Daniel Van Eeten v Sgic No. DCCIV-95-31 Judgment No. D3514
[1996] SADC 3514
•29 November 1996
Court
DISTRICT COURT OF SOUTH AUSTRALIA
Judgment of His Honour Judge Kitchen
Hearing
06/08/96 to 09/08/96, 12/08/96, 15/08/96, 19/08/96.
Catchwords
Assessment of Damages - 6 year old male (aged 21 at trial) - hit by car - mid-shaft fracture of right femur - mild impairment of ability to quickly learn and retain information as a consequence of injury to brain; by trial date, apprenticed plumber and expected to complete apprenticeship; impairment likely to disadvantage plaintiff in work-force or in business on own account but affect of impairment on economic loss difficult to assess. Future economic loss $40,000.00; Past non-economic loss $25,000.00; Future non-economic loss $10,000.00; Special damages $4,368.35; Beck v Farrelly $1,500; Total assessment $80,868.35 reduced by prior payment and for (agreed) contributory negligence to $68,517.85; Male ; Future economic loss $40,000.00; Past non-economic loss $25,000.00; Future non-economic loss $10,000.00; Past special loss $4,368.35; Total assessment $80,868.35 reduced due to contributory negligence by 10% to $72,781.52.
Materials Considered
• Motor Vehicles Act s113, referred to.
Representation
Plaintiff Daniel van Eeten:
Counsel: Mr. G. Holland - Solicitors: Camatta Lempens
Defendant State Government Insurance Commission:
Counsel: Mr. J. Costello - Solicitors: Stratford &; Co
DCCIV-95-31
Judgment No. D3514
29 November 1996
(Civil)
DANIEL VAN EETEN v STATE GOVERNMENT INSURANCE COMMISSION
Civil
Judge Kitchen
On 18th March 1982 the plaintiff, who was then aged approximately 6 years and 11 months, was injured when he was struck by a motor car being driven by Gary James Mullan along Sisters Road, Moorak in the south-east of the State.
The small farm property at Moorak where the plaintiff lived with his parents, his sister Emma and his brother Joel fronted onto Sisters Road.On 18th March 1982 the three children left home to go into Sisters Road to wait for the bus to take them to school.Before the bus arrived the plaintiff was knocked down by the vehicle being driven by Mullan.
The plaintiff issued these proceedings on 16th January 1995 against the State Government Insurance Commission pursuant to Section 113 of the Motor VehiclesAct 1959, Mullan having died at some time before that date.
The plaintiff and the defendant are agreed that the plaintiff is to recover from the defendant 90 percent of the plaintiff's damages as assessed by the Court.The action proceeded for the purpose of assessing the plaintiff's damages.
The plaintiff does not remember the accident.The plaintiff's mother Mrs. Jane van Eeten gave evidence.She said that on 18th March 1982 she heard what she described as the sound of an accident; she was nearby but her view of it was obscured by trees.She rushed out onto Sisters Road and saw the car being driven by Mullan coming to a stop.She saw that the plaintiff was on the roadway wedged against the wheels of the car.She extricated the plaintiff and held him.She thought he was dead but just before the ambulance arrived she realised he was still alive although unconscious.The plaintiff was taken to the Mount Gambier Hospital.
From the report of Mr. A.P. Lind an Orthopaedic Surgeon (dated 23rd November 1982 (Exhibit P10)) who first saw the plaintiff on the day he was admitted to the Mount Gambier Hospital, the plaintiff's level of consciousness was improving by the time he arrived at the hospital.He had left-sided facial abrasions, which were cleaned, and a laceration to the right side of the scalp which was sutured under general anaesthetic.The plaintiff had also sustained a mid-shaft fracture of his right femur which was treated conservatively by the insertion of a Steinmann's pin through the right tibial tubercle and traction was applied.Injuries to the plaintiff's chest were x-rayed which revealed no fractured ribs or internal injuries.The nature and positioning of the Steinmann's pin can be generally seen in one of the photographs in Exhibit P8 taken when the plaintiff was in the Mount Gambier Hospital.
Mr. Lind reported (Exhibit P10) that the fractured femur united satisfactorily. On 15th April 1982 the Steinmann's pin was removed and the plaintiff was placed in a full length plaster of Paris spica cast.He was discharged from hospital to the care of his parents on 16th April 1982.
I note that in the chronology handed up by plaintiff's counsel it is stated the plaintiff was discharged from hospital on 28th March 1982.The copy hospital record, Exhibit D12, states that the plaintiff was discharged on 16th April 1982 and that is the date I accept - it accords with the memory of the plaintiff's mother that the plaintiff was in hospital for about one month.
The spica cast was removed on 14th May 1982.An x-ray on that day revealed that the fracture was firmly uniting.The plaintiff was mobilised on crutches and he then underwent extensive physiotherapy for exercises and gait re-education.
The plaintiff said that the spica cast, which he described encased his leg from his toes to his waist, made him itch, caused abrasion and made it awkward for him to move at all to sleep comfortably.As might be expected Mrs. van Eeten's memory of the plaintiff's convalescence is better than the plaintiff's. She said the plaintiff had a lot of discomfort caused by the pressure of the spica cast at points on his body.Some relief was gained when pieces were cut from the cast by hospital staff.
Mrs. van Eeten described that for the first week or so after the plaintiff was discharged from the hospital he frequently woke at night screaming.Each night at hourly intervals he had to be turned over in bed, a task which required the joint effort of Mrs. van Eeten and Emma until the plaintiff was able to devise a way to turn himself with the assistance of only one of them.Toileting for the plaintiff was very difficult because of the spica cast.During the day the plaintiff had to be moved around on a wheeled trolley; I understand that to have been like, or fashioned from, a skateboard upon which the plaintiff learned to propel himself around the house.Mrs van Eeten said the weight of the spica cast made it almost impossible for her to carry the plaintiff.
After the removal of the spica cast the plaintiff underwent intensive physiotherapy.Mrs van Eeten said he was malnourished and weak and it took many weeks for the plaintiff to regain his strength to be able to get about unaided by crutches, a period during which he was gradually re-introduced to school, Moorak Primary which he had been attending before the accident.He resumed school full-time at about the end of May 1982.
Mr. Lind reviewed the plaintiff on 8th June 1982.He found the plaintiff still walked with an awkward gait but he had practically regained a full range of movement of his right knee and hip.By January 1983 Mr. Lind noted that there were no complaints in relation to the plaintiff's leg, face or chest injuries.He assessed the plaintiff's leg length to be equal, that he walked with a normal gait with a full range of movement in both the right knee and hip and that scarring on his face caused by the abrasions suffered in the accident was minimal.
As I understand the evidence of Mr. and Mrs. van Eeten the plaintiff had been introduced to swimming to aid his rehabilitation.In later years he went on to competitive swimming and also became a champion runner representing the State as a schoolboy.
The plaintiff said he has no problems with his leg now; he had taken part in athletics until Year 10 when he gave those up because he wanted to devote more time to his swimming and other things.Mr. Lind in a report dated 28th March 1990 wrote that the plaintiff who was then in Year 10 had been doing a lot of middle-distance and long-distance running and experienced a clicking sensation in his right knee and anterior pain in his left.Mr. Lind stated that x-rays were normal.He judged nothing more radical was necessary than an exercise programme and panadol for the relief of pronounced symptoms, but noting that if the plaintiff's symptoms increased a diagnostic arthroscopy would be indicated. That advice was given more than six years ago.It appears no treatment has become necessary and as I have said the plaintiff makes no complaint now about his leg.He is currently employed as an apprenticed plumber, and is active in surfing and rock climbing, without any symptoms or discomfort as I understand his evidence.
