Fisher v Department of School Education Western Region

[2000] NSWSC 268

CITATION:	Fisher v Department of School Education Western Region [2000] NSWSC 268
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20736/97
HEARING DATE(S):	28 February 2000, 29 February 2000, 1 March 2000,
JUDGMENT DATE:	6 April 2000
PARTIES :	Lynette Joy FISHER - Plaintiff Department of School Education Western Region - Defendant
JUDGMENT OF:	Simpson J at 1

COUNSEL :	Mr J Coombs QC with Mr P Arden - Plaintiff Mr M Gilbert - Defendant
SOLICITORS:	R J Nolan & Co - Plaintiff Moray & Agnew - Defendant
LEGISLATION CITED:	Workers' Compensation Act 1987
CASES CITED:	Luxton v Vines (1952) 85 CLR 352 TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267 Figueroa v New South Wales Insurance Ministerial Corporation (unreported, 18 March 1998)
DECISION:	Verdict for the Plaintiff

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SIMPSON J

Thursday 6 April 2000

20736/97

Lynette Joy FISHER v DEPARTMENT OF SCHOOL EDUCATION WESTERN REGION

Judgment

HER HONOUR :

1    The plaintiff claims damages for personal injury allegedly sustained by her on 21 August 1992 during the course of her employment with the defendant. She claims that her injuries were caused by the defendant’s negligence. The defendant denies that it was negligent. Issues for determination are whether the plaintiff has established that the defendant was in breach of the duty of care it undoubtedly owed her; and, if so, the extent of the injury sustained. It is convenient to begin with the issue of liability.

LIABILITY

2    The plaintiff was employed by the defendant as a teacher of disabled children in a special unit at Dubbo in the central west of NSW. She had been so employed since 17 February 1988, although she had previously had intermittent employment of the same kind and at the same establishment. The children with whom she was working plainly had significant impairment of functioning both intellectual and physical, and imposed considerable demands upon the plaintiff’s attention. Only six or seven children were ordinarily in the group with whom she worked, and she had the assistance of a teacher’s aide. The classroom in which she worked was of the kind known as a demountable, made up of modules joined together to provide the required configuration. This particular classroom was made up of four modules. One of these provided a kitchen area equipped with a sink and facilities for providing meals for the children. The floor of this section was covered in linoleum or vinyl. Adjacent to the kitchen area was a storeroom, and next to that was a toilet. A series of photographs, marked Ex A, depict the area. Another section adjacent to the kitchen area appears to have been equipped for activities with the children. The floor of this section was carpeted. A metal strip ran along the line where the two modules and the different floor surfaces met. A number of other joins were also covered by such strips. By reason of what appears to have been either faulty design or inadequate materials, at least one of the strips (and possibly more) had a habit of detaching itself (or themselves) from the floor and lifting, causing an obvious hazard. Although it was common ground that at least one strip had this propensity there was some conflict in the evidence as to which it was. The plaintiff and others who worked in the area made a practice, when the strip(s) lifted, of using the heel of a shoe or some other convenient implement to re-attach it or them. There was evidence that on occasion the principal, Mr Rawson, used a hammer for the purpose.

3    During the morning of 21 August 1992 the plaintiff was at work as usual. Three or four tables had been pushed together in the kitchen area, on the vinyl floor. The tables were adjustable in height and they had been lowered to provide access for small children having morning tea. One of the smaller children had possession of a toy that belonged to another child who was known to be autistic. The child with the toy was sitting on the vinyl floor between the table, behind which was a chair, and the wall of the storeroom. The autistic child had become aware that his toy was in the possession of the other child. He was heading towards the other child in a manner that threatened violence. The plaintiff recognised that, having regard to the child’s condition, speaking or calling to him would be unlikely to have any effect. She fixed her eyes upon him in the hope that, if he met her gaze, he would interrupt his path to the other child. At the same time she moved quickly from where she had been in order to protect the child in danger. Circumstances did not give her the opportunity also of looking at the floor, or where she was putting her feet.

4    Before she reached the child something happened that caused her to fall to the floor. Precisely what happened is critical to the question of liability. The plaintiff has no recollection of anything after she fell until several days later when she was recuperating at home. She was taken by ambulance to Dubbo Base Hospital, where she remained an in patient for four days. There is no direct evidence and the question has to be decided on the probabilities by inference from the other evidence in the case. The teacher’s aide on duty that day, Ms Back, (who did not ordinarily work with the plaintiff) was in the toilet area off the main room attending to another child. There was, accordingly, no adult witness to the fall. Clearly none of the children could give evidence of what happened. In undertaking this exercise it is necessary to take care to avoid reliance upon mere conjecture. The plaintiff’s case is that, although she has no recollection of the incident, by a process of inference it can be established that she tripped on the metal strip which must have lifted. The defendant’s contention is that the plaintiff slipped on the vinyl floor and fell, probably backwards, or alternatively tripped on a child’s toy or some other object, and that no negligence can be shown in the defendant’s conduct.

The evidence relevant to the question is in relatively narrow compass.

5    From the children’s toilet Ms Back heard the plaintiff fall. She could not immediately leave the child to whom she was attending, but hurried out as soon as she was free. She said that when she arrived on the scene the plaintiff was lying on her back beside the low tables, her feet towards the storeroom, her head towards the carpeted area. She identified on Ex A3 the plaintiff’s general location. The plaintiff had an injury to the left temple.

6    Although it appeared that there was a real conflict in the evidence about the identification of the particular strip or strips with a tendency to lift, analysis of the evidence as it ultimately emerged shows a good deal of agreement, at least as to the relevant strip. The plaintiff’s evidence was that only one of the metal strips had the propensity to lift and cause danger. This was the strip that ran between the wall on which the sink was located, across the vinyl floor, across the carpeted floor, to the wall opposite the sink. She identified it on the photograph marked Ex A2. This strip runs parallel to the wall that divides the storeroom and adjacent toilet from the kitchen area. Ms Sandra Creamer (in the transcript spelled “Kramer”), who was the aide regularly assigned to assist the plaintiff, gave evidence that lifting was a general characteristic of the strips, not just in the plaintiff's classroom but throughout the school. Ms Margaret Walton gave evidence to similar effect. Mr Rawson identified the same strip as did the plaintiff as the one that caused the problems but indicated a different point, well into the carpeted area and away from the vinyl as the point where the problem occurred. The location of the lifting that he identified can be seen on Ex A3. The only difference between the evidence of the plaintiff and Mr Rawson is that Mr Rawson confined the area of lifting to a small circled area, on the carpet, some distance from the junction of carpet and vinyl, and some distance from where the plaintiff was lying when seen by Ms Back.

