Cooper v Nominal Defendant

[2017] NSWDC 3

District Court

New South Wales

Medium Neutral Citation:	Cooper v Nominal Defendant [2017] NSWDC 3
Hearing dates:	30-31 May 2016, 1-3 June 2016 (Nowra); 7-8 June 2016 (Sydney)
Date of orders:	20 January 2017
Decision date:	20 January 2017
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff for $1,114,493
Catchwords:	MOTOR ACCIDENTS COMPENSATION – Collision between two motorcycles, one driven by plaintiff (P) and other driver by Lamont (L) – Each motorcycle was an “offroad bike” – Neither bike registrable or insured – Both P and L had been in each other’s company for over 18 hours – Each had been consuming alcohol – L’s BAC was 0.156 – P’s BAC was of no evidentiary value – Collision occurred before any natural light, about 5.15 am, on a public street – Neither P or L had any reliable recollection of the 12 hours preceding the collision – Whether L owed a duty of care to P – Extent of P’s contributory negligence – P was catastrophically injured – Extent of P’s non-economic loss – What P could have been expected to earn but for collision – Whether P had any earning capacity post collision
Legislation Cited:	Civil Liability Act 2002 Crimes (Administration of Sentence) Act 1999 Crimes (Sentencing Procedure) Act 1999 Evidence Act 1995 Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Accidents (Lifetime Care and Support) Act 2006 Road Transport Act 2013
Cases Cited:	Briginshaw v Briginshaw (1938) 60 CLR 336 Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3; (2015) 19 DCLR (NSW) 346 at [11] Clyde v State of NSW (TAFE Commission) (1995) 12 NSWCCR 541 Collins v Clarence Valley Council [2015] NSWCA 263 Cook v Cook [1986] HCA 73; (1986) 162 CLR 376 Gala v Preston [1991] HCA 18; (1991) 172 CLR 243 Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498 Green & Ors v Nominal Defendant [2012] NSWDC 37 Hodgson v Crane [2002] NSWCA 276; (2002) 55 NSWLR 199; Imbree v McNeilly [2006] NSWSC 680 Imbree v McNeilly [2008] HCA 40; (2008) 236 CLR 510 Insurance Commissioner v Joyce (1948) 77 CLR 39; [1948] HCA 17 Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34 Kallouf v Middis [2008] NSWCA 61 Knight v GIO of NSW [1995] NSWCA 246 Mackenzie v Nominal Defendant [2005] NSWCA 180 McNeilly v Imbree [2007] NSWCA 156; (2007) 47 MVR 536 Mead v Kerney [2012] NSWCA 215 Miller v Miller [2011] HCA 9; (2011) 242 CLR 446 Moran v McMahon (1985) 3 NSWLR 700 Nettleship v Weston [1971] 2 QB 691; [1971] 3 All ER 581 Nominal Defendant v Green & Ors [2013] NSWCA 219 Paul v Cooke [2013] NSWCA 311; (2013) 85 NSWLR 167 Planet Fisheries Pty Ltd v La Rosa [1968] HCA 62; (1968) 119 CLR 118 RACQ Insurance Ltd v Motor Accidents Authority of NSW (No 2) [2014] NSWSC 1126 Reece v Reece [1994] NSWCA 259; (1994) 19 MVR 103 Schultz v McCormack [2015] NSWCA 330 Smith v Jenkins [1970] HCA 2; (1970) 119 CLR 397 Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 Varga v Galea [2011] NSWCA 76 Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427 Wyong Shire Council v Vairy [2004] NSWCA 247; Zanner v Zanner [2010] NSWCA 343 Zlojutro v GIO (NSW) (NSWCA, unreported, 11 August 1995, 40569/89)
Category:	Principal judgment
Parties:	Buck Anthony Cooper (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: Mr A J Stone SC with Ms S Warren (Plaintiff) Mr R Stitt QC with Mr B Wilson (Defendant)   Solicitors: Slater & Gordon (Plaintiff) Holman Webb (Defendant)
File Number(s):	2014/287850
Publication restriction:	No

Contents

Title (or Subject Matter)	Paragraph
Introduction	1
The plaintiff’s background	3
The plaintiff’s experience riding motorcycles	41
Mr Timothy Lamont	43
Tuesday, 15 October 2013	46
Lamont’s alcohol consumption	51
The reliability of Lamont’s memory	53
The failure of the plaintiff to call his wife, Jade	54
Wednesday, 16 October 2013, the early hours	55
The collision scene	57
The motorcycles	60
The collision	64
Vehicle noise	75
The immediate aftermath of the collision	76
Treatment at St George Hospital	79
Treatment after discharge from SGH	86
Treatment of the left arm problems in 2014	88
Other treatment in 2014	91
Treatment since 2014	97
Did the plaintiff suffer a brain injury?	101
Professor Fearnside’s assessment	107
The plaintiff’s psyche	108
A return to work?	109
(a) What would the plaintiff have done uninjured?	110
(b) The post collision plans	114
(c) Other work?	121
How the plaintiff spends his day	122
Credibility	129
The plaintiff’s sobriety at the time of the collision	135
Playing “Chicken”?	143
An accidental collision	144
Did Lamont owe the plaintiff a duty of care?	145
(Leading cases)	147
(Joint criminal enterprise cases)	172
(Green et Ors v Nominal Defendant)	182
Consideration	187
Defence under Civil Liability Act 2002, s51	193
Liability	204
Contributory negligence	206
(Particulars provided by the defendant)	206
(Nominal Defendant v Green)	209
(The plaintiff’s submissions)	213
(Relevant causal factors)	215
(Apportionment)	217
Damages	219
(a) Non-economic loss	219
(b) Past economic loss	231
(c) Past superannuation	236
(d) Future economic loss	237
(e) Future superannuation	242
(f) Other heads of damage	243
(g) Summary and Total	244
Order	245

Judgment

Curia advisari vult

Introduction

1. The plaintiff, Buck Anthony Cooper, suffered “complex and life threatening injuries” when the motorcycle he was riding collided with a motorcycle being ridden by Timothy Robert Lamont (“Lamont”). The collision occurred at approximately 5.15am on Wednesday 16 October 2013 on the Lake Conjola Entrance Road (“LCER”) in the village of Lake Conjola, between the intersections of that road with Milham Street and Norman Street. Neither of the two motorcycles was registered to be driven on a “road” as defined in the Motor Accidents Compensation Act 1999 (“MACA”) s 3 and the Road Transport Act 2013 s 4(1). Each of the motorcycles has been described as a “motocross type of motorbike” and as a “trail bike”. Seeking to recover damages for his personal injuries, the plaintiff brings an action in negligence against the Nominal Defendant pursuant to MACA s 33.

2. The parties have agreed upon a large number of issues and facts in issue. In accordance with the Court’s Standard Directions counsel presented Schedules of Issues (that for the plaintiff is MFI 7, that for the defendant is MFI 9). I trust I shall be forgiven for reducing the issues to those which were ultimately argued in addresses:

1. did Lamont owe the plaintiff a duty of care? If he did, the defendant admits that that duty of care was breached, thus admitting negligence;

2. a defence under the Civil Liability Act 2002;

3. what was the extent of the plaintiff’s contributory negligence? The plaintiff, through his counsel, admits that he was guilty of contributory negligence and submits that he should be found to be 25% responsible for this collision; the defendant submits that the plaintiff’s responsibility for the collision is much higher and submits that it should be 100% pursuant to the Civil Liability Act 2002, s 5S, or, alternatively, 80% (defendant’s written submissions, MFI 15, [45]);

4. quantum; and

5. the plaintiff’s credibility, which, although not formally an issue or a fact in issue, is a fact relevant to all the facts in issue, and was the subject of a major challenge by the defendant.

The circumstances prior to and at the time of the collision are unusual. The plaintiff and Lamont had been in each other’s company for at least 18 hours prior to the collision. What occurred in that period is the subject of controversy between the parties. Involved is “the dreaded demon drink”. To understand what occurred is best understood by considering the plaintiff’s background, which is relevant to each of the issues I have identified.

The plaintiff’s background

3. The plaintiff was born on 8 January 1988. He believes that he was born in Sydney, but his earliest memory was of growing up at Culburra Beach, in the Shoalhaven. His father was Scott Cooper and his mother is Jane, but that relationship ended shortly after the plaintiff’s birth. The only contact, of which the plaintiff is aware, with his father is one telephone call. The plaintiff’s mother then married Mr Ben Dowling, and his mother is known as Ms Jane Dowling. In effect, Ben Dowling has been the plaintiff’s father although the plaintiff has always been aware that he is his step-father. Jane Dowling bore Ben Dowling a daughter, April, the plaintiff’s half-sister. April is about 6 years younger than the plaintiff. Ben and Jane separated when the plaintiff was 14 or 15 years old (T109.46). Jane Dowling settled in Lake Conjola after their separation and Ben Dowling in Milton, although the evidence suggests the plaintiff had lived in Milton with the Dowlings since age 11 years (T84.15). According to a medical history given on 9 October 2012, the plaintiff’s “biological father reportedly has a heroin problem and a severe mental illness.” The plaintiff’s mother was present at that interview and that history may have been given by her. If it were given by the plaintiff one would expect him to have that information from his mother any way. A heroin addiction could cause a psychiatric illness. This piece of information is, therefore, a dubious source on which to base a “family history of psychiatric illness.”

4. Dr Pauline Langeluddecke interviewed the plaintiff on 19 October 2015. Part of her history is that the plaintiff was “not required to repeat any grades at school.” That history is consistent with the other evidence. Assuming that the plaintiff commenced his schooling at age 5 years (the norm in this State), the following chart can be constructed:

Year	Age	Grade
1993	5	Kindergarten
1994	6	Year 1
1995	7	Year 2
1996	8	Year 3
1997	9	Year 4
1998	10	Year 5
1999	11	Year 6
2000	12	Year 7
2001	13	Year 8
2002	14	Year 9
2003	15	Year 10

5. The plaintiff’s first “difficulty” was apparent at age 11 years. At the psychiatric interview in 9 October 2012 (with Dr Michael Hong, reports exhibit O) Dr Hong recorded this history:

“Mr Cooper’s mother informed that Mr Cooper has had conduct problems from a young age, even though the home environment was stable, and there were no particular reasons for this. His behavioural and mood problems probably started at age eleven years, before he commenced using substances. He is described as someone who is difficult to connect with, and he finds small changes difficult to adjust to, and he will become fixated. His mother described that he would become so fixated on watching television and would become angry when he was not allowed to, that the family ended up giving away television for five years.”

6. The evidence does not disclose where the plaintiff undertook his primary education. He commenced his secondary education at Shoalhaven Anglican College at Milton. He left that College at the end of the first term of Year 9 (T82.12). I asked the plaintiff why he left that College and he answered (T83.07):

“I actually can’t remember, your Honour, I just – I was becoming the age of being rebellious and stupid, basically.”

The plaintiff then went to Ulladulla High School. A number of other significant events occurred in 2002. The plaintiff started to use cannabis and also alcohol. He also formed a relationship with Jade Pritchard, which has persisted to this day. They married after the motorcycle collision on 29 November 2014 (T163.22). Jade’s family was the source of free cannabis. The plaintiff also displayed other behavioural difficulties. On 24 November 2002 the plaintiff assaulted his parents, leading to his appearing before the Children’s Court at Milton. The plaintiff was placed on a bond to be of good behaviour for 12 months and to be under the supervision of Juvenile Justice. A few weeks after assaulting his parents, the plaintiff stole a VCR from a school, which led to the Police giving him a caution.

7. The plaintiff commenced Year 10 in 2003 at Ulladulla High School but left “just after the commencement” (T82.35). The reasons given by the plaintiff prior to giving evidence and in chief as to why he left Ulladulla High School lack credibility, but this is not the place to consider that issue. The true reasons emerged in cross-examination. The plaintiff, with his free source of cannabis, was known to his “mates” as a source of supply. He did supply cannabis to his “mates” who included some of his “school friends”. This became known to the school authorities who asked the plaintiff “to leave and not come back” (T190.32). The plaintiff knew after leaving Ulladulla High School that he was “not acceptable at any other high school” (T193.36) and the only reason he knew for his being unwelcome at other schools was his “drug dealing” (T194.01). On 17 April 2003 the plaintiff attended upon Dr Timothy Devlin at the Mollymook Medical Centre. Under the heading “Diagnosis” the clinical notes (exhibit M) state this:

“Behaviour problem.