The principal issue between the parties concerns the evidence of the plaintiff, his parents and other relatives about learning difficulties the plaintiff has had since the accident which on the plaintiff's case persist to today.The plaintiff's case is that he suffered an injury to his brain in the accident and that has adversely affected his ability to learn and retain new information.
Mrs. van Eeten qualified as a teacher in 1969.She has taught at high schools in Modbury, Mount Gambier and Millicent.For the past 14 years she has taught history and art to pupils in Years 8 to 10 at the Tennyson College in Mount Gambier.Her husband, the plaintiff's father, is also a teacher.He qualified in 1961.His principal subject is art but he has also taught science, history and geography.He has been teaching at the Tennyson College for the same period, 14 years, as Mrs. van Eeten.I accept that by reason of their training and experience both of them have been better equipped than most parents, in relation to one of their children, to assess a child's ability compared with that of his peers to cope with schoolwork, although I do not entirely discount the quite natural tendency of a parent to have high expectations for his or her child.
Mrs. van Eeten said that except for an operation when he was about three weeks old to correct pyloric stenosis the plaintiff's development was normal and prior to him starting school at Moorak Primary at the age of 5 she and her husband had spent time instructing him so that he had a basic understanding of words and numbers.She described the plaintiff to be a normal little boy who did not appear to her to exhibit any difficulties with his memory or to be moody.She said that she was not aware of behavioural problems when he was at play-school or kindergarten and he was physically active and well co-ordinated. She said that during the plaintiff's first year at primary school (and, as I understand her evidence, also during the first few months of the year in which the accident occurred) he made good progress, he related to other children, he did not appear to have any particular difficulty in coping with any part of his schooling, none of his teachers drew anything to Mrs. van Eeten's attention about the plaintiff's school work and he appeared to be enjoying school.
Mrs. van Eeten related that after the plaintiff returned to school full-time following his accident she was concerned how he would cope with the school work he had missed.She said she did not immediately notice any problems, but during the year (I think she meant 1982) the plaintiff continued to have nightmares at times, he was frequently bed wetting (which went on for a long period of time) he was becoming distressed about going to school and she was told by one of his teachers that his learning ability was not what it had been before the accident.She also noticed the plaintiff had lost confidence, he had difficulty with problems, started to dislike school, did not seem to relate as well to other children and "... it was some time after that a bit, there was quite a bit of time elapsed, it became clear that he wasn't reading or - he wasn't coping with the fundamentals.But obviously there was some time before that became really clear, it wasn't immediate.It was really over a period of years that it became clear.He didn't resume with the same enthusiastic vigour" (pages 82/83).
During 1983, the plaintiff exhibited extreme emotional reactions to minor misfortunes which befell Mrs. van Eeten.She arranged forthe plaintiff to be examined by Dr. G.H. Purdie who performed an EEG.In his report dated 19th October 1983 (Exhibit P2) to the plaintiff's solicitors, and after recounting a history which is substantially that given in evidence by Mrs. van Eeten, he wrote:-
"In my opinion, this young lad as a result of his accident, suffered a moderately severe concussive head injury with a period of unconsciousness of up to half an hour.Initially there was a period of pre-traumatic amnesia of several hours in that Daniel was unable to recall any events of the morning of the accident but this has gradually resolved such that he is now able to remember his actions almost immediately prior to the moment of impact.The duration of post traumatic amnesia was much more difficult to define, as I was unable to get direct answers from Daniel about this problem.However it seems likely that it was of less than a 24 hour period.
Daniel's complaints since the accident include several panic reactions and the more recent brief episode of loss of consciousness.I would entirely agree with Dr. Foley that the former symptoms are emotionally based and his behaviour not uncommonly follows an accident of the nature and severity sustained by Daniel in March, 1982.I would also agree with the suggested prognosis.It is difficult to be precisely sure of the nature of the episode of loss of consciousness, but on the evidence provided, I would favour a simple faint.
From the neurological point of view, I consider that Daniel's condition is stable.Subsequent to the head injury, there has been a decline in scholastic performance, and it would seem that there could be several factors contributing to this situation.However despite the absence of focal neurological signs, I feel that the head injury has been a contributing factor to this decline and the abnormal E.E.G. certainly provides some support for this contention.I would expect a gradual improvement in scholastic performance and overall I think it very unlikely that he will have any permanent sequalae from his head injury."
Mrs. van Eeten said that when the plaintiff was in Year 3 (1983) his writing deteriorated to an illegible scrawl and he was struggling with reading and maths.She had come to the view the standard of teaching at the school was bad but she found it hard to decide how much that contributed to the plaintiff's problems at school, as she perceived them, and which a teacher described to her as the plaintiff "not making good progress".She made enquiries at the plaintiff's school, was dissatisfied with what she was told and asked that the plaintiff be tested by a "psych" officer in the Education Department.She said that was done in March 1984 and again late in 1985 by a Mr. Jeremy Slater.
A copy of Mr. Slater's report dated 3rd December 1985 is contained in Exhibit D13.It includes the following passages:-
"I found Daniel to be a child of average intellectual ability (WISC-R) with a significant spelling difficulty.While Daniel's performance in the diagnostic arithmetic and reading tests was poor, this would appear more attributable to performance anxiety rather than any particular learning difficulties.
I have recommended to his teachers that remedial assistance be provided in the spelling area focussing on the development of visual spelling strategies to supplement the auditory strategies that Daniel already possesses.I have also mentioned the need to de-emphasise speed and accuracy in favour of appropriate effort and care in school work.In this way, I hope to alleviate the anxiety which is currently preventing Daniel from performing at his ability level.
Daniel's experience of his peer group at school is an unpleasant one.This does require attention from the school staff, but I understand that Mr. and Mrs. van Eeten are currently considering a change of school for Daniel.This aspect of Daniel's schooling will require monitoring in the future.
There are no indications in my current assessment, nor in my previous assessment (8/3/84), to support concerns that Daniel's difficulties at school are associated with possible brain damage and/or dyslexia."
In 1986 Mrs. van Eeten arranged for the plaintiff to be transferred to Reedy Park Primary School to continue his education.He entered Reedy Park in Year 6.
The plaintiff's memory of his years at the Moorak School after his accident is sparse.He said he had difficulty in grasping concepts he had missed "especially in mathematics and English" and that he had a lot of extra help from his teachers during school, particularly with reading and spelling.
Mrs. van Eeten said that a stammer the plaintiff had developed some months after the accident was still present when he began school at Reedy Park and she described he had become a "whimp", that is he was easily intimidated by other school children, hehad very low esteem and he was emotionally frail.
Mrs. van Eeten related that at Reedy Park the plaintiff found very supportive teachers; he began to try very hard with his school work and he was progressing.He was encouraged in athletics by a teacher under whose guidance the plaintiff developed to be a very fine runner and ultimately led to the plaintiff winning a State championship.His success in athletics bought about increased self confidence which helped his personal growth.However as to his school work Mrs. van Eeten's evidence is that in his first year at Reedy Park (I think the plaintiff would then have been aged 11 years) and although his writing improved she realised he was not processing information very well - she said it was necessary to repeat several times and explain a question or problem set in school work and his reading ability showed very slow progress even though she, other members of the family and teachers were helping him with his reading.She was concerned about his slow progress and in September 1986 she took the plaintiff for a consultation with Dr. Jeffrey Bollard, a clinical psychologist.
