CLAYTON - [2011] WADC 83

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: CLAYTON [2011] WADC 83

CORAM: WISBEY DCJ

HEARD: 23/02/2011

DELIVERED : 31 MAY 2011

FILE NO/S: APP 63 of 2010

MATTER :IN THE MATTER of Part 7 of the Criminal Injuries Compensation Act 2003
and
IN THE MATTER OF an Appeal by

BETWEEN: MICHAEL DAVID CLAYTON
Appellant

ON APPEAL FROM:
Jurisdiction              :  CRIMINAL INJURIES COMPENSATION ASSESSOR OF WESTERN AUSTRALIA
Coram  :R GUTHRIE
File No  :CI 000290 of 2010

Catchwords:

Criminal injuries compensation - Appeal - Whether award properly reflected extent of appellant's losses - Turns on own facts

Legislation:

Criminal Injuries Compensation Act 2003

Result:

Appeal allowed - Assessor's award increased to $56,842.97

Representation:

Counsel:

Appellant: Ms M N Howley
Amicus Curiae : Ms K Pope

Solicitors:

Appellant: Slater & Gordon
Amicus Curiae : State Solicitors Office

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

Nil

WISBEY DCJ: The appellant appeals pursuant to s 55 of the Criminal Injuries Compensation Act 2003 against the compensation award in the amount of $45,725.97 made by Mr R Guthrie, an Assessor of Criminal Injuries Compensation on 6 August 2010.
The award was consequent upon an application filed 3 March 2010 pursuant to s 17 of the said Act, the offence of assault occasioning bodily harm, having allegedly been committed against the appellant in circumstances where no person was charged with the alleged offence. That section provides that a person who suffers injury as a consequence of the commission of the alleged offence may apply for compensation for that injury and any loss also suffered provided that the assessor is satisfied that the claimed injury and loss has occurred and was as a consequence of the commission of the alleged offence.
In the application the appellant alleged that the offence occurred at Currambine late in the evening of 6 April 2007.
In the amended notice of appeal filed 21 October 2010 pursuant to the order of the deputy registrar made 12 October 2010, the appellant seeks an order for the statutory maximum of $75,000, the grounds relied upon in the application being:
1.There was inadequate provision for the cost of future medical treatment.
2.The extent of the appellant's injuries and/or residual disabilities were not appreciated. (More correctly expressed, not adequately evaluated.)
3.The assessor erred in finding that the appellant aggravated his medical condition by indulgence in alcohol contrary to medical advice, resulting in a seizure in February 2009.
4.The amount allowed for loss of earning capacity was inadequate.
5.There was no allowance for travelling expenses.
Section 56 of the said Act provides that in considering the appeal, this court
must decide the application to which the decision relates afresh, without being fettered by the assessor's decision, solely on the evidence and information that was in the possession of the assessor, or may receive further evidence and information.
Whilst there is a discretion to admit further evidence, it is not the case that the discretion should be exercised simply to allow an appellant to pursue a different case if dissatisfied with the compensation award.
Although one cannot be certain of the material before the assessor, in his reasons for decision he indicated that he had been supplied with a substantial body of witness statements, medical information, information supplied by the appellant's solicitors, and the police brief concerning the alleged incident. In all the circumstances, it is necessary that I review that material.