7    The real dispute, as the case progressed, was whether the plaintiff was in the vicinity of this strip at the time of the fall, and whether, assuming she were, it could properly be inferred that tripping on the strip was the cause of her fall.

8    One matter that might throw some light on this question is the plaintiff’s location when she first became aware of the need for intervention between the children. Once that is established, it would be possible, by deduction, to determine the route she would probably have taken to get to them. The plaintiff’s evidence was that she had been in the carpeted area of the room, about the centre but towards the door. In order to get to the children she had to move diagonally across the carpeted area. This route would have caused her to cross the metal strip which both she and Mr Rawson said was the troublesome one.

9    On behalf of the defendant it was contended that the evidence indicated that the plaintiff was not on the carpeted area at the time of the commencement of the incident, but was in the kitchen area near the sink. The only basis for this contention lay in an account given by Mr Rawson of a conversation he had with the plaintiff immediately after the fall and before the ambulance arrived. He said that the plaintiff told him she had been in the “wet area” when she first saw what was happening between the children. He said the “wet area” meant the area around the sink which was at the outer edge of the vinyl floored section. The plaintiff has no recollection of this conversation. If it were the case that she was moving from somewhere in the vicinity of the sink, counsel for the defendant argued, logic would suggest that rather than walk around the outside of the tables she would have moved in front of the sink (most clearly seen in Ex A2), and then along the inside of the storeroom wall. She would have crossed the strip at the sink end of the room, and well away from where she ultimately fell. The strip, whether raised or not, could not be implicated in the fall.

10    In evidence in reply, the plaintiff pointed out that, given the location of the smaller child with the toy when she first became aware of the problem between the children (sitting on the floor, behind a table and chair which were positioned between the sink and the child) she would not have been able to see him from the sink. She was quite definite in her recollection that she had been in the carpeted area of the room. A direct line from that location to the child with the toy would have taken her across the strip that both she and Mr Rawson agreed had the tendency to lift.

11    I found the plaintiff, as indeed I found all witnesses, to be truthful and doing her best to give accurate evidence. She was very definite about her position at the beginning of the incident. I accept her evidence in that respect. That acceptance is rendered more comfortable by the practical consideration, pointed out by her, about the unlikelihood that she could or would have observed the small child from a position at the sink.

12    The principal question is whether it can properly be concluded that the plaintiff tripped, as distinct from slipped. It was not contended on her behalf, if the conclusion were that she slipped, that she could establish negligence. There was no evidence that either the carpet or the vinyl was an unsuitable surface. Ms Creamer gave evidence that (as might be expected) the children were inclined to dribble, or to leave food scraps around, and there was always the possibility that, without negligence on the part of the defendant, the floor would be wet as a result.

13    If it is established that it is more probable that the plaintiff tripped, there are, in turn, two possibilities. One is that she tripped on the metal strip: in that case, the defendant did not argue against the proposition that negligence was established. The second possibility is that the plaintiff tripped on something else, for example a child’s toy or other object left there by the children: in this case the plaintiff did not contend that she could establish negligence against the defendant.

14    It is therefore necessary, for the plaintiff to succeed, to prove that the probabilities favour a conclusion that her fall was caused by her tripping and that the trip was caused by the metal strip. As I have noted above, this can only be established by inference and it is important to bear in mind the need to avoid relying upon conjecture, speculation or supposition: see Luxton v Vines (1952) 85 CLR 352; TNT Management Pty Ltd v Brooks (1979) 53 ALJR 267.

15    It is convenient first to dispose of the contention advanced on behalf of the defendant that the probability is that the plaintiff slipped. There are four circumstances that support such a conclusion. One is the position in which the plaintiff was lying, on her back, when Ms Back emerged from the adjacent toilet. This happened, while not immediately after the fall, within a very short time. If the plaintiff’s position then represented the position in which she fell, that would strongly suggest that she slipped on something on the vinyl floor and fell backwards. Secondly, in a compensation claim the plaintiff made on 27 August, just six days after the accident, she wrote:

“I slipped and fell backwards, while moving around the class room near the children’s table. I must have been falling to one side or turned while falling to have hit the side of my head on a table and fallen on left shoulder.”

Thirdly, immediately after the plaintiff left in the ambulance, Mr Rawson and the assistant principal conducted an inspection of the area specifically in search of anything that might have caused the fall. He had no recollection of noting that the strip was then in a dangerous condition. Fourthly, the allegations initially made by the plaintiff in the statement of claim filed in the District Court on 26 March 1996 contained no reference to the metal strips, or any suggestion that one of the strips might have been the cause of the fall. The negligence she then particularised was of failure to provide her with a properly trained and competent assistant, failure to combine her class with a class of immobile children while Ms Creamer, her regular assistant, was absent from duty, and:

“knowing of the special needs of the children, failing to take any or any adequate steps to ensure the safety of the plaintiff.”

16    It was only in 1999 that the plaintiff sought leave to amend the statement of claim (by this time transferred to this Court) by particularising the alleged defects in the metal strips. The assertions about the competence of her teacher’s aide were ultimately abandoned and the plaintiff relied exclusively on her claims that the defective strip caused the fall. She was unable to give any explanation when cross-examined for her failure to place the blame for her fall on the metal strips until such a late stage.

17    Against this there are six circumstances that militate against the conclusion that the plaintiff slipped. First, the injury to the left temple suggests a fall forwards rather than backwards. The ambulance report recorded that she had hit her head on the corner of a desk. The source of this information is identified as “college”, which should probably read “colleague”, and the statement is entirely consistent with what is known as to the layout of the classroom and the path the plaintiff was probably taking. Second, in the inspection conducted by Mr Rawson and the assistant principal immediately after the plaintiff left, no moisture, food or water was seen in the vicinity. Third, although the plaintiff could not recall precisely what shoes she was wearing on that day, she was in the habit of wearing rubber soled or sneaker type footwear. Common knowledge dictates the unlikelihood of a slip as distinct from a trip in shoes of that kind. Fourth, the ambulance report recorded that she had tripped. Fifth, although the plaintiff has no recollection of anything after the accident, Ms Back’s evidence is that she was lucid, conscious and able to communicate. That means that the possibility that she might have moved after falling cannot be eliminated and reduces the weight that can be given to her position when first seen by Ms Back. Sixth and very importantly, Ms Christine Hughes, a friend and neighbour of the plaintiff, gave evidence of a conversation with Mr Rawson within a day or two of the incident. She said that Mr Rawson told her he had been trying to think about what might have caused the plaintiff to trip, and had taken a hammer and gone back into the room and hammered down everything on the floor that might have caused the accident. He referred to the demountables, and the problem that they were not always joined properly. Mr Rawson did not deny this conversation; he had no recollection of it.

