Cleary v The Insurance Commission of Western Australia

[2019] WADC 29

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   CLEARY -v- THE INSURANCE COMMISSION OF WESTERN AUSTRALIA [2019] WADC 29

CORAM:   VERNON DCJ

HEARD:   16-20, 23-24, 26-27 APRIL & 2 MAY 2018

DELIVERED          :   13 MARCH 2019

FILE NO/S:   CIV 434 of 2015

BETWEEN:   JOHN EDWARD CLEARY

Plaintiff

AND

THE INSURANCE COMMISSION OF WESTERN AUSTRALIA

Defendant

Catchwords:

Motor vehicle accident - Personal injuries - Assessment of damages - Turns on own facts

Legislation:

Civil Liability Act 2003 (WA), s 5C(1)(a), s 5D
Motor Vehicle (Third Party Insurance) Act 1943 (WA), s 3D

Result:

Judgment for the plaintiff for $437,328.

Representation:

Counsel:

Plaintiff	:	Mr G C Droppert
Defendant	:	Mr G P Bourhill

Solicitors:

Plaintiff	:	Friedman Lurie Singh & D'Angelo
Defendant	:	Jackson McDonald

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

Cockshell v Australian National Railways Commission (1986) Aust Torts Reports 80-024

Den Hoedt v Barwick [2006] WASCA 196

Department of Housing and Works v Smith [No 2] [2010] WASCA 25

Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1

Randal v Dul (1995) 13 WAR 205

Trigwell v Trigwell (1997) 18 WAR 83

Van der Velde v Halloran [2011] WASCA 252

Wilson v McLeay (1961) 106 CLR 523

VERNON DCJ:

Introduction

1. The plaintiff, John Cleary, seeks damages for personal injuries suffered on 27 April 2012, when a motor vehicle struck his bicycle from behind whilst he was stationary at traffic lights.

2. The driver of the motor vehicle was not identified, and Mr Cleary brings proceedings against the Insurance Commission of Western Australia (ICWA) under s 7(3) of the Motor Vehicle (Third Party Insurance) Act 1943 (the MVA).

3. The ICWA admits that Mr Cleary suffered injury as a result of the driver's negligence.  The only issue for determination is the assessment of damages.

4. The principle issues between the parties are:

   (a)the extent of Mr Cleary's injuries suffered as a result of the driver's negligence; and

   (b)the assessment of Mr Cleary's lost earning capacity, both past and future, if any, suffered as a result of those injuries.

5. The ICWA admits that Mr Cleary has suffered the following injuries:

   (a)a head injury limited to a right occipital intracerebral haemorrhage and consequential encephalomalacia (or softening of part of the brain);[1]

   [1] Defendant's closing submissions at par 5, ts 666.

   (b)bilateral visual field loss in the inferior left side quadrant of the eyes, as a result of the intracranial haemorrhage;[2]

   [2] Defendant's closing submissions, par 6.

   (c)significant right ear laceration that required surgical debridement and split skin ear grafting from a donor site on the plaintiff's right thigh;

   (d)fractures to the cervical vertebrae at C5, C6 and C7;

   (e)fractures to the thoracic vertebrae at T1 and T2;

   (f)fractures to ribs 1, 2, 4, 5, 6 and 7, with some displacement;

   (g)partial tear to the supraspinatus tendon of the right shoulder;

   (h)soft tissue injury and lateral meniscal injury causing existing degenerative changes in the right knee to become symptomatic;

   (i)right knee effusion and aggravation for some time at least of pre‑existing degeneration of the right knee;[3]

   (j)penetrating laceration of the left tibia;

   (k)left pleural effusion of the lung; and

   (l)bruising and abrasions, in particular, to the left temple, right shoulder, left elbow, right and left hands, and right posterior parietal scalp.

   [3] ts 667.

6. At the hearing Mr Cleary's counsel said that Mr Cleary did not press a finding that he had suffered a hernia as a result of the driver's negligence.[4]  This concession properly recognised that the evidence was insufficient to support such a finding.

   [4] ts 711.

7. The claimed injuries which remain in issue are:

   (a)impaired cognitive and emotional function as a consequence of the admitted brain injury;

   (b)psychological injury, namely anxiety disorder, depression and personality change;

   (c)reduction of acuity in the senses of taste and smell;

   (d)exacerbation of degenerative changes in the lumbar spine, with flattening of lumbar lordosis consequent, in particular, to the thoracic vertebral fractures; and

   (e)soft tissue injury to the left shoulder leading to reduced abduction with end range tightness.

8. A significant portion of Mr Cleary's claim for damages is for past and future loss of earning capacity, based largely on the claimed cognitive effects of his brain injury.

9. The ICWA accepts that in the six months or so after the accident, Mr Cleary was significantly affected by his injuries.[5] However, ICWA says that Mr Cleary made a good cognitive recovery after the brain injury,[6] and that while the brain injury may have some ongoing effect on Mr Cleary, it is having, and has had, only a minor impact on his capacity to engage in normal activity and work in his employment.[7]

   [5] Defendant's closing submissions, par 79.

   [6] Defendant's closing submissions, par 85.

   [7] Defendant's closing submissions, par 88.

Causation

1. Causation is to be determined under s 5C(1)(a)[8] and s 5D of the Civil Liability Act 2003 (CLA).  The only relevant issue is whether the harm alleged would have occurred but for the negligent act or omission.[9]  Causation will be established if the negligent act or omission materially contributed to the damage suffered, although it is not the sole cause.[10]

   [8] Section 5C(1)(b) has no application in this case.

   [9] Section 5C(1)(a) of the CLA; Department of Housing and Works v Smith [No 2] [2010] WASCA 25 [92] – [94] (Buss JA).

   [10] Van der Velde v Halloran [2011] WASCA 252 [95].

2. The plaintiff bears the onus of proving, on the balance of probabilities, any fact relevant to the issue of causation.[11]

   [11] Section 5D of the CLA.

Credibility

1. In addition to Mr Cleary and the medical experts, four witnesses gave evidence at the hearing, namely:

   •Mr Cleary's partner, Joanne Firth;

   •Nicole Lee, who had worked with Mr Cleary in late 2008 or 2009;

   •Therese O'Shea, the proprietor of an organisation called The Training Link (TTL); and

   •Claire Locke, manager of content of professional education programs for Charted Accountants of Australia and New Zealand (CAANZ), formerly the Institute of Chartered Accountants of Australia (ICAA).

Mr Cleary

1. Mr Cleary gave evidence on 16, 17 and 18 April 2018.  Mr Cleary complained of some tiredness and was allowed regular breaks.  I do not consider that tiredness impacted on his evidence.

2. It was obvious during the course of his evidence, that Mr Cleary felt a great deal of resentment towards ICWA, in particular ICWA's failure to accept the extent of the effect of his injuries on his earning capacity.  This clearly affected his demeanour towards ICWA's counsel, and his response to questioning.[12]

   [12] See for example ts 173.

3. Mr Cleary's answers to questions in cross‑examination concerning the effect of Mr Cleary's injuries on his ability to perform his work as a consultant and trainer were unsatisfactory, being vague and, at times, inconsistent.

4. An example of this was Mr Cleary's evidence about the amount of time Ms Firth had spent assisting him in his consulting business, Blue Chip Consulting Group Pty Ltd (BCCG), in late 2012 to early 2013.  He said:

   I would say the majority of her time now – until she moved off and focused more on Dining Experience Specialists…in a work sense was within Blue Chip assisting me in generating work, managing the quality of my work, preparing work and in some instances flying with me and assisting me in terms of – of managing my anxiety before – before presenting.[13]

   [13] ts 286.

5. It was then put to Mr Cleary that Ms Firth could not have been involved in his consulting business, in 2012 to 2014, because she was involved with issues concerning a company called Safe Breast Imaging Pty Ltd, through which she had been operating a business.  Mr Cleary did not directly answer the question, saying:

   I don't think that you can dissociate the two and we live in an age where things can happen between two cities by way of electronic communication.  She did have her own business and it was always intended she'd have her own business.  Her role in Energy Smart evolved over time and there's no doubt it was to do with her availability to do that and – sorry her role in – in Energy Smart and Blue Chip evolved over time, and it was in no doubt to do with her availability.[14]

   [14] ts 287.

6. Mr Cleary went on to say:

   She had an evolving role in both companies from the time of the hit and run and I am not aware of anything to do with these proceedings that meant that she wasn't able to do those things that we agreed she would do.  She managed her own time.  She's an independent adult.  She's very strongly independent.  If I have needs and she was available, she would fulfil them.  If I didn't have needs there wasn't an issue.  But ultimately, she directed her own work other than – after the hit and run, much more of her focus was in supporting me to do my work, both in Energy Smart and in Blue Chip Consulting.

7. Mr Cleary then conceded that Ms Firth had spent time defending proceedings against her, and Safe Breast Imaging, between the middle of June 2013 and October 2014.  He said:

   Well, there was no doubt there was a devotion to defending the proceedings.  The question became how substantive that was and what that meant in terms of income and quality of life and supporting me in my business.[15]

   [15] ts 289 ‑ 290.

8. Mr Cleary did not answer his own question.

9. An example of an inconsistent response occurred when ICWA's counsel put to Mr Cleary that he had been 'pretty busy' in July 2014, when he first went to see a neuropsychologist, Dr Marjorie Collins.  Mr Cleary initially agreed.[16]  He then said he would need to look at the invoices to relate a piece of work to dates.[17]  After being taken to a number of invoices, ICWA's counsel again put it to Mr Cleary that he was fairly busy with work when he saw Dr Collins in July 2014.  Mr Cleary said, 'I'm sorry, it's a long time ago and I have no way of being able to confirm your view'.[18]

   [16] ts 274.

   [17] ts 274.

   [18] ts 275.

10. Mr Cleary's memory of events was also, in my view, unreliable on the details of the work done by BCCG.  He would frequently default to saying he would have to review 'the documents' without identifying what documents he was referring to in addition to the invoices which were in evidence.

11. I refer later in these reasons to specific aspects of Mr Cleary's evidence where I consider his recollection on particular issues, including his claim for lost earning capacity, is not reliable.

12. In my view, Mr Cleary's unsatisfactory responses to questions that required him to acknowledge that he had been successfully running his business at any time after the accident, even where that was contradicted by the documentary evidence, was because that proposition is inconsistent with his belief that his income earning capacity had been adversely affected by cognitive deficits following the brain injury, which occurred on 27 April 2012.  I consider that, for the same reason,  Mr Cleary sought to minimise the impact of Ms Firth's other commitments on her ability to assist him in his businesses, because it was inconsistent with his recollection that he needed significant assistance from Ms Firth.

13. I consider that it is likely Mr Cleary's recollections concerning his cognitive symptoms and their effect on his ability to perform work after the accident, and the extent of his reliance on Ms Firth, have been affected over time by the depression that has developed since the accident.  His recollections are not, however, supported by the documentary and other evidence of his business, and his performance in that business, after the accident.  These are referred to in detail later in these reasons.

Ms Firth

1. With respect to Ms Firth's evidence she appeared to respond to questions honestly, even when pressed to refer to matters which were critical of her.  However, I find some aspects of her evidence, when analysed, are not reliable, particularly in relation to her involvement with BCCG.  I make specific reference to these later in these reasons.

Ms Lee, Ms O'Shea and Ms Locke

1. I consider each of these witnesses to have been honest and reliable in their evidence.  There were, however, aspects of the evidence of Ms Lee and Ms O'Shea to which I can give little weight, for the reasons I identify when discussing their evidence.