- exclude petit mal/SA/ADHD/depression”

There is then a heading “Actions” but the exhibit is truncated and there is no page beyond that numbered 28. I do know that thereafter there was a blood examination performed and a CT scan of the brain. The plaintiff returned to see Dr Devlin on 6 May 2003. The notes are these:

“Diagnosis

Behaviour problem

Dope abuse

EEG changes

Management

Counselling re options – with Step father > trial Tegretol

Dope reduction

Actions

Prescriptions printed: Tegretol tablet 100mg i nocte for 2/7 then BD

Document saved – EEG”

Tegretol is an anti-convulsive drug. In a report of 25 June 2003 Dr Devlin referred to the EEG changes as showing “Dysfunctional Frontal Encephalopathy”, which Dr Langeluddecke described as temporal lobe pathology which might be related to a high cannabis (THC) intake. Thereafter the plaintiff fairly regularly attended upon Dr Devlin, who remains his treating general practitioner. Most consultation notes commence with the diagnosis of “behaviour problem” and often treatment is described thus:

“Counselling +++ - long discussion re nature of illness and its course. Specific attention directed to:

(a) reassurance

(b) support

(c) insight.”

The prescription of Tegretol continued for years.

8. Sometime in May 2003, the plaintiff was charged with possession of cannabis. That drug and a “bong” were found by the police in his backpack. He was again required to appear before the Children’s Court at Milton. He saw Dr Devlin on 25 June 2003 when an additional diagnosis of “Anxiety re court appearance” was added. Dr Devlin also referred to cannabis detoxification under Ms Petra Lehman at Ulladulla Mental Health Service. Whether that was treatment prescribed by Dr Devlin or something he merely noted I do not know. On the same day Dr Devlin wrote this letter to be tendered in the Children’s Court:

“Thank you for considering this submission re Master Buck Cooper, age 15 years. As you know he has suffered from behavioural problems resulting in various legal issues. A recent EEG has diagnosed a Dysfunctional Frontal Encephalopathy which may explain many of his behavioural traits. He has been on medication and has shown a marked improvement. He is also undergoing cannabis detoxification ... Could you please take account of these issues in your deliberations.”

The plaintiff was placed on a further good behaviour bond for a period of 12 months.

9. The plaintiff continued his education through the Open Training and Education Network (OTEN) at a youth centre at Ulladulla. This provided him with a qualification equivalent to the School Certificate. This study was over a period of “nearly two years” (T83.17). Unfortunately, I do not know whether those years were 2003 and 2004, or 2004 and 2005.

10. There was a gap in the plaintiff’s treatment by Dr Devlin for eleven months between 1 August 2003 and 12 July 2004. On that occasion Dr Devlin noted that the forensic issues were over, but the plaintiff had stopped taking Tegretol and there had been a return of his behavioural problem. The doctor noted that the plaintiff was still “cannabis dependent” but that he was using less. Tegretol was again prescribed and counselling provided. This treatment regime was again provided on 11 August and 22 November 2004.

11. In April 2005 the plaintiff obtained a certificate that he had completed the course “General Construction OHS Induction in NSW”. That was issued by TAFE and I infer that it was completed under the aegis of that government body. On 16 August 2005 the plaintiff again saw Dr Devlin. The reason is unclear. According to the clinical notes the plaintiff’s behaviour issues were “excellent” and he was having no problems with Tegretol. Nevertheless the “usual” counselling was provided. Blood tests were also prescribed. This may merely represent a “check-up”.

12. In January 2006, shortly before his 18th birthday, the plaintiff was charged with assault (T115.04). That was a “street fight”. The plaintiff was again required to appear before the Children’s Court at Milton. He was fined. The only subsequent crime with which the plaintiff was charged was one committed on 19 August 2012. On 7 February 2006 the plaintiff attended upon Dr Devlin again. The clinical notes record the “Reason for visit” thus:

“Behaviour – excellent

Right Scrotal Mass – clinically epididymal cyst”

The notes then record the provision of the “usual” counselling, the prescription of Tegretol and a direction for a scrotal ultrasound to be performed. The latter was performed on 9 February 2006 and the plaintiff was advised of the results on 13 February 2006. Since this medical problem is not further discussed, it is likely that Dr Devlin’s diagnosis of the scrotal mass was correct. As the plaintiff did not advise Dr Devlin of any behavioural problem it seems likely to me that what prompted this consultation was the plaintiff’s discovering the scrotal mass.

13. In March 2006 the plaintiff obtained from TAFE a Certificate II in General and Vocational Education. In May 2006 he obtained a “Statement of Attainment – Outreach Access” from TAFE. These qualifications indicate that the plaintiff was seeking to advance himself. However, he still had a problem: his drug habit. He saw Dr Devlin on 22 September 2006 for “substance abuse”. The “usual” counselling was provided, Tegretol again prescribed, pathology tests ordered and a referral to Mr Alex Krilov made. I know from subsequent documents that Mr Krilov is a clinical nurse specialist in mental health with the Ulladulla Mental Health Service (exhibit S). The plaintiff was unable to say whether he saw Mr Krilov at this time (T88.40).The only illicit drug, other than cannabis, that the plaintiff admits to have used is ecstasy. He appears to have used this drug at age 17 (T93.27)(T191.29) and said it was for 10 to 15 times “maximum” (T93.24). He last used it when he was about 20 years old (T247.12).

14. In 2007 the plaintiff commenced a yearlong TAFE course to enable him to obtain a carpentry apprenticeship. In December 2007 he was awarded a Statement of Attainment in Carpentry (Pre-Vocational). When asked what he had to do to obtain this qualification, the plaintiff said (T87.17):

“That was a pre-apprenticeship in carpentry that involved travelling from my area where I lived [Milton-Ulladulla] to Nowra TAFE four days a week for roughly eight hours for one year to get my Certificate I and II theory in carpentry.”

For the first 6 months the plaintiff drove to and from Nowra, but he then lost his driver’s licence “through demerit points” and for the next 6 months he took public transport – a bus. This indicates that, at the age of 19 years, the plaintiff was committed to pursuing this career path. His subsequent work history confirms this commitment. His attendances at the Mollymook Medical Centre in 2007 were, in my view, generated solely by an injury he received at TAFE. He attended upon Dr Kennedy at the Medical Centre on 1 June 2007. The history recorded commences:

“Laceration right anterior thigh 3 days (ago) at TAFE with chisel. Sutured at Milton Ulladulla Hospital. Query early local inflammation...”

The wound was erythematous. Antibiotics were prescribed as well as Tegretol. The wound was dressed by a nurse on 13 June. There was no further attendance at the Medical Centre in 2007 and no attendance in 2008.

15. 2008 was a good year for the plaintiff. Jade bore him a son, Blair Benjamin Cooper, on 23 February. Shortly afterwards he commenced an apprenticeship as a carpenter with Mr Gavin Williams of Innovative Spaces Pty Ltd. This lasted for about two and a half years (T89.11) until the plaintiff was made redundant when the company experienced financial difficulties (T89.14). Much of the plaintiff’s work for Mr Williams was at Foxground, north of Berry. The plaintiff described this work thus:

“It was a little bit different work because we were building multimillion dollar houses. It wasn’t your typical suburban home. So a bit of everything, a lot of concreting, fitting out, a lot of stuff.”

The only untoward event in this year was an argument that the plaintiff had with Jade on 30 March 2008 which resulted in the police being called to their home. However, there is no suggestion that any charges were laid. In December 2008 the plaintiff obtained a Certificate III in Carpentry.

16. 2009 was a largely uneventful year. The plaintiff continued his apprenticeship. In August he had an industrial accident: he lacerated his left thumb whilst using a power saw. The plaintiff is right handed (T158.10). He required surgery. This was a tendon repair by Professor Gumley at Sydney Hospital. On 1 September he saw Dr Devlin after surgery had been practised. Dr Devlin prescribed Endone for pain relief. The plaintiff saw Dr Devlin again on 11 September and 15 September, when sutures were removed. On that day the prescriptions for Endone and Tegretol were stopped. Dr Devlin noted that the plaintiff’s mood/behaviour was excellent.

17. The following year was more eventful. On 8 January 2010 the plaintiff obtained an Australian Business Number (ABN) as a sole trader under the name of “Buck Cooper”. This appears to anticipate his eventually qualifying as a carpenter. At some time during this year the plaintiff’s employment with Innovative Spaces Pty Ltd came to an end (see [15]) and the plaintiff had to “look around for somebody else to both employ [him] and to allow [him] to continue [his] apprenticeship” (T89.16). He found such employment with Mr David McIver of Urban Design Homes of Vincentia. Mr McIver’s wife (or life partner) was Ms Leanne Oldfield. On 26 June 2010 Jade gave birth to a daughter, Jasmine Lee Cooper, their second child.

18. On 30 April 2010 the plaintiff presented to Dr Davis with a new complaint: depression. Whether, to use old terminology, that was exogenous or endogenous the evidence does not enable me to say. Dr Devlin’s clinical notes are silent as to cause and the plaintiff was unable to recall this complaint (see T91). One could speculate that the depression may have been caused by the plaintiff’s losing his job with Innovative Spaces Pty Ltd. Whatever its cause, this bout of depression appears to have lasted for no more than ten weeks. Dr Devlin’s notes for 30 April 2010 are these:

“Reason for contact

Depression

- unipolar

- moderate severity/no thought of self harm

- non melancholic- non psychotic

- marked comorbid anxiety

- early morning wakening

Management

Supportive and Insight Orientated Counselling

Psychoeducation – BB/Cognitive Behaviour Therapy”

Dr Devlin also prescribed Lexapro tablets. On 3 May 2010 Dr Devlin created a mental health plan, but that document is not in evidence. On 14 May he provided further counselling and noted “good improvement”. There was further counselling on 31 May and “further improvement.” A final session of counselling was provided on 30 June when Dr Devlin noted:

“Depression – excellent

- rates mood 9/10

- just had a second child.”

There was no further attendance by the plaintiff at the Mollymook Medical Centre in 2010 and the next mention of depression was not until 19 December 2011.

19. The plaintiff completed his apprenticeship at the end of 2011. He received a Craft Certificate from the Commissioner for Vocational Training dated 12 December 2011 stating that he had successfully completed his apprenticeship as a carpenter and joiner with effect on 8 January 2012. The covering letter bears the same date as the Certificate. This should have been welcome news for the plaintiff. Nevertheless, he attended upon Dr Devlin on 19 December 2011 with depression. The oral evidence does not suggest any external stressor. The clinical notes provide these reasons for contact:

“Depression

- moderate – no thought of self-harm

- low grade paranoia

- increased alcohol/cannabis use

- off medications for six months”

Again, Dr Devlin provided counselling and prescribed Lexapro. On 28 December the plaintiff completed a Mood Assessment Program, designed by the Black Dog Institute. A report of this was forwarded to Dr Devlin on 3 January 2012. A copy of it is exhibit 10. This indicated that the plaintiff’s depression was “significant” with a scale of 13/30. This was thought to be a non-melancholic depression and probably unipolar. It was thought that the plaintiff had first been depressed at age 15 years. At the time of the assessment the plaintiff was euthymic (opposite of dysthymic). The major stressor identified in the previous 12 months was that the plaintiff had “problems in a close relationship.” This is, most probably, with Jade (from whom he was “separated” at the time). Other stressors in the same period were serious drug/alcohol issues and his being involved in a “serious dispute”, which, unfortunately, is not identified. Dr Devlin reviewed the plaintiff on 10 January 2012. The clinical notes describe clinically moderate melancholic depression but any previous psychotic features (which include paranoia) had settled. The plaintiff’s medication was changed from Lexapro to Cymbalta. Dr Devlin then prepared a Mental Health Plan which is dated 10 January 2012 but, from the clinical notes, only became available on the following day. It is part of exhibit L. It does not suggest treatment by any other medical practitioner or mental health worker. That document provides a diagnosis of “depression”. The clinical notes for 11 January suggest probable “non-melancholic depression.”

20. Before the plaintiff’s next visit to Dr Devlin, there was an incident at work. The plaintiff had a disagreement with Ms Leanne Oldfield (“the boss’s wife”). The plaintiff gave this evidence (T94.19):

“... this specific incident was when I was trying to get my last allowance signed, and I’d been trying to get my tool allowance signed, and I’d been trying to get it for quite some time, and I asked her probably for the tenth time over a period of three to four months and she snapped at me.”

