Denham v Scott - [2001] WADC 277

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: DENHAM -v- SCOTT [2001] WADC 277

CORAM: FENBURY DCJ

HEARD: 5-8 NOVEMBER 2001

DELIVERED : 7 DECEMBER 2001

FILE NO/S: CIV 3563 of 1997

BETWEEN: CHARLES BERNARD DENHAM
Plaintiff
AND
GLEN VAUGHAN SCOTT
Defendant

Catchwords:

Assessment of damages for personal injury following motor vehicle accident - Brain injury - Cognitive deficit - Modest intellectual capacity pre-accident - Plaintiff employed in family business suffering no immediate economic loss - Loss of a chance - Turns on own facts

Legislation:

Nil

Result:

Claim allowed

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos
Defendant: Mr P R Momber

Solicitors:

Plaintiff: Simon Walters
Defendant: Peter Momber

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

Nil

Case(s) also cited:

Nil

FENBURY DCJ: This case requires an assessment of damages for injuries, and most significantly a head injury, suffered by the plaintiff in a motor vehicle accident on 5 April 1991. The plaintiff was born on 6 June 1982. Thus the accident occurred about two months before his ninth birthday.
The injuries suffered by the plaintiff are set out in a report of Dr M Munroe dated 27 April 1994 which is reproduced in Exhibit A at p 32. Dr Munroe saw the plaintiff in the casualty department at Bunbury Regional Hospital at 9.40 am on the date of that accident. He states:
"When examined at the time he had a deep laceration of the right cheek, right temple, right nose and right lower lip. He had abrasions of the right knee and showed signs of cerebral irritation. When examined by me he was confused and agitated and not aware of where he was. He was obviously not unconscious but was quite confused and dazed. His pupils were equal and reactive and he settled down and was quiet when left alone. … When reviewed at 1100 hours there was no change in Charles' observation. However, at 1430 hours, the right pupil began to dilate and was unresponsive to light. A CT scan of the brain was requested and showed a 1 cm hyper density indicating a haemorrhage deep in the brain on the left side beneath the basal ganglia and just above the base of the brain."
The plaintiff was transferred to Royal Perth Hospital later that day and was there seen by Dr Anna Gubbay, the resident medical officer. Her report dated 7 May 1991 is reproduced in Exhibit A, p 62.
There was no dispute in this case that as a result of his head injury the plaintiff has suffered a degree of cognitive deficit. However, the defendant maintains that the loss suffered by the plaintiff as a result of the permanent effects of that head injury is much reduced. The argument advanced on behalf of the defendant is that although it may well be that the plaintiff has suffered a cognitive deficit, an examination of his pre‑accident school records demonstrates that he was of limited intelligence in any event. According to the defendant the plaintiff was destined for the sort of employment he currently holds notwithstanding that he had the motor vehicle accident. The plaintiff is presently employed in menial labouring tasks working in his family's business.
Given the issue raised by the defendant relating to the plaintiff's pre‑accident school performance, and the emphasis placed by the defendant on that issue it is appropriate at the outset to deal with the evidence that refers to the plaintiff's pre‑accident scholastic history.
The plaintiff's school reports were submitted in book form and became Exhibit B. When the plaintiff completed his pre‑primary year his teacher recommended that he repeat the year. He was obviously having considerable difficulty. At that time, however, the plaintiff's elder brother, Peter, four years his senior, was due to start primary education at a catholic school in Dardanup called Our Lady of Lourdes. To have their two sons at different primary schools was logistically undesirable at the time and consequently the plaintiff's parents decided that he would not repeat pre‑primary as recommended but would attend Our Lady of Lourdes in year 1.
The reports for 1988 at Our Lady of Lourdes are reproduced from p 1 of Exhibit B. The report for December of 1988 on p 2 of Exhibit B concludes with the remarks that the plaintiff had a positive attitude but that he had made limited progress. He was quiet and well mannered and was expected to improve. The plaintiff's performance that year resulted in the school Principal, Janice Wansbrough, referring the plaintiff to the Guidance and Special Education Directorate of the Education Department of Western Australia. In the referral which is Exhibit B, p 3, and is dated 24 February 1989, "its rationale" was described as follows:
"Performing at a level below that required during year 1. He has demonstrated difficulties with language skills – particularly writing. Always tries hard."
The plaintiff repeated year 1 in 1989.
A report was then written by one, Christine Cullen, Guidance Officer for the Bunbury South District Education Office of the Ministry of Education. It is reproduced in Exhibit B, p 4. It relates to an interview, apparently, of the plaintiff on 8 March 1989.
Counsel for the defendant placed a lot of emphasis on this report. It firstly reports the results of tests carried out by Ms Cullen as follows:
"Verbal IQ equals dull normal.
Performance IQ equals borderline retardation/dull normal.
Full scale IQ equals dull normal/borderline retardation."
Ms Cullen concludes her report with the following observations:
"Charles is of dull normal intelligence. In 1988 he was not ready for year 1 and hence could not do the year 1 work.
This year Charles is ready to learn year 1 work. Charles will always have to work very hard to keep up with his peers. Charles will need to work at his own level."
Ms Cullen did not give evidence during the hearing and her qualifications are unknown. Had she given evidence I would have been interested to hear her views concerning the relationship between learning difficulties and intelligence, especially having regard to the fact that she made her remarks in 1989, 12½ years ago.
In the plaintiff's school report for 1989, being his repeat year, some improvement is apparent. In his report of June of that year, Exhibit B p 5, improvements are noted in reading and written expression. It must be borne in mind, of course, that he was being individually taught in those subjects as distinct from participating in the class programme. However, in mathematics which was supposedly one of his weaknesses, he was in the general class programme and was beginning to add correctly. In the general comment he was said to have made a big improvement so far that year.
Two months later, on 16 August 1989, there was a meeting held to review the plaintiff's placement in the Special Education Programme. Four members of the staff attended the meeting. The plaintiff's parents were apologies.
Two of the main points made in the general discussion were recorded as follows:
