Davidge v Victorian WorkCover Authority
[2022] VCC 716
•27 May 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-04415
| JACOB WILLIAM DAVIDGE | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HIS HONOUR JUDGE MISSO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 May 2022 | |
DATE OF JUDGMENT: | 27 May 2022 | |
CASE MAY BE CITED AS: | Davidge v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 716 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – head trauma – organic brain injury – injury to the olfactory nerve – psychiatric injury – whether the consequences of the organic brain injury are “serious” – whether the consequences of the injury to the olfactory nerve, being loss of taste and smell, are “serious” – whether the consequences of the psychiatric injury are “severe” – whether there is a need for disentangling – credit
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013, s335
Cases Cited: Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Judgment: The plaintiff has leave to bring a proceeding at common law.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr W R Middleton QC with Ms K Karadimas | Slater and Gordon Ltd Lawyers |
| For the Defendant | Mr T Storey | Wisewould Mahoney |
HIS HONOUR:
Introduction
1The plaintiff travelled from the United Kingdom, the country of his birth, to Australia in late May 2017 on a working holiday. He obtained employment as a labourer with a building company in Queensland before moving to Melbourne and obtaining employment with AAA Above Group Pty Ltd, also as a labourer. On 17 January 2018, he was standing on the mezzanine floor of a building. He fell through an unguarded void in the floor. He estimates that he fell about 2.5 meters.
2The plaintiff suffered a number of injuries as a result of the fall. Essentially, he submitted that he suffered a traumatic brain injury, and damage to his olfactory nerve, both of which he submitted resulted in impairment or loss of function with consequences which are “serious”. He also submitted that he suffered a Chronic Adjustment Disorder with Anxious and Depressed Mood and with some features of traumatisation which resulted in impairment with consequences which are “severe”.
3The defendant conceded that these injuries are compensable injuries; however, the defendant submitted that none have consequences which can meet the statutory test of seriousness or severity.
The Plaintiff’s injuries
4The plaintiff was taken to the Geelong Hospital by a co-worker. From there he was conveyed by ambulance to The Alfred hospital, where he was admitted as an inpatient for nine days. He had a CT scan of his brain and cervical spine and a plain x-ray of his chest and pelvis.[1] Dr Emma Foster, Registrar in the Neurology Unit at Alfred Health, provided a report dated 10 April 2018 which captures the nature of the head injury suffered by the plaintiff and its immediate consequences:[2]
“… He had significant intracranial and bony injuries, including frontal subarachnoid haemorrhage and contusion, occipital bone fracture extending into the foramen magnum, left sphenoid fracture and T6 superior endplate fracture, occipital fracture, posttraumatic amnesia and C5 superior endplate fracture.
He currently complains of a constellation of symptoms that would be in keeping with postconcussive syndrome including occasional dizziness, difficulty concentrating, ability and fatigue. He has lost his sense of taste and smell and we have discussed the mechanisms of perhaps cribriform plate fracture and shearing of the olfactory nerves with the trauma. It is unclear if this will recover fully again. He also complains of dizzy spells, that are becoming less frequent and less severe. The dizziness comes on for 10 seconds every second day and can occur at rest or on activity. It is not particularly time-locked. Again, this most likely is a part of the postconcussive syndrome and will improve in time.”[3]
[1] Plaintiff’s Court Book (“PCB”) 27-29
[2] PCB 28
[3]PCB 28
5In his first affidavit sworn 17 June 2021,[4] the plaintiff described those very symptoms following his discharge from The Alfred hospital. Additionally, he described pain in his spine, mainly to the right side of his neck, as well as lower back pain. He was referred to the McKellar Community Rehabilitation Centre on 28 March 2018. He had physiotherapy, neuropsychological assessments, speech therapy and treatment from an occupational therapist. He wore a neck brace for about three months. He was not able to drive a car.
[4] PCB 3-8
6The plaintiff returned to the United Kingdom on 8 May 2018. He saw Dr I Turner, general practitioner. He was referred to have physiotherapy because of problems with balance and neck pain. He experienced nightmares and flashbacks. In June 2018, Dr Turner referred him to Hobbs Rehabilitation Intensive Neurotherapy Centre where he underwent tests and monitoring of his head injury over a period of about nine months. He was eventually cleared to drive a car in about August 2018. Under cross-examination, the defendant referred the plaintiff to the clinical records of Hobbs Neurotherapy.[5] The document that was tendered appears to me to be in two parts: The first part refers to clinical outcomes in routine evaluation through testing undertaken of the plaintiff on 1 and 8 June 2018; the second part is a visual object and space perception battery of which the Thames Valley Test Company appears to be the author, with testing of the plaintiff undertaken on 4 June 2018.
[5] Exhibit 2
7Under cross-examination, the plaintiff was taken through the first part which called on him to respond to questions about how he was feeling over the week preceding the testing; whether he had been bothered by any particular emotional problems over the preceding two weeks; to provide a rating of his physical and emotional state, and to complete what are described as “zoo tests”.[6] The zoo tests appear to be a test of his capacity to navigate logically through a map to various locations on the map in accordance with instructions. It is unnecessary to say much more about the testing of the plaintiff because it quite obviously demonstrated that the plaintiff was not complaining much at all of any emotional difficulties, and it would appear that he was able to undertake the zoo tests without any difficulty. The tests were directed to determining whether the plaintiff could meet a standard permitting him to return to driving a car.