The incident

The appellant on 14 April 2007 stated that at about 8.30 pm on the day of the incident he attended a party at Templar Place, Currambine with five others; Daniel Edwards, Kane Bostock, Callam Jessop, Adam Thomas and Cody. Prior to attending the party they had been watching football at Cody's house in Currambine. The appellant stated that he knew most of the people at the party as they had attended Ocean Reef Senior High School. He left the party with Daniel Edwards at about 10.00 pm and they walked across Caledonia Park towards the train station with the intention of going into Northbridge. They cut through a bush track onto Yorkshire Grove, and his next recollection was waking up in a ward at Joondalup Health Campus. There is nothing in the material to explain the absence of recall.
Daniel John Edwards made a statement on 8 April 2007 in which he stated that about 8.30 pm on the day of the incident he attended the party in Currambine with some of his mates. Before attending, he had consumed three or four stubbies of Carlton Cold beer at home. He stayed at the party for a couple of hours until the appellant, Adam Thomas, Callam Jessop, Kane Bostock and himself decided to walk to the Currambine train station to catch a train into Northbridge. He stated that he had heard of another party being held at a house in Currambine near Caledonia Park, and as that was on the way to the train station, they decided to go there. As they were walking down a cul‑de‑sac near McDonalds restaurant he heard a noise and turned to see some males running towards them. Bostock and Jessop were running up the road, having been walking a bit in front of Thomas, the appellant and himself. He also began running as he did not know why the males were chasing them, and was concerned. He ran into a property and concealed himself at the front of a car. A young male between 13 ‑ 15 years of age, with short hair and a long rat's tail at the back, came up to him and kicked him in the head and he lost consciousness. Several males then approached and offered to help him, and took him to where the appellant was located. The appellant had blood all over his face. The police and ambulance personnel attended.
In a statement to the police on 8 April 2007, Adam Thomas stated that at about 7.00 pm on 7 April 2010 he drove to Cody's house where it had been arranged that a group, including the appellant, Edwards, Bostock, Jessop and Dean Winters would meet. They had all been students at Ocean Reef Senior High School. Whilst at Cody's, he drank a six pack of Tooheys Extra Dry beer. The appellant and Edwards had about four stubbies each, and had apparently been drinking before arriving at Cody's. He stated that when they left Cody's to attend the party at 10 Templar Place, they were affected by alcohol, although not drunk (whatever that means). His recollection was that they arrived at the party at about 10.00 pm. He did not know the person holding the party, but had heard about it from an SMS from a friend, several days earlier. His recollection was that he left the party at about 11.00 pm with Bostock, Jessop, Winters and several others who he did not know well, having decided to walk to Currambine station to catch a train to Northbridge. His recollection was that the appellant and Edwards were still at the party when he left. He stated that on the way to the train station they cut through an oval where they encountered two young females, one of whom was carrying a paint spray can. One of the group called her a slut and asked her for a head job, and the girls yelled out that they 'would get their boys onto us'. Mr Thomas stated that as they reached the end of the oval he observed three males standing on the road. One of them was holding a black baseball bat, and asked what they were doing shouting at the girls. Insults were exchanged by both groups. The male with the baseball bat made a telephone call, indicating to the recipient of the call that they were going to get into a smash. Thomas and Winters began to walk away as both groups began to push and shove each other. The three unknown males then left.
Thomas' group continued to walk towards the station and were joined by the appellant and Edwards. As they were proceeding, a black car pulled up next to them and four shirtless males got out of it. They were different from the previous three males, and one had short hair with a rat's tail. Thomas called out to his mates to come back and:
…[N]ext thing I saw Michael sitting down on the road. I ran towards Michael when one of the male's without the rat's tail punched Michael to the face with his left hand. I saw blood on Michael's face and on the road. I tried to help him up but he couldn't stand so I lay him back down. Michael appeared to be very dazed and out of it. I could see Daniel a short distance away, sitting on the ground. He also had blood on his face. Shortly thereafter, ambulances arrived.
Kane Nathan Bostock made a statement on 25 April 2007 in which he said that about 6.00 pm on the day of the incident he went with Jessop to Cody Canon's house. Woodcock and Winters arrived at the same time. They were watching football. The appellant, Liam Underwood, and Edwards also arrived. Bostock stated that he drank about six cans of Cougar and cola. King and Alex arrived after the game. They decided to check out a party in Currambine that Underwood had heard about, and if it was no good would catch a train to Northbridge. He stated they left Cody's house about 8.30 pm and walked to 10 Templar Place, Currambine. He knew most of the people at the party as they were students from Ocean Reef Senior High School, a year below his grade.
