French v Motor Accidents Insurance Board
[1990] TASSC 69
•16 November 1990
Serial No 68/1990
List "A"
COURT: SUPREME COURT OF TASMANIA
CITATION: French v Motor Accidents Insurance Board [1990] TASSC 69; A68/1990
PARTIES: FRENCH
v
MOTOR ACCIDENTS INSURANCE BOARD
FILE NO/S: 128/1981
DELIVERED ON: 16 November 1990
JUDGMENT OF: Underwood J
Judgment Number: A68/1990
Number of paragraphs: 54
Serial No 68/1990
List "A"
File No 128/1981
FRENCH v MOTOR ACCIDENTS INSURANCE BOARD
REASONS FOR JUDGMENT UNDERWOOD J
16 November 1990
The parties are agreed that the plaintiff should recover such sum as the court assesses for damages for negligent driving reduced by 15% for the plaintiff's contributory negligence.
The Accident
On 24 December 1980, whilst riding his bicycle up Mowbray Hill, Launceston, the plaintiff was involved in an accident with a car. He was thrown from his cycle and sustained a closed head injury. He was admitted to the Intensive Care Unit of the Launceston General Hospital. A skull X–Ray showed a linear fracture in the fronto–parietal region. His level of consciousness was satisfactory but his speech exhibited a marked degree of dysphasia; ie an inability to comprehend what was said to him and an inability to produce normal word structure. There was no evidence of intra–cranial bleeding. Observation was the indicated course to follow. He was transferred from the Intensive Care Unit to a ward and showed improvement although the dysphasia persisted. The plaintiff became agitated about this condition and, contrary to the medical advice, discharged himself from hospital seven days after the accident. On examination in April 1982 Mr Duffy, neurosurgeon, diagnosed "a significant concussive injury" but opined that no further investigation was warranted. A brain scan taken in 1985 reported an old 3 centimetre lesion in the left postero–lateral temporal region. The report expressed the opinion that this damage was thought to follow an old infarct following head injury. I accept the evidence of Drs. Tooth and Sale that this lesion was probably sustained in the accident and is the cause of an impairment of the plaintiff's short term memory. The dysphasia cleared up after several months. A mild stutter from which the plaintiff has suffered since childhood remained.
Shortly after the accident the plaintiff reported some difficulty with reading and glasses were prescribed. In 1982 visual acuity was 66 on the right side and 69 on the left side. It was common ground that the tortiously caused injury to the brain impaired the plaintiff's ability to focus properly. This condition, presbyopia, commonly appears in adults aged about 45 years and the undisputed medical evidence was to the effect that the trauma merely accelerated the onset of this common complaint by a few years. I accept the evidence of Dr Sale that the presbyopia, the infarct and the fracture demonstrate specific injury to three discrete areas of the brain indicating that the plaintiff suffered generalised brain injury. This opinion is corroborated by later psychological testing which indicated some frontal lobe damage and consequential effect on the plaintiff's personality traits.
The Issue
In substance, the plaintiff's claim is that, as a result of the significant concussive injury, he has suffered a permanent impairment to his short term memory and a marked alteration to his personality traits. It is claimed that these sequelae have had a marked deleterious affect on the amenities of life and destroyed the plaintiff's earning capacity.
All the psychological and psychiatric evidence was to the effect that, in the accident, the plaintiff did suffer a significant concussive head injury causing permanent short term memory loss and altered personality traits. This was not in dispute. However, the defendant's case was that the plaintiff suffered from a pre–accident perceptible abnormality of personality namely, a Passive Aggressive Personality Disorder with some emergent features of paranoid personality disorder. The defendant submitted that I should accept the opinion of Dr Ratcliff, psychiatrist, that this disorder pre–dated the accident and that its natural progression was such that since 1986 it has been impossible to determine whether the plaintiff's aberrant personality traits were due to that natural progression or the accident. It was further submitted that, but for the natural progression of the personality disorder, the plaintiff would have developed strategies, such as the frequent use of aides memoire, to overcome the deficiency in his short term memory. Thus, it was submitted, the tortiously caused injuries resulted in minimal reduction of earning capacity after mid 1986 and a minimal loss of the amenities of life.
The whole of this submission depends on a finding that the plaintiff suffered from the pre–existing personality disorder diagnosed by Dr Ratcliff. The diagnostic criteria for Passive Aggressive Personality Disorder in DSM III is as follows:–
"A pervasive pattern of passive resistance to demands for adequate social and occupational performance, beginning by early adulthood and present in a variety of contexts, as indicated by at least five of the following:
(1)procrastinates, ie puts off things that need to be done so that deadlines are not met
(2)becomes sulky, irritable, or argumentative when asked to do something he or she does not want to do
(3)seems to work deliberately slowly or to do a bad job on tasks that he or she really does not want to do
(4)protests, without justification, that others make unreasonable demands on him or her
(5)avoids obligations by claiming to have 'forgotten'
(6)believes that he or she is doing a much better job than others think he or she is doing
(7)resents useful suggestions from others concerning how he or she could be more productive
(8)obstructs the efforts of others by failing to do his or her share of the work
(9)unreasonably criticizes or scorns people in positions of authority."