[6] Transcript 20-25
8Dr Turner prepared a referral letter dated 10 January 2019[7] to Dr Stephan Hinze, neurologist, in which he gave a brief summary of the injuries suffered by the plaintiff, and the fact that he had a number of ongoing problems. He referred to the plaintiff having a significant head injury; continuing to experience quite extreme lethargy and fatigue; an absence of sense of smell and taste, and ongoing frontal headaches. He referred to his consideration of prescribing the plaintiff Amitriptyline (an antidepressant).
[7] PCB 35
9Dr Hinze examined the plaintiff on 4 February 2019. He wrote a courtesy letter to Dr Turner dated 5 February 2019.[8] He obtained a history from the plaintiff that his headaches were improving, although occurring almost every day without impeding his daily activities. He was able to continue with his university studies, work in a warehouse and return to playing football (soccer) and to a gym. He considered that his examination of the plaintiff was normal; however, he noted that the plaintiff was fatigued. He was optimistic that the plaintiff would continue to improve, and he referred to his optimism that the plaintiff’s symptoms of fatigue and difficulties with concentration and mood fluctuations were amenable to further treatment strategies. It would appear that the plaintiff did not see him again.
[8] DCB 4-5
Study, work and football
10Before the plaintiff travelled to Australia, he successfully completed the English equivalent of Year 13 in June 2015. Subsequently, he attended Hartpury University in September 2015 and completed a Diploma in Sports Studies by May 2017. He obtained employment with a plumbing supply business known as the BSS Group, and it would appear that he worked for the BSS Group until he travelled to Australia in May 2017.
11At some time after returning to the United Kingdom, the plaintiff returned to work with the BSS Group on a casual basis. He also returned to university studies while he was working. His working hours varied according to the demands of his university studies. He would generally work part time, but when his university studies were less demanding, he worked some full-time hours. He ceased working with the BSS Group in March 2019.
12In September 2018, the plaintiff commenced a Bachelor’s Degree in Sports Studies at Hartpury University. He completed the degree course in April 2019. He persisted with university studies by enrolling to undertake a Masters Degree in Quantity Surveying in April 2019. He undertook the course by distance learning, although, it would appear that the course did require him to attend lectures and sit exams. He completed the course in July 2021. The plaintiff encountered difficulties with the requirements of the course. He described those difficulties in his second affidavit sworn 3 May 2022[9] as follows:
“Whilst I have continued to study since my injuries it has been a real struggle. My memory, concentration and fatigue issues greatly affect my ability to learn and retain information. I struggle to attend lectures on a regular basis. I received additional support from the universities to help me with my problems. I was allowed to convert many of my exams into assignments so that I did not have to remember much information without looking at a textbook. I would never have been able to concentrate in an exam setting and without the special consideration I very much doubt I would have passed.”[10]
[9] PCB 9-12
[10] PCB 7
13Additionally, the plaintiff is undertaking an accreditation course in Quantity Surveying. He has, likewise, had difficulty in undertaking that course. He described those difficulties as follows:
“… I am halfway through my accreditation course in quantity surveying. I am struggling quite a lot with this course as the competencies require me to document information that I do at work weekly. I find this particularly difficult because I feel so tired after I finish work and, on most days, when I am very tired, my headaches come on and I do not feel up to documenting information as it is too much for me.”[11]
[11] PCB 10
14The shortest time in which the plaintiff said that the accreditation could be completed is one year, although, the relevant authorities permit an applicant to undertake it over a period of twelve years. The plaintiff said he has been trying to complete the accreditation over the last few years, but believed it will take him a few years more before he is able to achieve that end.[12]
[12] Transcript 34
15After ceasing work with BSS Group in March 2019, the plaintiff obtained employment with Hercules Site Services which is a civil engineering business. He was employed as a commercial assistant. He resigned from that employment in December 2020 to take up a position with Go Traffic Management as a quantity surveyor, but returned to Hercules Site Services when it offered him a position as a quantity surveyor. He continues to work for it to the present time.