On 8 February 2012, the plaintiff saw Dr Devlin again for “depression”. The clinical notes continue:

“- acute stress reaction after issues with boss’s wife (says she abused him for no reason).

- doesn’t feel safe at work (tools etc)

- requesting a few days off

- no thought of self harm.”

Dr Devlin provided further counselling and a medical certificate. In cross-examination (T232.20) the plaintiff said he had four days off work and then returned and worked for a further fortnight before his services were terminated. The plaintiff also said that he was not afraid of working with tools, but of leaving his tools at the work site (T231.43). Exhibit JJ is a copy of a letter of “Termination of your employment by reason of redundancy.” The salient parts of the letter are:

“As a result of economic downturn the position of Carpenter is no longer needed. Regrettably this means your employment will terminate. This decision is not a reflection of your performance.

Therefore your employment will end on 23rd March 2012.”

21. The plaintiff was accordingly thrown onto the open labour market, looking for work. Nevertheless, he did not need to seek medical attention for another three months. This, again, speaks against a proposition that the plaintiff’s depression was mediated by an external stressor. At this time, shortly after the completion of his apprenticeship, the plaintiff said that he felt fully qualified as a tradesman that he “could do everything ... to do with the house building” and he was “extremely confident” that he could make his livelihood from his trade (T95.04). He went on to obtain work with Mr Robert Leslie Streeter (“Bob the Builder”), a builder residing at Vincentia and working in the Shoalhaven. Unfortunately, neither the plaintiff nor Mr Streeter (who gave evidence) could tell me the period in which the plaintiff worked for Mr Streeter. However, exhibit J (a summary of tax returns) suggests that the plaintiff may have worked for Mr Streeter for a few weeks before the end of June 2012 and into August of that year, when many events occurred. The plaintiff was very well regarded by Mr Streeter who engaged him as a subcontract carpenter. I shall discuss this aspect later. The plaintiff was being paid $31.50 per hour whilst working for Mr Streeter.

22. On 28 June 2012, the plaintiff consulted Dr Matthew Kennedy at the Mollymook Medical Centre. The plaintiff appears to have presented with anxiety. The clinical notes, so far as I can interpret them are:

“Depression now 3/10 versus previously 9/10. Strong family history of anxiety and depression. Anxiety persists especially when under pressure. D/W stress management incl exercises and medication mane (in the morning) regularly. Counselling. D/W Cymbalta.”

The comparison with previous depression is with the level recorded on 30 June 2010. This attendance at the Medical Centre and the symptoms at the time were not canvassed in the oral evidence. However, it must be noted that even when working for Mr Streeter, the plaintiff was a heavy user of both cannabis and alcohol. He was smoking 10 to 15 cones of cannabis per day (sometimes when he was at work – T98.31) but mostly after work and, as a generalisation, 4 to 6 beers (375mls or 330mls) or bourbons “most evenings” (T98.31). The beer he consumed would be either Australian beer or his own home brew.

23. The immediate reason for the plaintiff’s stopping working for Mr Streeter was that Mr Streeter ran out of work (T351.30) and the plaintiff needed to seek other work until Mr Streeter could find work. When Mr Streeter found other work he rang to offer another subcontract to the plaintiff but was unable to contact him. The documentary evidence suggests that the plaintiff may have found other work “with [a] family friend (King Pullman) 1-2 days/week” (exhibit S, mental health triage notes, 20 August 2012) but that was not mentioned in the oral evidence. This might be a reference to Poolman King – see [115] below. Within, probably, the first week or so of August 2012, the plaintiff came to realise that Jade had been unfaithful to their relationship. The infidelity was over a period of six years and involved more than one man. The plaintiff was now 24 years old. His relationship with Jade had lasted 10 years. They had two young children together. The plaintiff described this realisation as “devastating” (T99.29). He was “very angry” (T99.36). He and Jade were arguing and yelling at each other. He became even angrier with time (T100.24). The plaintiff said that he stopped working “within a couple of days” (T120.29) of learning of Jade’s infidelity but the plaintiff’s recollection in that regard may be faulty. The plaintiff “started drinking all day and smoking marijuana all day”. The plaintiff’s intake reached 60 cones (“bongs”) of cannabis daily and one bottle of bourbon daily (T101.45). Clearly, things were out of control. The plaintiff even came to suspect the paternity of his daughter, but subsequent DNA testing alleviated that concern.

24. On Sunday 19 August 2012, the plaintiff assaulted Jade. Exhibit 9 (NSW Police Facts Sheet) contains this history:

“About 7:00pm on Saturday the 18th of August 2012 the accused, Buck COOPER went out drinking to the Commercial Hotel, located upon the Princes Highway Milton, where he admitted to consuming copious amounts of alcoholic beverages being 4 x Scotch – Jack Daniels 375ml cans, 4 x 275ml of Bourbon, 6 x Schooners of full strength Tooheys New beer and 4 x Yagga Bombs containing a mixture of Red Bull and Alcohol.

About 1:00am on Sunday the 19th August 2012, the accused was later driven by another male to a residence in Lake Conjola where he continued consuming a further 3 x 375ml cans of Rum. At the time the accused stated [that] he was ‘wasted’, indicating that [he] was well affected by alcohol, on a scale out of ten being eight.

About 2:00am the same morning, the accused was conveyed to his residence being 12 Milham St Lake Conjola, by the male friend.

The accused has then entered the premises where he began having a verbal argument with his partner Jade PRITCHARD, which escalated to yelling abuse at each other. The accused yelled out, “Slut” and other name calling.

A short time later the accused became aggressive subsequently throwing a full closed can of rum, towards PRITCHARD with force, which hit her on the corner of her left eye causing immediate pain and swelling. The accused continued the verbal and physical abuse subsequently pushing PRITCHARD with both hands on her chest causing her to stumble over and fall to the ground. The accused continued to grab PRITCHARD by her hair on the rear side of her head, resulting in opening up a recent wound where she obtained five stitches causing it to bleed. The accused then removed himself from the premises and walked to the beach.

About 2:30am, PRITCHARD was slicing a loaf of bread when she accidentally cut her left hand between the thumb and index finger, subsequently contacting April DOWLING, the sister of the accused and who resides approximately one kilometre from the PRITCHARD’S residence, requesting her to bring her mother’s vehicle as she required to attend Milton Hospital due to an accidental injury she obtained.

April DOWLING arrived a short time later at the residence handing over the vehicle for PRITCHARD.PRITCHARD did not disclose the assault to DOWLING but told her she sustained from an unknown female when she attended the Marlin Hotel earlier that evening to pick up the Accused. PRITCHARD then left in DOWLING’S vehicle, conveying herself to Milton Hospital. At no time were police contacted.

April DOWLING took custody of the children and returned them to her home, leaving the Accused home alone.”

The plaintiff admitted assaulting Jade by throwing a can of drink at her but denied an allegation of inflicting any wound with a knife. The police were alerted to this event by staff at the Milton Ulladulla Hospital where Jade went to have her left hand treated later on that Sunday. The police took a statement from Jade at 8.30am on Monday 20 August. The plaintiff went to the Ulladulla Police Station at 3.40pm that day and was arrested, charged and was refused bail.

25. At 9.30am on Monday 20 August 2012, Mr Alex Krilov, Clinical Nurse Specialist in Mental Health at the Ulladulla Mental Health Service started to complete a Mental Health Triage form (exhibit S). It is clear that the information contained in it was provided by the plaintiff’s mother, Ms Jane Dowling. The document records that the plaintiff was “at work awaiting police arrival”. Wherever the plaintiff was, police did not call to arrest him, he went voluntarily later that day to the police station. Jane Dowling was worried that the plaintiff was “at a high risk of suicide if released on bail”. At 10.46am, the receptionist at the Mollymook Medical Centre faxed a full summary of the plaintiff’s treatment at that Centre to Mr Krilov. It appears that Mr Krilov spoke to the plaintiff on the telephone. The document in evidence (which does not appear to be complete) states:

“MENTAL STATE IMPRESSIONS

settled via phone today, though mum states mood labile + agitated/aggressive ++ commensurate with stressors + substance abuse issues.”

It appears to me that the purpose of Mr Krilov’s intervention was to ascertain whether the plaintiff was a suicide risk. The plaintiff had, after learning of Jade’s infidelity, made a suicide attempt by overdose of Cymbalta (T119.48), according to exhibit S “within [the] past few weeks” of 20 August 2012. Jane Dowling also told Mr Krilov that the plaintiff had also made “recent suicidal threats” of hanging himself, but that was not mentioned in the oral evidence. If such threats were made, they may have been idle. A copy of this Triage form was sent to Ms Jodie Massey and to Dr Devlin.

26. Ms Jodie Massey is a Mental Health Nurse with Justice Health. On 21 August 2012 she prepared a report addressed to the presiding magistrate at the Local Court at Nowra (exhibit N). She assessed the plaintiff “in the custody area of the court at Nowra Local Court” on that day. Under the heading “Clinical Impression” Ms Massey said:

“Mr Cooper is treated in the community for depressed moods with antidepressant medication. He presents today with a recent history of increased substance use, poor anger management skills and poor impulse control. Education, counselling and rehabilitation are available in the community. At this time there are no documents to support or evidence of diagnosis of a serious mental illness.

He denied he is at any current risk of self harm or suicide. However there are reports that he is likely to be more at risk of suicide or harm to others while under the influence of substances.”

Ms Massey had consulted with Professor Greenberg. They did not believe that the plaintiff was either a “mentally disordered person” or a “mentally ill person” under the applicable legislation and they recommended further assessment. It seems that the Local Court granted the plaintiff bail and on the following day he was admitted to the Milton Ulladulla Hospital for detoxification. Exhibit 11 relates to this admission which was for a period ending on 27 August 2012. The diagnosis provided was “Alcohol withdrawal Syndrome”. The history recorded includes this matter:

“States drinks a bottle [of] bourbon and several beers daily. Also daily cannabis, occasional amphetamine. States drug free since Sunday (3 days).”

The plaintiff denied in evidence use of amphetamines (T191.20, T192.42). This could be a reference to ecstasy use but exhibit S has this history: “Increased amphetamine use past 3 weeks”, which is incompatible with the plaintiff’s evidence as to his use of ecstasy (see [13] above).

27. On 23 August 2012 the plaintiff obtained leave from the Hospital to attend Dr Devlin. His notes provide these reasons for contact:

“Depression – non melancholic

- marked anxiety

- background substance issues

- Situational stressor > relationship issues

-currently in-patient at Milton Ulladulla Hospital detoxing from cannabis/alcohol

- forensic issues

- had ceased Cymbalta > restarted recently”

Dr Devlin prepared another Mental Health Care Plan, a copy of which is part of exhibit L. After discharge from the Hospital, the plaintiff returned to see Dr Devlin on Tuesday 28 August 2012. Dr Devlin noted that the plaintiff’s mood was much improved and that there was no suicidal ideation. The plaintiff told the Doctor that he was awaiting admission to Kedesh, a rehabilitation service. Dr Devlin provided “extensive supportive and insight orientated counselling”. On this occasion, Dr Devlin prescribed Zyprexa. The doctor also provided further counselling on the following day, noting a new stressor “DoC interview”. The relevant government department, referred to in the evidence as both “DoCs” (Department of Community Services) and FaCS (Family and Community Services), had taken an interest in the plaintiff’s children since at least the report of his assaulting Jade on 19 August. This stressor remains in the plaintiff’s life. On 3 September, Dr Devlin wrote a referral letter to a psychiatrist at the Lawson Clinic at Gordon. The plaintiff did not see that psychiatrist but one of his colleagues, Dr Michael Hong. The plaintiff, however, did not get to see Dr Hong until 9 October.

28. In the meantime the plaintiff remained under Dr Devlin’s care until he was admitted to the Kedesh Rehabilitation Program on 13 September. Prior to that admission, a history was given on 3 September. The document recording that history is exhibit 13. The plaintiff admitted using both cannabis and alcohol since the age of 14 years and that the only time he had been “clean” was “the last two weeks”. The plaintiff listed as his hobbies: “Surfing, motorbike riding, going to the gym, playing with the kids.” The plaintiff admitted to problems with depression, anger and anxiety. He also said he had frontal lobe damage which was causing his mood swings. Whether that was advice he had received or his personal opinion is not clear. The plaintiff said he was a self-employed carpenter and that he wanted to return to that work and that he had an interest in completing further education “to become a builder”.