The Witnesses
Evidence was given by the following expert witnesses:
(i)Dr Stewart, general practitioner and part–time Commonwealth Medical Officer of Health (CMO). He saw the plaintiff two years before the accident, three months after the accident and on two subsequent occasions, once in 1982 and once in 1984.
(ii)Dr Tooth, consultant psychiatrist who saw the plaintiff at the request of a CMO four months before and eight months after the accident.
(iii)Dr Sale, consultant psychiatrist who saw the plaintiff at the request of a CMO on two occasions, once three years after the accident, and once in the following year. He also saw the plaintiff at the request of his legal advisers in January this year.
(iv)Dr Ratcliff, consultant psychiatrist. Dr Ratcliff saw the plaintiff at the request of the defendant's solicitors six years after the accident and again in July of this year.
(v)Mrs Page, psychologist with a special interest in neuro–psychology. Mrs Page saw the plaintiff at the request of Dr Sale twice in November 1985 and again in June this year.
In addition to the above, several medical reports and a report by Dr McKenzie, psychologist, were tendered in evidence. All the psychiatric opinion evidence depended for its validity on the perceived and reported behaviour of the plaintiff before and after the accident. That behaviour was the subject of evidence given by a number of witnesses, the plaintiff's former wife, two former friends, one former fellow employee and three persons who seriatim, were the plaintiff's superiors at work. Before turning to the expert opinion evidence I shall set out my findings of fact with respect to the plaintiff's behavioural traits before and after the accident, for consideration of any psychiatric opinion evidence depends on those findings.
Before the Accident
The plaintiff was born in Tasmania on 2 October 1941 and accordingly, was 39 at the time of the accident. His mother and father are both deceased. The former was employed as a shop assistant and the latter in the Department of Construction. He has one sibling, a brother. The plaintiff was educated at the Evandale Primary School and the Launceston Technical College. He gained his Schools Board Certificate at the age of 16 and then left to work for his only employer, Telecom. The plaintiff trained with Telecom and became a qualified linesman. Eventually he was promoted to a lines supervisor. In this position he was in charge of a gang of men varying in number from 2 to 7 depending on the work to be carried out. His job involved outside work. He was assigned to a job and given a plan of the work to be done. From that plan, the plaintiff selected the materials, plant and equipment necessary for the job and ensured that it was properly carried out. He was described by a fellow–employee, who worked in his gang for about 2 years, as an excellent supervisor. The witness said that the plaintiff was able to quickly memorize a plan and competently organize the work. He said that the plaintiff was a "very pleasant happy–go–lucky boss, he always had a joke to tell us of a morning to kick us off, you know to get us motivated ... he worked alongside us ... he was particularly good at taking the blame for anything that any of his men did ... [he was] up with the best [supervisor] of any I have worked under". I accept all that evidence. As will be seen shortly, it is consistent with the evidence of the plaintiff's former wife and former social companions. The plaintiff was an unusual man in some respects, and occasionally attracted the description eccentric although I doubt that it was merited. Psychological testing in 1971 by a psychologist not called as a witness, indicated an overall IQ rating of 122. This is well above the average score. In 1985 he was again tested on a revised version of the test used in 1971. These later tests were conducted by Dr McKenzie, who did not give oral evidence either. The results showed a full scale IQ of 101 which is within the normal range. The psychologist who did give evidence, Mrs Page, did not test the plaintiff for intelligence and like her, I place little reliance upon the 1971 tests as nothing is known of the circumstances in which they were carried out and no qualitative assessment was made of the results obtained.
Shortly after leaving school, the plaintiff developed an interest in the classics and Greek and Roman history. He has since read widely in these subjects. He was and is interested in chess and plays it as often as he can and studies the game by reading the books of a Czechoslovakian Grand Master of chess. He has always had a deep interest in classical music. As well as these intellectual pursuits he frequently went fly fishing and enjoyed the company of friends in the hotel after a day's work. Perhaps surprisingly for a man with these interests, he did not seek promotion from his position of lines supervisor. The plaintiff preferred outdoor labouring work and promotion would have resulted in him doing clerical work to which he was not attracted. He pursued his interests with a degree of intensity but not obsessively. He enjoyed exercise, principally bike riding. He was also interested in, and reading about, wines.
Two men who were friends of the plaintiff from about 1960 until some three or four years after the accident described him as tremendous company. They said he was humorous and witty. They met on a regular basis after work for a social drink and went fishing together. Both said he was courteous, well mannered and a welcome guest in every home he visited. They spoke of him as being good natured and easy going. Both said that all of this changed markedly after the accident. I accept the evidence of those witnesses.
A singularly impressive witness was the plaintiff's former wife. She and the plaintiff married in March 1980, although they had been living together for the preceding twelve months. At that time a child by Mrs French's former marriage was five years old. She described her pre–accident relationship with the plaintiff as excellent. She said that he regarded her son as a "bonus to the relationship" and always treated him with great kindness, respect and dignity. She said that the plaintiff was an interesting and humorous man who treated women as equals. She also said that he was tolerant and flexible and illustrated that by reference to the way the plaintiff welcomed his step–son's father into their house to visit the boy. Mrs French described the plaintiff's interest in the classics, music and chess and said that he pursued these hobbies with a degree of passion. In September 1980 a child, Cameron was born. The plaintiff was and is devoted to this boy. Prior to the accident he shared household chores and the care of this child equally with his wife. By her evidence she painted a picture of the plaintiff as an intelligent, humorous, caring and flexible person and denied the existence of any pre–accident personality traits or behaviour indicative of any neurotic or paranoid disorder. All of this changed after the accident. Thereafter the relationship between the plaintiff and his wife deteriorated to such a degree that they separated in about December 1981 and ultimately divorced.