16The plaintiff’s working hours with Hercules Site Services is a standard week from 8.00am to 5.00pm, Monday to Friday.[13] The plaintiff accepted that the work he undertakes as a quantity surveyor includes taking measurements around construction projects; recording data which he has measured and observed; taking a lot of detailed notes day-to-day on jobs; setting out all of this on Microsoft Excel; needing competence with basic computer operations such as Microsoft Outlook, emailing and using search engines like Safari; using email frequently every day, and being on the phone a lot during the day.[14]
[13] Transcript 34
[14] Transcript 35-36
17The plaintiff demonstrated great skill as a football player. He played at elite level and as a semi-professional from about the age of sixteen years. He was paid by the clubs he played with, both before he was injured and subsequently. For example when he played with a United Kingdom club known as Bishop’s Cleeve Football Club, he was paid £90.00 per match. After travelling to Australia, he played with the Brisbane Knights Football Club and was paid $150.00 per match. When he moved to Geelong, he played with the Geelong Soccer Club. He did not play any matches because, before the season began, he suffered the injury. He expected to be paid $400.00 per match. The plaintiff also explained that footballers are not paid in the offseason or preseason, only for matches.[15]
[15] Transcript 83-84
18The plaintiff subsequently returned to playing football after he returned to the United Kingdom. He referred to that in his second affidavit, but not the detail that he disclosed under cross-examination, which is as follows:
· Cinderford Town Football Club from July to August/September 2018 which is a Division 1 club in the Southern League. He trained one or two times per week. The matches were played mostly on Saturdays.[16]
· Evesham United Football Club to which he transferred from Cinderford Town Football Club in August/September 2018. It is also a Division 1 club in the Southern League. He trained once per week. The matches were played mostly on Saturdays. He played two games.[17]
· Hartpury University, to which he appears to have transferred from Evesham United Football Club. It is not clear which division or league he was playing in with Hartpury University. He was training two to three times per week and playing on Wednesdays. It would appear that he was playing with Evesham United Football Club and Hartpury University at the same time for a short period, before leaving altogether.[18]
· Bishop’s Cleeve Football Club to which he appears to have transferred from Hartpury University in March to about July 2019.[19] It is a division below the other clubs he had played with.[20]
· Highworth Town Football Club, to which he appears to have been transferred from Bishop’s Cleeve Football Club in July 2019. It is also a Division 1 club in the Southern League.[21]
· Kidlington Football Club, to which he appears to have been transferred from Highworth Town Football Club in February 2020 to 2 August 2021, which is when the plaintiff last played football.[22]
[16] Transcript 42-43
[17] Transcript 43-44
[18] Transcript 43-44
[19] Transcript 51
[20] Transcript 53
[21] Transcript 53-54
[22] Transcript 60-62
19There are a number of matters which I need to add to the summary of the plaintiff’s journey through the world of football in the United Kingdom. Firstly, he was paid to play for the football clubs. He gave two examples of Highworth Town Football Club, which paid him £70.00 per match, and Kidlington Football Club, which paid him £80.00 per match.[23] Secondly, in the season he played football before travelling to Australia, which was from early September to mid April to early May of the following year, he played fifty matches.[24] In comparison, he said that in the three seasons that he played after returning to the United Kingdom, he played about thirty-two matches. Thirdly, he conceded that the COVID restrictions that applied in the United Kingdom interrupted the football season sometime between 2019 and 2021.[25] Fourthly, he estimated that in the season prior to travelling to Australia, he kicked seventeen goals. His position on the field was as a striker. He estimates that since returning to the United Kingdom, he has only kicked thirteen goals.[26]
[23] Transcript 84
[24] Transcript 64 and 78
[25] Transcript 62
[26] Transcript 80
20Under cross-examination, the plaintiff was referred to his Twitter feed.[27] He was referred to a number of postings which demonstrated games which he played, and accolades of others who considered he was capable of playing to a high standard. In particular, he was referred to postings dated:
[27] Exhibit 3, and Transcript 52-58
· 9 March 2019, referring to his re-signing to Bishop’s Cleeve.
· 27 March 2019, referring to the plaintiff making a goal assist.
· 31 March 2019, referring to the plaintiff making a goal assist, and scoring two goals.
· 7 April 2019, referring to the plaintiff scoring two goals. A short video showed the plaintiff heading a ball into the goal.
· 1 September 2019, referring to the plaintiff being named man of the match.
· 12 September 2019, referring to the plaintiff’s fitness level as like running around like a Jack Russell.
· 20 October 2019, referring to the plaintiff making a goal assist.
· 21 October 2019, with a short video showing the plaintiff heading a ball into the goal and, again, referring to him as a Jack Russell.
· 1 December 2019, referring to the plaintiff scoring two goals and being named man of the match.
· 22 December 2019, referring to the plaintiff making a goal assist.
21The plaintiff disagreed that what was demonstrated on the Twitter feed was consistent with him playing well. The plaintiff emphasised that he had not played the same number of games as he did prior to suffering injury, and had not scored the same number of goals. I took that to mean that he considered that he had significantly reduced skill and ability than was apparent through the references to the Twitter feeds.
22In his first affidavit, the plaintiff said that the nature of his head injury and its impact on him rendered him less able to make quick decisions on the field, that tactically he would lose track of where players and the ball were, and that he would fatigue very easily.[28] The plaintiff ceased playing football after the first game of his last season. He described why as follows:
Q:“You ceased playing football, as your affidavit suggests, in August 2021. At what point of the season was that?---
A:Literally after the first game of the season I thought I can’t-yes, I can’t do this anymore. It was just putting me down, comparing myself to the player I was before with football to the player I was in August/now and the toll it was having on myself. So, yes, the first game of the season. Sorry.”[29]
[28] PCB 6
[29] Transcript 84
23The plaintiff estimated that he would have continued playing until he was thirty-seven or thirty-eight years of age, and that if it were not for the injury, he would be playing football now. He described the loss of income that he would have earned playing football as a relatively significant amount of money for him.[30]
[30] Transcript 84
24The plaintiff described the consequences to him of suffering the organic brain injury and the psychiatric injury. Relevant to the organic brain injury, he described the following:[31]
[31] PCB 6-7 and 10-11
· problems with short-term memory
· difficulty recalling what he did the day before and names of people he has just met
· loss of his train of thought
· need to create reminders
· difficulty in answering questions he has asked off the top of his head
· general interference with memory and concentration
· struggling to find the right words to express himself
· daily headaches of a migrainous nature
· fatigue, and the onset of headaches associated with fatigue
· the absence of a good night’s sleep will result in suffering worsening headaches.