"1.Joe (the plaintiff's class teacher) noted that Charles' maths had generally improved. He was still however below in all areas of learning, particularly language related areas. Charles' problems appear to be due mainly to his extremely poor memory, he has great difficulty retaining information.
2.Joe pointed out that it has taken Charles 2 years of schooling to learn his single sounds. She believed his confidence had increased dramatically since last year, which was beginning to reflect in his enthusiasm for learning."
Further remarks were as follows:
"Joe noted Charles' inability to work alone, which became evident in activity such as story writing. Whilst he does attempt to work independently in class, he is extremely slow. It would take him approximately 40 minutes to write five words of a story."
In the report at the end of that year, reproduced in Exhibit B p 6, positive remarks are again made. Comments are made about the plaintiff's increasing confidence and his improvement in maths. In the general comment made by the class teacher the following is stated:
"Though occasionally inattentive, Charles tries to capacity and has made pleasing progress. He is showing an increase in confidence and responds well to his Special Education Programme in reading. …"
In the following year, 1990, there is much of the same. In his report for December of that year, Exhibit B p 8, in relation to reading the plaintiff is described as having "made some progress but it has not been consistent."
In oral English he was described as enjoying telling news to the class, that he had gained a lot of confidence socially and that his listening had improved.
He was described as working below class level in mathematics. In general comment the following appears:
"Charles tries hard most of the time. Unfortunately he seems to have very little recall, so he forgets from day to day what he is learning. He can produce reasonable results in a one to one situation but achieves little on his own even in his Special Education Programme."
The motor vehicle accident intervened in April 1991. The first report post accident is reproduced at Exhibit B p 9. Going straight to the report for the end of the year 1991, Exhibit B p 10, it is quite clear the accident had a significant impact on the plaintiff's academic progress. The general comment made is as follows:
"Charles has had a terrible year, health wise and has missed many weeks of school. This has retarded his progress in all areas. Charles will need to continue in individual Special Education Programme next year and will need lots of extra help at home and at school."
In the following years an added difficulty in relation to the plaintiff's education appears to have manifested itself in the form of a loss of interest in learning. In a letter dated 8 April 1993 written to the plaintiff's solicitors the Principal at Our Lady of Lourdes was asked the following question and gave the following answer:
"Has there been any, and if so what, noticeable change in his powers of concentration before the accident and after the accident?‑‑‑No. Seems as before except he has lost interest – not making any effort now.
Concentration never good. Originally on return to school he was a bit dreamy, but this was not long lasting. Seemed to pick up with all the attention he was receiving – showed some improvement in skills and concentration even before accident level – since lapsed – shows lack of interest."
In the report for the end of 1993 however comments about the plaintiff's performance improved. In Exhibit B p 20, the 1993 December report, his effort was complimented. The general comment was:
"Charles has had an excellent school year as his continued effort and level of application have resulted in his improved grades."
In that particular year he was not apparently undergoing any individual programmes.
A year later, Exhibit B p 23, December 1994, it appears that Charles was again undergoing an individual programme, certainly in reading, phonics and spelling, written expression and mathematics. His enthusiasm was commented upon but it would appear that his improvement in that year was not great.
A year later, December 1995, Exhibit B p 25, the general comment was:
"Charles has had an excellent school year as his continued effort and level of application have resulted in his improved grades."
He apparently was in the general class for that year.
None of the plaintiff's school teachers or tutors gave evidence at the trial and thus the weight to be given to contemporaneous school reports needs to be assessed accordingly.
I shall now turn to a consideration of the medical evidence. I have already referred to the report of the doctor who saw the plaintiff in casualty at Bunbury.
In a report dated 2 July 1992 (Exhibit A p 65) Mr Peter Hookings, who was the Deputy Director of the Department of Psychiatry at Princess Margaret Hospital commented that the plaintiff was first seen in his department on 20 May 1991. The results from the initial tests taken at that time, which is in the months fairly soon after the accident, suggested that the plaintiff was functioning "in the borderline mentally retarded range of ability". He was of course still recovering from the effects of the accident. It was recommended that he return to school. By September of 1991 there was little change.
In about February 1992 tests suggested that the plaintiff's performance was deteriorating but by April there was some improvement in the form of a "pleasing increase in the performance IQ level".
Two years later, by a report dated 12 April 1994 (Exhibit A p 67) clinical psychologist Diana Casella reported on tests that had been carried out concerning the plaintiff and concluded that results obtained indicated the plaintiff was functioning "cognitively approximately 12‑18 months below his chronological age". Ms Casella states in the final paragraph:
"It is clear Charles has made some recovery in terms of his cognitive abilities as assessed by instruments administered by practitioners in this department from time to time. Children can continue to demonstrate evidence of recovery up to 5 years post injury. …"
In a second report dated 23 December 1994 (Exhibit A p 70) Ms Casella felt that the assessment of the plaintiff "suggests he continues to demonstrate a range of abilities from low average to borderline level". She then states:
"According to Mrs Denham, Charles did display learning and concentration difficulties prior to his injuries. It is highly likely that Charles' severe head injury has exacerbated these. … Unfortunately, without any psychometric evaluation prior to Charles' injury, it is difficult to partial out the effects of injury from pre‑existing conditions."
A number of medical practitioners were called to give evidence in this case and a number of reports went in by consent. It was only the evidence of one practitioner, Dr A C Harper, occupational and public health physician, which was seriously contested by the defendant. I shall deal with his evidence first.