All of the evidence to which I have just referred corroborated the plaintiff's evidence that prior to 1978 he led a contented, satisfying and fulfilling life both at home and at work.
Mid–1978 saw the commencement of unhappy differences between the plaintiff and his employer. Until that time the policy of Telecom had been to require their workers to wear hard hats only when exposed to the danger of head injury. In mid–1978 that policy changed. The men were required to wear hard hats continuously whether working in situations of danger or not. The plaintiff, who had a childhood history of migraines, found that wearing a hard hat for any length of time caused him headaches, so he refused to obey the new direction. This led him into conflict with Telecom. The plaintiff considered that the new direction with respect to the wearing of hard hats was unreasonable and he sought to be excused from wearing one in circumstances where there was no risk of head injury but Telecom would not accede to that request.
At the direction of Telecom he was examined by Dr Stewart on 12 December 1978. Dr Stewart's opinion was that if Telecom rigidly adhered to the rule that a hard hat must be worn at all times, then the plaintiff could no longer continue his work as a lines supervisor and would have to be employed in an area which did not require the wearing of a hard hat. Dr Stewart's observations at that time were consistent with the general body of evidence led with respect to the plaintiff's pre–accident personality. He said that he then found the plaintiff to be a rather intense man, "probably prickly in defence of what he saw as his rights but by no means irrational and certainly not behaving in a manner beyond the bounds of normality". He observed that the plaintiff was something of a "barrack room lawyer" and said that "probably this would be doubly annoying to some people because I imagine usually he was quite right". The absence of signs of any pre–accident personality disorder was confirmed by Dr Tooth who, as will be seen, saw him over a year and a half later, four months before the accident.
As a result of Dr Stewart's advice and Telecom's refusal to relax the new rule with respect to the wearing of hard hats the plaintiff was transferred in February 1979 to a job in the garage answering phones and doing clerical work. The plaintiff found that his stammer inhibited him in the use of a telephone and that clerical work was not to his liking. Thus, he was unhappy in his new position and, believing that he was only there because of the unreasonable adherence to a rule, he came into further conflict with his employer.
In April 1979, because of his difficulty answering the telephones and doing clerical work, the plaintiff was required to work as a cleaner in the store. As part of this work he was required to clean lavatories. He considered this to be a demeaning task and one to which he had been unreasonably assigned. On 7 November 1979 he was advised by his employer that this position was to be a permanent one. The prospect of spending the rest of his life in this unsatisfactory employment caused the plaintiff such distress that he was off work sick. There was no evidence of the nature of his illness other than a series of medical certificates by his general practitioner, Dr Blackburn, who did not give evidence. They described his condition as "psychological disorder". However, as will be seen shortly, Dr Tooth makes reference to this period of time following his examination of the plaintiff in August 1980.
In the beginning of 1980 the plaintiff successfully appealed to an internal review tribunal against his appointment as a cleaner. In result, he was appointed an assistant technician and assigned to the Telephone Installation Depot, Launceston. A technician's assistant is required to perform simple tasks associated with telephone installation and assist technicians to carry out installation work. The plaintiff's salary as a lines supervisor was unaffected.
Although the plaintiff said that he found this work to his liking I have some reservations about this. The then officer–in–charge of the installation depot, Mr Wilkinson, said that he was a difficult employee, that his productivity was low and that he did not get on well with his workmates. However, I discount this evidence to some degree because it is clear from this witness's evidence that the plaintiff was a nuisance to him in that he was not able to work in a "hard hat" area, was to be employed on outside work when possible, had not been trained as a technical assistant and consequently was difficult to deploy.
Mr Wilkinson said that the plaintiff seemed preoccupied with the reason for his transfer to the Installation Depot and, I infer, with a belief that he had been treated badly by Telecom. Mr Wilkinson observed what he called "flare–ups" between the plaintiff and other employees. I have no doubt that the plaintiff felt aggrieved in that he had been taken from a job that gave him great satisfaction and placed in a job he did not like, all because of what he considered to be an unreasonable change of the rule concerning the wearing of hard hats. As that rule has been recently revoked it might be thought that the plaintiff's belief that he had been badly treated by his employer had some sound basis. However, there was nothing in the evidence of Mr Wilkinson which leads me to the conclusion that, during the plaintiff's pre–accident time at the Installation Depot, he exhibited signs of any personality disorder. Further, according to Mrs French and his two former friends, whose evidence I accept, although the plaintiff spoke of his unhappiness at work and his belief that he had been treated unfairly, his general demeanour and behaviour away from the workplace was the same as it had always been.
Because the plaintiff claimed entitlement to workers' compensation for the period he was off work certified by Dr Blackburn as being for psychological disorder, he was seen by Dr Tooth in August 1980.
Although lengthy, it is worth setting out in full the history Dr Tooth took from the plaintiff at that time and his opinion of the plaintiff. With two exceptions which are noted, the history accords with th e evidence adduced at the trial and the findings I have made.