In a report dated 2nd January 1987 (Exhibit P3) Dr. Bollard records that he interviewed the plaintiff and Mrs. van Eeten on two successive days, 3rd and 4th September 1986, and subjected the plaintiff to what he termed "a comprehensive battery of psychological tests in order to measure (the plaintiff's ) general cognitive ability levels of scholastic attainment and personality".The plaintiff was then 11 years and 4 months old.Dr. Bollard's report refers to or summarises the information he had received.Dr. Bollard reported the results of the Wechsler Intelligence Scale for Children to be that the plaintiff's level of general intelligence "fell within the high average range", but a series of tests brought him to assess the plaintiff's reading, spelling and arithmetic abilities to be about two years below the plaintiff's chronological age.He judged the plaintiff's visual and auditory short term memory to be normal but his ability to learn new verbal material (the Rey Auditory Verbal Learning Test) was equivalent to that of an average six year old which Dr. Bollard described as a severe impairment in that respect and possibly "a legacy of the head injury" commenting , "In weighing up the evidence I believe it is possible that the head injury itself has contributed to Daniel's performance (viz. school performance) however this is only one of several factors involved, the others falling into the "emotional" category". He identified the plaintiff's complaints of panic attacks, excessive fear for the safety of others, difficult relationships with his peers, a deterioration in school performance and an exacerbation of a bed-wetting problem as constituting an acute post-traumatic stress reaction.He recommended therapy to arrest bed-wetting and also extra tuition in the plaintiff's schooling, concluding:-
"I find it difficult to say with certainty whether Daniel will be left with any permanent disability as a result of his injuries.I would expect his panic attacks and excessive concern about safety to resolve with the passage of time, however his learning difficulties are more of a worry.There is little evidence of improvement in Daniel's scholastic performance in recent times.He should respond to more intensive remedial help in the future but if his current rate of progress at school continues, the long term affects of the accident could be substantial."
The plaintiff entered Grant High School at the age of 13 years.It is apparent from his evidence that he excelled in sports.He also said he participated in school theatre and did community service by assisting with Meals on Wheels.His stutter all but vanished in his early years at high school but he related that he found he became lost or confused during oral instruction from his teachers, particularly in history and mathematics as he remembers, which he expressed in these words (page 26):-
"Often when something might have been said, or a comment was made, if I wasn't - if I didn't hear correctly, or I didn't hear exactly what I thought I did, I was very easily confused about what I heard, or what I did hear."
and he described himself to be a very slow reader while at high school unable to read "comfortably" and "unable to read for long periods of time without losing concentration".His memory is he spent a few months in a special education English class.The plaintiff said he also joined the school band but found learning to read music very hard, labouring along at half the reading speed necessary to be an accomplished band musician.However he did learn to play the guitar by ear and with that skill he has become a member of a small group which plays at pubs and clubs.
In July 1992 Dr. Bollard reviewed the plaintiff.The same or similar tests to those administered in 1986 were carried out.Dr. Bollard's report dated 28th September 1992 contains these passages under the heading "Summary and Recommendation".
"I remain of the opinion that Daniel suffered a significant emotional reaction as a direct result of the motor vehicle accident in 1982.Fortunately, most of his earlier problems (viz. panic attacks, excessive fearfulness about safety, social reticence, etc.) have ameliorated with the passage of time and he now presents as a delightful well adjusted albeit self-effacing teenager.
It is also clear from formal psychological testing and school reports that Daniel has a specific learning disability.The question arises as to the extent to which this relates to the effects of his head injury as opposed to a developmental disorder.Because of his age at the time of the accident it is difficult to know whether he was exhibiting features of a specific learning disability beforehand but on the evidence made available to me by the parents, there is no reason to believe he had a pre-existing learning disability. Daniel suffered a head injury as a result of the accident and on the available medical data (including the periods of unconsciousness and amnesia) this would appear to have been significant although not severe.Data from formal psychometrics on this occasion confirm he has a solidly normal general intellect but his formal learning appears to have been hampered by problems of memory, the latter being a possible legacy of the head injury.There is some confusion from previous reports as to whether or not Daniel has a normal EEG. It is felt that a formal neurological review and further neuro-psychological testing may shed more light on the issue of brain impairment resulting directly from the head injury."
In December 1992 the plaintiff was examined by Dr. Burrows a neurological physician.The report of his examination is dated 10th December 1992 (Exhibit P5).After recording the history he was given and referring to the reports he had read Dr. Burrows wrote:-
"Neurological examination:He was appropriate in mood and intellect, was of quiet, apparently self-confident demeanour.Examinations of the cranial nerves:sense of smell was well-preserved bilaterally, the visual acuity, optic fundi, pupillary responses, ocular movements and facial sensation and movement, the bulbar and cranial nerves were normal.Gait and stance were normal and motor and sensory examinations of the limbs were normal.
An EEG was performed and the report is attached.The mild non-specific generalised dysrhythmia displayed a pattern observed in a significant number of normal individuals and is here without clinical significance.There were no focal or epileptic disturbances.
COMMENT:It appears the primary closed head injury of the injuries from 18/3/82 was of mild to moderate severity.The general quality of his neurological recovery is excellent and in the clinical setting there is no specific indication of focal central nervous system or spinal injury and it appears likely that the educational difficulties and the limited language skills that Daniel van Eeten displays are unrelated to the head injury, however, this aspect is being assessed by the clinical psychologist, Dr. M. Wood."
Dr. Burrows recommended that the plaintiff undergo a MRI scan of the brain. That was done and in a supplementary report dated 19th January 1993 Dr. Burrows after reviewing the films stated he had no reservation in accepting the report which read "normal intracranial study and no specific post-traumatic abnormality seen".
At the request of the plaintiff's solicitor Dr. M.M. Wood, a psychologist, assessed the plaintiff on 15th January 1993.Dr. Wood carried out intelligence and memory tests.In his report dated 16th March 1993 (Exhibit P4) Dr. Wood stated that the plaintiff had a learning impairment.His report concluded:-
"In summary, Mr. van Eeten suffered a closed head injury when he was 6 years of age which resulted in a loss of consciousness which has been variously estimated as being up to half an hour in duration.His anterograde amnesia was of up to 2 days, but may have been shorter in duration.He also suffered physical injuries which have been described in other medical reports.From his mother's statement it would appear that there was a deterioration in her son's academic achievement after the accident.Prior to that occasion he is reported to have had normal development without any sign of any difficulty in coping with school.
There seems to be little doubt that in the period after the accident Mr. van Eeten had difficulty in adjusting at school which was only alleviated when he changed schools.This is not an unusual consequence of a serious injury in children.The impaired learning is not related to any adjustment problems which Mr. van Eeten may have had at school, but reflects demonstrable and reliable characteristic.The deficit in learning could result from the head injury or may reflect a pre-existing condition.In view of the reported normality of Mr. van Eeten during grade 1 and the absence of any supporting evidence of a development problem, the head injury is the most likely cause of the learning impairment.It may be worth obtaining the opinion of a neurosurgeon with extensive experience of childhood head injuries such as Professor Simpson."
In 1993 the plaintiff repeated his Year 12 schooling to try to achieve a better mark than he achieved the first time, his ambition being to study graphic art.His subjects were design, media studies, art and geography.He did obtain a better result, sufficient to qualify him to apply to undertake graphic art studies; he decided not to pursue that but rather to get out into the work force to earn money.Toward the end of 1993 the plaintiff came to live in Adelaide with his sister Emma and her husband Simon Brownrigg , a plumber, who employed the plaintiff as a labourer for a few months.The plaintiff decided to become a plumber.He enrolled full-time in a 12 month pre-vocational course, part way through which Mr. Brownrigg gave him full-time work.The plaintiff said he had difficulty concentrating for a long time during lectures in his pre-vocational course but he completed the course passing some ten written, oral and practical tests.He obtained an apprenticeship with Mr. Brownrigg and beginning (as I understand) in 1995 he embarked on training and study for qualification as a plumber which he expects to complete in January 1998.