29. On 9 October the plaintiff was interview by Dr Michael Hong by “Tele-health” (so described by the health professionals) or Skype (by the plaintiff). This was done from Dr Devlin’s surgery, the plaintiff’s obtaining a pass to leave Kedesh’s Illawarra Treatment Facility for this purpose. The plaintiff’s mother was present at the interview and, after it was completed, Drs Hong and Devlin conferred by the same medium. Early in the interview, the plaintiff expressed frustration at being in Kedesh House. Dr Hong was told that the plaintiff had always been a person who found structure, routines and authority difficult to manage. Other matters of history contained in Dr Hong’s report of 9 October I have already outlined. The doctor’s report concludes:

“DIAGNOSIS

The clinical picture is complex and he clearly has a significant drug and alcohol problem, and this is the first time he has had inpatient rehabilitation, and the first time he had had a reasonable abstinence. He has never taken NAC treatment in the past.

He may also have an independent psychiatric disorder, such as Bipolar Disorder, but I don’t think this can be confirmed on the quality of the history provided.

I have some concern that he has temporal lobe problems, and excessive caffeine and anti-psychotic medication can further increase his mood instability/lower seizure threshold.

RECOMMENDATIONS

As discussed, I would recommend mood charting.

I would also recommend that he commence taking Epilim as an anti-convulsant, and gradually switching from Cymbalta, and if he requires anti-depressant, maybe Zoloft is a better one to try.

I would like to review him in about four weeks’ time.”

Dr Devlin then changed the plaintiff’s medication from Cymbalta to Epilim.

30. On the following day, the plaintiff telephoned Dr Devlin after 3pm but he had left the surgery. The plaintiff left a message for the doctor. He was applying for early release from Kedesh House. He asked the doctor to provide a letter supporting that, and making the following points:

(i) the plaintiff was in regular contact with Dr Devlin;

(ii) a (further) psychiatric appointment had been arranged and booked;

(iii) his medication had been changed;

(iv) counselling under the Mental Health Care Plan was arranged;

(v) if released early, the plaintiff would attend drug and alcohol counselling and anger management;

(vi) the plaintiff would continue to provide urine specimens for testing; and

(vii) it was important for the plaintiff not to lose any work contacts for his business.

On the next day, Thursday 11 October, Dr Devlin complied with this request. His letter, part of exhibit L, was faxed to Kedesh House. The plaintiff was not granted early release, but some leave. He was observed consuming alcohol whilst on leave, on Friday 12 October. When confronted with this allegation, the plaintiff denied it and feigned shock but when then offered a quick urine test, the plaintiff admitted that he had taken alcohol (T223 to T225). He was then formally discharged from the Kedesh Rehabilitation program on 13 October 2012 “for substance use while on leave” (exhibit 16). The oral evidence to which I referred includes this:

“Q. Did you want to continue with the program at Kedesh?

A. I did not.

Q. On 13 October 2012 whilst in the course of that program you consumed alcohol.

A. Yes, I did.

Q. May we take it from your answer that you did that deliberately?

A. I had drinks because I was being an idiot, not deliberately to get kicked out of Kedesh, no.

Q. But you knew that if you took alcohol and consumed it, that you would terminate the program.

A. Yes.

Q. With that knowledge did you deliberately consume alcohol?

A. Yes.

Q. Was that for the purpose of terminating the program?

A. No.

Q. But you see--

HIS HONOUR

Q. From what you told me, you didn't want to give up drinking, did you?

A. No, your Honour.

Q. And you were reckless, is the lawyer's term, to use that term, that is, you knew that if you get caught out drinking you'd be out of the program and you went ahead and did it anyway.

A. Yes, your Honour. “

31. On 15 October 2012 the plaintiff again attended upon Dr Devlin. The doctor commenced what became very regular urine screening tests for:

Alcohol

Opiates,

Amphetamine Type Substances,

Cannabinoids,

Cocaine metabolites,

Benzodiazepines

(See exhibit HH). Almost every test conducted from this time onwards was negative (ibid). The dosage of the plaintiff’s Epilim was increased and he was referred for other counselling.

32. On 16 October 2012, FaCS conducted a “Case Review Meeting” at Ulladulla Community Service Centre concerning the plaintiff’s children. Present were the plaintiff, Jane and Ben Dowling, an AOD Counsellor from Kedesh House and three employees of the Department. The Minutes of the meeting are lengthy (exhibit 17). The first two paragraphs of the Minutes are these:

“Tracey commenced the meeting by stating that the purpose of this meeting is to provide an update and look where to from here after Buck’s early discharge from Kedesh after a breach abstinence of alcohol. Tracey provided an overview stating that Community Services (CS) first became involved with the family following a domestic violence (DV) incident in which Buck was charged with assault on Jade which resulted in an Apprehended Violence Order (AVO) being put into place. Bail conditions included Buck to detox for one week at Milton Hospital and attend the first available rehabilitation, which ended up being Kedesh. Both Buck and Jade have agreed to work with Community Service in relation to Buck having supervised contact with his children. Tracey noted that the next court date is 19 November 2012. Tracey asked for an update from Buck.

Buck stated that he was discharged after going to the pub on his weekend leave, and had two Jim Beam cokes with a friend after having a nice dinner with Jade. Buck said that he didn’t like Kedesh, he was falling asleep and missing his kids. Buck said that since leaving, he is doing voluntary urine samples through his doctor, AOD counselling, and looking at one on one counselling, which he prefers. Buck said that he is also signed up to do the Managing Strong Emotions course. Buck said that on Tuesday, whilst in Kedesh, he had contact with a psychiatrist Dr Hong (Gordon, Sydney) via Skype who changed his medication from cymbalta to Epilim, as the cymbalta was not working. The Epilim is a mood stabiliser and anti-depressant. This appointment was arranged through Buck’s doctor, Dr Devlin. Buck said that he was taking cymbalta before Kedesh which was not working and the zyprexa was making him fall asleep.”

On the following page occurs this matter:

“Tracey reminded Buck that rehabilitation was an alternative to [gaol], and you informed Stephanie (AOD Counsellor) that you were in there [Kedesh House] for your kids, yet you made the decision to drink. Buck said that he is not going back to rehab as it’s not for him. Buck said that he found it depressing listening to other people’s stories, there wasn’t enough one on one time and that he wants to go back to work, as he is losing all his contacts.”

On the page after that appear these paragraphs:

“Tracey explained that she is looking at undertaking and a commitment from Buck for 12 months to remain abstinent from alcohol, undertake random unrinalysis, and engage with services in relation to AOD and relationship issues, and no DV. If Buck breaches this then there could be further children’s court action in relation to the care of the children and what access Buck has.

Jane asked why Children’s Court needs to be considered? Tracey said that Buck has a long history of mental health and AOD problems, he was arrested after a serious domestic violence incident, he was bailed to attend rehabilitation and was discharged half way through due to lapsing on alcohol. Buck agreed in the previous meeting with CS [Community Services] not to drink alcohol and complete Kedesh, this didn’t happen. This is the next step, as CS main concern is for the children, there needs to be a safety net for them.”

The rest of the minutes sets out a number of decisions, the principal of which are:

“Buck to continue working with Community Services in relation to supervised contact with his children, and the conditions of contact

Jane to continue working with CS in relation to supervising contact between Buck and his children

Buck to remain engaged with his Drug and Alcohol Worker, John De Casanove

Buck to have bi-weekly supervised urinalysis through Dr Devlin.

Buck to remain alcohol and drug free

Buck not to engage in any form of domestic violence with Jade

Buck to abide by conditions of AVO.”

The plaintiff had been living with Ben Dowling since his assault on start="33">

For the purposes of the forthcoming sentence hearing on 12 November 2012, a report was prepared for the magistrate by Mr John de Casanove, a Drug and Alcohol Clinician with the Shoalhaven Local Health District (exhibit Q). The substance of the report is this:

“Mr Cooper’s initial reason for seeking treatment was the charges of assault that are now before the Court. Mr Cooper acknowledges that the violence was related to his current stressors/relationship issues which were exacerbated by his drinking.

Since Mr Cooper’s offence The Dept of Community services have been involved with the family and strict guidelines have been placed on Mr Cooper regarding his access to his children. This has been a powerful motivation for Mr Cooper to remain abstinent. He has since completed 5 weeks of an 8 week residential program. Unfortunately Mr Cooper did not finish this program due to a small lapse with alcohol. As stated by Mr Cooper he had ‘two beers’ whilst on weekend leave. Apart from that lapse Mr Cooper states that he has not had any alcohol for 3 months and no cannabis for 4 months.

Mr Cooper was working as a carpenter until recently. He currently attending many services for support and counselling as per D.O.C.s expectations; Drug & Alcohol counselling, Whole of Family counselling, relationship counselling with Salvation Army and his partner is also receiving Domestic Violence counselling.

Mr Cooper has presented to 7 scheduled appointments and has participated in an honest and engaging manner. He always presents on time and appears to have made some positive changes and realisations regarding his ability to communicate his needs in a healthier/functional way.

Mr Cooper has started to address his emotional triggers in relation to his behavioural functioning. He has explored his social skills and is increasing his living skills. It is expected that Mr Cooper will continue his Drug & Alcohol counselling for some time yet regarding relapse prevention and support.

Mr Cooper is currently seeing a psychiatrist through his treating G.P Dr Devlin. He is prescribed Zyprexa 20mg daily as a mood stabiliser and Epilim 1500mg daily.

During conversations with Mr Cooper he has always presented as remorseful and truly regrets his behaviour regarding the assault on his partner. He presents as a man who will benefit from counselling and in doing so it is hoped that this type of behaviour will not be repeated.”

Reports were also prepared by Kedesh Rehabilitation Services (exhibit P) and Dr Devlin (dated 2 November 2012, part of exhibit L). The plaintiff was placed on a bond pursuant to the Crimes (Sentencing Procedure) Act 1999, s 9, to be of good behaviour for 2 years. There were no longer any bail conditions and, semble, no AVO. The plaintiff returned to live with Jade and his children. However, the plaintiff still had to deal with FaCS.

34. The plaintiff saw Dr Devlin again on 27 November. He reported that his depression was stable. He had stopped taking Cymbalta and had not experienced any deterioration in his mood. The doctor noted that the “forensic issues” were resolved. The doctor stopped the Cymbalta and told the plaintiff he needed only to take Zyprexa (semble first prescribed on 28 August 2012) when he needed to do so. The dosage was i nocte, so it could be a sleeping tablet. The doctor discussed Anger Management with the plaintiff “at length”. The plaintiff continued to attend the Mollymook Medical Centre every few days to provide a urine specimen for drug testing. On 4 December, the plaintiff was reviewed by Dr Hong. Dr Hong’s report of that date (part of exhibit O) contains a history of the plaintiff’s having returned to work but that history was incorrect according to the plaintiff (T107.23) and he was not challenged about that. He told the psychiatrist he had stopped taking both Cymbalta and Zyprexa (Dr Devlin formally stopped that on 19 December) and that his mood was stable, with no further highs or fits. This is the first mention of this symptom in the records before me but as the plaintiff had been prescribed anti-convulsives since 2003, it is likely to have been a problem over the years. The plaintiff was abstinent of alcohol and drugs, but Dr Hong was concerned about his consuming 5 cans of Diet Coke per day! Dr Hong thought it unlikely that the plaintiff had a “true bipolar disorder” but offered no differential diagnosis. He thought the plaintiff should stay on Epilim for 3 months and that it should then be stopped and the plaintiff be reviewed by Dr Hong at that time. That occurred on 5 March 2013. At a review on 19 December 2012, Dr Devlin noted that the plaintiff’s depression was stable, that he was focussing well and that he was drug and alcohol free. Unfortunately, the plaintiff was unable to maintain his resolve to abstain from alcohol.