All those who had been at Cody's house, save for Underwood and Cody, left the party at about 10.00 pm and walked towards the station, cutting across Caledonia Park and down a bush track. At the end of the bush track he observed a group of two girls and about four young males. The girls were carrying spray cans, and one male was holding a baseball bat. That person had a go at them for abusing the girls. Bostock told him that it was not them. The group ended up walking away, and Bostock's group continued towards the station. As they were walking down Straitsman Road, he heard a lot of yelling from the direction of Caledonia Park. He stated that the appellant, Edwards, and himself were walking about 20 m behind King, Woodcock, Winters, Thomas and Alex. He heard someone yelling out from behind, and turned to see two males running towards them. Those males stopped in front of them, and about five or six older males also appeared. They surrounded his group and began to assault them. The next thing he remembered was being on the ground and being kicked in the back. He observed the appellant lying on the ground, and Thomas in the garage of a house.
On 8 April 2007, Simon Dowthwaite stated that at about 11.30 pm on the day of the incident, he was sitting in his lounge at 3 Tryal Place, Currambine when his brother Matt, and his brother's friend James, came and advised that there was a fight out the front. He went outside and observed about 10 or 15 people in the street. A blond‑headed Caucasian about 17 or 18 years old with blood on his face was 'getting the shit punched out of him by two guys'. He intervened, and the blond male ran into the car park pursued by one of his attackers. He stumbled backwards and was kicked three or four times in the jaw and face. A half‑caste Aboriginal then came and struck him and a girl ran over and hit him in the side of the head with a bourbon can. Dowthwaite's attention was then directed to another person lying on the verge, who was kicked in the head by the male who had been assaulting the blond male. The police then arrived.
Matthew Dowthwaite gave a statement dated 8 April 2007 in which he indicated that he was at his brother's house, when at about midnight, he heard people running along the street at the front of the house. He heard three different male voices, and a female screaming out. On looking out the front window he saw a group of about three males and a female running towards the Connolly Drive underpass. He went outside and observed the group he had previously seen, with a small male swinging punches at a taller blond‑headed male. The small male had short blond hair with a rat's tail at the back. He recognised the taller male as the appellant, having been in the same year as him at Ocean Reef Senior High School. The appellant fell onto the grass, and the smaller male then kicked him to the stomach and head. The appellant and another male stood near the front of Matthew Dowthwaite's car where they were set upon by the smaller blond male and another, both of whom were kicking them to the head and stomach. A short time later, Matthew Dowthwaite observed the appellant lying on the verge. Shortly after, the police arrived.
James Bernard Hoskisson, who was staying at Dowthwaite's house, made a statement on 8 April 2007 in which he confirmed the altercation outside the house. He stated that there were approximately seven males and three females throwing punches and kicks at another male. Two males were kicking and punching another male, and continued to do so after he fell to the ground. Mr Hoskisson stated that he observed the appellant with blood all over his face and clothes, sitting on the ground. He observed a male person run at the appellant and kick him in the face with his right foot, the force of the kick lifting the appellant's head. One of the group announced that they were the ones that had injured the appellant 'coz they bottled our girlfriends in the park'.
Daniel Justin Zarb, a 27‑year‑old male, stated that at about 11.15 pm on the day of the incident, he was watching television with his girlfriend when he heard some yelling in the street out the front of his house. He looked out the front door to observe several groups of males fighting. He observed the appellant on the ground, and another male move towards him and kick him to the right side of the head whereupon the appellant collapsed forward onto the ground.
Kristofer Douglas Dixon stated that on the evening of the incident his friend James Barry had a party at 8 Templar Road, Currambine and that at about 9.00 pm or 9.30 pm some gatecrashers arrived. At one stage there were 100 ‑ 200 people at the party. They included a group of males with shaved rat's tail heads who were said to be the Joondalup Boys. They were aggressive and troublesome. There were a number of physical altercations during the evening, and the police were called.
Kimberley Ann Kelly, a 25‑year‑old female, was at about 11.00 pm on the evening of the incident at home with her boyfriend Cody Wright, when she heard a female screaming out the front of the house. She walked outside and observed two males fighting in front of an underpass, with other persons standing around them. There was a second group further up the street also fighting. She observed a third group with the appellant, who was sitting on a kerb, and observed a shirtless male run up to him and kick him in the head causing him to fall backwards in a semiconscious state. Shortly after this the group dispersed, and the police arrived.
Constable Matthew John Daly of the Warwick Police station, as a result of a call, attended the party at 8 Templar Place at about 10.43 pm. He described the party as out of control. Those present were abusive towards the police.
It is difficult from that smorgasbord of conflicting factual accounts to determine accurately what occurred. It appears clear that the appellant and his associates were significantly affected by alcohol, and as a group conducting themselves inappropriately. In the result, and not unexpectedly, an altercation occurred. I am satisfied however that the burden of the material establishes that the appellant sustained a significant head injury when he was kicked in the head by an unidentified male. He had not provided any legal justification for the assault, and the bodily injury suffered by him was a consequence of that commission of the offence of assault occasioning bodily harm.