Mrs. van Eeten said that the plaintiff's years at Grant High School were "a tough haul" because he progressively needed more help with school work in the evening to understand by repeated explanation the set question; her description of what she perceived was that the plaintiff "when he was confronted with problem solving ... really would not be able to absorb information ... in the way that a normal child at those ages would.He just couldn't process it". She described that the plaintiff worked incredibly hard at his studies for little result, that his reading was very faltering without full comprehension, his written composition had poor sentence structure and his spelling was shocking.Her own judgment, by the time the plaintiff was in Year 10, was that he would not be capable of matriculating in Year 12 and he should therefore avoid what she termed high stream academic subjects.A choice of subjects to bestudied by the plaintiff in Year 12 was made but because of a time-tabling error he chose accountancy as one of his studies, a subject in which he failed dismally achieving only one mark out of a possible twenty despite after-hours tuition by a teacher colleague of Mrs. van Eeten.Her observations of the plaintiff more generally were that in his last years at high school the plaintiff became moody and uncommunicative to her about any problems he had; however she said he had self confidence and made good friends among those at school with him.
In each of the subjects the plaintiff studied in Year 12, and his repeat of them in his final year at school, the plaintiff was assessed under the SES system, that is, unlike a matriculation student, he was not examined at the end of the year.On completing his final year the plaintiff was furnished with a school reference, some of the contents of which were put to Mr. van Eeten in cross examination.The reference described that the plaintiff was well motivated and enthusiastic in his studies with a positive attitude to his work, had demonstrated skills as an independent learner with a well organised study routine and effectively managed his time to complete tasks, all of which Mr. van Eeten agreed were appropriate descriptions of the plaintiff on those topics.However in relation to matters contained in the reference concerning the plaintiff to the effect that he communicated effectively in writing, and presented logical, concise and clear arguments, Mr. van Eeten for reasons he gave either did not agree with them or qualified his agreement.He also explained, in connection with school references of this kind, that teachers are told they are not to include in them anything negative about the student; that the reference is an assessment of the particular student's performance measured against his particular abilities rather than a comparison with his peers and as to the students oral or written skills if a teacher can "basically understand what a person is saying or writing, it can be accepted that that person has reasonable communication skills" (p. 167).
The author of the reference was not called; I make no criticism of the defendant on that account, but I do not place much weight at all on the content of the reference having regard to Mr. van Eeten's challenge to parts of it.
The trade school component of the plaintiff's apprenticeship entails full-time attendance at school for two continuous weeks on four occasions each year.The plaintiff said that each two week period involves the study of two or three subjects, the subjects are different from those studied in the previous two week period and at the end of the period students are examined in each subject. The plaintiff said that during these two week school courses he studies every night for two or three hours.So far he has failed an examination in only one subject, design, which he will attempt to pass this year.He described that subject to be (page 31) "about putting stat work or drains to a multi-storey building and labelling all the requirements and legal depths and lengths that we were supposed to use in that particular building ... there was a lot to remember and it was only covered in a short period of time and I found it very hard to take it all in at once".He said the course subjects entail a lot of reading to absorb information to be remembered and he has found it hard to remember exact distances, heights or levels related to the plumbing requirements "apart from reading them over and over again and actually doing them in practice".
The plaintiff described that early in his work for Mr. Brownrigg he found difficulty in understanding instructions given to him for tasks he had not done before.His own assessment is that in 1995 there were only minor problems - using a wrong sized fitting for a job, not knowing exactly which way to use a fitting, or being unsure about what to do and leaving the task until he could seek assistance - but he said that with constant practical experience he is able to remember more and to do more without referring to others for help or having to stop and try to find the answer.He said he used to be, but is no longer, hesitant about asking for help because "sometimes I wasn't sure whether they had actually explained it to me previously or I had mis-heard".He said there had been one or two jobs that he did incorrectly and which had to be re-done, but he is now working with a lesser degree of supervision than used to be the case and he makes notes for himself which help him to remember the tasks he is given for the day by Mr. Brownrigg.He now considers he knows enough about his trade to discuss with a builder or developer aspects of the plumbing work to be done.His ambition is to set up in business as a plumber on his own account.
Mr. Brownrigg is a master plumber a qualification he has held for approximately 15 years as I calculate.As an employee in his trade he progressed through leading-hand to foreman then to project manager on large commercial contracts. He said that in those several positionshe has been involved with up to fifteen apprentices in various stages of their training. Since 1992 he has been in business on his own account.He employed an apprentice who left him in mid-1994 and he was then able to employ the plaintiff whom he first met in about 1991.It was Mr. Brownrigg, apparently, who suggested to the plaintiff that he undertake a pre-vocational plumbing course.
Mr. Brownrigg described the plaintiff as very conscientious and keen to learn his trade.He said he has observed that the plaintiff has difficulty in grasping new tasks or remembering tasks he has not done for six months or so - "he has to repeatedly be shown and almost be led or coached into understanding the task and how to go about it" and in relation to work of a kind the plaintiff has not performed for some months "... there is a problem of him rekindling or remembering the ways that all the keys have to come together for the task to be performed".In his experience, when he has given the plaintiff oral instructions about a task, (page 218):-
"... quite often when an instruction is given to him you will almost get a blank, sort of vague look to which you can read that he doesn't understand what you are saying.Quite often you then have to go into quite detailed description of what you want him to perform.Quite often that then leads to having to physically show him how it needs to be done, and on occasions it has sort of been "Look, you stand there, watch me do it and then hopefully you will understand it" and then on occasions the second time when I expect him to then know after being shown what the process of the work should be done, he will still have trouble grasping it, but on the third and fourth occasion, if the work is being repeated, almost like parrot fashion, he then takes off and can run with that quite well."
He said he finds he has to repeat instructions to the plaintiff more often than he would to others of the plaintiff's age and experience.The plaintiff is in the third year of his apprenticeship; Mr. Brownrigg judges that "he is not up to the level that he should be and if I had to equate it to a percentage I would say he would be 75 percent of where he should be at this stage".
Mr. Brownrigg said he had noted that the plaintiff is very slow in reading job specifications; the plaintiff has told him he needs to read each page twice, explaining to Mr. Brownrigg he had to read "once to read what is written and then the second time to actually understand what it's trying to tell me".The work of a plumber, Mr. Brownrigg explained, requires the finished job to be visualised before work is begun - the positioning of the pipes, the placement of traps and junctions must be planned and conform to the regulatory requirements.He said the work frequently involves laying the plumbing system by constructing it from each end to meet at some appropriate point along the route.He spoke (page 222) of the plaintiff seeming "to have a lot of trouble in visualising how we start at A and get to B.When helped through it he can visualise it quite easily ...".He exampled "... this one particular house I had put him on and he had started the house himself and worked through it.On inspecting the work he had spent eight hours doing, I would have equated that to perhaps two hours of actual productive time so there's been a lot of time - I asked him, I said "How did you go working it out?" and he said "I had a lot of trouble working out from the trap in the middle of the floor just how I was going to get the junction with the right fall to get to that point". There is a problem in conceptualising how it's all supposed to go together".
Mr. Brownrigg also said it seemed to him the plaintiff has difficulty in using street directories to find his way to a job site, that he becomes flustered if put under pressure in his work and when out doing a job on his own he frequently telephones Mr. Brownrigg asking for advice upon a problem he has encountered and (Mr. Brownrigg related), the plaintiff confessing to him an inability to understand the solution given to him over the telephone, Mr. Brownrigg has found it necessary to go to the site and show the plaintiff what to do whereupon "(the plaintiff) realises that it was a commonsense thing that he had to do".
Nevertheless Mr. Brownrigg acknowledged that he is assigning the plaintiff more tasks to accomplish on his own and the tasks are becoming more complex as the plaintiff gains experience - he has confidence in sending the plaintiff to do work he has mastered "parrot fashion" but with a caveat the plaintiff be able to contact him.
