economic loss report reveals the two relevant periods for the assessment of past loss of earnings.
79. The first period is between 30 January 2004 and 30 June 2004, a period of 22 weeks, during which time I find that the Plaintiff would most probably have left his work as a pizza delivery driver to assume a greater responsibility and earnings rate in the employ of Green Star Food Service Pty Ltd, probably as a storeman for the gross weekly wage of $660. Applying the applicable published tax scales and Medicare Levy to such earnings this yields a net weekly equivalent of $540 per week which I round down to an average rate of $500 per week net to reflect an element of uncertainty as to precisely when the pizza delivery work would cease in favour of full time work in the employ of Green Star Enterprises Pty Ltd. After deducting the first week of loss of income as the statutory deductible threshold required by s.124 of the Motor Accidents Compensation Act, 1999 the calculation of the Plaintiff’s past loss of earning capacity for the remaining 21 weeks in the period 30 January 2004 to 30 June 2004 is $10,500 net.
80. The second period of the claim for past loss of earning capacity is between 1 July 2004 and 28 July 2008, during which time I find that the Plaintiff would have worked in full-time employment earning no less than the industry average wage for a full-time storeman as identified by Mr Kahler. In Schedule B to Exhibit “B” Mr Kahler has set out an estimate of the value of loss of earnings at full time storeman’s rates for the period 1 July 2004 to 30 June 2008 in the sum of $163,187. After adjusting this figure upwards to allow for an additional 4 weeks of earnings between 1 July 2008 to 28 July 2008 at the rate of $566 per week net or $2,264 ($29,474 net per annum as stated in Schedule B of Exhibit “B” divided by 52 weeks) this calculation is revealed to be $165,451. In my view this is a reasonable approach to assessing this period of loss of earnings in respect of this period. I therefore assess this component of the loss in the sum of $165,451 net.
81. The total calculation for the Plaintiff’s loss of earnings incorporating the foregoing components between 29 January 2004 and 28 July 2008 is therefore $175,595. This sum takes into account and reflects an offset for the actual net earnings the Plaintiff derived during the two short periods of employment during this period. Those periods were first, between 4 January 2005 and 7 February 2005 when the Plaintiff worked as an apprentice motor mechanic and secondly, between 21 November 2005 and 27 January 2006 when the Plaintiff undertook a trial of work with Midas. These offset figures are included in the calculations in Schedule B to Mr Kahler’s report Exhibit “B”. I therefore assess the Plaintiff’s past loss of earnings between 29 January 2004 and 28 July 2008 in the component amounts of $10,500 and $165,451 yielding the total net sum of $175,951.
Fox v Wood
82. The amount of tax that has been deducted from the Plaintiff’s weekly workers’ compensation payments is in the agreed amount of $12,800. I therefore assess the Fox v Wood component of the Plaintiff’s damages in the sum of $12,800.
Future loss of earning capacity
83. I have formed the view that the Plaintiff has suffered a severe diminution in his future earning capacity such that from a practical perspective he is and will remain, unemployable. In my view any residual earning capacity that may emerge from time to time would be theoretical and would be so intermittent as to be unlikely to be productive of any significant remunerative income. I consider that for practical purposes, the Plaintiff should be considered to be unemployable for the remainder of what would otherwise be a normal working life to age 65.
84. Section 126 of the Motor Accidents Compensation Act, 1999 requires that I must state my reasons for any assessment I make in respect of damages for future loss of earning capacity in this case. Before outlining those reasons I will review the opinions from the medical and allied experts whose views are relevant to my findings on the issue of the Plaintiff’s claim for damages for future loss of earning capacity as I find those opinions to be instructive.