"There was little of relevance in his family history and I could not elicit evidence of psychiatric disorder in any of his near relatives. He seems to have had a reasonably happy childhood and did not have any major difficulties at school apart from those associated with his stammering and migrainous headaches. Soon after leaving school he started with the PMG and commenced with their Technician Training School where he had some difficulties but when he transferred to the Lines School he passed easily. It appears that apart from a year off around 1963 when he worked in other States, he has worked for the PMG ever since.
It appears that prior to 1978 he enjoyed his work as the leader of a Line Party. This gave him scope to develop his initiative and organisational ability as well as an outlet for his practical skills. He states that the trouble started when in about mid–1978, a directive was issued locally that the previous practice of only wearing safety helmets when there was any danger of falling objects, was to be discontinued and that all workers in his field of operations must wear safety helmets at all times even when they were working at laying cables and there was no possibility of objects falling. Prior to that direction it was apparently left to the Supervisor on the spot to direct the wearing of safety helmets at times of risk. Mr French when he followed these instructions found that wearing a safety helmet continuously initiated a headache which tended to precipitate an attack of migraine. He saw his local doctor and then the Commonwealth Medical Officer. The latter apparently very sensibly advised that he should continue his job but also continue the previous practice (which apparently still occurred in other parts of the State) of wearing a safety helmet only at times of risk. This advice was apparently disregarded and Mr French had the option of having to suffer almost continuous headaches or changing his employment situation.
He was first transferred to clerical duties which were unsuitable for him and then to work in the garage as a labourer (a considerable demotion) at the automotive plant workshop. He was reluctant to be employed in a relatively menial position but decided to co–operate on a trial basis and started there in March 1979.
From the time he commenced this he became dispirited but determined to continue for the two months trial period without complaining. He says that after that period was over he started to write letters to those in authority without receiving any improvement in his lot. Over the next few months he became more and more despondent and when he was advised in November, 1979 that he was to be permanently employed in that situation, his symptoms of anxiety and depression accelerated so that certainly by the end of November and possibly before that time he appeared to be exhibiting symptoms of depression with considerable interruption to his sleep, vomiting, headaches and a sensation of feeling 'entirely bad'. [There was no evidence of the plaintiff writing the letters referred to nor of the symptoms of anxiety and depression.] From his account of his symptoms at that time it certainly seemed entirely reasonable that his general practitioner decided that he was unfit for work, and apparently gave medical certificates indicating psychological stress and psychological disorder I think that the latter was a reasonable diagnosis, but his disability might have been more explicitly described by the term anxiety/depressive reaction.
Following a time off work on account of this illness and then his holidays and finally the favourable finding of the Review Tribunal following which he was offered the position as Assistant Technician, Subscribers' Installation Depot, he made a good improvement and gradually returned almost to normal. The only symptoms he continued to suffer were occasional interruption of his sleep and some grinding of his teeth during sleep, neither of which symptoms were present prior to his anxiety/depressive reaction towards the end of 1979. I anticipated that these would disappear in time.
At interview he related well and I gained the impression that this was a man of good personality, well above average intelligence and one who had considerable practical skills as well as initiative and organising ability. His history did also indicate that there were some sensitivities in his nature and he has of course suffered from a child from both migraine and a stammer. At interview I could find no evidence of present psychiatric disorder although the history of still some sleep disturbance could indicate that his recovery had not yet been absolute. After going carefully into his account of his symptoms of November and December, 1979, I felt quite certain that he was suffering at that time from an anxiety/depressive reaction of some severity and that this would have been disabling as far as employment at the time was concerned. I also felt quite certain that it was his employment as a labourer in the automotive plant workshops that had caused this anxiety/depressive reaction. My opinion is that there would be few people of his intelligence and skill who would not have reacted in such a way at a demotion from a Supervisor of a Line Party to that of a Labourer employed mainly in general cleaning duties both inside and outside the workshop.
At the time of my examination in August 1980 I was aware of two occasions prior to 1979 when Mr French had a day's sick leave for nervous disorder and psychological disorder. The first date was the 23rd November, 1971 when it seems that he was attending a Dr Simpson for treatment of his stammer. The second date was the 28th March, 1979 when he was unfit for work on account of a stress reaction following considerable domestic disharmony. [There was no direct evidence of the matters referred to in this paragraph.] These sorts of situation can happen to most people and I did not consider that they had any relation to the anxiety/depressive reaction at the end of 1979.
There was nothing arising out of my examination/assessment of Mr French to indicate that he was unsuitable for long term employment as a Technician's Assistant nor that he would not return to his good working record that existed prior to the commencement of the safety helmet problems in mid–1978."
After the Accident
After the accident, Mrs French said that for the first few months the plaintiff was extremely irritated by his inability to express himself properly and to remember things. Although the dysphasia improved after a few months, there was no improvement in the short term memory loss. Mrs French noted a marked changed in the plaintiff's personality which persisted. Formerly easy going and good natured, the plaintiff became short tempered and irrational. She described him as being intolerant of small matters such as an interruption to what he was doing by one of the children. She said that although he was not physically violent, she and her elder son crept around the house in fear of the plaintiff's irrational outbursts of temper. The following passages are taken from her evidence–in–chief:
"You know, there is no such thing as a fair argument, arguing back. If Bill went berserk there was just no reasoning whatsoever at all. And it could happen um over nothing or anything.