· development of sensitivity to light which can bring on a headache or worsen a headache
· watching television or playing video games can bring on a headache
· dizziness, although, it has improved. It can be worsened by some head movements
· avoidance of social gatherings because of a loss of confidence, for example difficulty following conversation and responding to conversation
· some difficulties attending to the requirements of the academic courses he undertook – referred to in more detail below
· difficulty maintaining his sporting pursuit of football – referred to in more detail below.
25Relevant to the psychiatric injury, he described very little in his affidavits, but he did refer to the following:[32]
· nightmares
· flashbacks
· worry about his future.
[32] PCB 7-8
26Professor Hutchinson, neurosurgeon, Dr Sembi, neuropsychologist, Dr Seneviratne, neurologist, and Dr Serry, psychiatrist, referred to a larger number of consequences of the psychiatric injury. I have set them out in summarising the evidence of each of those medical practitioners. I have excluded each of those consequences from consideration of whether the plaintiff’s organic brain injury has consequences which are “serious”.
27The plaintiff’s application is supported by the evidence of three laypersons whose evidence I considered to be of critical importance in understanding the impact of the plaintiff’s brain injury on his general functioning.
28Mrs Shompa Saha Davidge is the plaintiff’s wife. She swore an affidavit on 2 May 2022.[33] She married the plaintiff in October 2021. She noted his forgetfulness, interference with memory, the need for assistance in planning daily activities, the various domestic occasions when he has struggled with memory, planning and concentration, and also his problems with fatigue. She also noted the problems he has with spinal pain, headaches and mood fluctuations.
[33] PCB 17-21
29Mr Gary Vaughan Davidge is the plaintiff’s father. He swore an affidavit on 2 May 2022.[34] He described the plaintiff’s pre-injury personality and general demeanour, and his sporting and academic achievements. I think it is fair to describe his characterisation of his son as being an ambitious young man. He noted the reduction in his capacity to play football, and similar impact described by Mrs Davidge relevant to forgetfulness, interference with memory and concentration, and his tendency towards fatigue.
[34] PCB 13-16
30Mr Stephen Cleal is an accounts manager who has had a twenty-year interest in being a football manager. He swore an affidavit on 4 May 2022.[35] In Australian terms, football manager is the same as a football coach. He was the football manager for Bishop’s Cleeve. He met the plaintiff in 2016/2017, noting that he was a determined young footballer, a quick learner and capable of adapting well in a football setting. He observed the plaintiff post injury, noting that he was a very different player. He noted that he was struggling with the speed of the game and keeping up with a game. He noted that he avoided heading the ball, although, the Twitter feed and video shows him heading the ball on a number of occasions into the net.
[35] PCB 22-24
Medical evidence – brain injury
31The plaintiff was examined by Professor Peter Hutchinson on 16 June 2021. He provided a very lengthy report dated 9 August 2021.[36] He obtained a history from the plaintiff of his ongoing symptoms:[37]
[36] PCB 43-101
[37] PCB 54-56
· ongoing dull headaches in the morning, worsened through concentrating
· nausea once a week, sometimes associated with headache and when he feels tired
· impairment of taste and smell, for example hot chocolate tastes strange, mint tea taste like hot water and an inability to taste strong foods, for example curry and spice
· slurring of speech when tired
· occasional dizziness about twice a week, with episodes lasting up to an hour
· ongoing fatigue
· impairment of short-term memory, for example recalling conversations, events and forgetting names
· impairment of concentration, for example being unable to focus on instructions and zoning out of conversations, and difficulty multitasking
· impairment of higher executive functioning, for example planning and thought processing
· continuing anxiety
· continuing feelings of anger and frustration
· a belief that his personality has changed from being calm and methodical to being worried, frustrated, snappy and feeling occasional downness.
32Professor Hutchinson reviewed the medical reports referred to in the plaintiff’s Court Book and then summarised the CT scan taken at the Geelong Hospital, and commented upon what he observed.[38] He then summarised the medical reports, other clinical materials and witness statements he was provided.[39] He then expressed the following opinion:
“As a result of the accident he sustained a number of acute symptoms which are consistent with the nature of the injuries that he sustained. These included headache, nausea, vomiting, impairment of smell and taste, slurring of speech, impairment of hearing, dizziness, fatigue, impairment of memory concentration and higher executive function, word-finding difficulties, low mood and anxiety and frustration. He also described severe neck pain.
With time there has been an overall improvement in his condition but he does have ongoing symptoms in excess of 3-years out from this accident. His symptoms are both physical and neuropsychological. They include headache, occasional nausea, ongoing impairment of smell and taste, slurring of speech when tired, occasional dizziness, fatigue, ongoing impairment of memory concentration and higher executive function and word-finding difficulties. He has fluctuation in mood and is anxious about the future. He continues to be irritable. He has flashback[s] and nightmares. It is clear from talking to him that the nature of his personality has changed. It would be helpful to get a perspective from his family.