85. I will commence my analysis with the opinion of the treating rehabilitation specialist. I do so for several reasons. First, in my view that specialist has had a distinct advantage because he was able to assess the Plaintiff’s condition over time. Secondly, that specialist has had the opportunity of making cumulative observations of the Plaintiff over the course of his recovery in the years since the injury compared to the more limited opportunity others have had when making their assessments of the Plaintiff on more limited occasions. Thirdly, in my view, in a general sense, some of the cognitive and behavioural effects of the sequelae of the Plaintiff’s traumatic brain injury are subtle and could be masked by his over-confident manner. This is a matter that is relevant to assessing future loss of earning capacity and it is a factor that is more readily observable and available to the treating clinician for his consideration over time compared to the more limited observations that could be made in the setting of a medico-legal examination.
86. In his report dated 22 January 2008 the Plaintiff’s treating rehabilitation specialist at the Liverpool Hospital Brain Injury Rehabilitation Unit, Dr Veerabangsa, expressed the opinion that it would be difficult for the Plaintiff to maintain suitable employment on account of his various emotional, behavioural and cognitive residual disabilities that were due to the traumatic brain injury. These problems included reduced concentration and attention span, slow speed of information processing, poor self-monitoring, over-confident thinking and impulsiveness. I accept as reasonable Dr Veerabangsa’s assessment in this regard.
87. The Plaintiff was assessed by Dr Adeline Hodgkinson at the request of the Motor Accidents Authority Medical Assessment Service. It appears this examination was on 4 January 2007. Her report is dated 24 January 2007. Co-incidentally, she is the Director of the Brain Injury Rehabilitation Unit where the Plaintiff was treated and where he still attends intermittently. She confirmed that all of the Plaintiff’s injuries and their residua were due to the head injury. She confirmed that significant neurological improvement was unlikely and tellingly she stated that the barriers to the Plaintiff obtaining employment “are known and significant”.
88. The problems Dr Veerabangsa has identified are given further emphasis by the further problems noted by the plaintiff’s general practitioner, Dr La in his report dated 9 April 2008, namely, depression, emotional lability, frequent agitation, being easily angered, forgetfulness and an inability to express himself clearly which leads to frustration. I accept as reasonable Dr La’s assessment in this regard.
89. Dr Milder undertook a neurological assessment of the Plaintiff. In his report dated 18 July 2006 he expressed the opinion that from a work perspective the Plaintiff may be able to participate in particularly simple structured activities requiring slight concentration. In his subsequent assessment dated 22 October 2007 Dr Milder was of the opinion that the Plaintiff’s outlook remained poor with a marked resultant diminished capacity to attain previous personal and professional affairs which I infer to mean work ambitions. I consider these views expressed by Dr Milder to be reasonable and applicable to the plaintiff and I accept them.
90. Dr Gilandas, a psychologist, assessed the Plaintiff and prepared assessment reports dated 14 June 2006 and 11 October 2007. Dr Gilandas noted that in June 2006 the Plaintiff was carrying out what I interpret was limited and sheltered employment in his parent’s business for two hours per day. Dr Gilandas was of the opinion that from a psychological point of view the Plaintiff was at a significant disadvantage on the open labour market and may in fact be unemployable in his current state. In my view that was a most significant conclusion which I accept because, by June 2006 the plaintiff had, in the opinion of his treating and assessing specialists, already reached his maximum state of medical improvement. In his subsequent report dated 11 October 2007 Dr Gilandas re-iterated his earlier expressed views on limitations on the Plaintiff’s earning capacity.
91. On 25 July 2006 Dr Klug, a consultant psychiatrist assessed the Plaintiff and considered that he was not totally incapacitated for work but clearly had difficulties in the workplace. In his report dated 14 January 2008 Dr Klug offered the more pessimistic view that, from the perspective of the employability of the Plaintiff, his level of impairment was severe. He noted that the Plaintiff may be totally impaired for employment purposes. I consider Dr Klug’s view to be an understatement of the problem facing the Plaintiff with regard to future employment.