Dr Harper wrote three reports which appear at p 20 and following of Exhibit A. In his report of 20 March 1997 (A 20) Dr Harper states:
"Charles appears to be functioning within his regular grade at school at the lower end of the class, with extra teaching assistance.
Charles' future work capacity will probably be reduced as a result of his diminished cognitive function. His disability is most likely permanent and will reduce his employment opportunities favouring manual work and will reduce his capability to pursue higher vocational training."
Dr Harper said that he felt the plaintiff had sustained:
"A permanent disability which is in the order of 20% of whole body function.:
In his next report dated 9 June 2000 (A 23) Dr Harper made the following observations:
"He requires to work in a sheltered work situation where he is capable of physical work at a relatively slow speed. He is incapacitated for clerical work and for taking responsibility. He can work with minimal supervision.
… His work capacity has been altered and compromised from the time of the accident and will remain so in the future.
Restrictions are to avoid tasks requiring high mental capacity, skills and reasoning, organisation skills, concentration or work requiring knowledge acquisition. He is capable of regular manual work but at a level which would not allow him to compete for employment in the open workforce."
In his summary at the end of that letter Dr Harper states:
"… It is now apparent that it is improbable that he will be able to compete for gainful employment in the open job market. His disability is permanent and is of a moderate severity."
In the final report dated 28 September 2001 (A 25) Dr Harper says that on examination there was very slight reduction in the coordination of the plaintiff's right hand. However the plaintiff was orientated in time, place and person and gave a clear history. Dr Harper's remarks are very similar throughout his report. In answer to specific questions from solicitors Dr Harper states:
"Restrictions are to avoid tasks requiring reasoning, problem solving, organisational skills, sustained concentration or work requiring acquisition of new knowledge and learning. In order to keep him on task he requires supervision at quite frequent intervals during the day.
These restrictions very significantly reduce his competitiveness in the open workforce. His work capacity is only suitable for a work situation where he will have sympathetic and patient supervision to keep him on task. This will probably preclude him from maintaining employment in the open workforce, although he may succeed in obtaining work."
In the penultimate paragraph of that letter Dr Harper concludes by saying:
"He is left with mental impairment effecting his work capacity and very slight physical impairment."
Dr Harper was vigorously cross examined by counsel for the defendant and especially Dr Harper's view that the plaintiff had suffered loss of mental function as a result of the accident. Counsel focus particularly on the witnesses lack of access to pre-accident school reports and other reports.
Dr Harper maintained that he knew of the plaintiff's pre-accident problems but that his view was that they were in the nature of learning difficulties rather than mental retardation or disease. As the issue is critical in the trial some detailed reference to transcript is warranted. The witness' evidence was transcribed discretely and thus bears its own page numbers that are not related to the trial transcript page numbers. At T 6 Mr Momber read out a section of the plaintiff's December 1990 school report, and in particular the general comment and then the following exchange occurred between counsel and the witness:
"That would seem to indicate a little boy who has got a very diminished cognitive function. Wouldn't you agree?---No. I wouldn't agree it’s a very diminished cognitive function. Those characteristics are in fact the sorts of things that children with learning difficulties have and these are often related to reading and writing, and predominately area. More than 90% are problems in that area but they often do not have a reduced intellectual – and IQ is not down but they have difficulty in acquiring new knowledge.
So there could be many causes for the result or the performance. Is that right? Environmental factors, you're saying, could be the cause, not any mental function of disability?---Well, a learning difficulty is a selective thing. Its something which is not a pan a generalised cognitive function or problem that he presents with that he has presented with since and so what you have read there is certainly the sort of report that children with learning difficulties have, but - - -
But they may not have any cognitive dysfunction or lack of function?---Well they have got cognitive difficulties in selected areas such as receiving from reading or transferring from what they do know to the hand to write it out, but that is something which does not always go with any intellectual impairment, so they can be very intelligent and their problems are often selective in the sense that they have.
So did you see anything different when you saw this young man?---Well, when I have seen this young man, his history particularly is one where he has got a general problem in terms of his ability to in fact stick on the subject.
Which is exactly the assessment that was made pre-accident?--- I would like to in fact clarify that particular point because in learning difficulties children have a problem in concentrating on certain things, but in other areas they are quite able to concentrate, interact and proceed normally. Now, in this young boy's case, his problem as has been presented to me has been one which is a general lack of ability to be able to stick on the subject. It has been a pan problem and in that respect it is completely consistent with the nature of him having had a cerebral haemorrhage and hemiplegia.
But its completely consistent. I mean you have just described his pre-accident condition to us?---No I haven't.
In terms of how his teachers saw him. His teachers said even in a one to one situation he couldn't learn anything he couldn't remember anything from day to day. Now that's what you have described him as post accident. Isn't that correct?---Learning difficulties reported by teachers unfortunately are a real problem because the understanding of these learning problems is something which is very variable among teachers.
So it may not be due to a loss or a cognitive dysfunction or a low cognitive function in terms of what is normal or reasonable. Is that what you're saying?---What I am saying is that a child with a learning problem, which is usually a specific reading and writing deficiency or disability, gets reported as being a general problem in the school system and that's what is happening so often, so I would really not want to extrapolate from that sort of school report to say that the sort of problem that he had then is the same as the problem he has now. I think that would be very wrong to do that."