Uncontroversial evidence

1. The evidence in [29] ‑ [69] below was not controversial, and I make findings of fact accordingly.

2. Mr Cleary is 64 years old, having been born on 16 June 1954.  He was 57 at the time of the accident.

3. Mr Cleary is divorced and the father of four grown children.[19]  He has been in a relationship with Ms Firth since February 2009, save for a separation of about three months in 2012.  They lived in Perth until October 2014 when they moved to Queensland.[20]

Education and work history

[19] ts 76.

[20] ts 328.

1. Mr Cleary did well at school.[21]  He completed a Diploma of Physical Education at Melbourne University, while working as a hospital orderly.  He completed a Diploma of Business (Management) at Melbourne University in 1993.[22]  He completed a Bachelor of Arts at the Melbourne University in 1994.[23]  Mr Cleary completed all but two years of his study while working full‑time.[24]

   [21] ts 74 having attained 3 'A's in the five subjects he undertook.

   [22] Exhibit 3, page 6.

   [23] Exhibit 3, pages 4 and 5.

   [24] ts 94.

2. Mr Cleary taught physical education from 1976 to 1978.[25]  He then held positions in local government, and was the Community Services Director of Camberwell City Council in Victoria for five years to 1992.[26]

   [25] ts 74, exhibit 3, page 2.

   [26] ts 75, exhibit 3, page 2.

3. After leaving Camberwell City Council, Mr Cleary started a business that was ultimately called Cost Management Specialists.[27]

   [27] ts 75 - 76, 78 - 79, exhibit 3, page 8, specialists.

4. In February 1999, Mr Cleary commenced operating a business through BCCG, providing consulting, facilitation and training services to other businesses.[28]  Mr Cleary was operating that business at the time of the accident and continues to do so.[29]  He remains on various websites advertising his availability to do consultancy and training work.[30]

   [28] ts 77, exhibits 3, pages 9, 15 and 18.

   [29] Mr Cleary's evidence at ts 88 and 89 in relation to the invoices at exhibit 4 was that, whilst some invoices were issued under the name of Cost Management Specialists, that company did not trade and all revenue was paid to BCCG.  Accordingly reference to BCCG's business in these reasons, includes reference to business done under the name of Cost Management Consultants.

   [30] ts 660.

5. Between 2007 and 2009, Mr Cleary did consultancy work for two related companies, European Aluminium Australia (EAA) and European Window Company (EWC).[31] EWC fabricated windows sold under EAA's licence.[32]

   [31] Mr Cleary produced 12 invoices, from 5 February 2008 to 30 September 2009, three of which were directed to EWC, and nine of which were directed to EAA.  All of these invoices refer to work concerning both EWC and EAA.

   [32] ts 98.

6. Subsequently Mr Cleary began a business providing double glazed windows in Western Australia, through Energy Smart Windows Pty Ltd (ESW).[33]

   [33] Exhibit 6, ts 113, 114.

7. On 1 February 2010, ESW entered into an exclusive licence arrangement with EAA to sell the windows manufactured by EWC in Western Australia.[34]  Window frames were fabricated in Victoria and freighted to Perth.  ESW designed the glass, using EAA software, and then installed the windows in existing and new buildings.[35]

   [34] Exhibit 6.

   [35] ts 116 - 117.

8. After June 2011, and before the accident, Ms Firth had some involvement in ESW, assisting Mr Cleary.[36]

Pre-accident activities and health

[36] ts 331.

1. Mr Cleary led an active life before the accident and had enjoyed a variety of sporting activities.  He has never smoked and drank minimally.[37]

   [37] ts 80.

2. Before the accident, Mr Cleary exercised for seven hours or more a week.  He began running again when he moved to Perth.[38]  He was a regular cyclist riding up to five days a week.[39]  He enjoyed walking with Ms Firth.[40]  From about 2003, Mr Clearly regularly engaged in a type of jive dancing, and had been dancing on the night of the accident.[41]  He regularly danced for four hours at a time.[42]

   [38] ts 81.

   [39] ts 81.

   [40] ts 82, see Ms Firth ts 329.

   [41] ts 82, 83, ts 129.

   [42] ts 168.

3. Mr Cleary had had torn cartilage in his right knee, and had the meniscus removed, when he was a young adult.[43]  After his recovery from this operation he was able to continue with a high level of physical activity.[44]

   [43] ts 80.

   [44] ts 80, 81.

4. Mr Cleary did not have trouble with either of his shoulders.[45]

   [45] ts 134.

5. Before the accident Mr Cleary and Ms Firth shared most of the normal household duties.[46]  Ms Firth did the dusting, they both did the laundry and Mr Cleary would iron.[47]  Mr Cleary would cook if Ms Firth was not available to do so.[48]  They did not have much gardening to do, but Mr Cleary would pull out the weeds.[49]

   [46] ts 330.

   [47] ts 331.

   [48] ts 331.

   [49] ts 331.

6. Ms Firth described Mr Cleary before the accident as positive, confident, outgoing, caring and supportive.  She said that he had plenty of friends, they had parties, and went to a lot of networking events.[50]  They had a normal sexual relationship.[51]

Medical assessments and findings after the accident

[50] ts 329, 330.

[51] ts 330.

1. After the accident on 27 April 2012, Mr Cleary was assessed by ambulance officers who found he was not 'ambulatory' and his bike helmet was extensively damaged.  Mr Cleary did not report a loss of consciousness and was assessed as 14/15 on the Glasgow Coma Scale, because he appeared to be confused.[52]  He was taken to Royal Perth Hospital (RPH).

   [52] Exhibit 1, page 2, St John's ambulance notes.

2. At RPH, Mr Cleary initially appeared confused, but became conscious and oriented.  Medical staff assessed him as having suffered:

   (a)a right occipital intracranial haemorrhage, which was managed conservatively following neurological review;

   (b)reduced vision in the left eye which was related to the haemorrhage;

   (c)a right ear laceration, which was debrided and treated with a split skin graft from the right thigh;

   (d)bilateral rib fractures involving the first, second and fifth ribs, which were managed conservatively;

   (e)facet and spinious process fractures at C5, C7 and T1, which required Mr Cleary to be fitted with a Miami J brace; and

   (f)multiple abrasions involving the head, shoulders, hands and legs, which were cleaned and dressed.[53]

   [53] Exhibit 1, letter from Dr Ron Hirsch dated 24 August 2012, pages 7 and 8 and RPH hospital notes, pages 4 and 11.

3. Mr Cleary was noted to have complained of pain in his right shoulder and right knee.[54]  An ultrasound of the right shoulder on 20 June 2012 showed a partial tear of the supraspinatus tendon.[55]

   [54] Exhibit 1, letter from Dr Ron Hirsch dated 24 August 2012, page 8.

   [55] Exhibit 1, report of Dr Peter Leaver dated 20 June 2012, pages 41 and 42.

4. A CT scan on 1 May 2012 showed the right occipital haemorrhage measured 3.4 cm by 1.8 cm, and almost the same size as it had been on 28 April 2012, when first scanned.[56]

   [56] Exhibit 1, RPH hospital notes, page 25.

5. Mr Cleary remained in RPH for 13 days, until 10 May 2012, when he was transferred to Royal Perth Rehabilitation Hospital (Shenton Park).  The discharge form notes that he required ongoing cognitive rehabilitation.[57]

   [57] ts 133, exhibit 1, RPH notes, page 5.

6. Mr Cleary was discharged from Shenton Park Hospital on 18 May 2012, at his own request.[58]

   [58] Exhibit 1, letter from Katherine Flett to Dr Fong dated 2 August 2012, page 52.

1. Mr Cleary's Miami J brace was removed on 28 June 2012, nine weeks after the accident, at which time Mr Cleary was not complaining of any spinal pain, but was complaining of right shoulder pain.  He was set on a course of exercises.  On 25 July 2012, Mr Cleary was noted to be mainly concerned with his right shoulder, but had a stiff neck.  He was considered to be doing well, and was discharged from the Spinal Unit.[59]

   [59] Exhibit 1, letter from Dr Ron Hirsch dated 24 August 2012, page 8, letter from Dr Jamie Ilyas dated 28 June 2012, page 47 and letter from Dr Jamie Ilyas dated 25 July 2012, page 49.

2. On 15 and 16 May 2012, an occupational therapist, Katherine Flett, administered the Cognitive Assessment of Minnesota to Mr Cleary.  Ms Flett noted that Mr Cleary scored within deficit areas for remote orientation, recent orientation, auditory recall, multi‑digit calculations, and mental flexibility. She also noted some deficits in higher executive skills.  Ms Flett concluded that, whilst Mr Cleary had scored well on most aspects of the assessment, given the functional observations, he would benefit from a further, high level, assessment.[60]

   [60] Exhibit 1, letter from Katherine Flett to Dr Fong dated 2 August 2012, page 53 and assessment notes, pages 15 and 16.

3. On 10 August 2012, Mr Cleary was reviewed by Dr Kim Fong, a specialist in rehabilitation medicine.  Dr Fong said that Mr Cleary had post‑traumatic amnesia of approximately six days.  He said that mental status screening showed some weakness with Mr Cleary's short‑term memory and his concentration was below the level expected of his background.  Dr Fong referred Mr Cleary for formal neuropsychological testing.[61]

   [61] Exhibit 1, letter from Dr Fong dated 10 August 2012, pages 50 - 51.

4. On 6 September 2012, Mr Cleary was seen by Michael Hunt, a specialist clinical neuropsychologist.  Mr Hunt subsequently prepared a report dated 12 September 2012.[62]

   [62] Exhibit 1, letter from Mr Hunt to Dr Fong, pages 54 - 61.

5. Mr Cleary told Mr Hunt that he was living alone, and reported no difficulty undertaking all his own needs.[63]  He reported to Mr Hunt that he felt his attention and concentration had been reduced to 65% to 70% of their pre‑morbid (pre‑accident) level.  He said he was prone to distraction.  He thought his processing speed was much the same, although it decreased as task complexity increased.  Mr Cleary told Mr Hunt that his day‑to‑day memory was intact for some things but 'was not what it was'.  He had to take good notes to assist in learning new things.  Mr Cleary said that his executive functions of planning, organisation, and problem‑solving were getting better, and that he was doing some computer‑based self‑training programs to improve those areas.  He denied any propensity towards impulsivity and considered that he remained adaptable rather than rigid in his behaviours and attitudes.  Emotionally Mr Cleary said he was doing 'extraordinarily well' apart from anxiety that his shoulder would be knocked.  He said his self‑esteem and confidence had taken a hit.[64]

   [63] Exhibit 1, letter from Mr Hunt to Dr Fong, page 56.

   [64] Exhibit 1, letter from Mr Hunt to Dr Fong, page 55.

6. Mr Hunt said that Mr Cleary's speech and language functions appeared intact.  He had no obvious symptoms of depression.  Mr Cleary showed a tendency to be hypervigilant about his symptoms.[65]

   [65] Exhibit 1, letter from Mr Hunt, page 56.

7. Mr Hunt considered that:

   (a)Mr Cleary's pre‑morbid level of intellectual functioning would have fallen around the upper average/high average range.[66]

   (b)Mr Cleary's score on one measure of assessing processing speed, although accurate, was within the low average range, in contrast with a mid-average result on an additional measure and a high average result on others.  Overall his results appeared to be intact, with a high degree of variability.[67]

   (c)Overall the results on measures assessing verbal intellectual function suggested intact functioning.[68]

   (d)Mr Cleary's test on block construction produced an average result, although he seemed puzzled by some items as task complexity increased. His spatial reasoning test fell within a high average range.[69]

   (e)Mr Cleary's memory for verbal material was typically within the average range. Overall his results suggested the possibility of some weakness with his visuo‑spatial memory, although Mr Hunt considered this resulted, to at least some degree, from Mr Cleary's approach to tasks and level of persistence.[70]

   (f)Tests of executive function provided no clear indication of abnormality.[71]

   [66] Exhibit 1, letter from Mr Hunt, page 57.