35. On 28 December 2012 the plaintiff drank, and appears to have drunk heavily. He started drinking at home (at Lake Conjola) and then “went for a drive” to Milton to buy pizza. The pizza shop was next door to the Star Hotel in Milton and the plaintiff was observed drinking outside that hotel although he had brought the alcohol with him from his home. An incident occurred outside the hotel and the police were called. There appears to have been an allegation of some form of domestic abuse, or of a disturbance of the peace (T236). The plaintiff denied any wrongdoing (T108.20, T236.04) and no charges were laid. However, FaCS became involved. The plaintiff went to live with his mother in Lake Conjola (only a small village). On 21 January 2013 FaCS put forward a “safety plan” for the plaintiff’s family which required him to stay away from the family’s residence. On 19 March 2013 the plaintiff gave an undertaking to the Children’s Court that he would not live at the family home or have any unsupervised contact with his children (T236.41), The date given for this listing before the Children’s Court in the transcript is 19 February 2013 (T236.41) (cross-examination of the plaintiff) but the documentary evidence contains two reports for the Children’s Court both dated 19 March 2013 (see [37]) which therefore appears to be a more likely date. The plaintiff admitted that he “stuffed up” when he bought alcohol on 28 December 2012 and consumed it at his home. FaCS had stipulated that he was not to have alcohol in his family home. The plaintiff, to use his own words, “stuffed up” again by breaking his undertaking to the Children’s Court. On or shortly before 10 April 2013 FaCS removed the couple’s children from the care of both Jade and the plaintiff, due to the plaintiff’s error (T237.22). For a very short time Blair and Jasmine were placed with their maternal grandparents but the department determined that such was not appropriate “because of the consumption of alcohol and drugs” in that house. For an equally short period, the children were placed in foster care, but then were placed in the care of Jane Dowling. The plaintiff appears to have gone to live with Ben Dowling again, but when the children had been placed with his mother, he returned to cohabit with

36. During (and perhaps before) this family turmoil, the plaintiff developed some animus towards FaCS. That remains. On 5 February 2013 the plaintiff saw Dr Devlin when anger management issues were discussed at length. On 5 March 2013 the plaintiff had his review by Dr Hong. His report of that date is this:

“He is now taking Valproate 1000mg nocte.

He reported less mood swing, no S/E and is keen to come off valproate.

He drank alcohol 2 days before new year, and police was called [sic]. It was alleged he assaulted his son, with no charge being laid. He had to leave home after that, and DOCS is constantly monitoring his behaviour – he expressed frustration in this.

He drinks 1 coke/day, no D+A since new year. He says his memory is sharper and he feels smarter since stopped substances.

No fits.

He has not returned to work. He surfs and go [sic] to the gym.

No pervasive lows and no highs evident. No psychosis.

After a fight, he is angry for one day, then feels “mental pain” for months.

Suggest:

review in 3 month [sic]

maintain valproate

to cease valproate (and repeat EEG after), when his functioning level is improved and external stresses is less [sic].”

Valproate is the generic name for the drug which has a brand name of Epilim.

37. Mr John de Casanove prepared a further report dated 19 March 2013 for the Children’s Court. It contains this:

“Since Mr Cooper’s last report written on the 15th November 2012 (see attachment). He was continued to attend this service – Southern Drug & Alcohol Services (SDAS) for counselling and support. Mr Cooper remains abstinent from alcohol and cannabis. He has had regular illicit drug tests from Community Services that monitor Mr Cooper on a regular basis.

Since his last report Mr Cooper has presented for another 11 scheduled counselling sessions. During counselling Mr Cooper has always presented as polite and progressively achieving his goals of personal growth and maturity. He has engaged well with this service and appears to have learnt from this whole experience. Mr Cooper speaks fondly about his children and has expressed his deep sense of grief and loss regarding his family. He continues to work towards bringing his family back together again through learning new skills and breaking away from his dysfunctional history. Mr Cooper’s next appointment is on 22nd March 2013.”

Ms Susan Knopf of the Whole Family Team, Shoalhaven of the Illawarra Shoalhaven Local Health Network also prepared a report dated 19 March 2013 (exhibit R). This Team had been dealing with the plaintiff’s family problems since 25 October 2013. The team identified these issues:

“• Children exposed to significant domestic violence

• Parental substance abuse (Buck – alcohol and cannabis; Jade- Cannabis)

• Parental Mental Health issues: Buck – Depression, Anxiety; Jade – maladaptive personality traits.”

About the plaintiff the report says this:

“Substance use: Buck has remained abstinent from alcohol and cannabis with the exception of two brief relapses – one on weekend leave from rehab and one over the Christmas holiday period. Buck is compliant with regular random urine drug screens. Buck also attends weekly AOD counselling with John de Casanove from Shoalhaven Community Drug and Alcohol. Buck admits that his alcohol and cannabis use was out of control in the period immediately prior to FaCS involvement with the family. He attributes this increased dependence of substances to an acute crisis in their relationship. Buck appears to be showing increased levels of insight into the relationship of his drinking and drug use on his potential for violence and is accepting that he needs to remain abstinent from drugs and alcohol.

Mental Health issues: Buck has been re-initiated on psychotropic medications to assist in relieving his ruminating thoughts and insomnia. Buck was chronically suicidal and dysphoric when we began working with the family. However recently Buck’s mood and mental state has improved. He is not currently constantly contemplating suicide and he is not acopic and overwhelmed by despair. He has resumed casual work. He is being more self caring in terms of diet and exercise and his appearance is less dishevelled.

Anger Management: WFT has been engaging Buck in Cognitive Behavioural Interventions around anger management. As well, we have explored drug and alcohol use and its relationship with violence. Buck has also stated that despite having recently had “a few very bad weeks” in his relationship with Jade, he has adopted strategies to control his anger and states he has walked away and not raised challenging issues with Jade until he has gained control of his emotions.

Parenting: WFT does regular interventions with families based in their family home and consequently has the opportunity to closely observe the home environment and the interactions between parents and children.

Buck has shown himself to be very nurturing and loving towards his children. Buck has always been very attentive and consistent in his parenting. The family home is always pleasant and child friendly. Prior to this crisis his relationship with Jade, Buck worked long hours in his own business as a carpenter in an effort to provide for his family. He spent the weekends with Jade and his children and engaged in family activities.

Buck has shown considerable insight into the impact of domestic violence on his children. He has expressed high levels of remorse over his previous aggressive and violent outbursts which he was described as “inexcusable”. Buck has shown a genuine desire to engage in confronting self examination in an effort to change.”

The summary of this report is:

“Buck and Jade have shown insight into the impact of their conflict and substance use on their children. They have both displayed high levels of remorse about their actions and have been eager for assistance to find a resolution to their problems. They have articulated a high degree of insight and willingness to change. Buck and Jade have co-operated with services in an effort to make positive change in their lives to improve the safety and wellbeing of their children and achieve improved levels of parenting maturity. Buck and Jade have begun to acknowledge and address their significant interpersonal difficulties which will require continuing long term engagement with therapeutic work to achieve resolution and provide safety for their children.”

These last two positive reports highlight the extent of the failure of the plaintiff in breaching his undertaking to the Children’s Court. The timing of the loss of the plaintiff’s children to both the plaintiff and Jade is evidenced by the fact that his last drug screening was on 15 April 2013 (see exhibit HH).

38. On 7 May 2013 the plaintiff commenced a “Managing Strong Emotions Course”. This involved 6 sessions, ending on 11 June 2013. During this period the plaintiff was reviewed by Dr Hong on 4 June 2013. The doctor’s report is this:

“As you know, Buck’s children were removed by DOCS 8 weeks ago, due to his partner’s father making statements to DOCS.

He has been unable to work, due to various court appointments and feeling unpredictable. He is doing anger management, see psychologist and D+A.

He is living in his car 3nights/week.

He reported abstinence from drugs and only 2 cans caffeine/day.

He reported more unstable moods, which he feels is “situational”. His sleep is good. His mental statement did not reveals [sic] signs of a major psychiatric disorder. He denied recent risks.

Suggest:

maintain valproate 1000mg nocte

review in 4-6 weeks

I would not recommend adding or reducing medication at this stage, unless further changes in mental state occurs [sic].”

The plaintiff returned to see Dr Hong 6 weeks later, on 23 July 2013. Dr Hong’s report of that date is this:

“Buck has returned to living with his partner. DOCS evidently has decided to place his children’s custody with his mother. He is completing the DOCS programs and reported no recent behavioural disturbance. He reported minor benefit from anger management course.

He remained abstinent from ETOH and substances, but uses 4 caffeinated drinks a day. At times I advised him to reduce to less than 2-3/day.

He is active, regularly participate in gym and martial art, and intends to work in a weeks time, but does not think he could maintain work until DOCS program is completed.

MSE: looks well and no evidence of major axis I psychiatric disorder.

Imp: no evidence of bipolar disorder or melancholia, however a brain vulnerability existed and possible temporal lobe pathology.

Suggest:

reduce epilim to 500mg nocte, then cease in 4 weeks.

Repeat EEG

review in 3 months

to use zyprexa 5-20mg, for 1-2 weeks courses, when required for crisis intervention.”

39. The plaintiff maintained in evidence that he had been drug free from 20 August 2012 and also alcohol free from that date except for the lapses recorded on 12 October and 28 December 2012, until a further alcohol lapse on 15 October 2013. He also said he remained off work from 20 August 2012 until the collision on 16 October 2013 and since that time. He did not work in 2013, prior to the collision, because of a “couple of reasons” (T121.47). These were:

“One of the reasons was urines, drug urines, I had an hour ... from the phone call ... to be at the pathology [collection point] within an hour otherwise it would come up as a fail and other reasons were because ... I had to do the domestic violence course, which was two days a week and a parenting course. It would have just been inconvenient to a builder.”

On 15 October 2013 the plaintiff completed a 10 or 11 week domestic violence course which the Probation and Parole Service (or Community Corrections Service) had required him to attend at Nowra, twice weekly, probably Tuesday and Thursday (T264.08 – 264.21).

40. The plaintiff did, however, do some voluntary carpentry work after 19 August 2012, Through his sport of karate, the plaintiff had met Mr Cameron McMullen, a quadriplegic, who lived at Kings Point (near Ulladulla). The plaintiff had done voluntary work for Mr McMullen before the plaintiff learned of his partner’s infidelity. He completed the work sometime later. The work (which was extensive) is described at T124 to T126 and photographs of it are exhibit NN.

The plaintiff’s experience riding motorcycles

41. This subject was canvassed in both evidence-in-chief and in cross-examination. The plaintiff has never held a motorcycle rider’s licence. He has never owned an on-road motorcycle. He had been riding off-road motorcycles since age 8 years. Until he purchased his off-road motorcycle he rode machines provided to him by friends. In 2007, when he was 19 years old he purchased his first off-road motorcycle. This was the machine he was riding at the time of the collision. The plaintiff’s motorcycle was black. In the report of the expert, Mr Simon David Parker, it is referred to merely as “the black bike”. In the pleadings, par 1, it is described as “a black 2007 Thumpstar M50 140 Motorbike.” That pleading is admitted. In his opening, Mr Stone SC told me that “Thumpstar” was an American brand, but the plaintiff’s machine might have been an Asian copy. The plaintiff gave this evidence (T139):

“Q. The off road motorcycle involved in the accident has been referred to as a Thumpstar...?

A. Yes

Q. Are you aware of what Thumpstar is or who they are?

A. I believe that’s a different brand. The brand of the bike in the accident, my bike, is M50, Chinese thing but, yeah – so it’s not actually a Thumpstar.”

The plaintiff had been riding this motorcycle since 2007. This was a “recreational activity” (T139.01). The plaintiff rode the machine “sometimes weekly but generally monthly” (T140.03). As to his capacity to ride this motorcycle, the plaintiff gave this evidence-in-chief:

“Q. In terms of your capacity to steer and control the motorbike, how would you categorise your degree of experience in controlling it?

A. Much more than capable.

42. It was in the defendant’s interests to establish the plaintiff’s expertise as a motorcycle rider. The plaintiff was willing to oblige the defendant in this regard. Consider this evidence, commencing at T186.39:

“Q. Mr Cooper, would it be accurate to say that as at the date of your accident, you were a very experienced motorcycle rider?

A. Yes, it would.

Q. And would it be accurate to say that at that date you were a very skilled motorcycle rider?

A. Yes, it would.

Q. Would it be accurate to say that at that date, you were very competent in riding motorcycles in all sorts of road conditions?

A. Yes, it would.

Q. Did those road conditions include riding on bitumen?

A. Yes.

Q. Riding on gravel roads?

A. Yes.

Q. And riding on off road?

A. Yes.”

and recommencing at T188.10:

“Q. But you understood how a motorbike worked, in terms of turning, didn't you?