Counsel then put his point more vigorously at the bottom of T 7:
"But you see doctor, your assessment of him now and their assessment of him then – you may say its for different reasons – is exactly the same. Its exactly the same. That's the point I'm making. You're trying to put some exotic tone to it but the reality of it is your assessment is exactly the same as the teachers that your in one sense trying to bag?---I think there is nothing exotic about what I am saying. I am saying this boy has had a head injury which has been well substantiated and he is now unable to organise and adhere to a systematic pattern of work.
That's exactly what he was unable to do prior to the accident?---With a learning difficulty, that is not the characteristic."
At the foot of T 8 the following answer appears:
"His pre-accident condition, from the information that I have been able to gather, has been a learning difficulty which is a selective and limited problem in the transfer of information from reading printed matters, so its information in through the visual system, it is information out through mind to hand. Now this interferes obviously to a large degree with the whole phenomenon of education because that's what you do at school and if you don’t do that well you end up with labels of all sorts and they are labels which generally come out saying 'your not very bright'. The truth about learning difficulties is that people have this selective disability but they are not intellectually impaired and I - - -
So what are you saying is his pre-accident level of intellectual capacity?---I'm saying that his pre-accident level of intellectual capacity – it may well have been normal but confounded by the fact that he has been unable to read and write which then interferes with one's ability to assess the boy."
Counsel then pressed the suggestion that the plaintiff's pre-accident function was caused by intellectual dysfunction and Dr Harper responded at the middle of p 10:
"If he has an intellectual impairment which has caused his reading, writing and arithmetic problems, and therefore he is atypical in terms of his learning difficulty, your dealing with a different kettle of fish, but based on the information that I have got, this boy has had a learning problem as I have described and learning problems in young children don’t end up necessarily as employment problems later so long as they don’t get confounded by a whole lot of other things, but a learning problem in a young child does not equate to a work incapacity in an adult."
At T 12 Mr Momber put to the witness the IQ results from pre-accident tests carried out on the young plaintiff, some two years pre-accident. There was the following exchange and response:
"These are the IQ results from the Weschler Intelligence test carried out on 8 March 1989 on this young man, two years odd before the accident; Verbal IQ – dull, normal, Performance IQ – borderline retardation, dull/normal; Full IQ – dull, normal, borderline retardation. How does that affect your assessment?---Those are certainly significant findings. Now, how one balances those up with a severe subsequent head injury is certainly a difficult one of allocating attribution so, I mean, that's – I don't know how much I can in fact do to decipher that. I mean, you give information which indicates exactly as you say, that he may have had some retardation. Now, the issue then becomes what is causing that and therefore what is the natural history of that particular condition. I don't know what the diagnosis was to explain those findings. I also don't know what the validity of those findings were in terms of how they were executed, etc. I mean there is significant variability in IQ testing. It depends on a whole lot of factors and I think that therefore one has got to be very careful about how you interpret those findings…"
I then asked the following question at T 13:
"Are learning difficulties remediable?---They are remediable to varying degrees and it depends on what opportunities you have got to help with those. There are lots of learning difficulties that, given the right opportunity, can improve a great deal and also as a young person grows up, they learn strategies to dodge the problems so they learn alternative mechanisms to cope. There may well be a continuing learning difficulty but they have now acquired other skills which allow them to adjust to adult everyday life.
Was there ever a time when learning difficulties were confused with intelligence?---I think this has been a major problem, that they have been mislabelled intellectual problems and there has been a major stigmatisation of people with learning difficulties as being retarded because they simply don't fit in and cope in a normal school classroom."
The witness then commented on the school system in Western Australia and his view that the education system has been slow to differentiate between learning difficulties and adverse conclusions based on school performance and at T 13 he said:
"I think that in Western Australia and a lot of Australia we're still yet to really get our school system up to a point where children do not get mislabelled because they have got a learning difficulty. In other words there still is the trend to say 'well, he's not very bright because he has a learning difficulty' as opposed to saying 'this person has a learning difficulty but they are bright, but the learning difficulty is getting in the way."
In re-examination counsel for the plaintiff took Dr Harper to school reports of the plaintiff which indicated that he had on occasions showed great improvement. The witness expressed the view that the reports suggested that the plaintiff was a child with a learning difficulty who was in fact being taught well in the education system. Counsel then focused on the age of the plaintiff at the time he had undertaken his pre-accident tests and at T 17 the following exchange appears:
"You, I think, explained in cross examination the difference between a learning difficulty and cognitive ability generally, I think. This question of maturity, a 7 year old simply because he has difficulties as a 7 year old, would he necessarily have the same difficulties at 19 for example. Can you say that simply because someone has got some difficulties at 7 he is going to have similar difficulties at 19 in terms of reading and writing and that sort of thing?---No you can't.
What place does maturity have in that, maturity of the brain and the maturity of a person as they get older?---Yes, and there are lots of people who have had learning difficulties who with maturity can begin to read and write in their 20's. There is a very famous case of a man who was 38 before he learnt to read and write and now he is a leading businessman."