The nature and extent of the injuries

Following the assault, the appellant was taken by ambulance to the Joondalup Health Campus and transferred to Sir Charles Gairdner Hospital. He was discharged from hospital on 11 April 2007.
A report from Sir Charles Gairdner Hospital dated 25 January 2008 records that the appellant was admitted with a fractured base of the skull. He recalled going to a party with friends, and that he had been drinking alcohol, but could not remember the assault. A CT scan demonstrated left orbital emphysema with intracranial gas in the anterior left cranial fossa and mid right cranial fossa. There was an undisplaced fracture of the anterial wall of the left sphenoid area, and left lateral pterygium. There was a fracture of the left orbital roof. In addition, there was a 5 cm crescent shaped laceration over the left forehead which was sutured, and fractures of the nasal bones, left medial orbital margin, and left frontal bone. None of the fractures were associated with significant bony displacement. The appellant was placed under neurosurgical observation, and had physiotherapy and occupational therapy.
When reviewed in the plastic dressings clinic on 23 and 30 April 2007 there were normal eye movements.
When reviewed on 11 May 2007 in the plastic dressings clinic the appellant was well, without tenderness, but complained of dizziness on rising and exertion. He was discharged from further review in the plastic dressing's clinic.
At review in the neurosurgical outpatients on 11 May 2007, it was noted that the appellant had sustained a mild traumatic brain injury with crack fractures of the base of the skull from which there were no sequelae. He reported however, easy fatigability and mild shortterm memory problems. Notwithstanding he was certified fit to return to work, and it was considered that there were no restrictions on his future activities save that he should avoid binge drinking, particularly for three to six months post‑accident during cerebral rehabilitation.
The neurologist, Dr Peter Panegyres, reported on 13 March 2009 that the appellant believed he had two seizures and had no recollection of the events associated therewith. Prior to both seizures in July 2008 and 23 February 2009, he had been drinking heavily. Dr Panegyres stated that following the assault the appellant experienced déjà vu phenomena about three times a week, lasting up to 10 seconds, associated with epigastric discomfort and shaking. Following the seizures it had resolved.
Dr Panegyres reported that the appellant's mother provided a history that in July 2008 the appellant, who had been out with his girlfriend the previous night and become intoxicated, had a generalised tonic/clonic seizure at 5.00 pm, characterised by unconsciousness, shaking of his limbs and tongue biting, which convulsive event lasted about 10 ‑ 15 seconds. He was drowsy and incoherent for about a half an hour after the event. The second event occurred on 23 February 2009, the appellant having attended a concert the previous day and again become intoxicated. He slept for about 10 hours after the concert and woke feeling 'unwell, nauseous and hungover'. He was again observed to have a generalised tonic/clonic seizure lasting 15 seconds during which he was unconscious. He was confused and incoherent for about a half an hour after the seizure. He attended the emergency centre at the Joondalup Health Campus and following blood screening tests was discharged, having completely recovered.
Dr Panegyres reported that the appellant was unable to drive or work as an electrician, being at risk using dangerous machinery or working at heights. He stated that the seizures related to a background of head injury and were precipitated by alcohol intoxication. Detailing the appellant's clinical presentation, Dr Panegyres reported:
There is a skull defect from the point of impact of the brick to the left frontal region. Walking normal. No ataxia. No truncal ataxia. Romberg's negative. Enhanced Romberg's negative. Visual fields full. Fundi normal. Pupils 3 mm both sides normal light reaction. Eye movements normal. No facial weakness. Bulbar examination normal. Peripheral motor system reveals normal tone, power, reflexes, sensation and co‑ordination.