In terms of the nature of his head and traumatic brain injury he has a period of retrograde amnesia in the range of a few minutes to 2 hours. The extent of loss of consciousness is unclear. The history and records are consistent with a period of posttraumatic amnesia of 6 days i.e. greater than 24 hours and less than 1 week. In terms of the classification of his traumatic brain injury this would be classically described as mild GCS > 13/15 in terms of the Glasgow Coma Scale but moderate/severe according to the Mayo classification in terms of structural injury to the brain parenchyma. From the neurosurgical perspective overall this is a major traumatic brain injury in relation to structural injury to the brain parenchyma consistent with his ongoing physical and neuropsychological symptoms.”[40]
[38] PCB 62-63
[39] PCB 64-94
[40] PCB 95-96
33Professor Hutchinson also considered that the plaintiff is at risk of the development of dementia in the future. He referred to medical literature, and his own personal experiences as a neurosurgeon, that there is a link between the sustaining of a traumatic brain injury and the increased chances of developing dementia. The studies demonstrate that the risk is two to four times greater than persons who are not brain injured. He considered that the plaintiff is at risk at some point in the future, but he said it was difficult to precisely quantify the level of that risk.[41]
[41] PCB 97
34The plaintiff was next examined by Dr Sundeep Sembi on 13 and 14 October 2021. He provided a very lengthy report dated 1 February 2022.[42] He obtained a lengthy history of the plaintiff’s complaints of physical, neuropsychological and psychiatric problems which he had encountered since the occurrence of the incident, and from which he continued to suffer. He also reviewed very much the same background medical material as was provided to Professor Hutchinson. He administered a number of tests for the purpose of obtaining a neuropsychological profile of the plaintiff. He then expressed an opinion of significant length which I think is important to set out in full:
[42] PCB 102-146
“92. The acute parameters of the index injury would suggest that he has suffered a moderate to severe (definite) traumatic brain injury under the Mayo criteria.
93. While there is some question over the initial loss of consciousness, he is amnesic for the accident and there is substantial neuroradiological evidence of significant traumatic brain injury: He suffered a number of fractures to the skull as well as bleeds. His acute CT scan identified subarachnoid haemorrhage in the right frontal lobe and right frontal damage. Two further smaller regions of petechial he[a]morrhage were noted in the right occipital lobe. Effacement of sulci in the right cerebrum as well as midline fracture of the occipital bone, a further fracture to the anterior left aspect of the occipital bone coursing to the hypoglossal canal and the petrooccipital fissure was also noted. Further, fractures were also noted in the temporal bone as well as fractures extending into the left temporal area and the floor of the sinus. Contemporaneous assessment of post traumatic amnesia was six days. The evidence within the post-acute records also suggests that cognitive and other traumatic brain injury sequelae were noted from the outset and there is a clear trajectory of recovery, consistent with traumatic brain injury noted in his medical notes.
94. Given the circumstances of the index accident he has, in many respects, made a remarkable recovery. At the time of my assessment, he was approaching some three years post-injury. I assessed him at approximately 33 months post-index accident. His period of natural recovery has therefore largely come to an end although I am of the opinion that he remains under-rehabilitated and there is some further scope for improvement if we are to achieve a more optimal outcome. In saying this, I recognise that subsequent to the index accident he did manage to continue his studies and, albeit modestly, passed his degree and subsequently went on to complete his professional exams, substantial allowances to facilitate the completion of his studies, including all assessments being via course work and therefore no requirement for examinations have been made.
95. His neuropsychological profile reveals some areas of inefficiency, specifically in principal executive functioning as well as a mild to moderate clinically significant impairment in auditory memory functioning. He has made a significant recovery although there is a residual profile of impairment which will have impacted upon his academic success and ultimately on his career trajectory.
96. The question therefore arises whether the pattern of impairment is indicative of an organic brain injury or other factors. The range of opinion at the time of this assessment is:
1. A mild end of moderate residual brain injury has occurred.
2. The profile of neuropsychological decline is secondary to an impoverished mental state, poor adjustment and coping.
3. The profile of neuropsychological decline is secondary to his levels of pain and headaches.
4. The profile of neuropsychological decline is secondary to fatigue and poor sleep.
5. The profile of neuropsychological decline is secondary to his audiovestibular difficulties.
5.(sic) A combination of the above excluding brain injury.
6.(sic) A combination of the above including a mild end of moderate brain injury.
97. In the context that he has suffered multiple skull fractures, cerebral bleeds, extended PTA and there is neuroradiological evidence of subarachnoid haemorrhage as well as evidence of brain injury, I am of the opinion that whilst the above secondary factors are pertinent, albeit the profile of neuropsychological decline is mild and potentially the combination of non-organic, non-brain injury secondary factors could account for a degree of his neuropsychological inefficiency, my initial opinion is, within the context of the acute parameters of injury, that Mr Davidge has suffered a mild organic loss of edge, that is, a mild end of moderate residual brain injury which at this stage is likely permanent. Specifically, he presents with impairments in auditory memory functioning and aspects of his principal executive functioning as well as some evidence of residual neurobehavioural, neuropsychiatric and organic personality change.