Dr Harper was an impressive witness, a professor in fact, and although his evidence was challenged in cross examination there is no contrary expert called by the defendant. The difficulty with the determination of the issue raised by the evidence of Dr Harper is the lack of pre-accident neuropsychological testing of the plaintiff. Thus the court is left to engage in the exercise of trying to determine accurately and reliably what the pre-accident assessments of the plaintiff mean and what weight to give them. The exercise is made more difficult because none of the persons who were actually involved at the time or who prepared the various reports and assessments was available to give evidence.
It must also be recognised, I think, that the tests carried out on the plaintiff were carried out when he was very young. Between the ages of 7 and 9, and the plaintiff did have some occasions when he was said to be improving in his performance. There is also a need to recognise that it is undeniable that the plaintiff had a significant head injury which has resulted in some degree of brain dysfunction.
Mr Michael Hunt, a clinical neuropsychologist, was called to give evidence by the defendant. Mr Hunt had prepared one report dated 28 March 2001, at the behest of the plaintiff's solicitors (Exhibit A.44-49).
Mr Hunt is a witness who is well known to this court and in giving evidence in relation to the effects of brain injury.
At the beginning of his report Mr Hunt made the point that it was important to remember that the plaintiff:
"Suffered a serious head injury as indicated by his lengthy period of unconsciousness (although this developed a few hours post injury), a right hemiplegia involving upper and lower limbs and CT head scan indication of a focal haemorrhage within the left internal capsule".
On reading Mr Hunt's report it is also important to bear in mind that the history he obtained from the plaintiff is of suspect reliability in respect of some matters. For example he apparently told Mr Hunt that he "does some stand up surfing without difficulty indicating good balance". According to the plaintiff's father he does not stand up surf at all but uses a body board.
Mr Hunt was provided with the results of testing carried out by a Mr Gardiner in 1999 and he was able to compare those results with others obtained by him in 2001. He stated that the results indicated some decline in the plaintiff's verbal scores over the two year period. Mr Hunt's view was that the reason for this decline "in the face of stability of his performance upon other tests, verbal and spatial is not clear but is unlikely to be related to the affects of his head injury". Mr Hunt states at Exhibit A.46:
"The general pattern of his test results reveals a mild differential in favour of slightly higher spatial relative to verbal functioning accompanied by a slow rate of information processing … His score is mildly below the level expected compared with his level of verbal intellectual functioning."
In general terms Mr Hunt was of the view that there was some evidence, on testing, of mild dysfunction but he found the passage of time since the accident and the age at which the accident occurred to be complicating factors. He was unable to find clear evidence of cognitive dysfunction that could be related specifically to the plaintiff's head injury. He put it in the following terms:
"(Exhibit A.48) Overall and although he clearly sustained a significant head injury it is difficult from his test results to determine a pattern of performance suggestive of persisting accident related cognitive impairment. On the basis of all these factors it is therefore difficult to see any clear indication of accident related cognitive impairment. Considering, however, that he did have a serious head injury accompanied by a hemiplegia and speech and language difficulties it is probable that his cognitive functions were, to some degree, affected by this event. It is likely that these effects would also have added further to his pre-existing learning problems."
When asked to address the issue of the plaintiff's capacity generally at Exhibit A.49 Mr Hunt concluded with the following remarks:
"On the basis of a number of factors which are not accident related such as his young age, the possibility of pre-existing learning difficulties and perhaps limited social sophistication, life experiences and financial responsibility I would have concerns about his capacity to manage the investment of his settlement monies. Add to this the cognitive effects of a head injury whether they be mild or moderate and I think there is concern about his capacity in this regard."
In examination in chief counsel for the defendant asked Mr Hunt whether he had had access to the plaintiff's pre-accident school reports when he reviewed the plaintiff. Mr Hunt said that he did not but the fact that he had no such access did not substantially change his view. Indeed Mr Hunt stated that the relationship between the sorts of pre-accident test results the plaintiff had produced and the plaintiff's capacity to work was "rather limited". Mr Hunt emphasised that his brief was to undertake an assessment of the plaintiff's cognition and "see whether there were signs of persisting cognitive impairment arising from the accident". Having seen the plaintiff's school reports and reviewed the plaintiff Mr Hunt expressed the view that the plaintiff "was a young man who really was never heading toward any sort of clerical type occupation, that he would probably be much more inclined to work in a labouring position, which really doesn't seem to be appreciably different from that that he is currently employed in" (T 21-22).
Although not within his area of speciality, and although there was no objection taken, Mr Hunt expressed a view about the plaintiff's employment prospects. He was told that the plaintiff had obtained a driver's license and Mr Hunt stated:
"I think that just reaffirms really the fact that his cognitive functioning is probably reasonably good or fairly well maintained and I think if he can drive a motor vehicle, then with his cognition, then he should be able to hold down a reasonably stable, low level labouring type of position which I think he would have been suitable for before. … Question: Do you see from your study of him a need for him to be confined in a sheltered workshop situation? … Answer: No. Again I think if he is competent to drive a car, then I would find it difficult that he would need to be employed in a sheltered workshop."
In cross examination Mr Hunt was immediately returned to a consideration of his area of speciality as a neuropsychologist. He agreed he was not a qualified medical practitioner. Mr Hunt said that the tests he administered were capable of giving an indication of pre-accident levels of functioning.