A. Yes.

Q. You understood that in order to swerve or turn a motorbike, you transferred your weight?

A. Yes.

Q. And you understood that if you transferred your weight quickly, the bike would respond quickly?

A. Yes.

Q. That was something that you knew at the time of this accident?

A. Yes.”

In short, there is no reason to doubt the plaintiff’s competence as a motorcycle rider, if he were sober.

Mr Timothy Lamont

43. Lamont was born on 14 January 1993. That date is not given in the oral evidence but can be found at T3.09 where I was given the date in order to make an order under s 77 of the Crimes (Administration of Sentences) Act 1999 as Lamont was, during the hearing, an inmate of the South Coast Correctional Centre at Nowra. He was called by the defendant and gave evidence by videolink on Thursday 2 June 2016. Unfortunately, Mr Stitt QC (who with Mr B. Wilson appeared for the defendant) did not adduce his age or date of birth. If I be allowed to rely on his date of birth, he was aged 20 years at the time of the collision. If I be not so allowed, I merely point out that he appeared to me to be a number of years younger than the plaintiff. In any event, the parties admitted by consent hearsay evidence that on the day of the collision, Lamont was 20 years old: see [76] below. Lamont’s life partner is Ms Cassie Maria Bates. At the time of the collision they had one daughter, Chloe Lamont, who was aged 19 months.

44. At the time of the collision he was the holder of a motorcycle rider’s licence (T318.50). He had held that licence for 3 or 4 years (T319.07). He had been riding motorcycles since age 13 to 14 years. He had ridden both on road and off road. He went on to say this (T316.03):

“Q. Would you regard yourself as an experienced motorbike rider at the time of the accident?

A. Yeah, you could say that.

Q. Were you able to control a motorcycle under riding conditions?

A. Yeah.

Q. Were you a skilled motorcycle rider?

A. What do you class as skilled?

Q. Well, somebody who is competent and capable of riding safely?

A. Yeah, I could - yeah, I'd say so.

HIS HONOUR

Q. Down here on the south coast, Mr Lamont, I take it there's lots of riding through the forests and the bush, is there?

A. Yeah, yep.

Q. Often you're met, when riding through the forest or the bush, hazards that you don't meet on a normal road?

A. Yep.

Q. You'd learnt to cope with those hazards?

A. Yeah, yep.

Q. So you probably had - would you agree that you may have been more experienced than a motorcycle rider who only rides on roads?

A. Yeah, yeah, you could say that.”

Again, in short, there is no reason to doubt Lamont’s competence as a motorcycle rider, if he were sober. However, it is common ground in these proceedings that he was not sober at the time of the collision the subject of these proceedings.

45. The motorcycle which Lamont was riding at the time of the collision was yellow. In Mr Parker’s report it is described as “the yellow bike”. In the pleadings, par 4, it is described as “an unregistered 1998 Suzuki RM80 motorbike.” That pleading is admitted. In his opening, Mr Stone SC merely described it as a Suzuki. The evidence describes this machine as Lamont’s (T311.27). There is no suggestion that Lamont was unfamiliar with this machine or this type of machine.

Tuesday, 15 October 2013

46. Both the plaintiff and Lamont have very vague recollections of this day and the subsequent morning. For what these two men were doing I am dependant on these vague recollections and on the evidence of Lamont’s partner, Ms Bates. I feel confident in relying on Ms Bates’ testimony. There is no real reason to doubt it. Mr Stone SC suggested that her estimates of times when things occurred may have been inaccurate or merely reconstructions, but when those estimates can be checked they are found to be valid, as I shall endeavour to show.

47. As stated in [39] this day was the last day of either an 11 week (T111.33) or a 10 week (T261.24) domestic violence course at the Probation and Parole premises in Nowra. The commencing and finishing times of the final session are a matter of conjecture, although it appears that morning tea was provided (T263.20). Lamont also attended this course. They had not been known to each other before. At first the plaintiff did not talk with Lamont (T262.15) as there were “quite a few of us in the group” but they became friendly towards the end of the course. To save money, the plaintiff engaged in “car pooling” (or perhaps ride sharing) with another man attending the course, Michael from Ulladulla. The plaintiff drove his vehicle from Lake Conjola village to the intersection of LCER and the Princes Highway where he parked his car and was picked up and then driven to Nowra (T111, T134, T267). On this final session of the course, Lamont told the plaintiff that Lamont and his family were moving house that day. Lamont had lost his driver’s licence so someone else would have to drive Ms Bates’ car, with a box trailer. The plaintiff volunteered to help and that offer was accepted, but there was a condition: the plaintiff would need a lift back to Lake Conjola after assisting with the move, as the car pooler, Michael, would not be available to provide a lift hours after completion of the course. That lift was offered. There was no discussion of this arrangement prior to 15 October.

48. According to Ms Bates’ evidence, she picked up both Lamont and the plaintiff at about 12.30pm. She and Lamont had been living in Sanctuary Point (T327.19) and were moving to West Nowra. However, “everything was in storage” at Bomaderry and the moving on this afternoon was between Bomaderry and West Nowra. That is consistent with the plaintiff’s recollection (T135.05) that the move was within Nowra, as greater Nowra is a conurbation of Bomaderry, North Nowra and Bangalee, north of Shoalhaven River, and Nowra, Worrigee, South Nowra and West Nowra, on the southern bank. Ms Bates and Chloe did not participate in moving the family’s effects. They stayed at the new house (T328.11). The plaintiff drove Ms Bates’ vehicle with Lamont in the passenger seat. According to the plaintiff, they made 3 or 4 trips (T135.22). Ms Bates believed that the moving was completed at 4.30pm (“I think” – T328.32). Ms Bates received some happy news that afternoon, making this a special day for her: she was four weeks pregnant. This evidence was given (T328.37):

“Q. After that movement of furniture was completed, what happened at the house with Mr Lamont and Mr Cooper?

A. Well, on the way back, like, the last load, I rang Tim and I said, “I’m pregnant,” and he’s ... he’s turned to Buck and he’s like, “This is something to celebrate.” So then they got a case, I can’t remember what case they got but they got a case of beer and then they come back to my house and they were drinking.”

In chief, the plaintiff told me that he believed it was a local beer and he drank 4 or 5 bottles of it (T136). When asked why he drank the beer (contrary to the stipulation of FaCS) the plaintiff said (T137.12):

“Just being stupid. I helped him move and I had a couple of beers and just, I ... have no excuses.”

In cross-examination, the quantity of “small bottles” became “roughly four beers” (T270.19).

49. Ms Bates drove herself, Chloe, Lamont and the plaintiff to the plaintiff’s residence at Lake Conjola. She believed that she left Nowra on this journey “about 6.30, 7.00”pm (T328.50). The box trailer was still attached to her car. Before they left Lamont put his yellow Suzuki motorcycle on the trailer. Both the plaintiff and Lamont could recollect that they planned to go riding the next day. The plan obviously called for Lamont and his family to stay overnight at the plaintiff’s residence. On the journey to Lake Conjola a stop was made at a bottle shop in the village of Wandandian and a bottle of vodka and a bottle of either lemonade or lemon squash, to mix with the vodka, were purchased. It is likely that the vodka was purchased by Lamont. The two men were regular beer drinkers, but the evidence makes it abundantly clear that the plaintiff’s spirit of choice was bourbon, and vodka was not his favourite drink (T143.04). Furthermore, Lamont had great news to celebrate and owed thanks to the plaintiff for his assistance in the moving. Ms Bates believed that they arrived at the plaintiff’s residence at 7.30 or 8.00pm or later (T329.34). If one overlooks “or later” one can see that the length of the journey from West Nowra to Lake Conjola was roughly one hour, including a stop at Wandandian. At T113.02 I advised the practitioners:

“My Associate went onto the internet and the Local Court at Nowra to Lake Conjola is a distance of 58.3 kilometres and takes 47 minutes to drive at the speed limit.”

Lest I be accused of doing what I constantly enjoin juries not to do, the following should be noted:

1. this information was imparted to the practitioners because of a request by the plaintiff that the Court take a view of the collision site;

2. no one suggested that the information was erroneous;

3. it is entirely consistent with the length and time of the journey I undertook to attend the view;

4. it is consistent with publicly available maps; and

5. it is a matter of which I can take judicial notice: Butt v Liebherr Australia Pty Ltd [2015] NSWDC 3; (2015) 19 DCLR (NSW) 346 at [11]; Waratah Engineering Pty Ltd v Baggs [2013] NSWCA 427.

I can therefore easily accept that the journey from West Nowra to Lake Conjola with a stop at Wandandian would take about one hour, and, therefore there is validity in Ms Bates estimate of the time between arrival and departure. The plaintiff had no recollection of this journey. In fact, he only has memories of two events after consuming beer at West Nowra. Lamont said they arrived at Lake Conjola in the dark, but whether Lamont has any actual recollection of events after the moving was completed is a moot point (see T320.01), an issue to which I shall return later.

50. When the party arrived at the plaintiff’s residence, Jade was not present. She was at work. Ms Bates was not to meet Jade until she came home from work (T329.38). Ms Bates gave evidence that Lamont and the plaintiff sat at the table drinking vodka and that she sat on the lounge with her daughter watching television. The plaintiff told me in his evidence-in-chief that Jade had an apprenticeship as a chef working in a restaurant called “Ceto” in Ulladulla (T112.16). A little later he told me that Jade could work “split shifts” i.e. a luncheon (or morning) shift, then a break for “an hour or so” and then a dinner (or afternoon) shift. If she worked a dinner shift mid-week she would come home “[v]ery late, anywhere from 10.30 to 12.00 or 12.30” (T141.36). 15 October 2013 was not in a school holiday period. One would not expect a restaurant in Ulladulla on a Tuesday night to be as busy as later in the week e.g. Friday or Saturday evenings. One might expect that Jade would arrive home on such a Tuesday night nearer to 10.30pm than midnight. Ms Bates said that she thought that Jade came home “about 10.30” (T329.48). This is another area where some cross-check can be made about Ms Bates’ accuracy in providing times, and that accuracy appears to be good. It is common ground that a dinner of steak and chips was then prepared and served. One of the plaintiff’s two recollections of this evening is this:

This provision applies to litigation governed by MACA: CLA s3B(2)(c).

224. This allowed the plaintiff’s Counsel to submit that the plaintiff’s injuries and disabilities were close to those of “a young quadriplegic” who at common law might be awarded $600,000 and that it would be appropriate to assess the plaintiff’s case in the range of $500,000 to $550,000, and that, therefore, it would be appropriate to award the plaintiff the then statutory maximum:

“71. The plaintiff submits that an appropriate award for non-economic loss in this is case is the maximum permitted - $511,000. This is not to say that the plaintiff is necessarily a most extreme case (were this a CLA claim). He is not as badly injured as a young quadriplegic. However, the court would consider that a young quadriplegic might be awarded $600,000 or more at common law, with the statutory requirement to reduce that amount to be capped at $511,000. This plaintiff (effectively a double amputee, with a brain injury and sexual dysfunction) is one step down from a young quadriplegic. It is submitted that he would appropriately be assessed between $500,000 and $550,000 at common law and thus, is also awarded the maximum permissible - $511,000.

72. Although the court does not make strict comparison with Section 16 of the Civil Liability Act 2002, it is noted that $511,000 currently equates to 86% of a most extreme case. Unless the defendant is prepared to argue that the maximum at common law is less than is permitted under the CLA or unless the defendant wants to argue that there is some differing approach to proportionality in the common law than there is under the CLA, then the defendant really needs to argue that the plaintiff is less than the equivalent of 86% of a most extreme case in order to argue that he should be awarded less than $511,000.

73. If, as is anticipated, the defendant wants to argue that the plaintiff should only be awarded $400,000 for general damages, then the Nominal Defendant should be encouraged to explain how, on a Civil Liability Act assessment, the plaintiff would equate to less than 70% of a most extreme case. The defendant might then also like to explain how such an argument sits alongside the objectives of the MAC Act to preserve full compensation for the most severely injured.”