He again noted that alcohol intoxication preceded both seizures, stating that the prognosis, if the appellant abstained from alcohol, was favourable. Dr Panegyres noted that the appellant required regular follow‑up neurologically, and with his general practitioner. He would require counselling, and had been prescribed Carbamazepine. He stated the appellant would need to see him every three to six months at a cost of $200 per visit, and that the cost of medication was $32.90 for 100 tablets.
As at 13 March 2009 Dr Panegyres considered the appellant should not drive or work as an electrician, being unable to work at heights or use dangerous machinery, and that the restriction would continue for at least three months, and thereafter would depend upon his compliance with medication and any further seizures.
A discharge report from the State Head Injury Unit dated 4 December 2009 noted residual deficits at that time as being:
Short‑term and long‑term memory difficulties – using compensatory strategies; distractibility; reduced attention/concentration; fatigue; anxiety particularly with respect to accessing public/crowded areas.
It was noted that although the appellant reported difficulties with memory, neuropsychological assessment demonstrated that he performed in the average range for verbal and visual memory. His performance in respect to attention and concentration was variable, there being a possibility that these problems could have an impact on his ability to process complex information in an efficient manner. He had been given a full clearance by his general practitioner to return to work as an apprentice electrician on 16 June 2009. He was referred to the clinical psychology department. The appellant and his mother had requested referral to Sir Charles Gairdner Hospital Neurology Unit for ongoing seizure management.
The appellant was seen by the neurologist, Josephine Chan at the Sir Charles Gairdner Hospital Epilepsy Clinic on 21 November 2009 and 12 May 2010. In a report dated 22 November 2010 she outlined potential side effects from the use of Tegretol, including dizziness, fatigue and gastrointestinal upsets, none of which the appellant claimed to have experienced. She recommended that he continue with Tegretol for a two‑year period, whereupon a trial withdrawal could be undertaken. She stated that during the period of medication withdrawal, and for a three‑month period thereafter, the appellant would be ineligible to drive and should refrain from working with heavy machinery at heights or in situations where he could injure himself if he were to experience a seizure. She noted that he had not reported any seizure activity since February 2009, one year nine months earlier. She reported that the appellant was predisposed to the seizures when subjected to sleep deprivation and alcohol consumption, and postulated that he may have had some simple partial seizures. She concluded that he suffered from post‑traumatic epilepsy, but considered that the prognosis was fairly good. She recommended neurological follow‑up on a six‑monthly basis, but stated that she did not anticipate any specific restrictions in regards employment.
In a report dated December 2008 the psychologist, Mr Fernandez recorded that a mental state examination carried out for the purpose of assessing cognitive capacity was normal. Mr Fernandez stated that the appellant claimed dizziness, fatigue and vertigo, but that he could not at that stage indicate whether there would be any residual psychological impairment. He felt he would be in a better position to make an assessment following a period of counselling, but does not appear from the papers that that was pursued with him.
The appellant was reviewed by the clinical psychologist, Dr Fiona Michel, on 11 November and 17 December 2009 and she issued a report dated 21 January 2010. She noted that the symptoms described by the appellant were consistent with a diagnosis of post‑traumatic stress disorder. The appellant reported that he felt unsafe in public places, and had experienced a panic attack. There was increased anxiety when he was close to the scene of the assault. He said that he was bitter and negative about his life and was increasingly withdrawing from his friends. Dr Michel considered that the appellant required some ongoing therapy, and she considered that following diagnosis, assessment and treatment planning, 8 ‑ 12 sessions would be sufficient. There would be a treatment cost of $140 per session, $117 of which was refundable by Medicare. Dr Michel reported that the appellant was enjoying work as an apprentice electrician, but there were occasions when he needed to take time off because of anxiety. She felt that he would respond well to therapy. Her conclusion was that he had experienced significant symptoms of post‑traumatic stress disorder, but having regard to the fact that part of the diagnostic criteria is that a person must have experienced a life‑threatening event, and that the appellant has no recollection of the assault, I do not accept that diagnosis.