It is obvious that Mr Hunt formed a generally favourable impression of the plaintiff's level of cognitive functioning and he does not seem to have found unequivocal evidence of damage. But on the other hand he is ready to concede that, given the nature and seriousness of the plaintiff's head injury, "there probably are very subtle changes in his cognition". Mr Hunt agreed that he had relied significantly on the history given by the plaintiff and the assessment of Mr Hunt's evidence needs to be made in light of the dispute about the accuracy of that history, when regard is had to the evidence of the plaintiff's family and a previous work colleague.
The plaintiff also adduced evidence from Dr Peter Chauvel a developmental paediatrician, who saw the plaintiff in Princess Margaret Hospital very soon after the accident. Dr Chauvel's reports appear in Exhibit A.11-19. Dr Chauvel first saw the plaintiff on 15 April 1991 prior to his discharge from hospital.
In his first report dated 14 May 1991 (Exhibit A.11) Dr Chauvel stated as follows:
"Charles is making a steady recovery. The right sided weakness is no longer present, although he is still having a little problem with fine things, like buttons.
He is ready to go back to school now. He should not start back with horse riding, motor bike riding and bike riding for six months. He should never box but karate, tae kwon do etc is okay to do. He should be back to normal soon."
In his next report which was dictated on 6 January 1992 he reviews the plaintiff's progress and then in the penultimate paragraph states:
"The difficulty appears to be the child has problems with his cognitive function associated with difficulties in concentration. These problems had appeared to exist to some extent prior to the accident but certainly have been made worse since the accident."
In his report of 16 September 1993, addressed to the plaintiff's solicitors, in which it is obvious he was asked to focus on certain issues, Dr Chauvel concludes with the following remarks:
"In summary, Charles is a boy with a slight depression in his cognitive function with occasional but not severe symptomatology with headache and neck pain which appears to be related to the accident.
I do not have any pre-traumatic evaluations of Charles. He appears to be stable now. It is likely that the intellectual deficit was present prior to the accident however there has been some accentuation of psychological problems since the accident. I believe Charles' major difficulty will be one with education and future employment."
In his report of 26 October 1994 Dr Chauvel said:
"In summary Charles has made a good neurological recovery. However there are persistent difficulties as indicated in Ms Cassella's report. His behaviour still has a degree of impulsivity and difficulty in following routine. His cognitive function is approximately 12 to 18 months below chronological age and is compatible with previous assessments done since the accident and compatible with the educational level he is working at.
This degree of cognitive impairment associated with difficult behaviour and lack of persistent concentration are compatible with the injuries received to his brain."
On 4 September 1995, in his penultimate report, Dr Chauvel comments upon the results of an MRI scan which confirm the presence "of residual post traumatic damage within the posterior limb of the left internal capsule in the mesial temporal lobe on the left side".
Dr Chauvel then concluded the report by stating:
"Charles' problems relate to difficulties in concentration with a persistent delay in his learning ability and overall cognitive function. These changes are consistent with the injury received by his brain. I believe this disability may ultimately effect his future employment potential."
In his last report dated 10 September 2001 he was asked specific queries by the plaintiff's solicitors and responded as follows:
"His overall presentation is that of a person with slightly diminished cognitive ability.
…
His work capacity has been generally reduced since the time of the accident. … Charles Denham's work capacity remains reduced with a reduction of cognitive ability and slightly reduced upper limb dexterity. … Charles Denham's future work capacity will remain at a reduced level due to the reduction of his cognitive ability. … I believe Charles' future work capacity will be compromised for the remainder of his life. … I do not believe Charles Denham will be able to undertake any executive function, in a position where he will be required to make decisions especially regarding other people's safety. He could perform in a basic labouring or as a trade's assistant. He would not be able to undertake clerical duties. … Charles Denham does have a restriction in competing in the open workforce. I am unable to comment on the competition within the workforce. However Dr Harper has made an assessment of this which I would concur this suggesting a permanent disability in the order of 20% of whole body function. … There is a mild residual disability as a result of the injury effecting the dexterity use of his right upper limb. … Physical injuries of a mild and non-function nature. However I believe the cognitive effect does have a moderate degree of impact on Charles Denham's life reducing his future employment and recreational option."
In cross examination Dr Chauvel indicated that the brain injury suffered by the plaintiff appears to have accentuated his cognitive functional difficulties. He said there were changes in the way the plaintiff used language. In re-examination he agreed that some children develop later than others and expressed the view that the comments made about the plaintiff pre-accident must be seen in the light of the age of the plaintiff at the time. He agreed that some of the remarks made about the plaintiff prior to the accident indicated that he was showing some encouraging signs of improvement.
Mr Steven Cohen, a clinical psychologist, was also called to give evidence. His reports appear at Exhibit A.1-5. Mr Cohen appeared generally supportive of the plaintiff's claim of symptoms but was uncertain as to causation.
Dr Paul Skerritt is a psychiatrist who gave evidence for the plaintiff based upon a single report dated 21 August 2001 which is reproduced in Exhibit A.6-10. Dr Skerritt reviewed extensive documentation including reports that were provided to him and on the last two pages of his report he made a number of relevant remarks. He expressed some doubt about the employability of the plaintiff in the family business. At the top of p 4 of his report (Exhibit A.9) he stated:
"Like virtually all of my colleagues I found it difficult to distinguish between an obviously modest school performance before the injury and marginal IQ figure since. In view of the site and magnitude of the injury and particularly the description of his mother of Charles being conscientious but nevertheless distractible, I was inclined to think that the head injury had an effect on certain areas of the modulation of his behaviour."