225. The defendant’s submissions were as anticipated:

“83. It is not suggested that the Plaintiff has suffered anything other than significant injuries and disabilities. The award for this head of damage will obviously be substantial. That said, any award should be less than the statutory maximum and somewhere in the order of $350,000 to $400,000 in light of, inter alia, the following factors:

(a) As emerged during cross-examination, the Plaintiff was far more active than as suggested during his evidence-in-chief. In particular, the Plaintiff has bought and sold a number of motor vehicles following his accident and has also worked on some of these vehicles: see T196 to T215 and Ex 1 to Ex 8.

(b) The Plaintiff has been able to take his children to the beach, has been provided with a second prosthesis that he can wear into the ocean, and can go into the ocean up to the level of his nipples: see T169.

(c) The Plaintiff not only spends time with his children but also spends time with his dogs and manages to potter around in his garden: T172.22 to 172.34.

(d) The Plaintiff currently has four dogs that he and his wife look after: T134.9.

(e) The Plaintiff has not suffered any organic brain damage as a result of the accident.

(f) The Plaintiff has visited his karate centre following the accident (once for his own purposes) and numerous times to watch his children

(g) The Plaintiff is able to drive a motor vehicle, meaning that he maintains at least some level of independence despite the nature of his injuries.”

226. It is necessary to recapitulate the plaintiff’s injuries and disabilities:

1. Left leg: amputation of the leg below the knee has been practiced, leaving 10 cms of the tibia. There was also a fracture of the left femur which required repair: see [81] above. Below knee prostheses have been provided: see [93] and [97] above. The plaintiff has continuing symptoms:

1. intermittently his stump has infections and a breaking down of the skin due to friction with the prosthesis leading to pain: T166.07–T166.16;

2. his range of knee movements has been reduced to 90% with crepitus: T166.42–T167.03;

3. in Court, the plaintiff walked with a very bad limp, but that ought to be correctible with a good-fitting prosthesis and appropriate training by a rehabilitation physiotherapist; T166.23–T166.30, T180.17–T180.26.

4. the plaintiff experiences phantom pain in the missing limb: T168.19;

2. Low back pain: This arises as a consequence of the plaintiff’s altered gait resulting from the left leg amputation; he experiences low back pain every night: T168.01

3. Left arm: I summarised the injuries to the plaintiff’s left arm at [80] above; surgery was practiced on 16 October 2013 – see [81] above; on 18 October 2013 – see [82] above; on 21 and 24 November 2013 – see [83] above; and on the eleven occasions outlined between 17 April and 6 August 2014 outlined in [89] above; the plaintiff has been left with an insensate, flail arm for which, at the current time, the only surgical option is transhumeral amputation; nevertheless there are symptoms above the elbow:

1. the left shoulder joint is irregular and appears to have sagged and be wasted: T158.32–T159.05;

2. there is pain on inward rotation of the shoulder; T159.14–T159.21;

3. he has “severe nerve pain” in the musculature of the upper arm: T159.25–T159.50;

4. there is very ugly scarring of the plaintiff’s forearm; there is wasting of the musculature (T160.37); the scarring can be seen in exhibit E, page 12, photographs 16 and 17 taken when the plaintiff was in SGH, but they have now resumed a more natural colour: T160.43–T161.24;

5. there is residual scarring of the other portions of the plaintiff’s arm, extending onto his chest: T161.28–162.30; as well as the loss of the two distal phalanges of the little finger – see [81] above and T162.37;

4. Abdominal injuries: the plaintiff still has a large hernia which, at the time of the hearing, still required surgical repair: see [98] above; his colostomy has now been reversed and he now has “pretty much normal control of [his] bowel … 99% of the time” (see [99] above) but the inference to be drawn from his evidence on this issue is that there is occasionally some leakage of faeces per anum;

5. Interference with sexual function: I outlined the problems the plaintiff was experiencing with his penis, and their cause, at [92] above and at [95] but the surgery practised by Dr Lynch was unsuccessful; this has greatly interfered with the plaintiff’s sexual function:

1. prior to the collision, the plaintiff and Jade had sexual intercourse “roughly once a day” (T128.44) reaching orgasm (T129.06), experiencing no difficulties using various sexual positions (T129.16), an activity that he enjoyed (T128.49); earlier the plaintiff had been prescribed Viagra to counter the effects of medication prescribed to him but had ceased taking Viagra prior to the collision (T128.46);

2. since the collision, the plaintiff and Jade have attempted sexual intercourse “every two to three days” (T165.01); the plaintiff uses “a lot of medication to help [him] get an erection” (T165.03–T165.11); the plaintiff’s evidence then continued thus:

“Q. And do you experience any difficulty with an erection in terms of maintaining penetration during intercourse?

A. Yes.

Q. What’s the difficulty?

A. I, sometimes I don’t get a proper erection and, due to my penis being sucked into my body, it’s semi erect and not very long and pointing to the side and it’s just not functional for sex. Yeah.

Q. Does the combination of your injuries restrict the positions you were able to use during sex?

A. Yes.

Q. Is the majority of the sex that you now have with you flat on your back?

A. Yes.

Q. Are you able to with any comfort or enthusiasm maintain, for example, a standard missionary position where you would be on top?

A. Not comfortably and trying to do a different position I fell off the bed and smacked my head on the floor one time.

Q. Do you have the same degree of sensation in your penis that you had before the accident?

A. Not at all.

Q. What’s changed?

A. I severed the nerves to my penis in this accident. I believe it was when my pelvis shattered. So I generally can’t feel it very well at all.

Q. Is there any pleasant sensation in sliding in and out during intercourse?

A. No, I believe it’s more mental.

Q. And do you experience an orgasm?

A. It’s a difficult question because I don’t experience an orgasm like I used to, but I do have some sort of sensation but it’s not a really good feeling. Like it’s, it’s hard to explain but no generally.

Q. Do you gain much pleasure out of having sex anymore?

A. No.

Q. How does that affect how you feel about yourself?

A. Not, not very high. It’s pretty embarrassing. It’s pretty demeaning, you know, it’s not, yeah, it’s not very nice.”

I have no hesitation in accepting that evidence;

6. Cognitive impairment: as I explained earlier, between [101] and [106], I do not accept that the plaintiff suffered a primary brain injury; However, I do accept the plaintiff has suffered some secondary cognitive impairment and that the plaintiff suffers the ongoing problems contained in the opinion of Dr Langeluddecke quoted in [104] above; the plaintiff’s evidence, consistent with the Doctor’s opinion, can be found at T156.40–T158.05;

7. Psychological health: I discussed this at [108] above, it is also to be recalled that pre-collision the plaintiff had a very good physique of which he was understandably proud (see pre injury photographs, exhibit QQ) maintained by his work as a carpenter and exercising with weights in his gymnasium in his garage (T300.21), which is to be compared with this evidence:

“Q. In terms of trying to keep up your health and fitness, how is your fitness now, compared with your fitness before this accident?

A. My fitness before this accident was incredible.

Q. And now?

A. It's - I don't really have any fitness.

Q. I appreciate a straight comparison of weight becomes a little problematic when you're missing a leg but in terms of something like the size of trouser that you take and you're still wearing the same sized trousers that you were before the accident?

A. No, I've, I've put on weight.

Q. Whereabouts have you put the weight on?

A. In my belly and my bum, yeah, mainly my belly.

Q. How do you feel about the way you look now?

A. I can't stand how I look now.”

8. Pain levels: as can be expected, vary from day to day; the plaintiff takes prescribed pain-killing medication daily; the plaintiff has good and bad days or, as he described them, better days and worse days, sometimes the good periods can extend for three days as do the bad periods (T169.01); as could also be expected, the pain levels vary according to the plaintiff’s level of activity and the weather.

227. The plaintiff has had a better outcome than most paraplegics and any quadriplegic. On one hand:

(a)    he has regained control of his bladder;

(b)    he has regained 99% of the natural control of his bowel;

(c)    he is able to ambulate, and his ability should be increased with the provision of a well-fitting prosthesis and suitable training; when examined by Professor Michael Cousins, pain specialist on or before 15 October 2014, the plaintiff was limited in his walking to 500 metres with his then prosthesis – this ability should have increased since, and ought to increase since the hearing;

(d)    he is able to drive an automatic motor vehicle, with a knob attached to the steering wheel;

(e)   he still has some sexual function, as discussed above, but a substantial reduction in sexual function sounds heavily in damages: Knight v GIO of NSW [1995] NSWCA 246 per Kirby P (as he then was); however, if the plaintiff and Jade decide to have further children, that can be done naturally: there is no interference with the plaintiff’s fertility, despite his nasty scrotal injury.

However, on the other hand:

(f)    the plaintiff has no use of his left arm and, unlike a paraplegic, cannot use a keyboard or play games which require the use of two hands, in particular, two thumbs;

(g)   unlike most quadriplegics and paraplegics, he has undergone multiple surgical procedures, most under general anaesthesia, and further surgery was contemplated at the hearing for both the abdominal hernia and the left arm, although I expect that amputation of the left arm will be delayed for as long as possible in the hope that there be a new treatment developed or with a view to new developments in human robotics;

(h)   unlike most quadriplegics and paraplegics, whose non-economic loss to a large extent reflects the loss of amenities of life, but have no real (as distinct to phantom) pain, the plaintiff has both real and phantom pain on an ongoing basis and there is nothing to say that such pain will not persist indefinitely; one must also recall what the plaintiff said of his experience of pain at SGH, which is recorded in [85] above;

(i)   many paraplegics do not have the disfigurement the plaintiff has: the scarring on his left arm, which, if amputated, would also cause disfigurement; the disfigurement caused by his abdominal hernia – I do not know whether it will ever be capable of successful surgical repair with good cosmetic outcome; the disfigurement caused by the loss of the left lower leg.

228. The defendant concentrated its submissions on what it said the plaintiff could do: see [225] above. I make the following observations on what the defendant raised:

(a)    I dealt with these issues at [123] and [126] above; the trading in motor vehicles largely resulted from the effects of the collision on the plaintiffs ability to drive and his superannuation payout; his “work” on motor vehicles could be described as “tinkering”;

(b)   this is so, but a prosthetic leg will not float and the plaintiff can not, for example, teach his children how to body surf, let alone ride a surfboard; his ability in this area is restricted;

(c)   the plaintiff no longer has his children residing with him, but that might well change; at the hearing he only had contact with his children on a restricted basis; the plaintiff has to spend his time somehow and that includes watching television as well as pottering in his garden: he can prune his potted trees with secateurs, but cannot lift anything heavy (T172.27), whilst seated in his wheelchair, and “simple, basic things” in the garden, and he also spends time with his dogs;

(d)   the plaintiff and Jade have four “rescue dogs”, i.e. dogs taken from a pound or shelter, not thoroughbreds: T134.15;

(e)   I agree, but see [2206](f);

(f)   see [127];

(g)    I agree, see [228](d).

229. A further consideration is the plaintiff’s age. He was 25 years old at the time of the collision, 28 years old at the hearing and turned 29 years old just prior to the delivery of this judgment. His life expectancy is currently 56.20 years (Medium Life Expectancies, Australia, 2015, accepted in principle in Golden Eagle International Trading Pty Ltd v Zhang [2007] HCA 15; (2007) 229 CLR 498). The plaintiff spent some time addressing me on the significance of Reece v Reece [1994] NSWCA 259; (1994) 19 MVR 103 and Varga v Galea [2011] NSWCA 76. In the latter case, McColl JA (with whom Beazley JA and Handley AJA agreed) said this:

“72. Reece v Reece states the uncontroversial proposition that the plaintiff's age at the time of the assessment of damages is a factor relevant to the assessment of non-economic loss, a proposition Handley JA made abundantly clear when considering Reece v Reece in Marshall v Clarke (Court of Appeal, unreported 5 July 1994); see also Christalli v Cassar [1994] NSWCA 48 (at 3) where Kirby P (with whom Powell and Cole JJA agreed).

73. Age, however, is only one of the numerous matters the Court takes into account in its assessment of non-economic loss, which is defined in s 3 of the 2002 Act as follows:

" 'non-economic loss' means any one or more of the following:

(a) pain and suffering,

(b) loss of amenities of life,

(c) loss of expectation of life,

(d) disfigurement."

74. The assessment of non-economic loss depends on the circumstances of each plaintiff, albeit as s 16 of the 2002 Act now requires, as assessed by reference to a "most extreme case". In this respect, in my view however, Windeyer J's remarks in Thatcher v Charles [1961] HCA 5; (1961) 104 CLR 57 (at 71 - 72) remain cogent:

"Compensable loss depends not only on the severity of the physical injury but on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious on principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables."