In a neuropsychological report from the Head Injury Unit dated 7 December 2009 it is recorded:
In summary, Michael is a 21 year old man who suffered a traumatic brain injury as the result of an alleged assault. Although he reported concerns relating to his everyday memory functioning, formal assessment of his memory reveals his functioning within the average range for both visual and verbal information. His working memory is considered to be strength for him (performing in the high to superior ranges). In regards to attention and concentration, his performance was variable. On tasks tapping sustained and divided attention, he performed within the average range. He did however display a relative weakness for selective attention. His processing speed fell within the lower end of average range, which reflects a reduced performance relative to his other cognitive abilities. Michael's cognitive weaknesses are consistent with his injury.
These weaknesses may impact on his ability to process complex information in an efficient manner. Subsequently he will require extra time to process information. It is noted that since the injury he has managed to resume his electrical apprenticeship, and he is now in his final year.
The difficulties he is experiencing in everyday life may also be reflective of psychological factors. Since the assault, he reported experiencing heightened anxiety and poor confidence when placed under pressure to recall information by his employer. This is likely to contribute to the functional difficulties he is currently experiencing. It is recommended that Michael be referred to a clinical psychologist to assist him to address his anxiety and loss of confidence.
In an affidavit sworn 8 February 2001 and filed in support of the appeal, the appellant deposed to the fact that he was born on 22 September 1988, completed Year 12 at Ocean Reef Senior High School in 2005 and commenced an electrical apprenticeship in 2006 which he completed on 15 October 2010. He noted that he was informed by hospital staff that he had been struck with a brick, but there is nothing in the material on file to suggest that is the case. He stated that he was advised at the neurosurgical outpatient's clinic on 11 May 2007 to avoid drinking alcohol for three to six months postaccident and claimed that he did not consume alcohol for over 12 months after the assault.
He stated that he had not consumed a significant amount of alcohol prior to either of the seizures, and that his general practitioner, Dr Norgrove, suggested the seizures were not related to his head injury. It was not until he saw Dr Panegyres in March 2009 that he was made aware that the seizures were likely to have been caused by alcohol consumption impacting on his head injury. He confirmed that he has not had a seizure since being prescribed Tegretol.
He deposed to the fact that he has been depressed ever since the accident, and his social life had been restricted. He claimed that he had a desire to go to university, but was worried about doing so because of the consequence of his head injury. Having regard to his educational and vocational history, I do not accept that.
In respect to the economic consequence of the accident, he stated that he was medically suspended from his apprenticeship for four months after the second seizure, during which time he received $250.40 a fortnight, 'youth allowance incapacitated'. It meant that he completed the apprenticeship four months later than would have been the case.
In an affidavit sworn 28 October 2010, but apparently not filed until 4 February 2011, the appellant's mother, Tracey Dawn Clayton, deposed to the fact that in the process of being discharged from Sir Charles Gairdner Hospital the appellant was advised to refrain from consuming alcohol for three to six months. She described the circumstances of the first seizure which occurred on 27 July 2008. The day after the seizure she attended with the appellant upon his general practitioner Dr Norgrove, who told the accused the seizure could have been caused by a number of things, including dehydration, insufficient food, or alcoholic consumption. He is reported to have said that seizures were a common occurrence in people of the appellant's age; that he did not think it was related to the head injury; and that it was most likely caused by dehydration. He advised the appellant to take it easy for a couple of weeks; and did not place any restrictions on him, giving him a work clearance for 8 August 2008. Mrs Clayton stated that they endeavoured to obtain an appointment with a neurologist but did not follow it up because they were told the waiting time was 12 ‑ 24 months. Following the second seizure, the appellant was referred by the Joondalup Health Campus Emergency Department to Dr Panegyres who prescribed Tegretol and advised against excessive alcohol consumption.