   [67] Exhibit 1, letter from Mr Hunt, page 57.

   [68] Exhibit 1, letter from Mr Hunt, page 57.

   [69] Exhibit 1, letter from Mr Hunt, pages 57 - 58.

   [70] Exhibit 1, letter from Mr Hunt, page 58.

   [71] Exhibit 1, letter from Mr Hunt, page 58.

8. Mr Hunt concluded that Mr Cleary's test results were typically within the range expected, but with some degree of variability across tasks.[72]

   [72] Exhibit 1, letter from Mr Hunt, page 59.

9. Dr Fong medically cleared Mr Cleary to resume driving on 25 September 2012.[73]

   [73] Exhibit 1, letter from Dr Fong, page 63.

10. Dr David Greer, an ophthalmologist, examined Mr Cleary's vision on 15 April 2014.  Dr Greer identified that visual field testing showed field loss in the inferior left sided quadrant of the visual field of each eye, being 10% on the left and 17% on the right.  Dr Greer said these changes were consistent with a brain injury involving the right‑sided optic radiation or visual cortex of the occipital region of Mr Cleary's brain.  This was a permanent injury.[74]

    [74] Exhibit 1, letter from Dr Greer to John Rando and Co, pages 80 - 81.

11. A CT scan of the brain on 21 August 2015 revealed encephalomalacia (the softening or loss of brain tissue)[75] in the right occipital lobe, compatible with the previous history of traumatic haemorrhage.[76]

Post-accident activities and health

[75] Dr Collins, ts 486.

[76] Exhibit 1, page 86.

1. Mr Cleary has no memory of the accident and described his memory of being in RPH as patchy.[77]

   [77] ts 130.

2. Ms Firth visited Mr Cleary in RPH and Shenton Park every day after the first day, twice a day. On each occasion she would spend some hours with him.[78]  Ms Firth said that Mr Cleary was unable to hold much conversation for the first few days in hospital, and was sleepy.[79]

   [78] ts 337.

   [79] ts 335 - 336.

3. Whilst he was in RPH Ms Firth helped Mr Cleary with eating and drinking, his toileting, and shaving, and speaking with the staff.[80]  At Shenton Park, Ms Firth helped Mr Cleary with his shaving.  She sat and talked to him and went to the shops for him.[81]  Ms Firth also helped Mr Cleary, once he was able to stand and shower, by replacing the wet foam pieces on the Miami J brace with dry pieces,[82] if a nurse was not available.[83]

   [80] ts 336.

   [81] ts 338.

   [82] ts 337.

   [83] ts 133.

4. When Mr Cleary came home from the hospital, he did not go out on his own, and was reluctant to go out with Ms Firth.[84]  Ms Firth said that, after the accident, Mr Cleary would complain about the cold.  He would mainly stay on the sofa in the lounge on the ground floor of their house.  He appeared to be tired and would get up during the night.  Mr Cleary complained of pain during the night and Ms Firth would get him pain killers.  Mr Cleary was unsettled when sleeping.[85]  Ms Firth drove Mr Cleary to and from his doctors' appointments.[86]  She assisted him with getting into and out of the car while he had the Miami J brace on.[87]

   [84] ts 341.

   [85] ts 342.

   [86] ts 341.

   [87] ts 341.

5. After the Miami J brace was removed, Mr Cleary spent a lot of time resting.  Ms Firth did all the cooking and household tasks, including clothes washing and shopping.[88]  Ms Firth could not, however, identify how many hours this involved, in addition to the hours she normally did these duties.[89]

   [88] ts 342.

   [89] ts 344.

6. In about August 2012, Ms Firth and Mr Cleary separated for two or three months, and she went to live with friends.  Ms Firth kept in contact with Mr Cleary,[90] however, she did not visit him at his home.[91]  Mr Cleary did not give evidence that he had, or needed, any other assistance at this time.

   [90] ts 344 - 345.  Invoices evidence that in that time Mr Cleary conducted workshops for ICAA on 27 September 2012 and 26 October 2012, and for Mt Eliza on 30 October 2012.

   [91] ts 362.

7. When Mr Cleary and Ms Firth resumed living together, she continued to do the driving, as Mr Cleary said he did not like to drive.[92]

   [92] ts 345.

8. Mr Cleary had agreed to perform work for a client of BCCG, PresCare, in Queensland, to commence a few days after the accident.  He agreed to work for a three month period at a rate of $693 per day, five days a week plus GST.[93]  Ms Firth said that, after the accident, she told Prescare that Mr Clearly would not be there for a couple of weeks.[94]  However, as a result of his injuries, Mr Cleary was unable to do that work.

   [93] ts 139, exhibit 21, exhibit 4, page 40.

   [94] ts 338.

Medical evidence

Left shoulder, lumbar spine and right knee

1. Mr Cleary relies on the evidence of Dr Desmond Williams and Dr Christopher Hammersley in support of his claims concerning the injury to his right knee, left shoulder and lumbar spine.[95]

   [95] ts 533 – 534, 538 and 555.

2. Dr Desmond Williams is an orthopaedic surgeon[96] and practised as an orthopaedic surgeon until five years ago.[97]  Dr Hammersley is a specialist in occupational health.[98]  Their qualification to give opinion evidence is not in dispute.

   [96] ts 379 - 380.

   [97] ts 380.

   [98] ts 518.

3. Dr Williams reviewed Mr Cleary's cervical spine, right knee and right and left shoulders on 16 and 24 April 2014, and prepared a report dated 14 July 2014.[99]  Dr Williams reassessed Mr Cleary in April 2018.[100]

   [99] Exhibit 27A.

   [100] Exhibit 28B.

4. Dr Hammersley assessed Mr Cleary on 15 April 2014, 26 August 2015 and 23 March 2018.  He prepared reports of those assessments dated 15 April 2014, 26 August 2015 and 27 March 2018 respectively.[101]

   [101] Exhibits 34E, 34F and 34G.

5. The ICWA relied on the reports of Dr Alan Holme, an occupational physician dated 24 September 2013,[102] and Dr Hardcastle, an orthopaedic specialist, dated 11 June 2014.[103] These reports were tendered by consent.

Left shoulder

[102] Exhibit 46.

[103] Exhibit 45.

1. In 2014, Dr Williams noted that Mr Cleary complained he had discomfort in both shoulders after the accident.[104]  As ICWA submits, however, there is no reference in the RPH or Shenton Park notes, to Mr Cleary having suffered an injury to, or complaining of pain in, either his lumbar spine or his left shoulder.[105]  Ultimately, however, I do not consider this to be significant in so far as the left shoulder is concerned, for the reasons that follow.

   [104] Exhibit 27A, page 2.

   [105] Defendant's closing submissions dated 30 April 2018 [13] referring to exhibit 1, pages 9 ‑ 49 being the hospital records.

2. Dr Williams noted Mr Cleary said he was using his left arm more as a result of right shoulder pain.[106]  On examination Mr Cleary's left shoulder showed abduction of 170 degrees with end range tightness, and internal rotation allowed the hand to reach the left lower rib area.[107]  In 2018, Mr Cleary's left shoulder abduction was 160 to 170 degrees and there was just a little end range restriction.[108]  Dr Williams did not recommend any treatment for the left shoulder.

   [106] Exhibit 27A, page 4.

   [107] Exhibit 27A, page 5.

   [108] Exhibit 27B, page 10.

3. Dr Williams said in his 2018 report,[109] and in evidence,[110] that Mr Cleary's left shoulder problems emerged due to increased load on that shoulder consequential on the right shoulder injury.[111]  He was not cross‑examined on this evidence, and I accept it.

   [109] Exhibit 27A, pages 5 and 9, exhibit 27B, page 11.

   [110] ts 396.

   [111] Dr Williams report dated 8 April 2018.

4. Accordingly, I am satisfied, on the balance of probabilities that there has been some impact on Mr Cleary's left shoulder as a consequence of the accident.  However, this appears to be minor and there is no evidence that Mr Cleary will require treatment in the future.

5. Dr Williams described Mr Cleary's right shoulder abduction, in 2014, as quite restricted, at 60 degrees.[112]  In 2018 this was 60 to 70 degrees.[113]  Dr Williams considered that Mr Cleary might benefit from an injection program to remedy the persisting subacromial bursitis in the right shoulder.[114]

Lumbar spine

[112] Exhibit 27A, page 5.

[113] Exhibit 27B, page 11.

[114] Exhibit 27B, page 18.

1. With respect to the lumbar spine, Dr Williams expressed the opinion that there had been exacerbation of symptoms from the pre‑existing degenerative changes.[115]

   [115] Dr Williams, exhibit 27A dated 14 July 2014, page 12 and exhibit 27B, page 18.

2. Dr Williams did note a wedging fracture at L2 in 2014.  I accept that that is a sign of degeneration.  However there is no evidence before me to suggest that that is a consequence of, or has been exacerbated by, the accident.  As noted in [75] above, there is no record of Mr Cleary having made any complaint in relation to the lumbar spine after the accident, before seeing Dr Williams in 2014.

3. Whilst Mr Williams noted, in 2018, that Mr Cleary had complained of pain in the cervical spine on the left side and difficulty in rotating his neck, and on examination that he had a marked restriction in motion of the cervical spine, he noted no complaint of pain in relation to the lumbar spine or the thoracic spine.  Dr Williams did note significant degenerative changes due to thoracic fractures, but did not specifically relate those that to the lumbar spine.

4. Accordingly, I make no finding that Mr Cleary suffered an injury to his lumbar spine as a result of the accident.

Right knee

1. Mr Williams expressed the opinion that the accident had aggravated pre‑existing degenerative changes in the right knee.  He said that, whilst Mr Cleary had previously had surgery and there was evidence of pre‑existing degenerative change in the knee, Mr Cleary was very active despite that, and his functional capacity decreased after the accident.[116]

   [116] ts 386, exhibit 27A, page 12.

2. Ultimately, Mr Williams found it difficult to say what the percentage of Mr Cleary's needs for further management in the knee related to the accident but said there was some effect in the order of 25% to 50%.  He said that the effects of the accident had put Mr Cleary 'on a different trajectory' as far as the development of symptoms in his right knee was concerned.[117]  He said that 'one would inevitably see a progression of the time frame in which [Mr Cleary] has the need for a total knee replacement'.[118]

   [117] ts 406, 407.

   [118] Exhibit 27B, page 16.

3. Mr Williams said, in cross‑examination, that the reported level of activity Mr Cleary was undertaking before the accident was the critical factor in his assessment of the deterioration of the right knee as being related to the accident, rather than that previous degeneration.[119]  I am satisfied that Mr Cleary was undertaking the level of activity reported.

   [119] ts 399 ‑ 400.

4. Dr Hammersley agreed in cross‑examination that he had observed that Mr Cleary's right knee was getting better in 2015.  He thought that it was 'plausible' that this was the result of the soft tissue massage Mr Cleary had undergone and agreed such a massage could have the same effect again.[120]

   [120] ts 550.