I think Mr. Brownrigg is probably setting a very high standard for the plaintiff, judging him against his own apprenticeship experience which he described to be "... when I was a third year apprentice I was out running my own job with supervision very minimal; quite often I would see a supervisor from the company I was working for once every second or third day" agreeing that in a small business like his own there is a necessity to send an apprentice out alone to "throw them in the deep end".However Mr. Brownrigg impressed me as being frank and honest in his assessments of the plaintiff's abilities.I do accept the substance of his description of the plaintiff's shortcomings, although I must say my own assessment of the plaintiff in the witness box, and the effect of his evidence, is that he is an intelligent and determined young man who will persevere to overcome his "slowness" as I will term it for the moment.
Mr. Brownrigg, against the background of his own employment in a large plumber's business before starting his own business, said this on the topic of whether the plaintiff would have "any particular difficulties working for a large plumbing organisation":-
"I think so because primarily in a company like mine there's a one on one and a pretty close relationship with myself and Danny.I guess I've had a bit of interest in him being a member of our family, my immediate family, and a lot of leeway has been given in his training.I think in a larger organisation where performance is geared to more of a dollar figure personalities don't really come into it, I think he would really struggle with someone wouldn't be as kind as I would be to him."
I am satisfied from the evidence of the plaintiff, his parents, Mr. Brownrigg and the other lay witnesses that the plaintiff does have difficulty in readily understanding written or oral information newly presented to him and comprehending and absorbing it requires much repetition by or to him; particularly in his work, practical demonstration aids his learning.It is I assess a slow process but once learned and provided he can put it into practice at not too infrequent intervals the plaintiff as I understand Mr. Brownrigg's evidence can carry out the work of a plumber.
I turn to consider the evidence of the three psychologists who gave evidence;
ù Dr. Bollard who practices in the field of neuro-psychology;
ù Dr. Wood who is an associate professor of clinical psychology in the University of Western Sydney, a visiting fellow in the Australian National University and who holds, among other appointments, the position of Head of Psychological Services for the Fairfield and Liverpool Area Health Services;
both of whom were called by the plaintiff and:-
ù Mr. Anthony Walsh a clinical neuro-psychologist who was called by the defendant.
Dr. Bollard said that by the date he assessed the plaintiff for the second time (in July 1992) he had information from which it appeared to him that memory was a significant component in the difficulties the plaintiff was reported to be having, and he probed that faculty in more detail than on the first occasion.
Dr. Bollard and Dr. Wood have reached essentially the same opinion following the numerous tests which each of them conducted.Dr. Bollard by reference particularly to the REY auditory verbal learning test (but in the context of all his tests) said (page 123):-
"... it highlighted that Daniel had a difficulty with memory but a more specific with verbal memory and that that difficulty was more evident the more complex the task becomes.That last bit is relevant for all of us.Obviously the more demanding the task is, the more each of us would struggle but his performance of difficult or demanding verbal memory tasks was disproportionately poor to that on simple tasks."
Dr. Wood who assessed the plaintiff by various tests he carried out in January 1993 expressed the opinion that the plaintiff has a mild impairment of learning.He administered the Wechsler Intelligence Scale; the plaintiff's result was an overall IQ of 105, a verbal IQ of 96 and a performance IQ of 110. In his opinion the difference of 14 points between verbal and performance quotients is statistically highly significant (page 184):-
"... in the sense that it is likely to occur by chance in the population of less than 5%.That of course doesn't rule out such a chance, but it is an unlikely event.It is a robust finding in that Dr. Bollard had found a similar difference on two occasions using a different but allied scale.He used the Wechsler intelligence scale for children and he found a difference of around about the same magnitude.So it does appear on looking at those tasks that the person's processing of verbal information is less efficient than the processing of visual and spatial information.That is consistent with the deficits, in my opinion, on verbal memory which in my testing I detected on two separate tests."
He explained (page 185) mild impairment of learning to mean:-
"I mean that it is in a sense quantifiable but it isn't a major - it is more, it is beyond the realms of a chance event, which would be 5% and it is more likely to be a clear, well - I am lost for words.It is not one which will severely incapacitate the individual in every day life, but in the tasks of learning, particularly by verbal means and most instruction is carried out verbally, then the individual may have difficulties in recalling instructions and in remembering to follow instructions, particularly if they are complex, or particularly if there is some form of interference or interruption.So it is not something one would expect him to be in need of care or someone looking after him, it is just simply saying that I would expect him to be slower and have more difficulty in scholastic tasks or any task which was based upon normal instruction."
Dr. Wood had earlier said (page 181) that "one has never said in the case of Mr. van Eeten, or indeed in most patients who have got memory impairment, that they cannot learn.It's just that they don't appear to learn as rapidly or as effectively as other individuals", and (at page 188) his view is that once the plaintiff has absorbed the new information use can be made of it like any other person although were the plaintiff to set about a task of a kind he had not performed for a period of time he may well have difficulty in "recalling" what needed to be done.Dr. Wood adhered to his opinion set out in his first report that "this mild impairment may reflect the pre-existing condition of a developmental nature or it may result from the effects of a closed head injury in a six year old child.In the absence of evidence to the contrary I am inclined to the view that the head injury is the most likely cause of the impairment".
Dr. Bollard's view was that a difference between verbal and performance IQ quotients is statistically significant only where the difference is 15 to 20 points.
Mr. Walsh's position is that a difference between the verbal and performance IQ scores is useful as part of an assessment only when the difference is very large and that the scores recorded by Dr. Bollard and Dr. Wood were not, as Dr. Wood described it, "highly significant" (P. 298).
Mr. Walsh explained what is meant by verbal and performance IQ (page 245):-
"A. The concepts of verbal and performance IQ were developed along with the particular intelligence scales which Wechsler has developed for both adults and children, and the two scales which have been used in these assessments have been the WISC-R, which is the Wechsler Intelligence Scale for Children, and the WAIS-R, which is the Wechsler Adult Intelligence Scale.The concepts of verbal and performance IQ have been statistical concepts which have arisen from the analysis of those scales, those tests.The verbal IQ is measured by a series of tests which largely are tests of verbal thinking, and the performance IQ is measured by a series of tests which are somewhat more visuo-spatial, or visual and more timed.More of the tests in the performance IQ scales and timed tests.So, there's also a speed component that's more strongly associated with the performance IQ.The concepts of performance and verbal IQ are somewhat outdated concepts and are statistical concepts, but they can be used as a rule of thumb to assist in making a diagnosis, but they are such broad concepts and they have been found over the years to be not very pure concepts; in other words, there are aspects of verbal reasoning in the performance IQ tests.
Q. How do you explain the difference between them to a layman.
A. I would say that, to a layman, they are almost of - they don't have very much value and they don't really have such a clear-cut concept associated with them that you can use them with any confidence.
Q. I'm not making myself clear.By what procedures does one arrive at a verbal IQ.What do you do with a subject or do to him.
A. There are a series of - I think there are six sub-tests in the verbal IQ scale.One of them is a test of general knowledge, another one is a test of their ability to abstract verbal information, to see differences and similarities between ideas, another one is the ability to repeat numbers presented to them, another one is the test of their vocabulary, their knowledge of words, and the other is a test of social comprehension.
Q. So, one is like an oral examination.
A. The whole of the - yes, it's an oral examination.
Q. The performance IQ, that is by trying to put pegs in holes or something similar, is it - a physical test.
A. Again, there are five tests which largely are where you use your hands and your eyes more than your mouth."
There was a great deal of evidence given by Mr. Walsh and Dr. Wood concerning the significance of the difference between these two IQ components, including the recalling of Dr. Wood for further examination on the topic, some of which revolved around the fewer number of tests applied to the plaintiff by Mr. Walsh in a particular group of tests comprised in WAIS.Each of them adhered to their views on the value or weight of the comparative difference between verbal and performance IQ.I do not find it necessary to resolve their disagreement for the purposes of this case, even if I could.