...
Oh, well it would probably be daily but you know, like I mean just the slightest thing would be wrong. If the baby cried when he was trying to do something or say something um if he couldn't get – if he – it didn't even have to be external, if he was just frustrated with himself because he couldn't make himself understood. Or perhaps the right response wasn't being given and he thought he was being patronised. Anything at all. And he would just shout and yell."
To further illustrate what she meant by him going berserk, she was asked what sort of thing the plaintiff would do if the baby began crying, and she said:
"Well first of all he would get up and pace up and down and wildly fling his arms around in a very sort of distressed manner and the sorts of things that he would say would be he would swear or you know 'Can't a man even talk in this household, can't I get some peace, can't anyone understand what you are saying, how can I be expected to say this and do that if something over there is happening and something over here is happening' I mean it didn't even really make sense either because really those things weren't really happening in the exaggerated way that he thought that it was, you know it's only a baby crying, a normal activity that before the accident I mean –– if it happened before the accident Bill would say 'there's the little fellow, he's awake', I mean if he cried it was a joy, it wasn't a nuisance to him that he woke up because he wasn't a cry baby at all."
The plaintiff's former wife understood that the head injury was the cause of the change in the plaintiff's personality, and did her best to accommodate his outbursts of temper. The plaintiff's behaviour was such that she showed physical symptoms of stress and consulted her general practitioner who prescribed tranquillisers. She decided that this was not an answer to her problem, and took up yoga in an attempt to relieve her symptoms of stress. However, the plaintiff's behaviour did not improve and after about twelve months Mrs French reached the conclusion that for the sake of herself and the children a separation was necessary. The plaintiff and his wife were subsequently divorced. Since the separation, there has been regular contact between Mrs French and the plaintiff, for the plaintiff sees a lot of his son, Cameron. The two of them get on well together and this relationship is encouraged by Mrs French. She said that all the arrangements for Cameron have to be written down otherwise the plaintiff will forget where he has to be and what he has to do. She said that since the separation their relationship has improved considerably but she has to take care to avoid situations which are likely to cause the plaintiff to become verbally abusive. She said such outbursts of temper still occur and instanced an occasion when her car needed attention at a certain automotive electrical garage. The plaintiff agreed to follow her in his car to this garage and then take her to work. After Mrs French had arrived at the garage, the plaintiff failed to turn up, and after a considerable wait, Mrs French made her own way to work. Shortly after the plaintiff phoned her and was most abusive. Mrs French said that it appeared that he had gone to the wrong garage and "it's a tirade going on for at least half an hour and he would not be convinced that he went to the auto electrician (sic) but he went to the wrong one, he went to Carswell's. And he just wouldn't believe that he could have possibly have been wrong and so you know – a very nasty – that sort of thing happened constantly."
The change in the plaintiff's personality traits was confirmed by the plaintiff's two former friends to whom I have earlier referred. Both said that after the accident, the plaintiff's sense of humour disappeared and he became verbally aggressive. They said that he became obsessive in his criticism of the way Telecom had treated him and the fact that he had suffered a head injury and suffered memory loss but no one would understand. He often said that people were talking about him behind his back. Notwithstanding sympathetic understanding by these two friends that the change in the plaintiff's behaviour was due to his accident, eventually his conduct and attitude was such that the friendships came to an end.
These days the plaintiff is without companionship except that of his son; is out of work and spends most of his days reading in the library, a bookshop or at home, walking, and on occasions, looking after Cameron. I accept his evidence that his short term memory is so poor that he has to write aides memoire for himself, even when performing simple household tasks. He writes a note to remind himself that he has turned the stove on. He writes notes to remind himself of things that he has to do, such as taking his son to a sporting fixture at a specified time. He said that he was unsure of the full extent to which he actually needed the notes that he made but, he was in fear that if he did not make them, he would not remember what he had to do.
The plaintiff returned to work after his accident on 31 March 1981. Apart from 18 days off work in April of that year and 10 days in September 1983, he continued working as a technical assistant until 1 July 1985. Basically, the work he was required to do after the accident was the same as that which he had done before the accident. Generally speaking, he was happy doing that work although I accept the evidence of the three successive officers–in–charge of the Telephone Installation Depot at Launceston that his productivity was not high. For about 98% of his time the plaintiff worked alone. He was issued with a vehicle to use during working hours and most of his work consisted of simple house installations, simple extensions to existing systems and retrieving telephones that were no longer required. Occasionally, he was called upon to give temporary assistance to a group of men working on larger installations. The work was straight–forward and required no new learning techniques. It would appear that he did not always get on well with his fellow employees who regarded him as argumentative and difficult.