98. The contribution of his range of secondary non-organic, non-brain injury factors to his overall neuropsychological efficiency does however remain a consideration also because the factors highlighted above are, in principle, amenable to treatment, and they will be having a secondary suppressive influence upon his neuropsychological efficiency. It therefore makes sense to treat those factors which are, in principle, open to treatment and thereby alleviate their influence upon his neuropsychological efficiency.
99. My initial opinion at the time of this assessment is that option 6, that is, a combination of the above secondary non-organic, non-brain injury factors but also a mild organic loss of edge, that is a mild end of moderate brain injury is, on the balance of probabilities, the likely cause of his index-accident residual sequalae. I therefore agree with Professor Hutchinson who opined that although there had been improvements from his initial post-acute symptoms, some three years post-index accident, several of his physical and neuropsychological difficulties had continued. He continued to suffer from headaches, occasional nausea, impairment of taste and smell, slurring of speech when tired, occasional dizziness, fatigue, ongoing impairment of memory, concentration and higher executive functioning and word finding difficulties. Professor Hutchinson also noted his fluctuation in mood and anxiety and that Mr Davidge had also continued to be irritable and suffered flashbacks and nightmares.
100. It is recognised that in frontal lobe syndrome, whilst in the calm of an optimal environment, for example, in the calm of the psychologist’s office, an individual may be able to consistently exploit their residual abilities optimally and therefore perform well on tests of cognitive functioning. However, in the real world, where there are competing demands, they are often not able to do so. This is consistent with his self-report of the difficulties he faces in daily life and particularly the additional impact of factors such as fatigue as recognised by Dr Turner from the outset.
101. I acknowledge that the deficits and difficulties noted here are not severe, however it is widely recognised that individuals with a frontal lobe syndrome can often appear intact and function well in predictable and consistent environments which place low or a predictable demand upon them. However, as soon as a situation becomes more demanding or less predictable, where they are required to think on their feet, even in relatively mundane tasks, their dependence and inability to function independently becomes more apparent. Whilst Mr Davidge remains independent at an everyday level and is managing to sustain employment, his description suggests to me that considerable adjustments are being made on a daily basis in his workplace but equally, considerable adjustments had been made in his post-index accident period to help him succeed in his studies. I am therefore of the opinion that his abilities and performance now is less than it would have been, absent the index accident, on the balance of probabilities. His self-report that he struggles on some challenging, albeit mundane, tasks such as organising himself at work, would suggest that there is an organic loss of edge.
102. It is also recognised that the nature of frontal lobe impairment is often manifested as changes in neurobehavioural, neuropsychiatric and organic personality change difficulties with an individual’s behaviour and functioning in daily life reflecting an inability to understand, a lack of insight and an inability to adapt to changing situations. Albeit the signs are mild, I am of the opinion that there is evidence of neurobehavioural, neuropsychiatric and some organic personality change sequelae in this case. For the avoidance of doubt, I am not suggesting that Mr Davidge has suffered severe residual clinically significant sequelae as a consequence of the index accident. I do however, consider that there is evidence of neurobehavioural, neuropsychiatric and organic personality change sequalae as well as evidence of mild, clinically significant decline in auditory memory functioning and significant inefficiencies in his principal executive abilities which decline further when factors such as fatigue become more pertinent through the day. I would reiterate that in optimal conditions his principal neuropsychological functioning is broadly comparable to that previously, albeit there are impairments in auditory memory functioning. He can therefore rely on more prompts and reminders and he can function adequately and this is best evidenced by the fact he has carved out a career for himself and is sustaining employment. I would however reiterate this has only been with significant adjustments, particularly with the removal of written examinations and therefore his ability to achieve academically and ultimately vocationally is, in my opinion, less than absent the index accident.
103. Mr Davidge’s principal difficulties arise in his ability to exploit his residual functioning optimally and consistently. This impacts not only on his independence and psychosocial functioning both at work and in his personal life, but also becomes most apparent in situations which require him to think on his feet. I would reiterate this does not necessarily mean high functioning situations but even everyday situations which are less predictable or multi-faceted, will highlight his decline in ability to function as well as he would have, absent the index accident.
104. In saying this, I repeat, I am not suggesting there are severe disabilities and impediments to his life. I anticipate that he will continue to do his utmost to mitigate, and he will enjoy a successful career as a quantity surveyor however I do consider that ultimately, his career trajectory has been impacted upon compared to absent the index accident because there has been a permanent mild organic loss of edge.
This manifests itself predominantly in his ability to exploit his residual abilities optimally and consistently, in my opinion. However, as I have stated, there are also a number of additional factors, which in principle could be alleviated and thereby reduce the impact upon him overall.”[43]
[43] PCB 118-121
35Dr Sembi considered that the impairments suffered by the plaintiff were not severe, but noticeable. He described them as “an organic loss of edge”, and that there were a range of secondary factors of headaches, fatigue, poor coping and adjustment which remained prominent in the plaintiff’s presentation. He considered that the plaintiff might experience some modest improvement in the future, however, he then commented on the opinion of Professor Hutchinson and his reference to literature and the evidence of a temporal pattern of cognitive decline with traumatic brain injury as being progressive. It would appear that he shared the opinion of Dr Hutchinson relevant to the risks to which the plaintiff is exposed of suffering dementia.