Assessment

The appellant suffered a significant head injury from which, relatively speaking, he made a satisfactory recovery in short time. The residual sequela are cosmetic scaring of modest consequence, and post‑traumatic epilepsy, necessitating, at least in the short term, neurological supervision and anticonvulsant medication. The burden of the medical evidence, supported by the fact that he has not had a seizure since February 2009, some two years ago, is that there is a reasonable prospect of him ceasing anticonvulsant medication in several years without adverse consequences.
I am satisfied that the seizures which he has experience were the product of sleep deprivation and alcohol intoxication superimposed on the head injury. It was, or should have been clear to him that it was inappropriate to consume alcohol to excess. I agree with the assessor that in all the circumstances it is remarkable, the more so after the first seizure and the circumstances in which the injuries were received, that the appellant engaged in the consumption of alcohol to such an extent that it exacerbated his condition and essentially brought on the seizure. In the circumstances the allowance made for the first seizure was generous and it is not appropriate to make a specific allowance for the economic consequences of the second, including the delay in completing the apprenticeship.
The appellant, however, is to be compensated for a significant head injury with the residual consequences referred to above, including a susceptibility to seizure following sleep deprivation and/or significant alcohol consumption. There is a requirement for ongoing convulsant medication and medical supervision for a minimum of several years.
The appropriate allowance for the physical aspects, including a potential loss of earnings during the period of withdrawal from medication, and loss of earning capacity generally, is $47,500.
As indicated I do not make an allowance for the economic consequence of the second seizure, but accept the assessor's allowance of $3,913.24 for past economic loss.
The appellant accepts the assessor's allowance of $547.45 for past treatment expenses.
The assessor allowed $4,219.28 for report fees, but that included $3,000 for a report by Dr Panegyres in respect of which I only allow $750. In the result, I allow $1,969.28 for report fees.
I allow $100 for travelling expenses, to cover the cost of fuel that would have been used by the appellant when attending medical appointments.
The evidence does not enable arithmetic calculation of the past and future cost of medication. The Tegretol tablets cost $32.90 per 100 tablets. I allow $250 for past expenses, and $1000 for future costs.
Although I hold some doubts as to the therapeutic necessity for psychological treatment, I allow $230 being 10 visits at the 'gap' cost of $23.
I accept that there is a requirement for ongoing neurological assessment, but not to the extent claimed by the appellant, particularly as it appears that he has not been assessed since May 2010. The most recent evidence establishes that the cost of a consultation after Medicare rebate is $61.25 and I allow two consultations per year, for 10 years. With discounting, that amounts to $931.
I allow two general practitioner consultations per year for 10 years. The 'gap' cost per consultation is $26.45. With discounting, that amounts to $402.
I allow a further $1,000 for any necessary investigative procedures.

Summary of award

Present payment
Physical aspects including loss of earning capacity	$47,500
Part economic loss	$3,913.24
Past treatment expenses	$547.45
Past medication costs	$250.00
Report fees	$1969.28
Travelling	100.00
Total	$54,279.97
Future expenses (subject to s 48 of the Act)
Psychological treatment	$230.00
Neurological reviews	$931.00
General practitioner reviews	$402.00
Investigation procedures	$1,000.00
Total	$2,563.00

The appellant is entitled to a total award of $56,842.97.