5. In his report dated 26 August 2015, Mr Hammersley said of Mr Cleary that:

   he is finding that his knees working better than last year, he thought.  He can get into a low posture such as kneeling on one knee or both knees and he can also now make a deep partial dip.[121]

   [121] Exhibit 34F, page 3.

6. Dr Hammersley agreed that it was reasonable to conclude that Mr Cleary was having better use of his knee because the effects of the accident were wearing off.[122]

   [122] ts 553.

7. Mr Hammersley said he could not see any real purpose, other than reassurance, to Mr Cleary wearing a knee brace or standing with his weight biased on his left foot.[123]  He agreed that these were things that could be improved through specialised physiotherapy.[124]

   [123] ts 554, exhibit 34F.

   [124] ts 554.

8. Mr Home noted that Mr Cleary complained of ongoing pain in his right knee.[125]  He said that the diagnosis was of advanced degenerative change confined to the lateral compartment of the right knee.  Mr Home said that the accident had rendered the knee symptomatic and had led to a progression of symptoms at a somewhat earlier stage than would have existed without the accident.  He estimated that Mr Cleary's symptoms and related treatment requirements had been brought forward by a year.[126]  He attributed 75% of the impairment on the right knee to underlying degenerative change.[127]  This overlaps at the lower end with the range of the assessment made by Mr Williams, to the effect of 25% to 50% of the knee symptoms related to the accident.

   [125] Exhibit 46, page 3.

   [126] Exhibit 46, page 6.

   [127] Exhibit 46, page 10.

9. Dr Hardcastle considered that Mr Cleary would require knee replacement surgery because of longstanding degeneration, and that the effect of the accident on this was relatively mild.[128]  However, he did not exclude the possibility of an effect.

   [128] Exhibit 45, page 6.

10. I am satisfied that the preponderance of the evidence supports a finding that the accident aggravated pre‑existing changes in Mr Cleary's right knee.  I am also satisfied that the likelihood that Mr Cleary would require surgery to his knee, which existed before the accident, has been brought forward by between at least one year and possibly as much as five years.  These are, necessarily, estimates.

11. The ICWA submits that there is no basis for awarding Mr Cleary damages by reference to the possibility of a knee replacement as the period of time that the accident is said to have accelerated the operation (five years) has now passed.  I do not accept this submission.  Mr Cleary's knee was not symptomatic at the time of the accident.  The timing of it becoming symptomatic, sufficiently to warrant surgery, has been brought forward from the time it would otherwise have become symptomatic after the accident.  I consider that, in the circumstances, some allowance based on the cost of that surgery should be made.

Senses of smell and taste

1. There is no medical evidence that Mr Cleary has suffered any impairment of his senses of smell and taste.  However, it appears that the only basis on which such an assessment could be made would be his own complaint.

2. Mr Cleary first complained that his sense of smell and taste were not as acute as before the accident when he saw Mr Hunt on 6 September 2012, four months after the accident.[129]

   [129] Exhibit 1, letter from Mr Hunt, page 56.

3. In light of this, I find that, following the accident, Mr Cleary's senses of smell and taste have been impaired to some extent.  It follows as a matter of common sense that this has occurred as a result of the accident.

Head injury

Dr Fong

1. As has already been noted, Dr Fong treated Mr Cleary in Shenton Park.  In a letter dated 25 September 2012, Dr Fong said that Mr Cleary had made a substantial recovery from his significant brain trauma and spinal fractures, and noted the neuropsychological testing confirmed he had made a good cognitive recovery.[130]

   [130] Exhibit 1, page 63.

2. I do not consider that Dr Fong's letter progresses the issue of assessing the cognitive effects of the head injury on Mr Cleary.  Dr Fong was not called as a witness, and his letter was written in the limited context of assessing Mr Cleary as medically fit to drive and work.

Dr Ng

1. Dr Frederick Ng, a consultant psychiatrist, provided reports dated 16 April 2014[131] and 1 December 2017, concerning examinations on those days, and gave evidence at trial.[132]  His qualification to give his opinions was not challenged.  I accept Dr Ng's evidence set out in [101] ‑ [108] below and find accordingly.

   [131] Exhibit 31C.

   [132] Exhibit 31E.

1. In his report dated 16 April 2014, Dr Ng diagnosed Mr Cleary with an anxiety disorder and personality changes consequential to the brain injury in 2014.[133]

   [133] Exhibit 31C, page 12.

2. Dr Ng said that, in 2014, Mr Cleary reported to have changed in the manner he related to others and thought of himself.  Mr Cleary reported that he was introverted, judgemental of others, narrow and inflexible in his views, and pedantic.  He also said he had become more easily anxious about things in general and specifically anxious about future success in his business.  He said that he experienced anticipatory anxiety about his business not going well in the future, although he reported that his business (being BCCG) was going well at that time.  Mr Cleary reported that he had developed significant insecurities about his future financial security.[134]

   [134] Exhibit 31C, report of Dr Ng dated 16 April 2014, pages 11 and 12.

3. Dr Ng said, in his 2014 report, that these moderate changes in personality and anxiety were attributable to the brain injury, had caused Mr Cleary clinically significant distress, and had contributed to impairments in the areas of social, general and occupational functioning.  Dr Ng considered these changes would persist into the foreseeable future.[135]

   [135] Exhibit 31C, page 13.

4. Dr Ng said that, whilst Mr Cleary was fit for work full‑time in his previous occupation, the changes in personality and anxiety would reduce Mr Cleary's capacity to work 'most efficiently'.[136]

   [136] Exhibit 31C, page 14.

5. In his 2017 report, Dr Ng said that a depressive component had become prominent, such that a diagnosis of major depressive disorder was appropriate.[137]  He considered this might improve over time with treatment and recommended a trial of antidepressant medication.  He expected the generalised anxiety symptoms and reported personality changes to continue into the foreseeable future.[138]

   [137] Exhibit 31E, page 9.

   [138] Exhibit 31E, pages 9 and 10.

6. Dr Ng concluded:

   In general terms, if there is a demonstrated acquired brain injury of some significance, then any psychiatric symptoms manifesting directly as a consequence of that demonstrated acquired brain injury would be compounded by any psychological issues arising following such a brain injury … In general terms the combined psychiatric effect of the demonstrated acquired brain injury and the psychological issues arising following such a brain injury do lead to increased combined psychiatric symptoms and can lead to correspondingly greater psychiatric residual disability.

7. In his evidence at trial, Dr Ng said that Mr Cleary's anxiety disorder and the personality change were largely contributed to by the structural damage that had occurred in the brain,[139] would more likely than not persist into the foreseeable future,[140] and that it was more likely than not that there will be no improvement to a significant extent in the future.[141]

   [139] ts 439.

   [140] ts 436 ‑ 437.

   [141] ts 442.

8. Dr Ng said that the depression was a secondary phenomenon as a consequence of the changes to Mr Cleary's relationships, life, socialising and work, and these were therefore not part of the primary and structural damage which led to the pathological anxiety and personality change.[142]

Dr Collins

[142] ts 439.

1. Dr Marjorie Collins is a neuropsychologist.  She obtained a Bachelor of Arts with honours in Psychology in 1983, a PhD in Psychology (Cognitive Neuroscience) in 1992, from Murdoch University, and a Masters of Psychology in Clinical and Health Psychology from Curtin University in 2002.  She has been registered as a psychologist since 1993, and as a specialist clinical psychologist since 2005.  She is currently registered as a clinical neuropsychologist and clinical psychologist.[143]

   [143] Exhibit 32A.

2. Dr Collins provided reports dated 27 July 2014,[144] and 1 November 2017,[145] and gave evidence at trial.

   [144] Exhibit 32D.

   [145] Exhibit 32E.

3. Dr Collins reported that, in 2014, Mr Cleary had complained that he had to develop systems to jog his memory, was less flexible mentally, needed to maintain a narrow focus where previously he had been good at multitasking, had become inflexible and had difficulty changing routines, his problem‑solving was poorer, he was more easily distracted and did not complete tasks started, and that he fatigued mentally.[146]

   [146] Exhibit 32D, pages 6 - 7.

4. Dr Collins also reported that Mr Cleary said he was more easily angered and frustrated, more cynical, uncertain and reactive to being let down, whereas before the accident he was optimistic.  He said that, whereas before the accident he was confident, social, and engaged with people, he was now less confident, less outgoing, introverted, and uncomfortable in situations where the conversation challenged his current memory.[147]

   [147] Exhibit 32D, pages 6 - 7.

5. In 2014 and 2017, Dr Collins administered a number of tests to ascertain changes in Mr Cleary's psychological function, designed to assess pre‑morbid function, intellectual function (including perceptual reasoning, processing speed, and memory), executive function, social cognition, and emotional state.

6. Dr Collins said that:

   (a)over two assessments in July 2014, and September 2017, she had conducted 17 hours of testing;[148]

   (b)Dr Collins administered what she described as the 'full battery' of tests in the Wechsler Memory Scale (WMS).[149]  She noted that Mr Hunt, who had tested Mr Cleary in 2012, had carried out half the full battery.  Dr Collins said she considered the use of the full battery was more reliable in assessing memory than using selected tests;[150]

   (c)a number of measures in her testing were introduced to identify whether Mr Cleary had attempted to present a negative clinical impression, and she concluded that this was not a problem.[151]

   [148] Exhibit 32E, page 1.

   [149] ts 471 and 474.

   [150] ts 474.

   [151] ts 466.

7. Dr Collins referred in her reports and evidence to the standard descriptors of statistical ranges as follows:[152]

   extremely low – below the 3rd percentile

   borderline– 3rd to 8th percentile;

   low average – 9th to 24th percentile

   average – 25th to 74th percentile;

   high average – 75th percentile to 90th percentile;

   superior – 91st percentile to 97th percentile; and

   very superior – 98th percentile and above.

   [152] A reference to a percentile is a means of identifying the percentage of the population that is within a certain category.  For example if a subject falls within the 25th percentile, 25% of the population has scored the same or lower test scores than the subject, with 75% of the population scoring above the test subject.  Similarly if a subject falls within the 97th percentile, 97% of the population has scored the same or lower test scores than the subject, with 3% scoring above the test subject.

8. Dr Collins said that Mr Cleary scored in the superior range on the test for pre‑morbid function (TOPF), on the 92nd percentile.  She assessed Mr Cleary's pre‑accident function as being in the high average to superior range, based on the TOPF, and a number of subjective factors, in particular his educational and occupational history before the accident, which suggested a person functioning in the high average range, or more, prior to the accident.[153]

   [153] Exhibit 32D, page 10, ts 467.

9. Dr Collins evidence was that two indexes were significantly below the average range, namely processing speed (how fast you are mentally) and perceptual reasoning (working out visual material).  Dr Collins considered these were significantly lower than would be expected from someone on the 92nd percentile, and significantly lower than she would expect, in light of the results for working memory and verbal comprehension.[154]  In her opinion, this was clinically significant.[155]

   [154] ts 469, exhibit 32D, page 10.

   [155] Exhibit 32D, page 10.

10. In cross‑examination, Dr Collins said that Mr Cleary's pre‑accident level of intelligence was at least in the high average to superior range for verbal abilities, which appeared to be a pre‑existing strength.  She considered that his perceptual reasoning may have been less well developed but that it was more likely than not at least mid‑average.[156] She said that the fact that Mr Cleary's verbal comprehension (98th percentile) and working memory (82nd percentile), were in the high range provided another confirmation that his pre‑existing ability was at least high average, if not higher.[157]

    [156] ts 507, exhibit 32E, page 28.

    [157] ts 468.