36The plaintiff was next examined by Dr Seneviratne in March 2022 via a Telehealth link. He provided a report dated 11 March 2022.[44] He was not provided with the same volume of background medical material as Professor Hutchinson and Dr Sembi; however, it would appear he was provided with sufficient material to understand the plaintiff’s injuries and their affect upon him.[45] He appears to have concentrated his attention on the plaintiff’s brain injury. Based upon the history he obtained from the plaintiff, he noted that the plaintiff had developed headaches associated with photophobia and phonophobia, fluctuating memory problems, and impaired concentration. He considered that the plaintiff’s neurological symptoms relating to his traumatic brain injury had improved, but that he still had ongoing mild cognitive problems and post-traumatic headaches which he considered were likely to be permanent. Overall, he considered the plaintiff’s prognosis to be satisfactory. He did not comment on the anticipated deterioration in the plaintiff’s brain functioning described by Professor Hutchinson and Dr Sembi.
[44] DCB 6-12
[45] DCB 13
37The issue of disentangling was raised in the course of final addresses. I am not convinced that there is a need for disentangling the consequences of the organic brain injury from those of the psychiatric injury. I think a fair analysis of the evidence which I will refer to below demonstrates that very adequately.
Medical evidence – psychiatric injury
38The plaintiff was examined by Dr Nathan Serry on 10 March 2022. He provided a report bearing the same date.[46] He also reviewed very much the same background medical material as was provided to Professor Hutchinson, however, he was not provided with the report of Dr Sembi or Dr Seneviratne. Based upon the history he obtained from the plaintiff and his mental state examination, he noted that the plaintiff had fluctuating low mood, ongoing anxiety, a sense of apprehension, the development of a risk averse approach to life, and traumatisation due to his awareness of what had happened to him. He diagnosed that the plaintiff had suffered a neurocognitive disorder due to the traumatic brain injury, and a Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation which he considered was of mild intensity.
[46] PCB 147-158
39Dr Serry noted that the plaintiff was well adjusted premorbidly. He also noted that the plaintiff had suffered significant accident-related injuries, and he included in that the other injuries apart from the brain injury. He considered that the plaintiff’s psychiatric condition had stabilised and was unlikely to deteriorate. In the course of obtaining a history from the plaintiff, he noted that he was in receipt of a prescription for Citalopram, 20 milligrams (an antidepressant). He did not consider that the plaintiff was incapacitated for work.
Serious injury
40I will now deal with each of the injuries which the plaintiff submits has resulted in impairment or loss of a body function with consequences which are “serious”.
Brain injury
41The plaintiff is fortunate that he made a very good recovery from what was potentially a devastating brain injury. He was able to return to university studies and to vocational pursuits which appear to be pursuits for which one would need to have a capacity to exploit a sound level of intelligence and intellect.
42However, a brain injury should never be underestimated. It is trite to say that the brain is the engine room from which all other functioning of the body stems, and in particular, the exploitation of intelligence and intellect. The plaintiff has deficits which have been identified by Professor Hutchinson and Dr Sembi. They are not deficits to be underestimated. A comparison between what the plaintiff was like before he suffered the injury demonstrates that he still has intelligence and intellect, but now interference with both of those by the imposition of slowness in his capacity to learn, demonstrated by the need to undertake assignments rather than exams, and interference with planning, memory, concentration and persistent fatigue.
43The most potent concern for the plaintiff is the risk that he is now exposed to suffering a significantly increased risk of developing dementia. He may have run a background risk of dementia, but then again he may not have, but now the risk is two to four times greater than persons who are not brain injured. The defendant submitted that that opinion of Professor Hutchinson is absent any level of certainty about when the plaintiff might suffer the onset of dementia related to his brain injury, and the extent to which it may impair him, however, calculating risks of that kind is no stranger in tort.[47] It occurs to me that the risk is not negligible or fanciful, but a palpable serious risk.
[47]For example the approach to making an estimate of future and potential events – Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
44The next most potent issue for the plaintiff is his lost sharpness in playing football. I do not have much doubt that the plaintiff was a very skilful footballer. Despite the interference with his ability to play football more often caused by COVID-19, I accept that he played less games on average and scored less goals than his average when a comparison is made with what he was like before he was injured. Furthermore, his inability to stay sharp and to react during a game ultimately resulted in him giving it away altogether at the tender age of twenty-five years. I accept, if uninjured, the plaintiff had the potential to play into his late 30s, earning match fees which are now lost to him, and in addition to the lost match fees is the enjoyment of playing football, and no doubt the association with a football club, fellow players and a way of life associated with football.
45I accept the plaintiff’s evidence without exception. I accept the evidence of the lay witnesses who have observed the plaintiff at close range and who have observed the very deficits which trouble the plaintiff. I accept the evidence of Professor Hutchinson and Dr Sembi of the impact on the plaintiff of the traumatic brain injury and the manner in which it impairs the function of his brain. I think for someone as young as the plaintiff to have suffered these levels of losses is “serious” within the meaning of the definition, and I have reached that conclusion by making the comparison with like impairments as I am obliged to do. Although Dr Seneviratne’s opinion suggests that the plaintiff’s traumatic brain injury is less significant than Professor Hutchinson and Dr Sembi consider it to be, I do not think his opinion is very persuasive. This is because he was not provided with their reports and the same volume of background medical material as Professor Hutchinson and Dr Sembi, which is material they appear to have regarded as important, and furthermore, he did not consider the anticipated deterioration in the plaintiff’s brain functioning described by Professor Hutchinson and Dr Sembi.