18    It was not until 17 August 1999 that the plaintiff sought leave to amend the statement of claim by particularising the inadequacy of the structure of the classroom. The plaintiff was cross examined about this. It was suggested to her that she had not, until August 1999, considered that her fall was caused by tripping on the raised metal strip. The plaintiff more or less conceded that this was so. She said:

“I have ruled out everything else, that’s all that I have left as an opinion.”

19    I see no problem with this process of elimination. Until attention had to be given to the particularisation of the plaintiff’s case, there was no real reason for her to turn her mind to the details of what had caused the fall. To do so is very much part of the legal exercise but it is quite understandable, particularly in the circumstances of her injury, which will be discussed below, that the plaintiff did not exercise her mind with an analysis of those details.

20    In my opinion the factors mentioned militate in favour of a finding that the plaintiff tripped as is alleged on her behalf.

21    It then remains to determine whether she has established that the loose metal strip and not some other object was the cause of the fall. There was no direct evidence that on that day the strip had lifted. Mr Rawson’s evidence would suggest that he would have noticed any lifting of the strip when he conducted his inspection, but this evidence has to be seen in the light of the more positive evidence given by Ms Hughes of her conversation with him very shortly after the event. Ms Hughes was vigorously cross-examined about and remained adamant as to the terms of the conversation. As I said earlier, I found all witnesses to be truthful and I found Ms Hughes to be particularly convincing in her certainty. It must be remembered that Mr Rawson did not deny the conversation but simply had no recollection of it. And there was no evidence of any other object which might have caused the plaintiff to fall. Accordingly, I conclude that it was more likely than not that it was the loose metal strip on which the plaintiff tripped. She has therefore succeeded in establishing that the defendant is liable in damages.

Contributory negligence

22    The defendant pleaded the defence of contributory negligence. Given the way the case was conducted there was really no room for such a finding. The competing positions of the parties were clear. Once the plaintiff has succeeded in showing that the strip was the cause of her fall, then, having regard to the exigencies of the situation in which she found herself and the needs of the children, the defendant could not realistically hope to establish that she failed to take reasonable care for her own safety.

That being so, it is unnecessary further to consider this question. There was no contributory negligence.

DAMAGES

23    There is no dispute that the plaintiff is now incapacitated for a teaching career. It is not, however, conceded that the plaintiff is entirely incapacitated for any employment. A major complication arises in the assessment of the extent, if any, to which her continuing incapacity is the result of the injury.

24    The plaintiff was taken by ambulance to the Dubbo Hospital. She remained there for four days. She has no recollection of any of that time, and none until some time after she was discharged and was at home when she was visited by Ms Creamer. She was depressed and entertained thoughts of suicide. She slept a great deal, she said at the wrong time, and then was unable to sleep during the night. She found herself exhausted. Her social life diminished markedly. She has constant headaches of two kinds, one of which appears to be stress related. She became lethargic and unmotivated. Her driving became erratic to the extent that she decided it was unsafe for her to be behind the wheel of a motor vehicle. Her memory deteriorated. She finds loud noises, even loud conversations, create real difficulties for her. She is frustrated at her inability to cope with normal daily activities and as a result her marriage has suffered. She has become intolerant of others. Her concentration is impaired. She has symptoms of agoraphobia. In 1997 she underwent electro-convulsive therapy which has resulted in significant improvement.

25    Nevertheless, she finds it difficult to undertake ordinary household tasks and does little in this regard. Most of that load falls upon her husband.

26    The plaintiff’s husband gave evidence essentially confirming and expanding upon her description of her condition post accident. He said initially all she wanted to do was stay alive and continue with her teaching career. She did return to work, and she returned to the studies she had commenced. Mr Fisher also confirmed the improvement since the electro-convulsive therapy in 1997.

27    The complication I mentioned above principally arises because the plaintiff suffered from a pre-existing recurring depressive condition. Indeed, three generations of her family - her mother, herself and all of her three siblings, and her two daughters - have all suffered serious clinical depression. The plaintiff first became aware of her condition as a teenager. She had been hospitalised on three occasions prior to August 1992. In May 1983 she was diagnosed as suffering from “a major depressive illness” (Ex 2), and having “some prominent obsessional schizoid traits”. At times she had contemplated suicide. During her various hospitalisations she was given electro-convulsive therapy, the first time in 1986 and again in 1987. Following these treatments, her depression improved significantly. Thereafter she took regular medication. Notwithstanding her condition she undertook teacher training at Bathurst College of Advanced Education between 1971 and 1973, married in 1975, commenced a teaching career, gave birth to and looked after two daughters, resumed her teaching career, and had commenced studying for specialist qualifications for teaching disabled children, as well as maintaining her full-time employment. From 1987 until 1992 her depression appears to have been satisfactorily controlled by medication. In the years after 1992 she suffered very severe depression culminating in more electro-convulsive therapy in 1997.

28    The evidence thus discloses three distinct stages of relevance in the assessment of the plaintiff’s damages. The first is her pre-accident condition, that is, her condition up to August 1992. It is reasonable to conclude that she was relatively stable by that date, but her history demonstrated the very real possibility that, even absent the injury, she would have suffered relapses and recurrences of her depression, possibly (if not probably) warranting hospitalisation, drug treatment and further electro-convulsive therapy. The second stage lies between August 1992 and June 1997 when she again underwent electro-convulsive therapy with, so far, a considerable degree of improvement. The third stage is the period from June 1997 to date.

29    Before it is possible to assess damages, it is necessary to determine the extent, if any, to which the injury caused the plaintiff’s subsequent and present symptoms. This question of causation is the major issue in the quantification of damages. In this respect there was a clear collision of medical opinion. Two specialist neurologists, Professor G A Broe and Dr Ross Mellick, provided reports and gave oral evidence, the former called on behalf of the plaintiff, the latter on behalf of the defendant. I will examine their conflicting opinions and the reasons for them below. At the outset some mention should be made of the opinions expressed by other medical practitioners.

30    Dr David Palmer is a rehabilitation specialist who saw the plaintiff at the request of Dr Jewell (the plaintiff’s general practitioner) in October 1992. He referred to a CT scan that showed a small intra cerebral haemorrhage. He said no fracture was seen on the skull X-ray. He thought that the plaintiff had suffered no neurological deficit but noted the symptoms, including headaches, that I have outlined above. He had no doubt that the headaches were related to the injury.