11. Dr Collins said of Mr Cleary's current full Scale IQ was at the 58th percentile (in the average range).  In her opinion, this was significantly lower than the expectation based on the formal and informal estimates of his pre‑morbid ability and that, statistically, the discrepancy was clinically significant.[158]

    [158] Exhibit 32D, page 10, ts 467, 468, 505.

12. Mr Cleary's index scores were low average to average on measures of new learning and memory.[159]  Dr Collins said her observation was that, over the course of the memory testing, Mr Cleary became more aware of where the deficits in his memory actually were and his distress at this interfered with his ability to focus on the memory materials.  His immediate and delayed memory results fell below expectation. However, she felt this score was probably reduced as a result of Mr Cleary's distress and lack of focus when doing the memory measures.[160]

    [159] Exhibit 32E, page 17.

    [160] Exhibit 32E, page 15, ts 471 – 473.

13. Mr Cleary scored in the average range for auditory working memory in 2012.  In 2014 it was in the high average range, being at the 82nd percentile.  Dr Collins considered that this improved performance could be associated with recovery over time after Mr Cleary's brain injury, possibly in combination with the benefits of his practising working memory tests.[161]

    [161] Exhibit 32D, page 10.

14. Dr Collins said that Mr Cleary's performances in testing relating to executive function demonstrated limitations in planning and organisation, and reduced mental flexibility, as well as deficits in higher level attention, and a propensity to focus on detail.[162]  Dr Collins also indicated there had been no deterioration in Mr Cleary's executive function since 2014.[163]  Dr Collins said that difficulties observed in Mr Cleary's mental flexibility in the test environment would become more evident, in busier, more demanding, less structured conditions, and would be accentuated when fatigued.[164]

    [162] Exhibit 32E, page 25.

    [163] Exhibit 32E, page 25.

    [164] ts 481, 484.

15. Dr Collins said that she considered that the test performances reflected difficulties consistent with those Mr Cleary had reported since the accident, namely with multi‑tasking, responding flexibly to an audience in training, generating new business ideas, planning and organising new business packages, self‑monitoring and keeping the bigger picture in mind.[165]

    [165] Exhibit 32E, page 25.

16. Dr Collins said the tests in relation to social cognition were below expectation in some areas of recognising emotion, and that Mr Cleary had difficulty in identifying and verbalising feelings.[166]

    [166] Exhibit 32D, page 15.

17. Dr Collins said that testing of Mr Cleary's emotional state indicated that he had difficulty regulating his emotions and reported a number of symptoms of depression, elevated tension, apprehension and anxiety, obsessive compulsive symptoms associated with rigidity, perfectionism and the use obsessional defences to control anxiety through order and predictability.  Mr Cleary's response on testing was indicative of social isolation and consistent with emotional lability, irritability, rapid and extreme mood swings and episodes of poorly controlled anger.[167]

    [167] Exhibit 32D, page16.

18. Dr Collins said that Mr Cleary's results on untimed tests were in the upper half of the average range, but his timed measures were lower.[168]

    [168] ts 470.

19. Dr Collins concluded that Mr Cleary had a loss of intellectual functioning, slowed information processing, some areas of deficits in relation to working memory, and interference with executive function.[169]

    [169] ts 492.

20. Dr Collins said that the length of post‑traumatic amnesia is generally considered to be a gauge of the severity of brain injury.  Up to six days, as was suffered by Mr Cleary,[170] indicates a moderate range of severity of a brain injury.  The visual field loss and the encephalomalacia were both indicative of brain injury.[171]

    [170] As is recorded by Dr Fong at exhibit 1, page 50 and, effectively, accepted by ICWA in closing at ts 669.

    [171] ts 486 and 493.

21. Dr Collins agreed that not much recovery of cognitive function from an acquired brain injury would be expected after two years.[172]  She also agreed, however, that in some respects Mr Cleary had improved since 2014, which might be associated with recovery over time since his brain injury.[173]

    [172] ts 484.

    [173] ts 470.

22. Dr Collins said that, at the last review, Mr Cleary was suffering more pronounced symptoms of depression, and his symptoms were consistent with a major depressive disorder, which had developed since her review in 2014.[174]  She said in her 2017 report that hostility and 'embittered pessimism' were indicated in his profile as well as 'hypervigilence and feelings of persecution and resentment', and strongly recommended follow up with a psychiatrist or clinical psychologist with whom Mr Cleary had a rapport.  Dr Collins said that:

    … His psychological reaction appears to have developed over time in association with the medico legal process and his response to losing physical and cognitive capacity since the accident which has reduced his ability to attract and maintain work, with the knock on effect of creating financial stress and insecurity.

    It is very possible that there was a contribution from [Mr Cleary's] current heightened psychological symptoms to his performances on current assessment. … Even so, his test scores on measures common across 2014 and current assessments are very similar to one another, and statistically do not differ.  This suggests that his psychological symptoms alone cannot reasonably account for the deficits found on assessment.  On both assessments he passed on measures of test effort, so weak persistence cannot account for the deficits identified.[175]

    [174] Exhibit 32E, page 26, ts 491 - 492.

    [175] Exhibit 32E, page 26.

23. Dr Collins said that Mr Cleary's cognitive function may improve with improvement in psychological symptoms.  However, in her opinion, aspects of slowed information processing, deficits in aspects of memory and higher executive function would remain.[176]

Dr Mandy Vidovich

[176] ts 493.

1. Dr Vidovich holds a Bachelor of Science with Honours in Psychology UWA, a Masters of Clinical Neuropsychology Macquarie University, and a PhD the role of cognitive rehabilitation for older adults with mild cognitive impairment.[177]  She is a registered psychologist with endorsement for clinical neuropsychology, and has worked in that capacity from 2001 in the Health Department and in private practice.  She teaches at postgraduate level at UWA.[178]

   [177] Exhibit 41, page 24.

   [178] Exhibit 41, page 24.

2. Dr Vidovich reviewed Mr Cleary on 4 and 28 April 2016, and prepared a report dated 9 September 2016.[179]  At the originally scheduled appointment, she conducted tests over the best part of 2 1/2 hours.[180]  She did not interview Ms Firth.[181]  Many of the significant tests were administered on the first day, including the WMS and the Wechsler Adult Intelligence Scale (WAIS).[182]

   [179] Exhibit 41

   [180] ts 620.

   [181] ts 623.

   [182] ts 648.

3. The result of the TOPF Dr Vidovich administered was in the high average range.  However, her clinical impression was that Mr Cleary's pre‑morbid cognitive function would fall between average and high average.  She did not, however, identify precisely what indicators that she relied on in that clinical judgment, other than that the TOPF can be biased towards people with verbal rather than visual skills.[183]

   [183] Exhibit 41, page 10 (using the same descriptors referred to by Dr Collins: see [115] of these reasons), ts 647.

4. Dr Vidovich assessed Mr Cleary's full scale IQ was average overall.[184]

   [184] ts 627 - 628.

5. Dr Vidovich found the range of test results was from low average to high average, with Mr Cleary's strongest score being in working memory and his weakest score in processing speed.[185]

   [185] Exhibit 41, pages 10 and 11.

6. Dr Vidovich agreed that the more subtests performed within a battery of tests under the WMS and the WAIS, the more reliable the overall score.[186]

   [186] ts 618.

7. Dr Vidovich acknowledged that Mr Cleary had effectively scored the same in half the tests that both she and Dr Collins administered.[187]

   [187] ts 638 - 640.  Dr Vidovich said that raw scores were converted into standardised scores, and it was the standardised score which was relevant.  A higher raw score may convert into an identical standardised score, but would not be lower.  Dr Collins also said raw scores were essentially meaningless, and it was the comparison of a person's standard score against others that was of interest (ts 460).

8. Dr Vidovich agreed that the fact that Dr Collins had started with a higher pre-morbid function score would mean that Dr Collins' results could show clinically significant differences whereas Dr Vidovich's would not, depending on what the other scores were at the time.[188]

   [188] ts 632.

9. Dr Vidovich's evidence was to the effect that:

   (a)the history supported Mr Cleary having sustained a mild to moderate closed head injury at the time of the accident;[189]

   (b)Mr Cleary's intellectual abilities fell generally within average to high‑average limits, as did his memory performances and results across measures of executive abilities.[190]  However, the test results were highly variable.[191]  Dr Vidovich considered was likely due to a pre‑injury pattern of strengths and weaknesses, together with the possible subtle influences of cognitive sequelae from his brain injury.[192]  However, Dr Vidovich considered that direct cognitive influences from Mr Cleary's closed head injury were minimal, and that this was supported by his early neuropsychological test scores;[193]

   (c)there was strong evidence of depression, hostility, anger and resentment, together with significant tension, trouble relaxing, and experiences of fatigue associated with perceived levels of high stress;[194]

   (d)poorer results of recent testing could not be explained by brain injury factors, where the natural trajectory would be for recovery with plateau in around the two year period;[195] and

   (e)psychological factors may have influenced his level of efficiency and productivity, particularly with respect to anxiety, motivation and issues of confidence.[196]  Reductions in anxiety and increases in self-confidence were likely to effect the greatest improvement in his day to day cognitive functioning.[197]

Circumstances of Dr Vidovich's review

[189] Exhibit 41, page 17.

[190] Exhibit 41, page 16.

[191] Exhibit 41, page 16.

[192] Exhibit 41, page 17.

[193] Exhibit 41, page 18.

[194] Exhibit 41, page 13.

[195] Exhibit 41, page 18.

[196] Exhibit 41, page 19.

[197] Exhibit 41, page 16.

1. The circumstances of Dr Vidovich's review were somewhat contentious, and Mr Cleary had some criticism of the process, in particular that the testing was not completed within the scheduled appointment and that he had been required to travel to Perth again for a second appointment. Mr Cleary said he felt 'victimised' and 'angry',[198] and became visibly angry at the memory of it during his evidence. Dr Vidovich confirmed that Mr Cleary was anxious and angry at both appointments she had with him, and that he became teary when referring to how the accident had affected him.[199]  Mr Cleary did not direct his anger at her.[200]

   [198] ts 185 - 186.

   [199] Exhibit 41.

   [200] ts 602.

2. I do not consider there is any basis for criticism of either Dr Vidovich or ICWA in the circumstances of the testing.  However, the circumstances of the first day of the review, and Mr Cleary's feelings on that day, have some relevance in considering the test results on which Dr Vidovich's opinion is based.

1. Dr Collins said a range of factors such as emotional state, fatigue and rapport, act as secondary influences on test performances.  She said these secondary influences together could account the test scores collected in 2016 which stand as outliers relative to the other assessments.[201]  Dr Collins said that a lack of rapport between testee and examiner can also have an impact on performance.[202]

   [201] Exhibit 32E, page 23.

   [202] ts 497.

2. Dr Vidovich agreed that she would normally conduct testing over two days, where the subject lived in Perth.[203]  Where the test subject was travelling from another state, the testing would usually be done over a single day. ^[204]

   [203] ts 616.

   [204] ts 600.

3. When asked if testing over two days was to avoid fatigue effects, Dr Vidovich said that she tried to avoid those effects by allowing breaks in the assessment, implicitly accepting that there could be such effects.[205]  She agreed that fatigue and concentration can be issues for some people.[206]  She also said that being upset can result in the subject not performing at their best.[207]  She did not, however, consider that this was a significant influencing factor during her testing of Mr Cleary, as she thought those issues had been resolved before they started.[208]  Ms Lee's evidence, referred to in [234] below, supports Mr Cleary's evidence that he continued to be angry during the first interview, even if that was not apparent to Dr Vidovich.[209]

   [205] ts 616.