92. In his report dated 7 November 2007 Dr Deveridge, a surgeon, expressed the qualified view that the Plaintiff was completely unfit for all work until he made a reasonable recovery from his brain injury, a period about up to two years following his injury, following which the recovery from the physical injuries would permit a gradual and conditioned return to some physical work tasks. That view was expressed to be subject to a need to consider the effects of the head injury which was a matter outside the remit of Dr Deveridge’s expertise. I interpret Dr Deveridge’s comments on the Plaintiff’s work fitness to relate to the neck and shoulder problem from which the Plaintiff had made a good recovery. I find that although the Plaintiff has reached the point of maximum improvement following his brain injury he has not and will not make a recovery from it. As to what constitutes a “reasonable recovery” is obviously a matter of fact and degree. I do not read the opinion of Dr Deveridge to indicate a practical residual earning capacity.
Independent living, training and support
207. The Plaintiff makes a claim for the cost of training for and the supervision of the transition it is anticipated he will be required make from living with his family to living independently in his own residence in the future. The basis of this claim is explained by Mrs Miller Ravagnani to be that the Plaintiff’s presence at home is having a negative effect on his mother and his younger siblings due to his behaviour this justifying the provision of monitoring, assistance and support during the first twelve months of the transition to independent living. In addition there is the obvious point that neither the Plaintiff nor the Defendant can assume the Plaintiff will continue to live with his parents indefinitely. His right as an adult is to live independently and it is that right that has been adversely affected by the effects of his injury. I find that it is reasonable that the Plaintiff be provided with the funds for such a transition now rather than postponing it until later.
208. The basis of Mrs Miller Ravagnani’s recommendation is that the Plaintiff would benefit from the provision of such training and support. In my view that reason alone would be an insufficient reason to award such damages. The threshold test for such an allowance is not so much whether the service would benefit the Plaintiff but rather, whether the injury has created a need in the Plaintiff that has to be addressed when assessing damages.
209. In this regard Dr Veerabangsa’s report states that the Plaintiff is capable of independent living with the provision of support and set up structures in the initial short-term. Dr Veerabangsa is of the opinion that this would involve someone checking on the Plaintiff once or so per week and such an arrangement would also address the need to assist the Plaintiff with the initial set up of his independent living surrounds to ensure they are adequate for his needs. I accept as reasonable Dr Veerabangsa’s recommendation in this regard. I also accept as reasonable Mrs Miller Ravagnani’s costing estimate of $21,600 to implement the arrangement. This represents 160 hours required in the course of the first twelve months which is a little over three hours per week at $135 per hour. I am conscious of the need to avoid overlap with the services that will be provided by a case manager and for which I have made a separate allowance within my assessment of damages. Having regard to the need to avoid such an overlap I round Mrs Miller Ravagnani’s costing recommendation down to $14,000 which is the equivalent of about two hours per week for the provision of such a service.
Past out-of-pocket expenses
210. The Plaintiff’s out-of-pocket expenses have been agreed in the sum of $125,773.54 and I assess the Plaintiff’s entitlement to an award for out-of-pocket expenses in that amount. I note that it has been agreed that of this sum the Defendant’s insurer has paid an amount of $3,947.70 : s.83 of the Act.
Funds management charges
211. The Plaintiff makes a claim for funds management charges. The argued basis of that claim is that the Plaintiff’s compensable injury has damaged his capacity to invest and manage his funds. The Defendant contests the claimed entitlement and points to the fact that the Plaintiff did not have a Tutor in the proceedings and further submits that in the relevant legal sense that there is no evidence of an impairment of the Plaintiff’s capacity to manage his compensation funds.
212. The legal basis upon which an award of damages for funds management charges in cases such as this is well settled. If the claimed purpose of damages for funds management arises simply from the size of the damages award and the resultant need to obtain skilled assistance with investment choices and systems for managing such investments the cost of obtaining such assistance is not a matter that sounds in damages : Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49, 54-55; Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627.