31    The plaintiff was then referred (at Dr Palmer’s suggestion) to Dr James Gordon, a neurologist practising in Orange. He saw the plaintiff on 19 November 1992. He thought she had “the typical features of a post head injury traumatic syndrome”, and that the evidence suggested that the major trauma was to the frontal lobes.

32    While the opinions of these practitioners are certainly not unimportant, they have less weight than those of Professor Broe, and Dr Mellick. Dr Gordon did not refer to the plaintiff’s pre-injury depression. Dr Palmer was clearly aware of it, and expressly referred to it, but did not subject the question of causation to the same degree of analysis as did the specialist neurologists.

33    The plaintiff’s pre-injury recurring disorder renders it necessary and important, in assessing damages, closely to examine the circumstances of her pre-injury life, to analyse the impact of the injury, and to disentangle the symptoms of the depression from the symptoms attributable to the injury. There was a great deal of evidence relevant to these questions. It is convenient to begin with the plaintiff’s own account.

34    She had electro-convulsive therapy in May 1987 and said that, as a result of the treatment, “I was me again”. There followed some years during which she remained “stable and coping with, without having to try extra hard all the time” (T5). She had a relapse, insufficiently serious to warrant hospitalisation in 1989, when her medication was reviewed. Her work history during those years was punctuated by the births of her daughters and at times she took up employment other than teaching. In the years up to 1980 she and her husband were building their own home and the plaintiff played an active role in that enterprise. She took up casual teaching and then was employed on a permanent basis from February 1988 and worked full time until August 1992.

35    Her success at the very demanding task of teaching children with severe disabilities is a significant indicator of the control she had achieved over her depression. She said that she loved the job, and others attested to her professionalism and competence. Ms Creamer, who had worked closely with her for about nine months, spoke of her compassion, care, efficiency, dedication and preparation. Mr Rawson described the quality of her programming as “superb”, and the quality of her work generally as at a high level; he agreed with Ms Creamer’s description of the plaintiff as “compassionate, caring, competent, efficient and focussed”.

36    At the end of 1991, at the Charles Sturt University, the plaintiff undertook an external course leading to a degree in Bachelor of Education (Primary) of training for teaching children with disabilities, a course which involved some weekend seminars, projects undertaken at home, and study of perhaps two hours per day. Her assessments for the four subjects she took in 1992 each resulted in a credit award. At the same time she maintained an active and enjoyable social life, paying particular attention to the daughter of a neighbour to whom she was godmother. She read extensively, up to one and a half books in a week.

37    Her husband described her, between 1987 and 1992 as:

“Very outgoing, alive, she was a joy to be around.”

He said she enjoyed life, had a circle of friends and was an excellent mother to their children. She had a facility to engage easily with others whom she met socially. He said that the plaintiff did 95 percent of the household chores although he and their two daughters “pitched in” to some extent. The couple had a good personal relationship - he said that he had remained deeply in love with his wife, and they cared for each other deeply.

38    The couple’s successful marriage is a second important indicator of the plaintiff’s ability, with medical assistance, to control her depression. A third such indicator is her active and energetic lifestyle, and a fourth her ability to maintain friendships and interact socially.

39    Ms Christine Hughes was a close personal friend and near neighbour. She spoke of the plaintiff’s wide range of activities and their relationships with one another’s children. She was aware that the plaintiff at times descended into depression, but said that, to her observation, the plaintiff still functioned with the aid of medication. She said:

“It was mainly that her medication needed to be fine tuned, but the depression didn’t control her life; it was part of her life, it was there but it wasn’t a problem.”

40    When asked if the plaintiff had been an outgoing independent person she said:

“I would describe her as outgoing, happy, caring, confident. She had choices in her life. Her choice to pursue her job which she loved. Her choice to study. She loved to read and she would read three or four novels a week. Good concentration. She was able to focus on whatever she was doing. She would concentrate on what you were saying. She just had a lot of options in her life. She was a very happy well rounded person, very well liked. She would always offer to help people.”

41    All of this paints a picture of a woman who, as Ms Hughes said, laboured with a disability but who nevertheless functioned very successfully on a variety of levels. There is medical confirmation of this picture. In about 1985, when her brother suffered a nervous breakdown, the plaintiff came under the care of Dr Lehmann, a consultant psychiatrist. She continued to consult him until his death in 1994. Dr Lehmann’s rather brief and cryptic notes are in evidence as Ex 4. In the period 1985 to 1992 they reveal fluctuation in the plaintiff’s mood, electro-convulsive therapy administered in two separate sessions in August 1986 (the second resulting in the plaintiff’s being “much improved”), in three separate sessions in June and one in July 1987 (the third giving “significant improvement”, the fourth followed by “minimal anxiety, good spontaneity”). By 4 August Dr Lehmann described her as “improved in all aspects and appears to be coping”.

42    There follow, in the notes, brief records of further consultations, with further fluctuations. The plaintiff is again described on 23 January 1990 as having “good spontaneity” and, significantly, there is no record of further consultation until June 1993, months after the injury.

43    In July 1987 Dr Lehmann reported to Dr Jewell in the following terms:

“Lyn obtained a reasonable remission after her ECT in August 1986 but particularly with the hospitalisation for her back problem gradually deteriorated until in April 1987 when she was having severe middle sleep disturbance, had become too phobic to go down the street and spent much time thinking about self destruction. She experienced a large number of angry feelings with this episode.
It had now become clear that her remission was not going to be achieved without ECT so she entered hospital at Evesham and a course of ECT during June 1987 with quite dramatic improvement. …
I hope she will have achieved a much longer remission on this occasion.”

44    It appears that Dr Lehmann’s expressed hope was fulfilled, and the treatment did restore the plaintiff to an even balance, enabling her to function as previously described. Certainly, she does not appear to have required further hospital treatment during the next five years.

45    The plaintiff’s pre-injury functioning stands in marked contrast to her post-injury functioning. She remained in Dubbo Hospital until 25 August when she was discharged. There is a suggestion in one of the medical reports that she discharged herself. She has no recollection of her period in hospital, and intermittent recollection only for some period afterwards. For example, although she has been told that she and her husband went on a holiday, she has no memory of it. She returned to work (departmental records, Ex 5, show on 25 September), but remembers little of this. The same records then show that she was off work, attributed to the accident, between 12 October and 27 November 30 November and 11 December, and 14 December and 17 December. Ex 5 suggests that she remained in employment and (except for two lengthy periods, between 17 September and 19 November 1993, and 28 November and 16 December 1994, and other shorter periods) attending regularly until October 1995. There was no evidence about the circumstances in which her employment was terminated.