Mr. Walsh drawing on the tests he administered to the plaintiff when he saw him in June 1995 including the REY Auditory Verbal Learning Test, in all of which he said the plaintiff performed well, said the plaintiff does not have any impairment attributable to a brain injury.
In his report dated 3rd July 1995 (Exhibit D7) Mr. Walsh wrote:-
"Mr. van Eeten suffered significant emotional distress after the accident.He reports significant symptoms which are consistent with post-traumatic stress disorder.There were problems at school, and Mr. van Eeten changed schools as it was apparently thought that the quality of teaching and the school's ability to protect him from teasing and harassment by other school students was inadequate.He apparently improved significantly with the change of school, though he has continued to have some problems with reading and arithmetic.
I am unsure of Mr. van Eeten's abilities prior to the accident, as I have not seen school reports prior to 1982 (the year of the accident).However, Dr. Bollard (report dated 2 January 1987) has noted under the heading "Premorbid level of functioning" (on page 2) that "he exhibited slight difficulty with reading ...".
Previous assessments by Drs Bollard and Wood have demonstrated some problems with recent auditory verbal memory.However, on this occasion there was no difficulty demonstrated.His performance was normal.Previous assessment by Dr. Wood had demonstrated problems with verbal fluency.On this occasion Mr. van Eeten's verbal fluency was excellent.As Dr. Bollard and Dr. Wood have both assessed Mr. van Eeten well after the time that any neurological recovery would have taken place, the inconsistency in these assessments is difficult to attribute to an organic cause.
I am inclined therefore to the view that the problems noted following the accident largely have an emotional basis.It is my view that Mr. van Eeten appears to have had mild language related problems prior to the accident which were exacerbated by emotional distress and a less than adequate environment at school until he transferred schools.
Since then, patient work by his parents and teachers have helped with both his emotional and premorbid learning difficulties to the point where these are now not demonstrable on neuropsychological assessment.The formal neuropsychological assessment conducted here does not support an organic hypothesis.This is consistent with EEG and MRI results."
In those passages Mr. Walsh referred to the plaintiff appearing to have had "mild language-related problems prior to the accident".That was a reference to a comment made by Dr. Bollard in his first report (P. 3) in which he wrote, concerning the plaintiff's pre-accident history, "According to the parents, (the plaintiff's) initial progress at school was normal.He exhibited slight difficulty with reading but was mastering the other skills well and was thought to be a bright little boy".Mrs. van Eeten accepted that she must have said something to that effect to Dr. Bollard.She was asked in cross-examination whether, before the accident, she may have noticed the plaintiff was having slight difficulties with his reading.She said "Yes.He didn't read as fluently as Joel.It would have been said in that context.It wouldn't have been said in the context of it manifesting itself as remedial reading" and it was not a major concern.Mrs. van Eeten was not further pressed on the topic and no questions about the matter were put to Mr. van Eeten.Mrs. van Eeten's evidence as a whole about the plaintiff seemed to me to be measured, and, even given her relationship to the plaintiff, apparently objective.Therefore I have no reason to reject her explanation as to the context in which she said she told Dr. Bollen about the plaintiff's pre-accident reading abilities. Accordingly there is no evidence to suggest that before his accident the plaintiff was exhibiting difficulties in acquiring reading or other skills, appropriate to his age, which would account for his scholastic difficulties after the accident.
Questions to Mr. Wood in cross-examination, postulating that the plaintiff has difficulty in visualising the end result of work to lay pipes, traps and vents in a pattern of some complexity, and that oral instructions concerning a new task have to be often repeated before he understands, resulted in this exchange (page 257):
"Q. In the scenario put to you a moment ago by his Honour, why is the reported difficulty of the plaintiff in that situation inconsistent with your test results.
A. Because, on all of the tests that have bearing to that particular ability from the point of view of assessing brain injury, he has performed well.
Q. But wouldn't you expect that some of the components involved in his attempting to visualise this concept would be as a result of verbal information that's provided to him, as well as perhaps written information.
A. I didn't have any - on the verbal tests that I've given to him that are relevant to this particular concept, I didn't find any - when I said that, I didn't just - when I gave my answer, I wasn't just referring to a particular test or tests or performance IQ, as has been ascribed before.I was looking at all of the tests that I have performed.I don't find any support for the hypothesis that this problem reported by the employer is one which can be attributed to brain injury.
Q. If the employer's evidence also was that he notices very regularly the fact that when he gives or provides new information, or information about a new task orally to the plaintiff, that he has to repeat it on a number of occasions before it seems that it is appreciated and understood, that scenario would be consistent with a person who produced results in the Rey auditory test that had been assessed by Professor Wood; would you agree.
A. Yes, that's consistent.
Q. Is it possible you have misinterpreted the results of that test with regard to this patient.
A. The results of my test?
Q. Yes.
A. No.
Q. The Rey auditory verbal learning test, is it possible you misinterpreted it.
A. No.
Q. Is it possible you misrecorded the results.
A. No.
Q. Given that you can see, on what you know of Dr. Bollard's report and testing and Professor Wood's testing with regard to that particular test, that your results are diametrically opposed - perhaps that is put it too high.
A. They're different.
Q. They are different in the sense you could not find any abnormality, and their test results suggest there is an abnormality.
A. That's correct.
Q. Given your answers to my last question, are you able to give any explanation for that.
A.Well, there are many reasons why a person can -well, when a person can do something, they can do it.When they can't do it, there are a whole range of reasons why a person might not be able to do it.And the hypothesis that I have put forward is that there has been either - I think the most likely explanation that I've put forward is that he has experienced emotional distress which has had an ongoing effect on his ability to maintain his concentration, and that this is a very different problem from a verbal memory loss from brain injury.Other explanations are that he was not feeling very good on the day, that he didn't get along with - he wasn't as confident in his sessions with Bollard or Wood; that he was malingering, which I am certainly not putting forward as a strong hypothesis here.But there are many many many reasons why a person performs poorly.There are far fewer reasons why a person performs well, and if a person performs well then they can do the test."
In his report dated 16 January 1996 Mr. Walsh set out his response to Dr. Wood's comments (on 21 November 1995) upon Mr. Walsh's report.
"My own assessment in 1995 has demonstrated largely normal results.Dr. Wood believes that practice effects are one of the likely reasons for his improved performance on the Rey Auditory Verbal Learning Test.However, as the word list used by me (list A) has not been used since 1992, or perhaps even 1987, it is my opinion that factors other than persistent cognitive/intellectual deficits caused by brain injury sustained in the subject accident are more likely to be the cause.
It is also important to note that Mr. van Eeten's performance on a test of visuospatial memory was excellent and his verbal fluency was well above average.On the Stroop Test he also performed within the expected range, arguing strongly against any significant problems with acquired dyslexia.
On the basis of this review, I remain of the opinion that Mr. van Eeten does not suffer continuing neuropsychological deficits as a result of this accident. While it may be argued that he had some post concussive effects for a period of 6-12 months after the accident, and may have had post traumatic stress problems for an even longer period, it is my opinion that these problems are now largely resolved, and any continuing problems are likely to have a constitutional basis.Further review of premorbid records would be useful."
He agreed (p. 259) that if the results of his testing of the plaintiff had been the same as those obtained by, for example, Dr. Bollard's application of the Rey Auditory Verbal Learning Test, and the associated learning component of the Wechsler memory scale, he would probably have reached the same conclusion as Dr. Bollard.