   [206] ts 617.

   [207] ts 650.

   [208] ts 654.

   [209] In particular, the evidence of Nicole Lee referred to below was that Mr Cleary rang her and spoke to her at length about this at a time that was clearly after the first appointment and before the second.

4. Dr Vidovich agreed that anxiety can be significant in some individuals in neurocognitive functioning,[210] but said that she had taken this into account in testing.[211]

Findings in relation to Dr Collins' and Dr Vidovich's evidence

[210] ts 645.

[211] ts 642.

1. Both Dr Collins and Dr Vidovich are highly qualified expert neuropsychologists.  They both gave evidence in a professional manner.

2. The crucial point of difference between Dr Collins and Dr Vidovich assessment of the cognitive effects of Mr Cleary's head injury is their starting point, namely the assessment of Mr Cleary's pre‑morbid, or pre‑accident, function.  That difference affects the conclusions of both on the clinical significance of the other test results.  As Dr Vidovich conceded, Dr Collins higher assessment of pre‑morbid function would mean that results Dr Collins saw as clinically significant would not be seen as such by Dr Vidovich.

3. I find Mr Cleary's performances in the testing administered by Dr Vidovich were likely to have been adversely affected by his emotional reaction to the circumstances of the test, and also by his being tired, having arrived, by air, from Queensland late the night before.[212]  I cannot make a finding about precisely what effect there would have been, other than that it is likely to have impacted on at least some of the test results.  In addition, Dr Collins had the opportunity to, and did, conduct more testing of Mr Cleary, in 2014 and 2017, than Dr Vidovich was able to undertake in 2016.

   [212] ts 181.

4. Dr Collins' assessment was based, in part on Mr Cleary's reporting of his pre‑accident education and occupation.  The history of his education and employment referred to in Dr Collins' report dated 25 July 2014 is consistent, in my view, with my findings on the evidence, in that respect.

5. The assessments of pre‑morbid function are not fixed, but are estimates in a range.  They overlap in the 'high average' range, which is consistent with Mr Hunt's assessment[213]  In addition, Dr Vidovich assessed the TOPF in the 86th percentile,[214] which is towards the upper end of the high average range, compared to Dr Collins' assessment of the 92nd percentile, at the top of that range.

   [213] Both Dr Collins (ts 485) and Dr Vidovich (ts 610) relied on Mr Hunt's results.

   [214] ts 628.

6. For these reasons, I find that Mr Cleary's pre‑morbid ability was in the more likely than not to be in 'high average' range, and towards the upper end of that range.  Accordingly, I prefer Dr Collins' assessment of the cognitive effects of the accident to that of Dr Vidovich.

7. Dr Collins assessed Mr Cleary's closed head injury as being moderate.  Dr Vidovich was in the same range, identifying it as mild to moderate.  I find that Mr Cleary did suffer a moderate head injury relying in particular on the reported post‑accident amnesia of six days.

8. I find that Mr Cleary has, as a result of the head injury, suffered some slowed information processing and diminished higher executive function, and that these will remain into the future to some extent.  I also find that Mr Cleary's psychological symptoms have had, and are having, an effect on these cognitive functions, and that, whilst there may be some improvement in his psychological symptoms, some deficit will still remain.  I find that these deficits have to some extent affected Mr Cleary's ability to perform the work he does in consulting and training.[215]

   [215] ts 493.

9. However, Dr Collins' view of the actual effect of the cognitive deficits noted on testing on Mr Cleary's ability to perform work as a consultant and trainer was informed by Mr Cleary's, description of his difficulties in that respect.  As I have said in [13] – [25], I consider that Mr Cleary's evidence in this regard was not reliable.  I comment on that further in my consideration of the claim for lost earning capacity.

10. I do not accept that the evidence supports a finding that the cognitive deficits on their own had a major impact of Mr Cleary's ability to perform that work.  Rather, on the evidence I have referred to I find it is perception of those deficits, and the increasing effect of his depression, that has had a greater impact.  This coincides with a worsening of his business in financial terms after the 2014/2015 financial year, after a post‑accident increase in financial performance from 2012 through to 30 June 2015.[216]  Dr Vidovich said that depression was 'strongly endorsed' in Mr Cleary in September 2016.[217]  Dr Collins noted Mr Cleary's increasing depression in September 2017, and in December 2017, Dr Ng had diagnosed Mr Cleary with a major depressive disorder.  I discuss this further when considering the claim for loss of earning capacity.

    [216] See the summary table at [264] of these reasons.

    [217] Exhibit 41, page 13.

Loss of earning capacity

1. Mr Cleary claims both past and future loss of earning capacity.

2. In his particulars of damage, Mr Cleary alleges that as a result of his injuries he lost significant consulting work with BCCG, and was unable to attend to the daily management of ESW, resulting in the closure of that business.[218]

Energy smart windows

[218] Particulars of claim dated 19 June 2017 at par 3.4.

1. Mr Cleary's counsel effectively abandoned the claim for loss of earning capacity based on the ESW business claim in closing, submitting only that 'on one view a modest global allowance could be considered … whilst the real loss is that which occurs in the BCCG area'.[219]  In my view, no amount should be allocated in respect of this aspect of Mr Cleary's claim.

   [219] Plaintiff's closing submissions at par 303.

2. ESW's tax returns evidence that:

   (a)in 2011 ESW made a loss of $20,062;

   (b)in 2012 ESW made a loss of $217,046, and had received loans from Mr Cleary totalling $292,294; and

   (c)in 2013 ESW made a loss of $103,102, with a total tax losses carried forward to later income years of $320,058.[220]

   [220] Exhibit 12.

3. Mr Cleary may have derived some financial benefit from ESW in 2011 and 2012, noting that ESW claimed relatively small amounts for employment and vehicle expenses.  However, Mr Cleary supported ESW's operations through significant loans, apparently derived from his own savings.[221]

   [221] ts 296. The evidence also records that, between 30 May 2010 and 16 May 2012, Mr Cleary loaned ESW $102,974, of which $29,983 was repaid, being a net debit of $72,991. In the same period, BCCG loaned ESW $84,290 of which $12,741 was repaid, being a net debit of $71,549.  The total net loan to ESW was $144,540. Exhibit 26, pages 1 and 2.

4. Mr Cleary's counsel accepted that there was a breakdown in 2011 of the relationship with ESW's licencee, EAA.[222]  This resulted in the termination of ESW's licence agreement with EAA on about 17 January 2012.[223]  Mr Cleary did not attempt to obtain contracts for the EAA windows after that date.[224]

   [222] Plaintiffs closing submissions, par 84.

   [223] Exhibit 9.

   [224] ts 125 and 213.

5. Despite the breakdown of his relationship with EAA, and the losses ESW had suffered, when it was put to him, baldly, that the ESW business was 'down and out' before the accident, Mr Cleary said 'I disagree'.[225] This was despite conceding that an alternative supplier had not been identified,[226] and the evidence that he had agreed to work full‑time for 12 weeks in Queensland, for PresCare, scheduled to start just after the accident in April 2012.[227]  That evidence supports a finding that there was little, if anything, Mr Cleary was required to do in relation to the ESW business as at the date of the accident.

   [225] ts 203.

   [226] ts 125.

   [227] Exhibit 21, exhibit 4, page 40, and ts 139.

6. The evidence does not support a finding that Mr Cleary was deriving any income through his efforts in operating ESW at the time of the accident, or at any time before the accident or that there was any possibility of him doing so in the future.  Whatever Mr Cleary's ambitions, any claim for loss of earning capacity on this basis is, put at its highest, in the realm of speculation.  Objectively, ESW had failed by the end of January 2012 and Mr Cleary had no realistic prospect of using his efforts through that vehicle to generate income.

Blue Chip Consulting Group Pty Ltd

1. Mr Cleary's evidence about the work done through BCCG was that:

   (a)the consulting work involved understanding how a business operates, where there is waste, error and variance and considering how waste can be minimised, error reduced and variance better managed;[228]

   (b)the training work varied according to the requirements of the client, with in‑house training being more specific to the needs of the organisation, and public workshops having a broader pitch;[229] and

   (c)facilitation involved dealing with people in organisations who reported to the CEO, and reconciling their differences in views and coming to consensus.[230]

   [228] ts 87.

   [229] ts 87.

   [230] ts 87.

2. In [168] - [230] below, I consider Mr Cleary and Ms Firth's evidence of the BCCG business before the accident, and then after the accident, in light of the documentary evidence, in particular BCCG's invoices.

3. I then turn to the evidence of the three independent witnesses; Therese O'Shea, Nicole Lee and Claire Locke, BCCG's financial returns and Mr Cleary's income tax returns, and the evidence concerning the effect, in 2010 and 2011, of the ESW business on the BCCG business.  Finally, I set out my conclusions.

Before the accident

1. Mr Cleary had had a longstanding relationship with ICAA.  He had done work for ICCA for over 15 years, largely training.  The invoices evidence Mr Cleary presented 11 training workshops for ICAA between September 2007 and April 2012, being approximately two a year, averaging around $1,200 per workshop.[231]

   [231] Exhibit 4, pages 7, 15, 52, 62, 64, 66, 75, 76 and 98.

2. In July 2007, Mr Cleary did work through the Australian Institute of Management, which appears to have been in the nature of training.[232]  In December 2007, he did some further work for AIM described as coaching.[233]  Mr Cleary had not worked for AIM since December 2007.

   [232] Exhibit 4, page 1.

   [233] Exhibit 4, page 12.

3. In July, September, October and November 2007, March, April and May 2008, Mr Cleary presented a number of 'Accounting for Non‑Accountants' workshops, for a training business, Ron Pollak Training International.[234]  Mr Cleary said this was a program he had run for many years in different forums.[235]  He charged fees of $1,250 per day for 13 days.  Mr Cleary did not work for Ron Pollak from April 2008 until March 2017.

   [234] Exhibit 4, pages 2, 8, 9, 10, 18, 22 and 24.

   [235] ts 91, 92.

4. In December 2007 Mr Cleary was engaged by TPC Group, which had invested money in EAA and EWC.[236]  Mr Cleary worked with the directors of EAA and EWC on their financial management.[237]  He was subsequently engaged by EAA and EWC directly, and rendered 12 invoices between February 2008 and September 2009.[238]  All of this work appears to be consulting.[239]  Mr Cleary has not worked for either EAA or EWC since 2009.

   [236] ts 99, exhibit 4, page 13.

   [237] ts 99.

   [238] Exhibit 4, pages 14, 17, 21, 30, 36, 37, 39, 40, 41, 45, 46 and 48.

   [239] ts 100.

5. Mr Cleary did financial consulting work for Caterpillar Financial Australia in August 2007.[240]  He has not worked for Caterpillar since August 2007.

   [240] ts 106, the invoice for this work is exhibit 4, pages 3 and 4.

6. In September 2007, May and July 2008, Mr Cleary provided consulting services to BFSG, on business development and partnership evaluation.[241]  Mr Cleary has not worked for BFSG since July 2008.

   [241] ts 96, invoice at exhibit 4, pages 5, 6, 11, 26 and 33.

7. In February 2008, Mr Cleary presented a 'Functional Finance Workshop',[242] and in December 2009 and February 2010 he conducted business model reviews, for PresCare.[243]  In March 2010, Mr Cleary presented at a PresCare Managers Conference.[244]  The invoices refer to work in October 2010, February, June and August to December 2011, and January, March and April 2012.  The work appears to be in the nature of consulting on costs, tenders and agreements and includes a Community Care Review and report and a contact centre business case.[245]  In evidence Mr Cleary said that the work he had done for PresCare included review of the operation of a residential care facility and proposing ways it could be more efficiently operated.[246]

   [242] Exhibit 4, page 16.