213. There was no evidence that the Plaintiff had an intellectual deficit that materially impaired or adversely affected his ability to understand or appreciate his specific injury caused needs. He has a form of brain damage that has changed his personality, changed his behaviours and created a need for him to access an array of therapeutic and assistive services. He manages his own bank account and credit card account. There was evidence that the memory problems affecting the Plaintiff tend to render him liable to forget to pay his bills as they fall due for payment however a case manager would address this issue. There is no evidence that he cannot handle money or appreciate the value and importance of money. In the past he has exhibited obsessive behaviours and an addictive attitude to gambling in response to low moods. He will receive an award for the cost of treatment and for the services of a case manager to manage this problem if it becomes recurrent.
214. In my view the foregoing summary reveals no special features of the Plaintiff’s situation entitling him to an award of damages for the cost of funds management charges.
215. The Plaintiff is the recipient of a sizeable and once only award of damages that is aimed at addressing his multiple and significant needs insofar as these can be reasonably measured in money terms. It is therefore imperative that he has the benefit of wise and careful advice concerning money management to enhance the longevity of his compensation funds. This circumstance is a compelling reason for the Plaintiff to seek out and implement a prudent investment regime in an endeavour to maximise his potential investment returns and avail himself of the tax benefits available to persons in his situation. Such advice and assistance will undoubtedly come at a price. In cases of substantial awards for personal injury it is commonplace to see a trustee company appointed to provide the requisite financial advice and implementation of that advice. The Plaintiff would be well advised to follow that course. However, in my view, on the current state of the law, the cost of such an endeavour is not an expense that can be reasonably visited upon the Defendant in this instance. Accordingly, I am constrained by authority to reject the claim for the cost of funds management charges.
Summary of damages assessment
216. My assessment of the Plaintiff’s damages claim is summarised as follows:
(a) Non-economic loss (b) Past loss of earning capacity (c) Fox v Wood (d) Future loss of earning capacity (e) Past loss of employer funded superannuation contributions (f) Future loss of employer funded superannuation contributions (g) Past domestic and attendant care services (h) Future domestic care services (i) Future treatment (j) Case manager (k) Drop-in supervision by Case Manager (l) Respite care (m) Gymnasium membership and personal trainer (n) Sex worker (o) Additional vacation expenditure (p) Back to base alarm (q) Independent living, training and support (r) Past out-of-pocket expenses (s) Funds management charges Total
Disposition
217. The total of the foregoing damages assessment in the sum of $2,692,664.54 requires adjustment to reflect the agreed 20 percent apportionment on account of the Plaintiff’s own contributory negligence. That apportionment results in a reduced award for the Plaintiff in the sum of $2,154,131.60.
Orders
218. I make the following orders:-
(a) Verdict for the Plaintiff in the sum of $2,692,664.54;
(b) The Plaintiff’s contributory negligence is assessed in the agreed apportionment of 20 percent;
(c) Judgment be entered for the Plaintiff in the apportioned sum of $2,154,131.60 after discount;
(d) The Defendant is to pay the Plaintiff’s costs;
(e) The exhibits may be returned;
(f) Liberty to apply on 7 days’ notice if further orders are required.
TABLE 1
PERIOD WEEKS WEEKLY
s.128(4)
RATE1. 07.04.2004 to 20.08.2004 19.28 $793.60 2. 21.08.2004 to 19.11.2004 12.85 $797.70 3. 20.11.2004 to 31.12.2004 5.85 $828.50 37.98
TABLE 2
PERIOD WEEKS WEEKLY
s.128(4)
RATEHOURLY
s.128(4)
RATE1. 01.01.2005 to 18.02.2005 6.85 $828.50 $20.71 2. 19.02.2005 to 20.05.2005 12.85 $836.10 $20.90 3. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 4. 20.08.2005 to 18.11.2005 12.85 $863.80 $21.59 5. 19.11.2005 to 17.02.2006 12.85 $867.00 $21.67 6. 18.02.2006 to 19.05.2006 12.85 $856.30 $21.40 7. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 8. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 9. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 10. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 11. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 12. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 13. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 14. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 15. 17.05.2008 to 28.07.2008 10.28 $904.70 $22.61 184.05
4
3