46    She did return to the classroom for a time but was noticeably less compassionate, less patient and less effective with the children than she had previously been. Ms Creamer continued, at that time, to work as her teacher’s aide, and she described the plaintiff’s performance on her return to work in the following terms:

“What I did observe it stands out in my mind, knowing what Lyn was like before and knowing that she was actually going to be taking over that class and that it would be just her and me again, it was that she was not as competent as what she had been. Her personality had changed from being someone who was gentle and loving and would, just if anything happened she just would cope with it, she became a person that was impatient to the extent that I was so concerned that I actually approached the principal, knowing that within time she was going to be on this class by herself. I approached the principal and said if this is what you’re thinking I do not think it is a good idea because she is not going to cope and, selfishly I was thinking of myself too, because I had had such a big workload increased from having so many different teachers on the class throughout that time, so many different casuals who would come in and not know what the children were up to and I thought I am going to be left with that again. Even though Lyn was the person that was on the class originally she really had forgotten quite a few things and I just approached the principal and said ‘I don’t know if it is a good idea to leave her on the class with me and I think we need further assistance’. So they then decided to leave the teacher on the class and the three of us actually coped with all the children.”

47    Ms Creamer said that the plaintiff appeared to have “no trust” any more. She appeared to have lost interest, she was concentrating on her studies (presumably at the expense of her teaching) and:

“All the kindness had gone. She was not the same person that I knew.”

She said that where previously the plaintiff had shown compassion, not only to the children, but also to their families, that was no longer the case, and she seemed not to have the time or interest to give to them. She said again:

“It just was not the same Lyn that we had previously known,”

She said that her previous “lovely mellow approach” had been transformed into an impatient approach.

48    The plaintiff experienced a recurrence of her depression. Comparing her pre and post-injury mood, she said:

“I do remember thinking that it has got to get better soon. But it didn’t.
…
The feelings that go with the depression. The depression. And it didn’t. It was like before I had found some measure of control and I had my life but I am in control of the depressive thing, it was part of me. Afterwards it is like I could not harness it.”

49    Suicidal thoughts returned “as strong as ever”. Her previous activities failed to interest her, she lost energy and interest. She slept at inappropriate times, then remained awake during the night and was exhausted during the day. She said:

“There was a lot of sleeping at the wrong time and I would be awake a lot through the night and be so exhausted all day and I would try to adjust sleep hours but I have, like my clock was not working the right way.”

50    She developed an intolerance of noise, curtailing much of her previous social life. She lost concentration and therefore found conversing difficult because she forgot the conversation and repeated questions she had asked. She lost her capacity to read because she found it difficult to make sense of the words in the middle of a sentence or to follow the plot of a novel.

51    She suffered and continues to suffer constant headaches (which had not been a feature of her life previously) which are exacerbated by stress. She has stopped driving a motor vehicle because of her erratic behaviour on the roads. Her husband (with her daughters, until they left home and established relationships and homes of their own) has taken on a much greater role in the household administration. Temperamentally, she became less tolerant. Her husband said:

“Her housework dropped from 95 percent to probably zero. All she wanted to do after the accident was stay alive to a degree. She wanted to continue her career. She wanted to go back teaching as soon as possible. She wanted to get better. She wanted to - prior to the accident she was in control of her depression. After the accident depression was in control of her. There is a subtle difference. She just wanted to be normal and independent, her normal self.”

52    He said that she tires easily and loses concentration quickly. The plaintiff said that she developed agoraphobia, a malady she had not previously suffered. The formerly excellent relationship between the plaintiff and her husband deteriorated to the point that, sometime in or before 1997, he told her of his intention to leave the marriage as soon as he could ensure that she was settled. The position is not now as clear as it once appeared; in the witness box he was noticeably ambivalent about his plans for the future, but separation remains a real possibility.

53    In July, in August and again in October 1993 the plaintiff was admitted to Evesham Hospital under the care of Dr Lehmann. At least during the last of these admissions (the evidence is unclear as to the earlier) she was given electro-convulsive therapy.

54    In November 1994 and twice in 1995, now under the care of Dr Cassimatis, the plaintiff was again admitted to that hospital. According to the chronology with which I was provided, she was admitted on 24 October, discharged 2 December, readmitted 8 December and finally discharged 18 December.

55    In 1996 Dr Cassimatis advised her that she was not fit to work and that she should cease attempts at further study, and that her incapacity for these activities was permanent. In July 1997 Dr Cassimatis again admitted her Evesham and she was again given electro-convulsive therapy. Dr Cassimatis thought then that her condition was chronic and would require treatment for the rest of her life, anticipating psychiatric hospitalisation every one to two years.

56    Notwithstanding the plaintiff’s condition, her loss of energy, and her recurrent depression, she continued, until late 1993, with the course at Charles Sturt University. In the autumn 1993 semester her studies resulted in a credit and a high distinction; but in the second half of the year she was permitted to withdraw and in 1994 she was given leave of absence. She said that her persistence was because completing the course was something she intensely wanted to do. Her husband said that she put all her energy and drive into completing those two units which she had already begun. He said she put every ounce of energy into her studies and did little other than work and sleep.

57    The June 1997 electro-convulsive therapy seems to have been a turning point. The plaintiff continues to use medication to control her depression (and can anticipate doing so for the rest of her life) and continues to have headaches, but her condition is significantly improved. She now does more of the housework and has taken on half a day per week working on a voluntary basis at a St Vincent de Paul’s establishment. She plays a little golf and does some gardening. She has resumed some social activity. Of the last, she said:

“It is a bit of a chore but now that I feel like a person I am working on my social skills and my social life and I am trying to sort of, you know, like I am practising reading, I am practising tolerance and practising being with people.”

Her husband has observed a considerable change since 1997, which in cross-examination he described as “dramatic”.

58    Nevertheless, the plaintiff still requires a good deal of help around the house, and is unreliable in terms of turning off electrical appliances and securing doors and windows. When she was giving evidence it was obvious that, even allowing for the additional stress of pursuing litigation, she was uncertain and fragile. She became distressed on a number of occasions, for example when giving evidence of the deterioration of the relationship between herself and her husband, and when describing the effect on her of the loss of her capacity to enjoy reading as a pastime. I am satisfied that the distress was genuine and deep.