In response to a question "If my client's future work capacity has been compromised, for how many years do you think it will remain so" Dr Skerritt replied:
"I do not think there will be any deterioration in his work capacity. Rather the present favourable circumstances of his employment may not exist in the future and he may not be able to cope with open employment."
Dr Skerritt had similar views about the plaintiff's ability to compete in the open workforce.
Mr Michael Lee, neurosurgeon, also prepared a number of reports for the plaintiff and they are reproduced in Exhibit A.28-36.
Mr Lee, in his report of 7 June 2000 stated that he reviewed the plaintiff on 5 April 1991 noting that he had recovered from a right hemiparesis, had made a very good neurophysical recovery but was left only with signs of lower limb hyper-flexia of mild degree. Mr Lee said that the plaintiff's main problem following this injury "has been a residual disturbance of higher cortical function."
Mr Lee expressed views about the plaintiff's employment prospects, basically along the same lines as others, mainly to the effect that whilst employed in the family business the plaintiff can cope but that he would not be likely to do so if he was ever required to compete on the open market.
In his report of 28 September 2001 Mr Lee stated:
"I think it is reasonable to conclude that any problems demonstrated by psychometric testing are more likely to be the result of his head injury than any pre-existing condition.
As far as his work potential is concerned, in the context of the family business, I think that his situation is very reasonably summarised by his mother who feels that whilst he is able to put in an effective day's work as a worker he does not have managerial potential."
Mr Alan Prosser, an orthopaedic surgeon, prepared three reports which are reproduced at Exhibit A.37-43. Mr Prosser's view was that none of the plaintiff's orthopaedic injuries had caused significant limitations. Other than that, his observations did not appear particularly significant in this case.
In order to determine the primary issue in the case being whether the plaintiff's cognitive deficit presently displayed is attributable at all to the motor vehicle accident, apart from a review of the medical evidence, reference is required to the evidence of the plaintiff's family. I shall turn to that evidence shortly but it is appropriate briefly to comment upon the plaintiff's evidence as to this issue.
The plaintiff presented in the witness box as a pleasant young man of whom it is difficult to identify significant cognitive problems. He was slow and deliberate in some of his responses but they were appropriate. He seems to be of the view that there is little wrong with him and that is, in a sense, the way he presented in court. So far as he is concerned he is fully capable of coping in most of the demands and activities of daily life and he did not seem to have the view that he would have difficulties if he was ever required to seek employment on the open job market. He described a number of his duties which he said he was able to fulfil. He did concede difficulties in memory occasionally and in feelings of fatigue. However he has obtained his driver's licence. He is capable of doing his own shopping. He has driven for distances, for example from Boyanup to Augusta which is about a two and half hour drive. He goes out with his friends occasionally. He goes surfing. He also stated that he was certified as a scuba diver to depth of 25 feet, however he does not do a lot of diving.
The plaintiff stated that he tends the 15 family horses together with trotters and thoroughbreds and he is capable of looking after them, cleaning stables out and exercising them and the like.
Looked at in isolation the plaintiff's evidence concerning his own disabilities was of little assistance. However the plaintiff's father, brother and former workmate were more helpful. Bernard Denham is the plaintiff's father and he gave evidence that he lives on a farming property in Boyanup He described the plaintiff prior to the accident and afterwards. The plaintiff was active in sports including football and cricket. He was quite a good footballer.
So far as the plaintiff's pre-accident education there were some difficulties with the plaintiff coping at school and with his behaviour. He was struggling academically. When the plaintiff's elder brother was due to commence at Our Lady of Lourdes it was decided that the plaintiff would also start there albeit in year 1 rather than repeating his pre-primary year. He said that the plaintiff's results started to improve prior to the accident.
Mr Denham describe the period immediately post accident. The plaintiff needed a considerable degree of assistance in his recovery in the form of gratuitous services. The plaintiff had difficulties with fatigue. Apart from physical difficulties the plaintiff seemed to be flat in his affect and was not the same happy go lucky young fellow as he had been before the accident. He spent a lot of time lying around the house and watching television.
Mr Denham described the plaintiff returning to school and his view was the school was very supportive and helpful for the plaintiff. Unfortunately the plaintiff lost interest in sport.
The plaintiff was now employed in the family business which makes garden gnomes. Mr Denham said that he acquired the business in 1999 in order mainly to give his son Charles some security in the future. However the business now employs 14 people including four members of the Denham family.
Mr Denham told the court that the plaintiff's brother was a surveyor who completed a three year course having passed his exams. He also left school in Year 10.
Mr Denham described the plaintiff's performance at work. He said the plaintiff can lift weights of 25 kg to 30 kg (in contrast to the plaintiff's evidence of being able to lift more than twice that amount). He said the plaintiff occasionally wandered off in the course of his work, mainly in the afternoon.
Significantly Mr Denham said that if the plaintiff were not his son he would not employ him. He said "I spend all day pulling my hair out trying to get work out of him".
The evidence of the witness Dryden, a former employee of the plaintiff's family business, who finished work in September 2001, was to the same effect. He described the plaintiff as being the poorest worker in the business and that he "always had to keep an eye on him". He said that he would check up on the plaintiff every half hour. He said the plaintiff had poor attention span and poor concentration. He tried to treat him the same as other people. He also said that if he had a choice he would not have kept the plaintiff employed at the business.
The plaintiff's father further advised the court concerning the plaintiff's abilities to tend to the daily requirements of successful independent living such as paying bills and matters of that kind. His view was that the plaintiff was not capable of any systematic activity or responsibility of that kind. He said that before the accident the plaintiff was active and competitive in sport and with respect to school he had commenced to improve but that after the accident he has really gone nowhere.
The plaintiff is paid $10 per hour and according to his father that is an overpayment. The plaintiff's brother when he worked at the family business, was paid $15 per hour. Mr Denham said the plaintiff still occasionally gets a glazed look in his eye, he has to sit down and he sometimes suffers from headaches. He also sometimes lapses into the speech difficulties that he used to have. He said the plaintiff had quite a good social life and an active group of friends. He goes out on weekends but is required to be home by a certain time.
In cross examination Mr Denham stated that he left school at the age of 15 and commenced an apprenticeship as a slaughter man. He had acquired the family business by raising money on the family farm. The farm comprises 84 acres which is partly bush.
In discussing the plaintiff's pre-accident school reports Mr Denham agreed that the plaintiff did have some problems. Mr Denham was derisory of any suggestion that the plaintiff was a competent surfer who stands up on his surfboard. He said the plaintiff will not go into the water if there are any waves higher than the desk in court. In general Mr Denham's evidence was not contested by the defendant's counsel.
Mrs Denham gave evidence which was also uncontroversial. She observed that the plaintiff was seriously injured in the accident but that she has had her own memory affected by the experience. She says that she supervises her son in subtle ways. She regulates his hours and outings in an effort to control his personal life and help him to cope domestically. She looks after his financial matters. She gets him out of bed in the morning. She described the plaintiff's activities as involving some surfing, body surfing and with the police rangers. She could not remember ever taking the plaintiff to appointments.
The plaintiff's brother Peter Denham is 4 years older than he and described the plaintiff as being very outgoing, coordinated and extremely competitive prior to the accident. On one occasion the plaintiff played a game in the brother's football team prior to the accident which is testimony to his physical skills. After the accident the plaintiff's physical ability was never as good.
Peter Denham said that he would go back and run the family business if he was required to do in spite of his personal career ambitions that relate in part to his qualification as a surveyor. When he was working in the family business he kept an eye on the plaintiff. He said that the plaintiff produces about 50 per cent of what other staff produce and that his concentration is lacking. Peter Denham said he constantly has to keep asking his brother to do things during the course of the working day. He said that the plaintiff tries to help with looking after the horses but he is unreliable and he can walk off and stop doing whatever he is doing and do something else altogether different, inappropriately, and without thinking. He said the plaintiff is irresponsible with money and often spends the entirety of his pay before the weekend.
Both the medical and civilian evidence in this case seems to point in the one direction. I have no doubt that the plaintiff suffers a cognitive deficit as described by his family members and by the medical witnesses.
Having regard to the combined effect of the medical evidence and the evidence of the civilian witnesses I am satisfied on the balance of probabilities that the accident in which the plaintiff was involved is a significant contributing factor to the plaintiff's cognitive deficit. True it is that prior to the accident he was obviously a poor performer scholastically but the pre-accident school materials are equally consistent with a child having learning difficulties and, having regard to the evidence of Professor Harper and Dr Chauvel, more consistent with that in my view than with any pre-accident cognitive deficit. Whatever the precise classification or categorisation I find on the balance of probabilities that the plaintiff's present employability and his decreased ability to compete in the open job market and deal with the adverse event of losing employment with his family is caused by the accident and not by any congenital problems.