The result of the Rey Auditory Verbal Learning Test conducted by each of the psychologists featured as a focus in counsel's testing of the opinions of those witnesses.That test and the Rey Figure Test (said Mr. Walsh) is one that is most sensitive to temporal lobe dysfunction, the lobe commonly affected in traumatic brain injury.Mr. Walsh agreed that the results obtained by Dr. Bollard and Dr. Wood in the Rey test each of them conducted would be consistent with the plaintiff, as Mr. Brownriggdeposed, being slow to absorb and remember oral instructions about new tasks without repetition.
The Rey Auditory Verbal Learning Test was described by Dr. Bollard thus:-
"A. The test involves reading to the subject a list of 15 unrelated words and the subject is then asked to recall as many of the words as he or she can immediately after the first reading.That list of 15 words is repeated on four further consecutive trials and each time the subject is asked to recall as many of the words as he or she can.So it's regarded as a test of new learning, the ability to learn new verbal information, and verbal memory.
HIS HONOUR
Q.15 unrelated words.The patient is then asked to repeat as many as he or she
can.The same list is then given several more times, the same question asked.
A.Yes.
Q. In the expectation that he or she will remember more than he did the first.
A. Exactly.
Q.Are there a number of different lists of words that are used or can be used for the purpose of carrying out that test.
A.Yes, there are three forms, (a), (b) and (c).The format of the test is identical in each case, it's just that the words are different in each list."
He accepted that a recall of 13 of the 15 words after interference (the result the plaintiff achieved in thetest conducted by Mr. Walsh) is a "normal performance on a difficult test of verbal memory", and indicated no impairment. He was asked whether he could explain or offer a reason for the different results Mr. Walsh obtained from those obtained by himself and Dr. Wood.
"A. ... The psychological tests and neuropsychological tests in particular are by no means pure instruments.There is an inherent error of measurement in virtually all psychological testing.That might have contributed to some of the discrepancy between Mr. Walsh's tests and those of myself and Dr. Wood. The other possibility is purely practice effect, that was the fourth occasion at least he's been given the Rey test even though it's over a fairly wide span of time and even though there are different forms of the test, that is the words are different and one is careful not to replicate the form that the child used the previous time , there is a practice effect in terms of the mental set required to actually perform the test.If you can imagine the nature of the test where you're required to recall 15 unrelated words, the fourth time around a person could be expected to be more competent at that task, irrespective of the words themselves.
Q.Why is that in your opinion.
A. Because I think we all develop strategies or a mental set to tackle a task that we're presented with, especially those that we have difficulty with.It's rather like adults with true memory deficits, learn quickly not to trust their memory and keep comprehensive diaries or write notes.There are compensatory strategies that we all develop for those sort of tasks that we're not naturally good at.
Q.It's not the case you say that because the young man is getting older and more mature, he's therefore learned to in some way, accommodate what he recognises to be a difficulty.
A.Yes, in fact you've expressed what I'm mumbling away here trying to say better.Yes I think that is another factor, that with age and maturation he may well have learned to perform a task like that better."
It is the fact that the Rey Auditory Learning Test has been administered to the plaintiff on four occasions, twice by Dr. Bollard and once each by Dr. Wood and Mr. Walsh.It is not clear which of the three lists Dr. Bollard used but Dr. Wood thought (and I have no reason on the evidence to find otherwise) that Dr. Bollard used lists A and B and so Dr. Wood used list C.Mr. Walsh used list A.
Mr. Walsh pointed out that a little more than two years had elapsed between his testing of the plaintiff and Dr. Wood's test, that the word list of Rey he used was different from that used by Dr. Wood and the plaintiff had not been presented with that list since he was last tested by Dr. Bollard three years earlier.He said (p. 238) that in his experience and from his researches "there's no evidence that practice effects of any significance can occur with such a lapse between the original and the subsequent assessment."
Dr. Bollard, in cross examination, expanded on his view about how it could be that a victim of a brain injury which impaired verbal learning could do as well in the Rey Auditory Verbal Learning test as the plaintiff had done in the test administered by Mr. Walsh.
"A. ... even with brain injury all of us develop strategies to compensate for specific impairment and I'm merely suggesting that one possibility, one of several that might collectively account for the differences in test results, is that Daniel developed a type of mental set that made, or aided his performance on that fourth occasion.It's a bit like taking part in a quiz show where there are two components, one having the actual knowledge base and the other one, you know, having the skills to get in first or to show your true colours. What I'm suggesting when I keep referring to 'practise effect' is that there's a possibility that Daniel, by virtue of the fact that he's had this test four times now, has learned a strategy for retaining more information; nothing more.
Q.If that is the case does that indicate that perhaps as he's getting older his development of strategies is on the increase.
A.It may well, and there are other strategies that might help him on other aspects of his future life too, but the point that needs to be remembered is that the toll on the individual, Daniel in this instance, is greater had it not been, or were it not for, a brain injury.In other words if he needs four go's at everything to acquire a certain level of competence compared with somebody who needs one turn, then that really constitutes what illustrates the impairment that he has.
Q. But if he has developed strategies which enabled him to go from how he went on the Wood test as to how he went on the Walsh test, he hadn't improved on this scenario much at all, for the first three tests, but there is a significant improvement on the fourth test.Might that not suggest that between '93 and '95 that his strategies, his maturity is such that we have seen something of a significant improvement.That's equally valid, is it not.
A.Yes, I'd agree with that."
This somewhat different use by Dr. Bollard of the expression "practice effect" was not explored with Mr. Walsh so I do not have the benefit of his views.
Mr. Walsh having concluded that his testing of the plaintiff does not evince that the plaintiff has deficits attributable to brain injury, expanded on his opinion that the plaintiff's reported difficulties with his schooling and learning and his different performance under psychological testing are emotional:-
(Page 261 of transcript)
"Q. When you suggest that one explanation for his performance is emotional, what do you mean by that.
A. Well, I don't think there is any doubt from the description of the injury, his time in hospital, and his period after the accident, that there was a considerable emotional reaction which Dr Bollard has diagnosed as a post traumatic stress disorder reaction.While the overt symptoms of this may have abated to the point where that diagnosis may not be made, it is very likely that those events have altered his ability to be confident, to attend and concentrate in the same way that the original symptoms would have had a much greater effect in those areas.So what I am saying is that my argument is that this is a much more likely explanation given that, on some occasions, he performs poorly and some occasions he performs better.
(Page 266 of transcript)
"A. I see in the reports and the records that I have reviewed that it is noted that there are two things that have happened after the accident.One is that he has quite a significant emotional reaction to the accident, and the other is that there is some evidence of him having difficulty in his education - it wasn't just one - and my view is that, given all of the evidence from various assessments, including the assessment which I've done myself, the argument that there is a brain injury factor of any significance is very hard to sustain and, given the obvious alteration in his personality that would have occurred as a result of the accident and all of the things which have followed it, including the behaviour of the other children at school, the teachers, the caring relation or the caring reaction of people around him, including his family, that this person is now a different person than would have been if this accident had not occurred, and I believe that the emotional component of that is the main reason, rather than brain injury."
After the tests conducted in 1993 by Dr. Wood, the plaintiff improved on his year 12 performance, embarked on and successfully passed the pre-vocational course for training as a plumber and by the time he underwent the tests conducted by Mr. Walsh in June 1995 he had (as I infer) completed by examination one and probably two periods of trade school and had been learning new tasks with his brother-in-law for six months or more;he was also approaching twenty years of age.All of that, in my view, lends weight to the opinion of Dr. Bollard that the plaintiff has developed "strategies for retaining more information", and that, along with the fact that he was being tested a fourth time, likely explains his better performance with Mr. Walsh in the Rey Auditory Verbal learning test.