Taste and smell
46In the course of addresses, the plaintiff admitted that the damage to the olfactory nerve is a separate injury impairing or resulting in loss of a separate body function. I think that is correct. The damage to his olfactory nerve has affected his sense of taste and smell. In his first affidavit, he described the problems he has with taste and smell as follows:
“21.My sense of taste and smell has been reduced since the accident. They have improved a minor amount since the accident. With my sense of smell I recognise one smell might be different from another but I cannot recognise the particular smell. Then on some random occasions I am able to recognise a particular smell. It is similar with my sense of taste. I can taste bitter at one end and sweet at the other but not the subtlety associated with a particular taste.”[48]
[48] PCB 6
47The plaintiff did not refer to the problems with taste and smell in his second affidavit, but I accept that he said as much as he could say about it in his first affidavit. Where there is an amplification of that problem, it is in the history recorded by Professor Hutchinson. The plaintiff told him that hot chocolate tastes strange, mint tea taste like hot water and he has an inability to taste strong foods, for example curry and spice.
48It is trite to say that one of the very enjoyable things in life is the pleasure that can be experienced by the consumption of food and beverages. I do not think I need to say much more than that to make the point. The plaintiff is a very young man for whom the loss of taste and smell is permanent and lifelong. It is an uncommon injury, and not one which I have dealt with previously, so there is no direct comparison that I can rely upon in determining whether it is serious or not; however, considering the depth of the loss, the lifelong duration of it, and the loss of the enjoyment that intact taste and smell bring, I think the impairment of function of the olfactory nerve resulting in the loss of taste and smell to the degree described by the plaintiff is “serious”.
Psychiatric injury
49As I have already observed earlier in these reasons, the plaintiff said very little in his affidavits about the psychiatric injury and its consequences. In addition to my summary of Dr Serry’s evidence, he understandably recorded the nature of the plaintiff’s organic brain injury and its consequences which partly underwrote his diagnosis of a Chronic Adjustment Disorder with Anxious and Depressed Mood with features of traumatisation. In the body of his report he turned his attention specifically to the plaintiff’s symptoms over and above those caused by what he identified as cognitive changes. He said:
“In addition, the claimant described experiencing fluctuating but not sustained low mood, ongoing anxiety with a sense of apprehension and the development of a risk-averse approach to life and further still despite not recalling the incident itself, the claimant has been somewhat traumatised by his awareness of what transpired and by his time in hospital.”[49]
[49]PCB 156
50My appreciation of the traumatisation referred to by Dr Serry is the plaintiff’s complaints of nightmares and flashbacks, and no doubt his overall estimation of how the organic brain injury has interfered with the potential in his life which he has lost.
51The plaintiff has had very little treatment for his psychiatric injury. Apart from the prescription of antidepressant medication, there is little or no evidence to suggest that he currently requires treatment by a psychiatrist or a psychologist except to the extent that Dr Serry considered that a review by a consultant psychiatrist might be necessary relevant to the prescription of antidepressant medication. The only other treatment that he considered was relevant was for the plaintiff to see a neuropsychologist for further assistance in relation to his ongoing cognitive complaints. My impression is that Dr Serry considered that the plaintiff’s ongoing cognitive complaints have resulted in the major problems experienced by the plaintiff, and his psychiatric injury and its consequences are less of a problem.
52The plaintiff did not advance the application based upon the psychiatric injury with any real conviction. I have no doubt that he has a psychiatric injury with real consequences, but they are significantly less in their impact on him than the organic brain injury and its consequences. I am not persuaded that the impairment resulting from the psychiatric injury has consequences which are much more than mild to moderate. I am not persuaded that if the plaintiff only suffered from the psychiatric injury and its consequences, that it would interfere with his capacity to pursue study, work and his love of football very much.
Credit
53The defendant made a number of submissions which hinted at an attack on the plaintiff’s credit. The main attack was based upon the fact that the plaintiff did not disclose the extent of his return to football. Although, his return to football was far more extensive than the general reference he made in his affidavits, I am not convinced that he was being disingenuous. I think what he said in general terms made it plain that he returned to football, however, he probably did himself a disservice by leaving his description of his return in such general terms because when a drilling down into what he actually returned to demonstrated not only that he made significant attempts to return, the reasons why he could not sustain the return, and the impact of his organic brain injury on reducing his capacity to play matches, and, of course, the loss of income due to giving up football altogether.
54The plaintiff struck me as an entirely forthright, genuine and reasonable historian. He was exquisitely careful in the way he gave his evidence. On many occasions he asked for clarification in order to ensure that he could address precisely what was being asked of him. I think that is the marker of a truthful witness with a strong endeavour to tell the truth. I saw nothing about his evidence that even slightly hinted at a dent in his credit, and indeed, I considered him to be an entirely creditworthy and reliable witness.
Conclusion
55I will grant the plaintiff leave to bring a proceeding at common law for the reasons set out above.
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