   [243] Exhibit 4, pages 55 and 58.

   [244] Exhibit 4, page 59.

   [245] Exhibit 4, pages 82, 84, 87, 88, 91, 95.

   [246] ts 102.

8. In March and May 2008, Mr Cleary did work for Country Racing Victoria, involving some training, and business planning, workshops with individual clubs.  He described the business planning workshops as being more in the nature of consulting than training.  Mr Cleary conducted workshops with clubs on governance, which he described as consulting.  In July 2008, he undertook reviews of the clubs' business plans. In August 2008 he reviewed 29 strategic, operational and marketing plans and provided feedback to the clubs, and conducted a workshop called 'Strategic Planning Process'.[247]  Mr Cleary has not worked for CCR since 2008.

   [247] ts 96 - 98, invoices at exhibit 4, pages 19, 20, 23, 32 and 34.

9. In about May and June 2008, Mr Cleary provided financial consulting services concerning cost management to Document Printing Australia.[248]  He has done no further work for DPA.

   [248] ts 101, exhibit 4, pages 27 - 31.  An employee of DPA subsequently referred him to AGV Group (ts 102), and he did work for AGV in 2012 and 2014.

10. In December 2008, Mr Cleary presented a training workshop entitled 'MYOB M‑Powered Services Planning Workshop' for Training Dimensions Pty Ltd.[249]  He has not done any further work for this entity.

    [249] Exhibit 4, page 38.

11. In about June 2009, Mr Cleary consulted with the Australian Red Cross Blood Service in Victoria, which he described as 'process mapping' to identify the costs involved in the provision of organ donation services in Tasmania.[250]  He has done no further work for this entity.

    [250] ts 101 - 102, exhibit 4, page 43.

12. Mr Cleary conducted a number of workshops in 2009 and 2010 through TTL.  In October 2009, Mr Cleary conducted a workshop for an energy utility, Powercor, concerning contract management.[251]  In December 2009, he did further work for Powercor and a connected company, Citpower, which involved facilitating a discussion about dealing with a regulator.[252] Mr Cleary also presented workshops in November 2009, to the City of Wittlesea,[253] and in June, July and August 2010 to CSIRO. He described the latter as a series of workshops with senior research staff, aimed at improving understanding of the commercial environment. Mr Cleary said in evidence that there were 8 to 10 workshops.[254]  However, the invoices relating to this work[255] identify four workshops involving up to 68 participants.[256]  In September 2010, Mr Cleary conducted a two day workshop on financial management and business acumen, for an organisation called Superpartners.[257]  TTL engaged Mr Cleary again in June 2012, after the accident.

    [251] ts 92, exhibit 4, page 49.

    [252] ts 92 - 93, exhibit 4, page 54.

    [253] Exhibit 4, page 51.

    [254] ts 93.

    [255] Exhibit 4, pages 67, 69, 70, 71.

    [256] This figure based on the number of workbooks supplied.

    [257] ts 93 - 94, exhibit 4, page 72.

13. In September 2009 and May 2010, Mr Cleary presented workshops for the Chamber of Commerce and Industry in Western Australia,[258] which he described as effectively an 'Accounting for Non‑Accountants' workshop.  He subsequently presented a further workshop for CCIWA in October 2010.[259]  Mr Cleary has not worked for CCIWA since May 2010.

    [258] ts 94, exhibit 4, page 47 and 63.

    [259] Exhibit 4, page 74.

14. In October and December 2009, Mr Cleary presented workshops in Malaysia.[260]  The invoices bear similar descriptions to the workshops for CCIWA, and were in the nature of training.

    [260] Exhibit 4, pages 50 and 53.

15. In February and May 2010, Mr Cleary presented sessions for an organisation called Liquid Learning, entitled 'Business Acumen and Reporting' and 'Developing Business Acumen' respectively.[261]  The next occasion that Mr Cleary did work for Liquid Learning was in February 2017.[262]

    [261] Exhibit 4, pages 57 and 65.

    [262] Exhibit 4, page 213.

16. In March and June 2010, Mr Cleary did consulting work for an organisation called STIWA, which comprised organising a briefing meeting, preparing a discussion paper, facilitating a council meeting and members' forums, and preparing a report with recommendations for action.[263]  Mr Cleary has not worked for STIWA since June 2010.

    [263] Exhibit 4, pages 60 and 68.

17. In March 2011, Mr Cleary presented what appears to be a training workshop called 'Commercial Awareness and Business Acumen' for IIR Executive Development.[264]  Mr Cleary has done no further work for IIR.  In November 2011, Mr Cleary undertook work for Informa Corporate Learning, with the same title.[265]  Mr Cleary did work further work for Informa in December 2012, July 2013 and September 2017.[266]

    [264] Exhibit 4, page 78.

    [265] Exhibit 4, page 85.

    [266] Exhibit 4, pages 109, 121 and 224.

18. In November 2011, Mr Cleary undertook work for Mount Eliza Business School described as 'Strategic Finance for Executives 35 Managing Profit Margin'.[267]  He could not remember this work,[268] however it appears to be a training workshop.

    [267] Exhibit 4, page 86.

    [268] ts 104.

19. In December 2011, Mr Cleary did consulting work with FrigTech and prepared a draft position description for a manager.[269]  In February 2012, Mr Cleary did further work for FrigTech which appears to have concerned recruiting a branch manager.[270]  He did some further work for FrigTech in December 2012 but not thereafter.[271]

    [269] Exhibit 4, page 89.

    [270] Exhibit 4, page 92.

    [271] Exhibit 4, page 108.

20. In December 2011, Mr Cleary did work described as 'Business Development' for Futurum Australia.[272]  He has not done any further work for Futurum.

    [272] Exhibit 4, page 90.

21. In March 2012, Mr Cleary presented a workshop for Zenith Business Excellence in Malaysia.[273]  He presented further workshops for Zenith in Malaysia in May 2013, November 2014, and June 2015.[274]  In an email to Cora Considine of ICCA on 18 March 2016, Mr Cleary said that the South East Asian training market had been non‑existent since August (referring to 2015) and that he had had multiple bookings which had come to nothing.[275]

    [273] Exhibit 4, page 93, 94 and 96.

    [274] Exhibit 4, pages 117, 156 and 173.

    [275] Exhibit 30, page 0305.

1. I accept Mr Cleary does not undertake weight‑bearing exercise because, whilst he can do it, he is concerned about hurting his shoulder and his knee.[449]   He does still try to exercise most days but that exercise is limited to riding his bike.[450]  He would ride about 40 minutes a day generally about five days a week.[451]  This is significantly less than he exercised before, in activities he enjoyed.

   [449] ts 135.

   [450] ts 168.

   [451] ts 169.

2. Mr Cleary said that he no longer dances because the physical strain is too difficult and he no longer enjoys the social interaction.  Ms Firth confirms that he does not dance and is reluctant to go out walking although they do go bike riding.  Ms Firth also confirms that Mr Cleary had become withdrawn and did not like to socialise as he had done before.[452]  I accept that Mr Cleary has given up dancing, and that this occurred in April 2017.  I also accept that this is in part attributable to the pain in his knee, which in turn is partially attributable to injuries suffered in the accident, and also possibly his shoulder.  However, the lack of enjoyment of social interaction appears to derive from a combination of personality changes after the accident and depression.

   [452] ts 352.

3. Ms Firth said that Mr Cleary is quite often angry and short tempered and will fly off the handle.[453]  She finds that he gets distracted.[454]  She said that he was sharper in the mornings than in the afternoons, and that if he runs a workshop he will come home and say he is exhausted.[455]  I accept this evidence.

   [453] ts 352.

   [454] ts 352.

   [455] ts 353.

4. Since the accident he has done minimal gardening.  Ms Firth cooked all the meals.  With respect to household chores Mr Cleary said:

   It doesn't occur to me to do those things but if I'm asked I'll definitely do them and – but I'd say that [Ms Firth] would do better than 75% of that.  And it's not that I'm lazy or don't want to, it's – sometimes she will take the initiative and other times you'll see what's obvious to her that is not obvious to me and go ahead and do those things.[456]

   [456] ts 171.

5. He said he was able to wash his own clothes and hang them on the line.[457]

   [457] ts 171.

6. Ms Firth said that, until they moved to Queensland in October 2014, she was doing most of the domestic duties.  She said one of the reasons was that Mr Cleary was taking a long time to do his work and could only focus on one thing at a time, so Ms Firth tried to take the pressure off him by doing the cleaning, shopping and the washing as well as attending appointments with him.[458]

   [458] ts 347.

7. Ms Firth said, in effect, that Mr Cleary was capable of doing housework but did not do it because he became distracted.[459]  I conclude that Mr Cleary's current difficulties do not prevent him from doing such domestic chores, nor does he need assistance.

   [459] ts 354.

8. Mr Cleary said that he is now very sensitive to the cold.[460]  Ms Firth said that she and Mr Cleary had moved to Brisbane because he had not liked the travel from Western Australia, as his clients were in the Eastern States, and he did not want to move to Melbourne because he does not like the cold.[461]  I accept this increased sensitivity follows the injuries suffered in the accident.

   [460] ts 139.

   [461] ts 352.

9. I accept that, as a result of the diminution of his sense of smell and taste, Mr Cleary does not enjoy wine as much as he is to.[462]

   [462] ts 139.

10. Mr Cleary said that before the accident he slept very well which is no longer the case as a result of pain and discomfort in his right knee during the night.  He is unable to sleep on his right side because of pain in his right shoulder.[463]  I accept this.

    [463] ts 86 - 87.

11. I consider that Mr Cleary's confidence has been significantly adversely affected by the injuries suffered in the accident, and their aftermath, in particular his perception of his cognitive difficulties, and his depression.[464]

    [464] ts 167 and 175.

12. Ms Firth said that she used to do the MYOB data entry for BCCG's accounts before and after the accident.[465]  She currently handles all the household income as Mr Cleary 'is no longer interested'.[466]  There is no evidence Mr Cleary cannot undertake this.

    [465] ts 351.

    [466] ts 351.

13. In all the circumstances I assess Mr Cleary's case to be at 35% of a most extreme case, which equates to an award for non‑pecuniary loss of $146,300.  No statutory deduction applies.[467]

    [467] The award being greater than amount B $21,500, Amount C being $63,500, and the addition of these sums ($85,000).

Special damages

Medical and out of pocket expenses

1. I allow this claim, which was not disputed, in the sums of:

Item	Amount
Past medical expenses	$370
Travel expenses	$458
Pharmacy	$870
Interest to judgement on $1,698.61[468]	$351
Total	$2,049

[468] From 27 April 2012 to judgment on 13 March 2019 (2,512 days) at 3% per annum.

1. I will also order ICWA indemnify Mr Cleary for all past Medicare expenses, totalling $14,951.85.  Again, this claim was not in dispute.

Future Medical Treatment

1. Mr Cleary said that, if there was an award of damages, he would undertake the recommendations that had been made of psychiatric and psychologist treatment and medication, physiotherapy and treatment to his knee.[469]  His evidence was that he could not afford such treatment currently.[470]

   [469] ts 175 - 176.

   [470] ts 175 - 176.