About 1982 Telecom commenced installing a new type of phone system known as the Commander. Commander telephones are installed mainly in business premises which require several external lines and a number of internal extensions. Outside lines are connected to a terminating block in the building. From here the outside cable goes to the main distributing frame contained in a box fixed to an internal wall. From this equipment are connected two pairs of wires each leading to an extension. Occasionally, the plaintiff was asked to work with a technician installing a Commander system. I accept the plaintiff's evidence that he found this work difficult to do. He explained that the difficulty lay not in making the required connections but in remembering a series of instructions which had been given to him. He instanced cases of a subscriber describing seriatim the proposed location of a number of extensions and him being unable to remember these instructions. He said "what I was expected to remember was the location of a number of them and the correct termination of the cable on the central console going up to the individual phones. Where my problem was in that area was – they would give me group instructions instead of singular instructions and they [the technicians] have no knowledge of my problems and had virtually not very much interest in my problems either." He went on to explain that, in effect, this memory defect was not understood by the technicians and they became so exasperated with him that on at least one occasion they drove him back to the depot and told him to stay there.
There is no doubt that this kind of experience caused the plaintiff considerable emotional distress. He was and is an intelligent man and he considered the inability of his workmates to understand his loss of short term memory, unfair and their manner of dealing with him demeaning. I am satisfied that, by reason of the changes in his personality, he was unable to adequately cope with this situation and this in turn increased his alienation from fellow employees and his irrational and irritable behaviour. I find that on the two occasions once in 1981 and once in 1983 he was off work due to emotional stress arising out of events such as the one I have just set out.
However, until 1985 the plaintiff was able to get by at work, for most of the time he was by himself performing tasks he had learned prior to the accident. By mid–July 1985, the situation at the Telephone Installation Depot had changed. Firstly, Telecom ceased the practice of recovering phones from discontinued services because it was uneconomic for it to do so. Secondly, more men were assigned to the depot and efficiency of operation required management to substantially reduce the work formerly done by technician assistants working alone. Restructuring took place and the men were required to work in teams to more efficiently effect installations. This meant that the plaintiff could no longer continue working alone at the jobs he was used to. He was required to work with others sometimes installing new Commander systems. I accept the evidence of the officer–in–charge of the depot at the time, Mr Down, that on 1 July 1985 he called the plaintiff into his office to explain that as from that day he would not be working by himself but as a member of a two–man team and that the team leader would be a qualified technician. Mr Down explained to the plaintiff that the team would be involved in the installation of all types of customer terminal products but that he would only be required to work on the simpler areas of installation of that equipment as suggested by the Commonwealth Medical Officer. Mr Down then handed to Mr French a written copy of that instruction. He had prepared a written copy because he feared that the plaintiff would argue about this instruction. The plaintiff said "I cannot work on Commander systems as I have had an accident and suffered some brain damage". He said that he could not remember instructions and got very stressful. He said that he was starting to feel stressful then and was going to see his doctor. The plaintiff walked out of the depot and has not since worked at Telecom.
With respect to this incident I accept the following answer of the plaintiff given in response to the question, "You didn't even give that a go, did you, you just walked off the job? ... I had had previous experience with Commander systems which I found exceptionally difficult and I have been removed from them more than once because of my being incapable of doing what was required of me by the technician I was assisting and what I could see was that I could see all of that in front of me again, and so I thought I have had enough of this and so I went to my doctor and explained the whole situation to him and he examined me and took my blood pressure and all the rest of it and he gave me time off work." The plaintiff has not worked since that day.
The Medical Evidence
I now turn to the medical evidence. In summary, Dr Stewart was of the opinion when he examined the plaintiff in August 1981 and April 1984, that the accident had so impaired his short term memory that he was incapable of learning new tasks, such as store work, but was capable of doing work that he had learned to do before the accident. Dr Stewart suspected, and I find on the evidence to be a fact, that his problems at work during 1984 largely stemmed "from his capacity to irritate his workmates and thus make them less disposed to accept the reality of his genuine disabilities".
In substance, Dr Tooth expressed the same opinion. Mrs Page's extensive psychological testing in November 1985 indicated trauma–caused impairment in the plaintiff's short term memory and trauma–caused impairment in executive functioning which she noted was exacerbated by the plaintiff's long term "unusual personality". Further testing carried out in June this year confirmed the results obtained five years earlier. Mrs Page found that the test results were consistent with frontal lobe damage and that, in addition to short term memory deficit, they indicated impaired self–regulation of behaviour reducing the plaintiff's ability to modify emotionality and its expression. She said that the impaired ability to self–regulate behaviour exacerbated pre–accident tendency to become involved in interpersonal conflict. She denied that the test conducted by Dr McKenzie and those conducted in 1971 indicated a pre–accident personality disorder. I accept the evidence of this witness.
Dr Sale examined the plaintiff twice in 1984, once in 1985 and again in January 1990. He had the benefit of Mrs Page's tests and some medical reports. He took a history from the plaintiff and took into account a written history given by Mrs French. In substance, the latter history accords with the findings of fact I have made from her evidence. He confirmed the widely held medical opinion that there was trauma–caused impairment of short term memory. It was his opinion that the history taken from the plaintiff and Mrs French clearly indicated significant personality changes following the accident and that in all probability this was due to frontal lobe damage. He said that reported observations from persons who knew the plaintiff before and after the accident was the only basis for making the diagnosis. He denied that accounts of the plaintiff "going slow at work" before and after the accident indicated a passive aggressive personality disorder. He also said that even if the plaintiff's post–accident personality traits were present before the accident, it was by no means certain that such traits would have gradually become more pronounced. He said that the plaintiff's post–accident personality could have worsened as time went by. Persons with such a disorder alienate others causing them to become more isolated and thus reinforcing and entrenching the paranoia. I accept Dr Sale's evidence.