As Handley JA observed in Dell v Dalton (1991) 23 NSWLR 528 (at 532), although Windeyer J was in dissent, this passage "reflected the previous law".”

As I have had cause to observe in many earlier judgments, the young can be more resilient, more adaptable than the old and learn more easily to adapt to their injured state and to live with their disabilities. An example of this would be a professional man, nearing retirement whose recreation has always been golf. He and his wife sell the family home (“downsizing”) and purchase a town house adjoining a beautiful golf course in the expectation that, on retirement, the passionate golfer will be able to play a game almost daily. He suffers a nasty leg and back injury which prevents him from playing golf again. His retirement plan is ruined, his expectations of post work leisure blasted and he may have difficulty coping and readjusting to his injured state. A man 40 years his junior might suffer the same injuries but find a new recreation, adjust to his disability and develop different plans for his future to cope with his disability. There might be little difference in their general damages. However, the present plaintiff suffered, as I said at the commencement of these reasons, “complex and life threatening injuries” – Professor Fearnside’s assessment, or, as the same expert observed in his opinion, “catastrophic injuries which have left him severely and permanently impaired and consequently disabled.” The plaintiff has lived with his injuries and disabilities for three and a quarter years now and will live with them for another 56 years. This must place the plaintiff at the upper end of any scale.

230. Bearing all these things in mind and the submissions of Counsel, and applying the common law principles, I have formed the view that the appropriate sum to allow the plaintiff for non-economic loss is $500,000. As that is less than the current statutory maximum, it does not need to be reduced.

(b) Past economic loss

231. The plaintiff’s Schedule of Damages (as at 30 May 2016), MFI 6, makes this claim:

“From 1 July 2014 to present

AWE for construction workers ($1,704.30 gross p/w)

$1,270 net p/w x 101 weeks                  $128,270”

Despite the plaintiff’s evidence that he intended to return to work in “early 2014”, the plaintiff’s actual claim only commences on 1 July 2014. During addresses, I suggested to Mr Stone SC a different approach to that given above. As at 25 May 2015, Mr Streeter was paying his sub-contractor carpenter $350 per day (exhibit SS par 21). At the time of giving evidence, he was paying his sub-contractor $380 per day (T351.24). From those figures I proposed that is 2014, Mr Streeter would have been paying $330 per day. At T471.46 I said this:

“If you average out the work as a subcontractor, not working when there is no demand for work, not working when it rains, et cetera, you might be looking at, say, 26 full weeks per annum. So we look at $330 multiplied … by 5 to give you a weekly amount, multiplied by 26, that gives you $42,900 per annum.”

On the same basis $350 pw gives a total of $45,500 per annum gross and $380 pw gives a total of $49,400 per annum gross. The figure of $330 pw for 26 weeks per annum provides an average of $825 pw gross. Ex J tells me that from 1 July 2013 to his stopping work in August 2012, the plaintiff earned as a subcontractor carpenter $6, 286 net, before tax. This would have been when working for Mr Streeter. If the period were 7 weeks, that indicates a weekly average of $898; if the period were 8 weeks, that indicates a weekly average of $785.75. The income over this period could include income for work done prior to 1 July 2012.

232. If I allow $825 pw gross for the financial year 1 July 2014 to 30 June 2015, I am allowing $709.80 pw net (T474.19). That gives an annual figure of $36,910 (rounded up by 40 cents).

233. For the financial year commencing on 1 July 2015, I proposed to allow $350 per day, for 5 days per week, for 39 weeks per annum. That monetary sum was the figure Mr Streeter was paying as at 25 May 2015. The increase in days worked per annum represents a gradual return to work as the plaintiff re-established himself in his industry. $350 per day for 5 days for 39 weeks per year gives a total of $68,250 which provides an average of $1,312.50 pw which I rounded off at $1200 pw. That is a gross figure. The net figure is $949.20 (T474.25–T474.33). For 52 weeks that amounts to $49,358.40, which I round up to $49,360.

234. For the period 1 July 2016 to 20 January 2017 (29 weeks), I accept that the plaintiff would have been earning average weekly earnings in the construction industry i.e. $1,270 pw net as claimed. The totally for this period is $36,830.

235. The total for past economic loss ($36,910 + $49,360 + $36,830) is $123,100. The plaintiff has not earned any wages or other income during this period. I do not categorise social security payments as “earnings”. I shall discuss the question of residual earning capacity when discussing future economic loss.

(c) Past superannuation

236. The plaintiff claims 11% of past economic loss. The rate is not controversial. The plaintiff has, however, in seeking loss of future superannuation, discounted the claim by 50% because of the plaintiff’s prospects of self-employment. In my view, the same discount ought be made for past superannuation. The plaintiff had entered self-employment when working for Mr Streeter. That is what he intended to do prior to learning of Jade’s infidelity. Accordingly, I allow ($123,100 @ 11%) ÷ 2, giving a total of $6,770 (rounded down).

(d) Future economic loss

237. According to the plaintiff’s Schedule of Damages, he claims the average weekly earnings for construction workers ($1,704.30 pw gross / $1,270 pw net) for his future working life (till 67 years) less 15% for the vicissitudes of life (“the usual discount”). At the hearing, the appropriate multiplier was 909.9. Since the plaintiff has now turned 29 years old, the multiplier is 902.0. This formulation provides a total of $973,709, which I round off at $973,710.

238. The defendant’s submission on this issue is:

“89. Insofar as future loss of earning capacity is concerned, the Plaintiff’s capacity (irrespective of the accident) is necessarily comprised by his well documented and long-standing forensic/criminal history, mental health problems, anger problems, and cannabis and alcohol dependence.

90. What is more, to the extent that the Plaintiff’s claim for future loss of earning capacity is based on his inability to now run his own carpentry business, it must be remembered that the Plaintiff’s business was only in its infancy and therefore faced the usual risks that any new business would encounter.

91. Once the Plaintiff’s pre-existing problems are taken into account, together with the fact that the Plaintiff still has a residual earning capacity (albeit limited) and had never earned $1,270.00 net per week prior to the accident, it is submitted that a future loss of $400.00 net per week is appropriate. Further, it would also be appropriate to apply an increased reduction for vicissitudes of 30% which produces a future loss of $254,772.00”

I do not share the defendant’s pessimism about the plaintiff’s future, which follows upon my analysis of the plaintiff’s past and likely future. By allowing only $400 pw net and applying 30% for the vicissitudes of life, it appears to me that the defendant is engaged in double discounting. He was earning either $898 pw or $785.75 pw net before tax when working for Mr Streeter – see [231] above. Mr Streeter was happy to re-engage him. If one halves the average weekly income because of “existential” problems, there is no need to apply a 30% discount. I accept that the plaintiff had not earned $1,270 net pw prior to the collision. He had only completed his apprenticeship on 8 January 2012 (see [19] above). He only had 7 months experience as a carpenter when he “ran off the rails” in August 2012. I have allowed the plaintiff two years (1 July 2014 to 30 June 2016) to re-establish himself in the building industry and to commence demanding average weekly earnings in that industry. I do not believe this to be unrealistic, especially considering Mr Streeter’s evidence about his competence.

239. The remaining question is whether the plaintiff has a residual earning capacity. Firstly, one should again consider what I held at [121] above. The plaintiff did not know of any work he could do and the defendant never suggested to him doing any work outside of his trade. Between [114] and [120] I canvassed the evidence concerning the plaintiff’s returning to work in his trade. I am satisfied that he is not able to do so, practically. I am not persuaded that the plaintiff has a residual earning capacity.

240. The legal onus of proof of this head of damage always lies on the plaintiff. However, there can be a shifting of the evidentiary onus of proof. In Kallouf v Middis [2008] NSWCA 61, the Court (McColl JA and Hall J) said:

“[52] In Arthur Robinson [(Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649] (at 657) Barwick CJ observed that lost earning capacity 'ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate', a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) in Morgan v Costello [2004] WASCA 260 (at [99]) as supporting the proposition that 'the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.'

[53] The relative responsibility of the parties for adducing evidence going to the issue of residual earning capacity was discussed in Linsell v Robson [1976] 1 NSWLR 249 (at 254 - 255) by Glass JA who stated:

'I should like to recapitulate what I said in Davies v Lumsden ... concerning the evidentiary responsibility in cases of this kind of the real defendant, viz the insurer, and the risks it runs in pursuing its policy of testimonial inactivity. The plaintiff, of course, has the ultimate burden of proving the extent of his loss. The plaintiff tendered evidence of the disabilities which severely restricted his earning capacity, the failures which he encountered in his attempts to get work. The evidence of attempts was slight, but whether the proved record of failure is extensive or not, the plaintiff is trying to prove a negative. The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff's meagre materials will be held sufficient to support a conclusion, which in this case the trial judge clearly reached, viz that the plaintiff retained only a severely restricted earning capacity, the exercise of which was unlikely to produce a large income.'

[54] Reynolds JA (with whom Hope JA agreed) made observations to like effect in Yammine v Kalwy [1979] 2 NSWLR 151 (at 155) (approved by Heydon JA in [State of New South Wales v]Moss [[2000] NSWCA 133; (2000) NSWLR 536] (at [69])) that:

'[I]n seeking to quantify his damages [for lost earning capacity] a plaintiff could be well advised to offer such evidence [as to the level of wages he might earn, notwithstanding his handicap]; and likewise a defendant, in seeking to cut down the damage, might similarly be well advised to tender such evidence; neither in the absence of such evidence, could complain, to the same effect, at any quantification arrived at.'

[55] In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132 133) per Sugarman JA: see also McCracken v Melbourne Storm Rugby League Football Club Limited[2007] NSWCA 353 (at [64 ff] per Ipp JA (Beazley and Basten JJA agreeing)).

[56] This position is not, in our view, displaced by s 126 [of MACA], albeit that s 126(1) imposes a requirement on the plaintiff to satisfy the Court 'that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury'. It is, of course, incumbent on the plaintiff in the first place to demonstrate lost earning capacity.”

In Mead v Kerney [2012] NSWCA 215, Macfarlan JA (with whom McColl JA and Sackville AJA agreed) said at [37]:

“37. … As I have pointed out, the evidence demonstrated that the respondent had tried unsuccessfully to obtain employment for nearly four years prior to the trial. The evidence at the trial offered no reason to suggest that the position would be any different in the future. The appellants did not identify any practical job opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future. In these circumstances, to attribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation.”

241. The plaintiff was clearly at all material times totally incapacitated for his pre-collision occupation and effectively totally incapacitated for any job in the building industry. He did not have and does not have the capital, or business acumen, to set himself up in a business where he could use his knowledge as a carpenter/builder without there being any demand on him to perform any physical work, which includes inspection. I canvassed the medical opinions as to the plaintiff’s employability at [109] above. The defendant adduced no medical evidence. There is no positive evidence as to what the plaintiff could do now or might be able to do in the future with his continuing disabilities. In my view, the evidentiary onus has fallen on the defendant which did not cause the plaintiff to be cross-examined about work outside his industry or adduce any evidence as to what jobs might be open to a man with his disabilities, even outside the area in which he might be thought reasonably to be seeking work. I therefore have no hesitation in awarding to the plaintiff the sum determined at [237] above.

(e) Future superannuation

242. The plaintiff claims, in his Schedule of Damages, 14% of his future economic loss less 50% for the prospects of self-employment. I originally thought I ought reduce the claim by 67% to account for the fact that the longer the plaintiff stayed in the building industry, the greater became the prospect of self-employment. However, the plaintiff might have been able to form his own company and that company might have provided to him superannuation because it employed him: see [112] above. Accordingly, I allow the plaintiffs claim ($973,710 @ 14%) ÷ 2 is $68,160 (rounded up).

(f) Other heads of damage

243. No other heads of damage were claimed, no doubt because of the plaintiff’s admission to the LCS Scheme and MACA s141A.

(g) Summary and total

244. The heads of damage allowed are:

(a) Non economic loss	$ 500.000
(b) Past economic loss	$ 123,100
(c) Past superannuation	$ 6,770
(d) Future economic loss	$ 973,710
(e) Future superannuation	$ 68,160
Total:	$1,671,740
Two thirds of that sum is:	$1,114,493

Order

245. I give verdict and judgment for the plaintiff against the defendant for $1,114,493. I shall hear the parties on any question concerning costs.

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