59    In a report dated 2 November 1999 Dr Cassimatis wrote:

“(a) Lyn suffers from a Bipolar Disorder with a recurring cycle of depression and rarely hypo mania. The head injury and its sequelae have resulted in chronicity as well as frequent recurring depressive illness.
(b) The continuing disabilities are the exacerbation of the Bipolar disorder by the traumatic head injury and the exacerbation of the traumatic head symptoms by the pre-existing Bipolar disorder.
(c) It is my view that the difficulties are a reasonable consequence for a person of her pre-accident psychiatric history. They are a genuine result of the injury.
(d) I have not uncovered any evidence of fabrication.”

60    It is necessary now to consider in detail the competing opinions of Professor Broe and Dr Mellick. Professor Broe examined the plaintiff, whom he saw with her husband, on 3 September 1996. He had, inter alia, reports of Dr Cassimatis, Evesham Hospital, and Drs Palmer and Gordon. Professor Broe recorded neurological symptoms, including word finding difficulty, reduced speech output, memory impairment, failing to remember friends, appointments, impaired concentration and attention, inability to maintain reading, extreme tiredness with any work, excessive sleeping, change in personality, persistent apathy, inertia and loss of interest, impaired insight for jokes and lack of understanding of conversations.

61    In his report dated 4 September 1996 Professor Broe wrote:

“While some of these symptoms, particularly apathy, inertia and withdrawal are compatible with her diagnosis of Manic Depressive disorder, the persistence of the symptoms throughout the last 4 years and the lack of these symptoms in the previous 20 years in which Ross has known Lyn indicate that they are due to frontal lobe inertia and loss of drive and result from the traumatic brain damage. In the report of Dr James Gordon, 4 months after the accident, he noted a further personality change in terms of irritability and a short fuse, however these frontal symptoms of disorder and control have subsequently greatly improved and are no longer a problem. Lyn Fisher therefore has clear cut evidence on neurological history of traumatic frontal lobe damage, consistent with the reported CT findings .
Dr Cassimatis and the reports of admissions to the Evesham Clinic prior to and after her head injury in August, 1992, indicate that Lyn Fisher has developed as a result of the head injury, resistant and more severe manic depressive illness which complicates, but does not entirely cause the symptoms previously described due her frontal lobe damage. Again in terms of medical history taken from her husband Lyn Fisher, prior to the head injury, was an active, social person, skilled in conversation, competently raised 2 children and worked in a demanding job for many years teaching disabled children. She enjoyed this work and was very competent at it. There is the clear family history of Manic Depressive illness and certainly Lyn Fisher was treated for this disorder prior to the head injury, however it was also clearly a well compensated psychiatric condition, and totally consistent with Lyn Fisher continuing to work in a demanding job and continue her planned educational programme, a Bachelor of Education, commenced in 1992 prior to the head injury with completion of formal examinations after her head injury in 1993. Lyn’s ability to complete the formal structured requirement of the first year of this course after the head injury is consistent with her well retained posterior brain functions as demonstrated in terms of memory and with the evidence of frontal lobe damage, which would not preclude her from succeeding in the structured examination situation.
…
In summary, as a result of a head injury sustained at work on 21 August, 1992, Lyn Fisher has the following deficits:-
1. Post traumatic frontal lobe disorder , manifesting as loss of initiation and drive and concrete rigid thought processes, together with impaired concentration, attention and “frontal” memory disorder with major personality change
2. Resistant manic depressive illness
3. Persistent severe disabling post traumatic headache
4. Reduced quality of life for herself and her family
5. She is completely and permanently disabled for paid employment and for completion of her University degree
6. In the absence of her husband’s care and attention Lyn Fisher would not be able to care for herself in terms of instrumental activities of daily living. Lyn would need a housekeeper and minder for an average of 3 hours a day, 7 days a week.” (emphasis added)

62    Dr Mellick took a different view. In a report dated 8 December 1997 he wrote:

“It is also evident from my examination of her today and also from a consideration of the overall history, that the primary medical problem which exists is of a psychiatric nature and that the medical problem as it now presents includes nothing which establishes the presence of any disorder which might be regarded to be the result of brain damage. There are no features of cerebral injury present .
The history of psychiatric disorder which now exists and the clear manifestations which are present today have a long history beginning decades before the fall in the classroom. Mrs Fisher was admitted to a psychiatric hospital for ECT also prior to the traumatic incident in the classroom. There is therefore no qualitative change with regard to the psychiatric history either before or after the fall, so far as one can tell . The additional matter of significance is that there is a very strong family history of depressive illness afflicting Mrs Fisher’s children, sibs and mother.
…
In summary then, I would regard the overall clinical picture which exists here to be that of a psychiatric disorder which has not, in substance, changed since the fall and which is unassociated with any specific evidence of an acquired neurological disorder resulting from the fall .” (emphasis added)

63    Subsequently Dr Mellick examined radiological reports, and on 8 January 1999 he wrote further:

“The information which is incorporated within the MRI scan is comfortably in accord with the views expressed in my previous report to you of 8 December 1987 [sic-1997] and should be regarded to provide confirmation of the absence of any aetiological connection between any continuing symptoms of the fall which occurred in 1992.”

64    I am thus presented with a clear conflict of medical opinion which I have somehow to resolve. Both neurologists gave oral evidence. Both are eminent and eminently qualified specialists in their field.

65    In oral evidence, Dr Broe maintained his opinion that the plaintiff’s symptoms, particularly having regard to the change in her behaviour and temperament, was caused by the fall. It is convenient to quote one of his answers precisely:

“… the other frontal lobe behavioural phenomenon of head injury, brain damage, is a condition I call a disorder of personal or social control and disorder of the ability to retain temper control and it relates to an appropriate measured and compassionate way. They are not symptoms of her manic depressive disorder. They are symptoms of frontal lobe brain damage that you have outlined, in my opinion.”

66    It seems to me that, on analysis, the chasm between the two neurologists was this. Dr Broe’s opinion depended upon the contrast between the plaintiff’s pre-injury life and persona, for the history of which he relied upon what he was told by the plaintiff and her husband; Dr Mellick relied upon the absence of any objective evidence of organic brain damage. Two more significant answers given by Professor Broe were these:

(i) “There are two aspects to taking a medical history which are equally important. One is eliciting the symptomatology and the second is what we call the temporal profile, whether it is a symptom complex that improves with time that is intermittent, goes up and down or deteriorates with time. The symptomatology on which I am basing my opinion is that of apathy, and inertia, loss of interest with some tendency to emotional loss of control as outlined by Mr Coombs, and that is persistent. If you can show me she is now a normal woman able to carry out normal activities then, and if the situation has changed since four years post trauma when I assessed her, then I would agree with you. But I must say the situation over 4 years rarely changes over the next 4 years” (T 88-89).