Dr Ratcliff did not see the plaintiff until June 1987. He re–examined him in July 1990. He took a history from the plaintiff. That history contained no reference to the plaintiff's relationship with persons other than those with whom he worked. Dr Ratcliff also had all the psychological material to which I have referred and various medical reports, most of which were tendered in evidence. He also had a "proof of evidence" by Mr Wilkinson, the plaintiff's superior at the Installation Depot just before and just after the accident, but that document was not tendered in evidence, and whether it was to the same effect as Mr Wilkinson's evidence is not known.
In a report dated 30 June 1987 Dr Ratcliff concluded that there was strong evidence of significant brain damage, probably resulting from the accident in December 1980. In that report he said, "clearly before the accident Mr French had perceptible abnormalities of personality but these were not sufficient to justify a diagnostic label". Referring to the 1971 psychological tests, he reported, "discrepancy of 17 points between verbal IQ and performance IQ ... could be evidence of pre–existing disorder of a minor nature, it could also be due to difficulties in the administration of the test characteristic of the tester".
By the time Dr Ratcliff gave evidence, he had reconsidered his earlier opinion. In his evidence, he again referred to the 1971 psychological test results and the noted discrepancy between the verbal and performance scores. He said that this indicated pre–accident psychological disturbance. He explained that the person who conducted those tests was known to him. He said that he had a strong German accent "and made no concessions to his clients about the instructions he gave on the testing which meant that a bright person would test in a way that one would regard as reliable", but tests of less intelligent persons would not be regarded as so reliable. I do not quite understand how a person's intelligence equates with an ability to understand the English word spoken with a strong foreign accent. At all events, as mentioned at the beginning of this judgment, I do not consider the 1971 psychological tests alone to be a sound basis for any conclusion with respect to the plaintiff's pre–accident personality. Apart from the absence of evidence from the person who conducted the tests and of any qualitative analysis, I accept the opinion of Mrs Page that intelligent people often perform better on verbal tests than performance tests and, when the scores of the individual subtests conducted in 1971 are examined, the numerical discrepancy loses much of its prima facie significance. Dr Ratcliff said this:
"I conclude from all the information that before the accident Mr French had perceptible abnormalities of personality, sufficient to justify a diagnostic label. His personality disorder meets DSMIIIR criteria for a diagnosis of passive aggressive personality disorder with some emergent features of paranoid personality disorder. The pattern is frequently seen in persons of high intelligence and inadequate education who find themselves in conflict with workmates and particularly with authority on minor issues which rapidly become major. I find the image of a powerboat with its propeller out of the water helpful in describing what happens in such individuals."
Dr Ratcliff disavowed any suggestion that the plaintiff was falsifying his symptoms. He accepted that the head injury had caused impairment to the plaintiff's short term memory and some personality change. However, he said that it was significant that the latter change occurred in a person who suffered from the pre–accident personality disorder he had diagnosed. He opined that had the accident not intervened, the pre–accident disorder "would have reached breaking point at some stage". In result, he said:
"It is my opinion that the ordinary progression of Mr French's personality disturbance would probably have reached an equalised stage by 1986 when he was retired on grounds of ill health. In other words, it is my opinion that it is very difficult, if not impossible, to now distinguish between Mr French's pre–existing personality disturbance and the symptoms produced by his head injury suffered in the accident."
To assess the weight that should be given to that opinion, it is necessary to examine the basis on which it rests. Dr Ratcliff said that predominantly it rested on the history taken from the patient, although he conceded that a history taken from a patient who has suffered brain damage could be unreliable. He said that it also rested on the proof of evidence of Mr Wilkinson, about which I have already made comment, and some unspecified observations made by some unspecified persons from Telecom. He said that none of those observations related to the plaintiff's behaviour prior to the conflict arising over the issue of wearing hard hats.
I find that I am unable to accept Dr Ratcliff's opinion that the plaintiff suffered from a pre–accident personality disorder of the nature he diagnosed. The evidence I have accepted simply does not support it. I do accept that the plaintiff was an unusual man, as described by Dr Stewart, and no doubt the brain damage exacerbated the traits to which Dr Stewart referred. However, there is no evidence to support the view that had the accident not occurred, those traits would have become so pronounced by about 1986 that it is now impossible to distinguish between aberrant behaviour caused by the accident and that caused by "a natural progression" of any pre–accident disorder. The evidence I have accepted tends to prove the absence of any pre–existing personality disorder.
Accordingly, I find that as a result of brain damage sustained in the accident, the plaintiff suffered a severe impairment to his short term memory and marked changes in his personality to the extent that he changed from being a humorous, flexible and sociable person to a humourless, verbally aggressive and anti–social person. The extent of these changes has had a profound effect on the quality of the plaintiff's life. He has lost the company of his wife and his friends and daily contact with his son. He has become irritable and irrational and frustrated by this state of affairs. Although he still has the ability to go fishing, play chess, read and enjoy music, his pursuit of these interests has been blighted by the sequelae of the brain injury.
With respect to his capacity to earn income, I am satisfied to the requisite degree that it has been reduced very substantially by the marked impairment in the plaintiff's short term memory and his personality changes which I have described. I accept the evidence of Dr Sale that the plaintiff now finds himself almost incapable of learning new tasks and his irritability, lack of flexibility and alienation from others makes it almost impossible for him to work in situations which call for goodwill and co–operation with others. His post–accident work history has demonstrated that this is the case.