Both of Dr. Bollard and Dr. Wood clearly had to draw upon their experience and expertise to explain the plaintiff's improved performance when tested by Mr. Walsh.As I have said I accept the substance of the evidence of Mrs. van Eeten and Mr. Brownrigg concerning their separate observations of the plaintiff, and in my view the evidence of the other lay witnesses, his father, his sister and Ms. Dalzell who taught music to him at Grant High, broadly supports their evidence.
Ms. Louise Ambrose-Pearce the plaintiff's girlfriend has known the plaintiff since they were both in Year 12.She and the plaintiff have lived together for approximately 12 months preceding trial and they were close for some two years before that.She said the plaintiff appears to her to become depressed once or twice each month - she described a recent incident when, being unable to afford a particular book he wanted, he spoke of killing himself.Such an extreme manifestation of mood did not emerge in the evidence of any other witness, in particular the plaintiff's parents with whom he lived until the end of 1993 and it appears to me to be contrary to the assessment of the plaintiff's general mental well-being by the psychologists and the plaintiff's own perception of himself.Therefore I think the plaintiff's self-threatening words were merely voicing some passing frustration and they were not, and there is no other evidence to suggest they were, anything more than that.Ms. Ambrose-Pearce spoke of the plaintiff having a bad memory and when depressed being uncommunicative.These observations find parallels in the evidence of Mrs. van Eeten of her experiences with the plaintiff when he lived with her.I think these things are probably manifestations of the plaintiff's difficulties in meeting the challenge of retaining new information in the course of his schooling and work.
I find that the plaintiff does have an impaired ability to quickly learn and retain information conveyed to him verbally and that the impairment is more likely than not a consequence of an injury to his brain suffered in the accident rather than simply an emotional problem that is either receding or being surmounted.It is a mild impairment and it is probable that the plaintiff as he has matured, and by choice or need, been required to accommodate and compensate for his impairment, has found, and will continue to find, ways to reduce its impact upon him.Nevertheless, his efforts in that regard do have an emotional toll upon him.
On all the evidence the plaintiff will successfully complete his apprenticeship.He impressed me as an articulate, intelligent and determined young man who feels increasing self-confidence in his chosen trade.I think he may well have to apply greater effort to succeed than would have been the case absent his impairment, and I am prepared to accept that in that respect he will likely be at some disadvantage in a competitive labour market where his "slowness" will be a draw-back.But his attributes so far as I have been able to gauge them from all the evidence will enable him in due course to realise his ambition to carry on business on his own account, although that may be delayed to an extent by his impairment and his impairment will likely cause him to be at a competitive disadvantage.It is therefore necessary for me to include in the award a component for future economic loss; there is no claim for past economic loss.
Counsel for the plaintiff submitted that the plaintiff has progressed this far in his chosen occupation because of the allowances Mr. Brownrigg has made for the plaintiff's impairment - that in effect he has been in "sheltered" employment.I do not accept that.I have no doubt Mr. Brownrigg has been prepared to spend time in the plaintiff's instruction, probably more time that he may have spent with an apprentice who is not his brother-in-law, but as Mr. Brownrigg said the plaintiff is very conscientious and keen to learn and I infer those attributes have weighed heavily with Mr. Brownrigg to the extent that they have gone a very long way to counter-balance the plaintiff's manifestations of his impairment.
I have considered whether the plaintiff 's impairment precluded, or effectively precluded, him from tertiary studies.Aside from the particular impairment he suffers, his general level of intelligence "fell solidly within the average range" to quote Dr. Bollard.I do not know whether that level is one which, but for his injury, would have equipped him for the rigours of a university under-graduate course or some similar course, and it is not appropriate to merely speculate.
The immediate physical effect of the plaintiff's injuries whilst serious had receded by the time Mr. Lind examined him in January 1983 and without any lasting physical disability.The psychological effect was more long-lasting and did not substantially begin to progressively ameliorate until the plaintiff was enrolled in Reedy Park Primary.Thereafter there was considerable accelerating improvement more particularly as the plaintiff began to shine in athletics in Year 8.In my opinion from in about that year (1988) at the latest, the plaintiff progressed to become a well adjusted and self confident youth who had substantially recovered from his experience, subject of course to the memory impairment I have described and the continuing emotional toll of his striving to counter the effect of that.
I have as exhibit P14 the current plumbers award.It is of some assistance as a guide to an assessment of future economic impairment, but the whole of the evidence does not permit any approach other than what is sometimes termed "broad axe".
Mr. Brownrigg judged the plaintiff's skills and capacities to presently be twenty-five percent less than others at the same stage of his training.As I have said it is not that the plaintiff cannot learn and retain new information, it is that it takes him longer, and by repetition, to absorb it.I have no evidence about the difference in earnings between an employed plumber compared with a self-employed plumber and neither does the award (P14) appear to provide annual incremental increases in pay according to the number of years since the employee completed his apprenticeship.The award stipulates for seven pay groups (plus apprentices) but the difference between the skills or training required for each group was not canvassed in evidence.From the description the plaintiff gave of his training course, and the work he has been exposed to with Mr. Brownrigg, I infer the plaintiff will fall into group 1, the highest pay rate, when he completes his apprenticeship.That pay group is fixed at $532.38 per week gross.
I do not know, and there was no evidence concerning, when it is a fully-fledged plumber could reach the stage of being experienced enough to embark on business on his own account.Mr. Brownrigg took that step about 3<< years after he completed his apprenticeship.In so far as that is any guide at all it is of little assistance, absent any evidence of what, if any, greater remuneration a self employed plumber might earn.However, I think I can infer there is some economic advantage gained by a tradesman conducting his own business rather than being employed for a wage.
From Mr. Brownrigg's evidence, he obtained a position as a plumber "with some leading-hand capacities" (p.229) a little more than a year after he qualified as a plumber.On the evidence concerning the plaintiff's deficits there is a risk he might not achieve leading-hand status, but more likely his achievement of that status will be delayed although once attained there is a risk his performance in the role may make his position less secure than otherwise. Assuming he spent his whole working life as a base grade employed plumber, the loss of opportunity to be a leading-hand would mean a reduced economic capacity of about $1343 per annum gross, or appropriately $25 per week, if responsible for 2-5 hands and $2095, or approximately $40 per week if responsible for 10 or more hands.There is also the prospect that the plaintiff by reason of his impairment may be disadvantaged in opportunities for promotion to higher status, foreman or project manager, and that must be brought to account.
The plaintiff has his whole working life ahead of him.To an extent which it is difficult to assess, his impairment will likely be a disadvantage to him in competing for available work as a base-grade plumber, or affect his prospects of promotion to leading-hand or higher positions, or, were he to set-up business on his own account, reduce his opportunities to secure contracts for plumbing work, but by dint of persistent striving, and strategies, I consider that, as he has demonstrated in the past, he will likely be able to minimise the effect of his impairment on his working career.There are imponderables.
This is a case where a modest Beck v Farrelly component should be awarded.
The graduated scale for non-economic loss prescribed by the Wrongs Act does not apply to this plaintiff's case.I assess the plaintiff's damages as follows:-
Pain, suffering and loss of amenities
Past$25,000
Future$10,000
Economic loss-Future$40,000
Special damages- agreed$4368.35
Beck v Farrelly$1,500
The total is $80,868.35, of which the plaintiff is to recover 90% that is $72,781.50 less $4263.65 already paid by the defendant.The balance is $68,517.85.I will hear the parties on questions of interest and costs.
6th December, 1996
By consent lump sum of $7,330 in lieu of interest .Judgment for the plaintiff against the defendant in the sum of $75,847.85.The plaintiff is to have his costs of the action against the defendant to be taxed if not agreed.
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