(ii) “In 1996 I am suggesting this lady did not have the required frontal brain capacity to do those things for herself in an on-going way. She did not have the frontal structure to do it. What our frontal lobes do is structure our lives when we are in an unstructured situation and provide a plan and organisation on which we do things. Now the fact that she actually does it and is photographed or videoed doing it or is watched doing it, does not mean she will persistently and usefully do it, provide for her own nutrition and do her own housework and shopping. Now that was the situation in 1996” (T90).

67    Dr Mellick relied heavily upon the “very strong family history of depressive illness” and his assumption (in my opinion, erroneously based) that there had been no qualitative change in the plaintiff’s life or symptoms since the fall.

68    This passage, in my view, demonstrates that Dr Mellick proceeded on a fundamentally wrong assumption. The evidence of the change in the plaintiff pre and post accident was compelling, uncontradicted and unchallenged. It is that history on which Professor Broe grounded his opinion. The false premise on which Dr Mellick proceeded severely diminishes the value of his opinion.

69    Dr Mellick proffered the view that the plaintiff had not suffered any organic brain injury. In oral evidence he said:

“…there is no evidence of a brain injury at all. In considering the question of brain injury there are things that have to be taken into account and pointers to a brain injury; this being the history and in this case Mrs Fisher had a clear recollection of events up until the fall. So that there was no retrograde amnesia.

From the history given to me there was a prolonged period of altered memory disorder. However, on the basis of the evidence available there was no significant period of unconsciousness. There was no indication from the date of the hospital, from any observation made there which indicate a brain injury. No abnormal physical signs. She was in there only a short while. The CT scan which was done in the hospital, to which I make reference in the report, did not establish the presence of a brain injury. The report is somewhat ambiguous.

The repeat CT scan was normal and the MRI scan done subsequently, which is a much more precise test, showed no evidence of a brain injury. The time I saw Mrs Fisher, on the times I saw her, the findings in terms of interpretation of the history, or at least the history as given, did not include any symptoms at all which were specific for a brain injury.
The physical findings included no abnormal physical sign indicative of a brain injury. The symptoms which were described might be regarded to be consistent with a brain injury but consistency with, is really in the realm of possibility, whereas medical diagnosis in relation to the question you were asking me; brain injury is based on probability, not possibility.
So, for example, impairment of memory which is one of the symptoms is, indeed, a symptom of brain injury. But it is also a symptom of depression. It is a symptom of many things. And, therefore, its not at all a specific symptom for brain injury. And it is significant in terms of a possible diagnosis of brain injury, has to be considered in the light of the total clinical picture, the nature of the fall. All of the things I mentioned, as well as other symptoms.
Now, in relation to the symptoms by Mrs Fisher, none of them are specific for a brain injury. If one asks then, what could they be due to? There are a number of things which are clearly documented and I think about which there is difference of opinion, which clearly explains those symptoms.
For example, one of the commonest causes of impaired mood disorder, depression of mood, that is the common cause of problems with memory. Medication which might be used for depression is also likely to produce changes with regard to cognitive function. This lady has, I see, had a long history of depression for which she has been treated with electro convulsive therapy.” (T 156-157)

70    Professor Broe considered that the plaintiff’s inability or lack of motivation to undertake activities around the house was “most consistent with a brain injury”. He said:

“My view is the symptoms she is exhibiting are those of brain damage and significant brain damage.” (T 87)

71    On behalf of the plaintiff I was invited to prefer Professor Broe’s opinion over that of Dr Mellick on the basis of what was asserted to be his superior expertise. Dr Broe gave evidence of most impressive qualifications specifically relevant to head injury. However, Dr Mellick is obviously also well qualified in the field. If it were necessary to resort to comparative qualifications in order to reach a view about which of these eminent practitioners should be accepted, then Professor Broe’s highly specialised expertise in the area of head injury would narrowly win the day. However, fortunately I do not find myself in the position of having to resolve this conflict in that somewhat artificial way. When the approaches of the two doctors and that of Dr Mellick in particular, are properly analysed, it can be seen that the fundamental assumptions on which they worked were different. Professor Broe placed great weight on the history he had before him. Dr Mellick, on the other hand, appears not to have had a history of the way the plaintiff was functioning immediately before the fall. Another revealing sentence in his report should be extracted:

“There is therefore no qualitative change with regard to the psychiatric history either before or after the fall, so far as one can tell.”

72    That conclusion is inconsistent with the overwhelming evidence before me. I am satisfied that Professor Broe’s opinion should be accepted in preference to that of Dr Mellick, and that the plaintiff‘s current symptoms are, in general, attributable to the fall. Even so, when assessing damages I must bear in mind the plaintiff’s pre-injury fragility. What she is entitled to is an award of damages to compensate her for the injury caused by her fall: that injury includes any magnification of her pre-existing disorder that can properly be attributed to the fall, but not incidences of depression that would, in any event, have occurred, and that are properly to be seen as a manifestation of the pre-existing condition. It is necessary to make some attempt to unravel the two, and, in a sense, make a prediction as to what her condition might have led to had the fall not occurred. In her favour, full weight must be given to the marked improvement in her condition following electro-convulsive therapy and the successful medication regime established in 1987. Equally, in favour of the defendant, full weight must be given to the pattern of her disorder that was manifested after that date until the injury. The treatment had not effected a complete cure. There is little evidence of her condition between 1987 and 1992, and what there is, is to be found in Dr Lehmann’s brief notes which are Ex 4. These show periodic relapses, none of them serious enough to result in hospitalisation.

73    Only one doctor really turned his attention to the question of what could have been expected of the plaintiff’s condition had she not been injured, and his opinion is not altogether easy to understand. This was Dr Robbie, a psychiatrist who examined the plaintiff on behalf of the defendant. In a report dated 4 December 1997 following examination the same day he wrote:

“Nonetheless, it is hard to see her recurrent depressive condition as basically much different now to back in 1988, except she has headaches and no longer works. There would have been a deterioration over time, more especially if there is a true bipolar disorder in the family.
While I doubt her depressive illness may not have altered its course much, and it is a preexisting condition, because of it and the head injury she has been brought to leave work. Without the head injury the individual depressions could have been kept circumscribed longer, and she would have remained at work longer. …”

74    What I have to balance is the undoubted improvement from 1987 against the likelihood of episodes of depression, and possible deterioration with advancing age. The evidence does not really allow for that to be done in any satisfactory or informed way. My conclusion, therefore, is that the plaintiff would, generally speaking, have continued on the plateau she had reached, with occasional episodes of depression, such as would (as in the past) have responded to treatment. Allowance must be made for the possibility that these episodes may have resulted in hospitalisation on occasions, but I do not think the evidence permits a conclusion that they would have rendered her unfit for work at any time earlier than the ordinary retiring age.