2. Mr Cleary said that he had seen a physiotherapist in July 2012, but ceased to go as a result of being told that he had reached the limit for reimbursement for physiotherapy, and said it was then not possible to continue.[471]

   [471] ts 176, exhibit 2, page 6.

3. Mr Cleary said that in August 2015 he had seen a GP in Queensland about obtaining subsidised mental health treatment from a psychologist.  He had subsequently seen a psychologist on three occasions, but did not develop a rapport with her and stopped seeing her.[472]

   [472] ts 177, exhibit 17.

4. I accept Mr Cleary's evidence that he would undertake these services.

5. Dr Ng recommended psychotherapy for 12 to 24 months every two to three weeks at a cost of $355 per hour.[473]

   [473] Exhibit 31E, page 13.

6. I consider, in light of this evidence, an allowance should be made for the cost of a consultation with a psychiatrist every three weeks for 18 months, or 26 consultations, at $355 per consultation, totalling $9,230.  There is no need, in my view, to discount this figure.

7. Dr Ng also considered that Mr Cleary required antidepressant medication on a daily basis for at least the next two to four years, if not longer, at a cost of $50 to $100 per month.[474]  In addition, ICWA accept that Mr Cleary has an ongoing need for a small amount of 'off the shelf' analgesia.  I consider that the quantity of analgesia arising out of the ongoing consequences of the accident is likely to be small, and that will diminish over time, as Mr Cleary receives treatment.

   [474] Exhibit 31E, page 14.

8. In light of this, I will make an allowance for the future cost of medication of $3,720, calculated at $20 per week for a period of four years, discounted at a rate of 6%.[475]

   [475] Applying a multiplier of 186: Appendix Table 2, Assessment of Damages for Personal Injury and Death 4th Edition, Harold Luntz, Butterworths.

9. For the reasons referred to in [94], I consider that some allocation should be made for a proportion of the cost of knee reconstruction surgery in the future.

10. I do not accept ICWA's submission that no allocation should be made for the cost of that surgery, as five years has already passed since the accident.[476]  Mr Cleary did not require surgery in 2012, because he was not experiencing symptoms in his knee.  The timing of the surgery has been brought forward from whenever he would have had that surgery had it not been for the accident.

    [476] Defendant's submissions at par 123.

11. Dr Hammersley estimated the cost of a total knee replacement as at 15 April 2014, in the amount of $50,000 to $55,000.[477]  This is the only evidence before me of that cost.

    [477] Exhibit 34F, page 15.

12. I consider that a substantial discount for contingencies should be made on that cost including the likelihood this operation would have been necessary in the near future in any event.  I consider a reasonable allocation is $15,000.  In the circumstances, I will not make any allocation for other treatments including massage or physiotherapy of the right knee.

13. In addition, it is appropriate that I allow for two steroid injections to the right shoulder to take place in three years' time.  The evidence I have is that the current cost of these is $1,500 per treatment.  Accordingly, applying the appropriate discount rate, I will allow an amount of $2,519.[478]

    [478] Applying a multiplier 839.6 per $1,000: Appendix Table 1, Assessment of Damages for Personal Injury and Death 4th Edition, Harold Luntz, Butterworths.

14. In addition, I will allow a small amount for GP visits to obtain referrals for psychiatric care and other treatment.  The evidence I have is that the cost of a visit is $80.  I will allow an amount of $400, being the equivalent of five attendances.

15. Accordingly, I will allow the following amounts:

Item	Amount
Psychiatric treatment	$9,230
Allocation for knee replacement operation	$15,000
Steroid injections	$2,519
Medication	$3,720
GP attendance	$400
Total	$30,869

Gratuitous services

Claim for domestic services

1. Mr Cleary has made a claim for compensation for gratuitous domestic services provided by Ms Firth.

2. This claim is governed by s 3D of the MVA which provides as follows:

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

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

   (3)If the services are provided or to be provided for not less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated on a weekly basis at the rate of —

   (a)the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in Western Australia for the relevant quarter; or

   (b)if the Australian Statistician fails or ceases to make the estimate referred to in paragraph (a), the amount fixed by, or determined in accordance with, the regulations.

   (4)In subsection (3)(a) the relevant quarter means the quarter in which the services were provided or, if at the date of the award an estimate as referred to in that paragraph is not available to the court for that quarter or the services are yet to be provided, the most recent quarter for which such an estimate is available to the court at the date of the award.

   (5)If the services are provided or to be provided for less than 40 hours per week, the amount of damages awarded for their value is not to exceed the amount calculated at an hourly rate of one‑fortieth of the weekly rate that would be applicable under subsection (3) if the services were provided or to be provided for not less than 40 hours per week.

   (6)If the amount of damages that may be awarded under subsection (3) or (5) is Amount D or less, no damages are to be awarded for the value of the services provided or to be provided.

3. Accordingly, Mr Cleary is entitled to claim compensation for additional services of a domestic type which he used to do himself but is, or was, unable to do as a result of the injuries suffered in the accident, provided that that compensation exceeds $6,500, being the current level of Amount D.

4. I find that Mr Cleary required gratuitous services to help with household tasks for three months after he left hospital on 18 May 2012.  His need for such services would gradually have diminished over that period, as he recovered from his physical injuries.

5. The evidence does not support a finding that Mr Cleary required such services after that.  I have already made findings that Mr Cleary and Ms Firth separated in about August 2012 and that she did not visit him at his home.  By inference, she was not providing any assistance with household tasks.

6. Consistently with that, when Mr Cleary saw Mr Hunt on 6 September 2012, Mr Cleary reported that he was living alone, and that he did not have any difficulties looking after himself.[479]  Accordingly, I have not allocated any amount for future gratuitous services on this basis.

   [479] Exhibit 1, letter from Mr Hunt, page 56.

7. I estimate that an average of 20 hours a week for 13 weeks to be an appropriate allowance.  ICWA's counsel conceded that the appropriate rate for any calculation of gratuitous services was the $33 per hour claimed by Mr Cleary.[480]

   [480] ts 69.

8. Accordingly, I would allow $8,580, and interest from 27 July 2012 (13 weeks after the accident) to judgment being $1,707.[481]

   [481] From 27 July 2012 to judgment on 13 March 2019, being 2,421 days at 3% per annum.

9. The total allowed under this heading is $10,287.

Services provided to BCCG business

1. Mr Cleary also claims losses in relation to voluntary assistance Ms Firth is said to have provided to Mr Cleary to do his consultancy and training work through BCCG.  Mr Cleary's counsel submitted that:

   his approach is preferable to attempting to subdivide invoices raised by BCCG during this period in order to try to separate out the value of the assistance provided by Ms Firth and to then try to reflect this assistance by way of discounting residual post-accident earnings.

2. Mr Cleary's counsel says that this is consistent with the authority of Cockshell v Australian National Railways Commission.[482]  In that case the court allowed a claim for damages where the plaintiff's wife was required to increase the number of hours she worked because the plaintiff, who had been the more active partner in the business, was not able to perform the work.

   [482] Cockshell v Australian National Railways Commission (1986) Aust Torts Reports 80-024 (SASC).

3. ICWA submits that no allowance should be made for services provided to the business, because it was a service to the company, BCCG, and not to Mr Cleary.[483]  No authority for this proposition was provided.

   [483] Defendant's submissions at par 117.

4. In Randall v Dul,[484] Franklyn J (with whom Roland J agreed) allowed a claim for compensation for gratuitous services[485] based on the plaintiff's inability to perform cleaning services for a hairdressing business operated by the plaintiff and her husband in partnership, holding that this was a means of calculating the value of the plaintiff's lost capacity to work in the partnership, and that it was not necessary that actual economic loss be established.[486]

   [484] Decision of the Full Court of the Supreme Court of Western Australia.

   [485] The cleaning work was undertaken gratuitously by the plaintiff's mother‑in‑law, or her husband.

   [486] Randal v Dul (1995) 13 WAR 205, 215 (Franklyn J).

5. However, in a subsequent case, Trigwell v Trigwell (1997) 18 WAR 83, Parker J said that Franklyn J's comment was not correct in light of the decision of Medlin v State Government Insurance Commission,[487] where the High Court had held that actual economic loss was necessary in order to establish a claim for loss of earning capacity.

   [487] Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1.

6. There is some evidence that Mr Cleary suffered some economic loss because of the need to obtain assistance from Ms Firth in the BCCG business after the accident.  In the 2011/2012 financial year, $5,400 is allocated to wages paid to someone other than Mr Cleary.  I accept that was more likely than not paid to Ms Firth.  The evidence was that she had performed some work for BCCG before the accident.  However, in the 2012/2013 financial year, the payment of wages to Ms Firth increased to $15,500.  At the same time the distribution to Mr Cleary decreased from $19,000 in 2011/2012, to $15,500 in 2012/2013.  As I have already noted, the allocation of wages in small corporate structures does not always reflect the division of labour, and that Ms Firth had reasons for engaging in work for BCCG that were unconnected to Mr Cleary's injuries.  However, this provides some evidence that there has been some actual loss of income as a result of an increased need to use Ms Firth's services in the immediate aftermath of the accident.  On that basis, it is appropriate to assess the value of that loss on the basis of the value of Ms Firth's gratuitous services.

7. I have found that Mr Cleary only required assistance from Ms Firth for approximately nine months after the accident.  I have already awarded compensation for the first three months of this period, by awarding compensation for the loss of income to be earned from the PresCare contract.

8. I have no evidence of the precise number of hours per week that Ms Firth provided assistance.  It is likely that Mr Cleary's need in this respect decreased as he recovered from his physical injuries.

9. In the circumstances, I will allow a further global allocation for lost earning capacity, not gratuitous services, during this period, of $5,000, being roughly five hours a week for 26 weeks at $33 per hour, inclusive of interest.

Compensation for hospital attendance by Ms Firth

1. General damages may be awarded to allow a plaintiff to provide for the reasonable expenses of a loved one attending on the injured plaintiff in hospital, if that attendance is of some importance to the alleviation of the plaintiff's condition and not merely to fulfil a desire by their loved ones to be close to the plaintiff.[488]

   [488] Wilson v McLeay (1961) 106 CLR 523, 527.

2. The ICWA's counsel, in opening, said that Mr Cleary needed support from Ms Firth for some part of the 21 days Mr Cleary was in hospital, and that there was no difficulty with the amount claimed, of $150 per day.[489]

   [489] ts 68.

3. I consider that Ms Firth's attendance during the whole of Mr Cleary's hospital stay had a therapeutic value, as he had suffered serious injuries, including a head injury, and was, understandably, demoralized.

4. Accordingly, I will award damages on this ground in the amount of $3,150, being 21 x $150, and interest from 18 May 2012 to judgment, being $645, totalling $3,795.[490]

Conclusion

[490] From 18 May 2012 to judgment on 13 March 2019, being 2,490 days at 3% per annum.

1. For these reasons I have determined to award Mr Cleary damages in the sum of $434,771, calculated as follows:

1.	Non‑pecuniary loss [333]	$146,300
2.	Allocation for assistance provided while in hospital and interest [372]	$3,795
3.	Past loss of earning capacity (with no allowance for superannuation)[491] [311]	$119,076
4.	Past gratuitous services [358]	$10,287
5.	Past medical expenses: $2,049 and indemnity to Medicare of $14,951.85 [334] and [335]	$17,001
6.	Future loss of earning capacity [313]	$110,000
7.	Future gratuitous services [356]	Nil
8.	Future medical expenses [350]	$30,869
Total	$437,328

[491] See [304] of these reasons.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

JG
Associate to Judge Vernon

12 MARCH 2019