With respect to his ability to derive income from his earning capacity by remaining in the employment of Telecom, it is clear from the evidence that during the 4½ years after the accident he was given a great deal of consideration by a sympathetic employer. During that time, he was largely permitted to work at his own pace on simple tasks he had learned to do before the accident, but when put in an unfamiliar situation or called upon to work in co–operation with others, he was unable to manage by reason of the defects sustained as a result of the brain injury. I acknowledge that before the accident the plaintiff was argumentative in the work place over what he regarded as his employer's unreasonable stance over the wearing of hard hats. However, the evidence does not support the proposition that his then attitudes were so pronounced that had the accident not happened, sooner or later, he would have left Telecom's employ in any event. It does support the proposition that the change in his personality exacerbated to a marked degree the aspect of his personality described by Dr Stewart and referred to earlier. This exacerbation, coupled with the impairment to the short term memory, irrationability and feelings of alienation, all combined to reach the stage where it was impossible for the plaintiff to derive income from his earning capacity in the employment of telecom, following restructuring in July 1985.
I accept the evidence of Dr Sale that the changes suffered by the plaintiff are characteristic of organic personality change, the diagnostic criteria for which are set out in DSMIIIR as follows:
"A persistent personality disturbance, either life long or representing a change or accentuation of a previously characteristic trait, involving at least one of the following:
(i)Affected instability. Eg marked shifts from normal mood to depression, irritability or anger.
(ii)Recurrent outbursts of aggression or rage that are grossly out of proportion to any precipitating psychosocial stressors.
(iii)Markedly impaired social judgment.
(iv)Marked apathy and indifference.
(v)Suspiciousness or paranoid ideation."
Following the plaintiff's precipitous departure from the Telephone Installation Depot on 1 July 1985, he was examined by a number of CMO's including Dr Sale. On 14 December 1985, Dr Sale reported to Telecom that, in his opinion, the plaintiff had a permanent disability and "in view of technological change is no longer able for medical reasons, to discharge his duties as an employee for Telecom". It appeared that at the time he so reported, Dr Sale understood that the complexities of the work required of the plaintiff in connection with the installation of Commander Systems was such that he was unable to properly do his work. That it was is not made out by the evidence. However, the ultimate opinion reached by Dr Sale is justified on the evidence on the basis that, by reason of a combination of the memory defect and altered personality, the plaintiff was rendered incapable of working for Telecom except to the extent that he had worked for it prior to the re–structuring in 1985.
On 9 January 1986 Telecom wrote to the plaintiff with the advice that he was to be retired from its employment as from 4 June 1986. The plaintiff makes no claim for lost income prior to that date.
With respect to the extent to which the plaintiff's earning capacity has been destroyed, it must be borne in mind that he is now aged 49 and the employment skills he learned prior to the accident can only be utilised in the employ of an employer who has permanently retired him. Acquisition of new skills, other than of a most rudimentary kind, is not possible because of the short term memory deficit. Irritability and irrational behaviour in interpersonal relationships make the plaintiff an unattractive employee, even for the simplest of labouring jobs. I do not accept that the plaintiff is capable of earning income by conducting a small business. Apart from the memory defect, successful business depends to a considerable extent on goodwill and the plaintiff's post–accident personality is such that he is incapable of generating the requisite goodwill. However, the plaintiff's general health appears to be good, and he has a high degree of intelligence. There exists a prospect that, intermittently, he will secure employment of a labouring kind which at present earns income in the order of $350.00 per week before tax.
At the date of trial, had the plaintiff remained in the employ of Telecom, he would have earned a net salary of $376.00 per week. But for the accident, the probabilities are that the plaintiff would have remained in the employment of Telecom until aged 65, a further period of 16 years. However, that finding must be qualified by the fact that the plaintiff's pre–accident personality may have led him into conflict with his employer similar to that which occurred in connection with the wearing of hard hats and resulted in termination of employment prior to the plaintiff reaching retiring age. In addition, of course, there must be a discounting of damages for diminution of earning capacity, which I assess in the order of 15%, for the ordinary contingencies of life.
Overall, I think this is a case which calls for an exercise of judgment rather than a mathematical exercise, and taking into account the matters I have mentioned, I assess the plaintiff's damages for future lost earning capacity, bearing in mind a discount rate of 3% for early receipt, in the sum of $180,000.00.
The parties were agreed that had the plaintiff remained in the employ of Telecom from 4 June 1986 until the date of judgment he would have earned $77,846.00 net. I think it is appropriate to allow this sum in full, rounded off to $77,500.00.
Special damages were agreed in the sum of $749.20.
Taking care to avoid overlapping, I assess the plaintiff's damages for loss of amenities of life in the sum of $25,000.00.
In summary, therefore, I allow:
Past loss of earning capacity $ 77,500.00
Future loss of earning capacity 180,000.00
General damages 25,000.00
Special damages 749.00
$283,249.00
Less agreed reduction for contributory
negligence (15%) 42,487.00
$240,762.00
Rounded off, there will be judgment for the plaintiff against the defendant for $240,000.00.
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