75    Calculation of damages is governed by the Workers’ Compensation Act 1987. The plaintiff claims damages under a number of heads.

Non economic loss

76    By s 151G(2) of the Act, the amount of damages that may be awarded to a plaintiff to compensate for non-economic loss is to be a proportion, determined according to the severity of the non economic loss, of the maximum amount allowed under the legislation. The maximum amount applicable to the plaintiff’s case is $210,100. That amount may only be awarded in a most extreme case. It is necessary to determine the proportion the plaintiff’s case bears to a most extreme case. On her behalf it was put that the proper proportion is 70 percent.

77    It is unnecessary to enlarge on the outline contained earlier in these reasons of the plaintiff’s past and current condition. She was born on 25 November 1952 and was 39 years of age at the date of the injury, forty-seven at trial. She has a life expectancy of 35.8 years. Her life has been dramatically affected by the injury. She has lost the employment she greatly valued, the satisfaction of academic pursuit and success and the self-esteem that accompany these, her previously excellent marriage is seriously threatened, and she can anticipate regular bouts of depression and hospitalisation. She has lost motivation. Whether the anticipated hospitalisation is likely to include electro-convulsive therapy I cannot say, but it does entail a lifetime regime of drugs (appreciating that, even prior to the injury, the plaintiff was dependent on drugs for her stability). The most seriously adverse effects on her life operated from 1992 to 1997; by reason of the successful treatment in 1997, there has been a diminution, but far from abolition, of the adverse effects.

78    Quantification of a condition that is entirely psychiatric is a difficult exercise. It is important to pay full heed to the debilitating effects depressive illness can have, to resist the temptation to understate those effects and treat the illness as less of an illness than one displaying physical symptoms. Even bearing these considerations in mind I am satisfied that 70 percent is an excessive assessment. I assess the proportion the plaintiff’s case bears to a most extreme case as 60 percent. This is principally because of the significant improvement since 1997.

79    She is accordingly entitled to $126,060 under this head of damages.

Economic loss

80    By s 151H of the Act no damages are to be awarded for economic loss unless the injury is serious. I am satisfied that the plaintiff’s injury was serious within the meaning of the section.

81    There was in evidence an actuarial report of Ms Carol Ranson, which was unchallenged. It shows that the plaintiff’s net loss of income to 1 July 1999 was $205,943. That amount will be allowed. Interest is $69,452 and will also be allowed.

Future

82    There was no evidence from the plaintiff as to her pre-injury intention with respect to retirement. I can only work on the basis that she was very happy and successful in her work. On the other hand, her husband gave evidence that they had plans to move to the coast and in fact he has tendered his resignation from his employment. That, of course, does not mean the plaintiff would not have been able to transfer her employment - teaching is a very portable profession. Having regard to her prior history, the very demanding nature of the teaching she was doing, and the absence of direct evidence, I think it reasonable to work on the assumption that she would have retired at the age of 60. Ms Ranson’s calculations were in evidence and again were not challenged. On behalf of the plaintiff it was accepted that a greater than ordinary discount for vicissitudes would be appropriately applied in this case. The present value of the plaintiff’s future loss of income, undiscounted, assuming a retirement age of 60, is $355,789; after application of a discount of 20 percent, the plaintiff is entitled to an award of $284,630. This amount I allow.

Superannuation

83    There was no challenge to the quantification of the plaintiff’s loss of superannuation benefits at $28,775 and this amount is allowed.

Out of pocket expenses

Past

84    Out of pocket expenses already incurred, excluding some pharmaceutical expenses, were agreed at $123,544. There was evidence that the plaintiff spends about $15 per week on pharmaceutical requirements, which, for the period from 1992, translates into a total of $5,850. However, she would, in any event, have incurred a significant proportion of this amount. I allow $3,000.

Future

85    The amount claimed is $13,272, representing $25 per week for the remainder of the plaintiff’s expected life span. Again, this should be reduced by reason of the pre-existing need for medication. I allow $7,000.

Fox v Wood

86    An amount of $15,189 is agreed and allowed.

Domestic and other assistance

87    The plaintiff claims an amount for both past and anticipated future assistance, principally domestic. There was a significant dispute as to this, the defendant challenging the plaintiff’s need for any such assistance, at least in the future.

88    The plaintiff and her husband both gave evidence, effectively, that, following the accident she had surrendered her role as principal home maker and housekeeper, she having previously done about 95 percent of the work involved in those roles, with some assistance from her husband and their two daughters. Despite the significant improvement in the plaintiff in 1997, her husband maintained that he continued to play a much more significant role in the household than he previously had. Professor Broe assessed the plaintiff’s need for assistance in this respect as an average of three hours a day, seven days a week. This was challenged, on the basis that the plaintiff is not physically precluded from engaging in these activities. This is undoubtedly so. However, Professor Broe in oral evidence explained her need for continuing assistance. What she has lost, according to him, is a “frontal lobe structure” which enables planning and organisation. Effectively, as I understood him, he said that she had lost her motivation. He put it colourfully in the following terms:

“…you have lost your starter motor.”

89    This was entirely consistent with the description given by the plaintiff’s husband about the demands made upon him in the household. I accept that the plaintiff does need assistance at the level assessed by Professor Broe.

The quantification, based on an hourly rate of $14, was not in dispute. For past domestic assistance I allow $114,660.

Future

90    On behalf of the defendant an argument was put that any allowance for the future should also be made on the basis that the assistance to be rendered would be gratuitously rendered. I reject this argument. As I observed in Figueroa v New South Wales Insurance Ministerial Corporation (unreported, 18 March 1998), a court should not assume that members of an injured plaintiff’s family will continue, after verdict and indefinitely, to render gratuitous assistance. So to assume would be to conscript members of the plaintiff’s family into the service of the defendant. That is not, in my opinion, what was intended by the legislature.

91    Damages will be awarded in accordance with these conclusions and assessments. In respect of those calculations that depend upon the report of Ms Ranson, and other assessments made in reports placed before the court, it may be that some adjustment is necessary to accommodate the time that has elapsed since the original calculations were made. I will afford the parties the opportunity to make any necessary adjustments.

92    I direct the parties to bring in short minutes of order, reflecting these findings and conclusions, and any agreed variations. ********

Last Modified: 09/25/2000