Non-economic loss

I have already described some of the difficulties that the plaintiff has. He does not suffer significant pain or physical disability apart from a mild weakness in his upper limb. I am not convinced that he is aware of what he has lost in all the circumstances. However he sustained a serious brain injury and has significant permanent disability arising from it. He has poor concentration and attention span and an inability reliably to manage his own affairs or to cope with any systematic obligations in employment. As he gets older I think that his feelings about these matters are likely to be activated more than they are now at his age of 19 years when, like others of his age, he is more interested in things such as surfing, cars and the opposite sex.
In my view a fair amount of compensation for his non-economic loss would be an amount of $60,000.

Past economic loss

Given that the plaintiff has been employed throughout his short working life in the family business, and receiving a reasonable income, there is no claim for past economic loss.

Future economic loss

The claim for future economic loss is articulated in the following way in the plaintiff's schedule of damages:
"The plaintiff was born on 6 June 1982 and is therefore 19 years of age. He is working in a sheltered workshop situation in his parents' business. If he were not their son they would not employ him. They are paying him more than what his work is worth. He would be unemployable on the open job market.
There are essentially two difficulties in him undertaking even the simple tasks at his work. The first relates to his concentration. He wanders off physically and mentally. … But for the accident it is reasonable to assume that the plaintiff would be working in his parents business earning $15 per hour. Instead he is paid $10 per hour and he is not even earning that. The plaintiff is not improving physically or mentally and is not improving his work habits."
The initial claim put forward on behalf of the plaintiff is that he has lost all his earning capacity and is entitled to an award, of the order of $356,000, because the fact that his parents are paying him in a sheltered workshop situation should be deemed a voluntary payment which should not be to the benefit of the defendant.
Alternatively the plaintiff's claim is formulated upon the basis that his loss is at least $5 per hour for the rest of his working life "and probably more if he was to be paid what his work is really worth to the business".
A submission is then made on his behalf that, "although his employment seems secure at this stage, there is a risk that he may not always have that opportunity bearing in mind that in normal circumstances he would have another 46 years of work ahead of him".
In the final paragraph of submissions under this head of damages the following is put:
"The weekly multiplier for 46 years on 6% discount tables is 834.1. The plaintiff works, or at least is paid, on the basis of 38 hours work per week. At a loss of $5 per hour that equates to a loss of $190 gross or approximately $142 per week. Over the balance of the plaintiff's working life that equates to a loss of (834.1 x $142) equals approximately $118,500. In arriving at an appropriate lump sum, there should be added to that an allowance for the money the plaintiff is being paid which he is not earning, and, importantly, an allowance for the risk that he may not have his current job available for the rest of his working life, in which case he would be unemployable and in which case his loss of earning capacity will result in a total loss of earnings."
There is no basis for thinking in the short or even medium term that the plaintiff will have any period of unemployment. His father is relatively young and healthy and the family is obviously determined to assist him. The business is a viable business, "a good little business" and furthermore the plaintiff's brother indicates that he would be prepared to assist in a managerial role should the parents for one reason or another loose their ability in that regard.
Given that the plaintiff has a driver's licence, and although he has disabilities, he also has significant abilities. I am not persuaded at all that an appropriate approach to assessment is upon the basis that he has lost all his working capacity. I do not accept the plaintiff's counsel's primary submission as to the approach for assessment for future economic loss.
However the plaintiff is a young man and obviously would be severely effected if he was not able to obtain employment in the family business. Further the disabilities from which he suffers which are accident caused may be productive of economic loss in the future. An arithmetic approach to this assessment is not appropriate but given his young age I think a global award in the amount of $150,000 for future economic loss would be fair and appropriate.

Gratuitous services

The plaintiff makes a claim for gratuitous services at an agreed rate of $12 per day.
The plaintiff's calculations were presented in schedule form and provided to counsel for the defendant to peruse overnight but he declined to make any comments upon the calculations. The claim was put as follows:
"During the immediate recuperation phase after being discharged from hospital for about three months the plaintiff required assistance/supervision over and above assistance/supervision required before the accident. He was in a wheelchair. He was paralysed down one side of his body. He had to learn to walk again. He needed assistance with dressing. He required speech therapy, physiotherapy and chiropractic treatment and attendances upon doctors in Bunbury and Perth."
Counsel then formulated the claim upon the basis that for the first three months the plaintiff required three hours assistance at $12 per day, equals 3 hours x 7 days x $12 x 13 weeks equals $3,276. Interest at 6 per cent for 10.5 years was then calculated at $2,064.
It was then submitted:
"In the normal course the plaintiff would have become progressively more independent of his parents as he got older. It would not be unreasonable to allow on average one hour extra supervision/assistance per day between 9 and 18 years of age at $12 per hour namely 9 years x 52 x 7 x $12 equals $39,312."
A claim for interest at 6% in the sum of $12,383 is then also made.
It is then submitted:
"By age 18 years the plaintiff would in the normal course have been independent. As a result of the motor vehicle accident he requires assistance/supervision to ensure he gets up in the mornings, has breakfast and goes to work. He also requires assistance with his wages, banking and paying bills and the like. That is claimed at the rate of one hour per day since the plaintiff turned 18 years of age (on 6 June 2000) namely 1 x 7 x $12 x 70 weeks equals $5,880."
I think a claim for one hours assistance per day is excessive. In some respects the plaintiff's behaviour is adolescently typical. But I would allow half the claim namely $2,840 plus interest of $118.
I would thus allow an award for past gratuitous services including interest in the sum of $59,993.

Future assistance and supervision

The plaintiff claims a sum of $72,509 for future assistance and supervision upon the basis that he will "continue to require assistance for the rest of his life". The calculation is based upon a life expectancy of 57 years and a multiplier of 863.2. Again the calculation assumes a need for assistance of one hour per day seven days a week.
I think this sum is inflated and takes no account of the experience the plaintiff must necessarily acquire in the maturing process. Arguably however half an hour per day would be required in the one form of assistance or other but not for his whole life. I am prepared to allow the sum of $25,000.

Travelling expenses

The plaintiff's claim for travelling expenses is in the amount of $2,208 being 7370 km at 30 cents per kilometre. I allow that sum. The claim for interest is at 6 per cent on that sum for a period of 10 years which I also allow in the sum of $1,325.

Loss of superannuation and benefits

I allow the claim at 9 per cent x $150,000 equals $13,500.

Assessment

My assessment in this matter is as follows:
Non‑economic loss  $ 60,000.00
Future economic loss  $150,000.00
Past gratuitous services  $ 59,993.00
Future assistance  $ 25,000.00
Travelling  $    1,325.00
Loss of superannuation  $ 13,500.00
$309,818.00

An allowance needs to be made for Public Trustee fees. I shall await further submissions in light of the quantum of the award.