George v Bailey

[2015] WADC 50

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   GEORGE -v- BAILEY [2015] WADC 50

CORAM:   MCCANN DCJ

HEARD:   5-9, 12-14 NOVEMBER 2014 & SUBSEQUENT WRITTEN SUBMISSIONS

DELIVERED          :   6 MAY 2015

FILE NO/S:   CIV 681 of 2013

BETWEEN:   CLARE DULCIE GEORGE

Plaintiff

AND

EVAN SCOTT BAILEY
Defendant

Catchwords:

Assessment of damages - Personal injuries - Motor vehicle accident - Head injuries - Leg injuries - Amputation - Turns on own facts

Legislation:

Evidence Act 1906 s 79B, s 79C, s 79D
Motor Vehicle (Third Party Insurance) Act 1943 s 3C, s 3D(5), s 3D(6), s 3D(7)

Result:

Damages assessed in the sum of $3,032,601.50

Representation:

Counsel:

Plaintiff:     Mr T Lampropoulos SC

Defendant:     Mr D R Clyne

Solicitors:

Plaintiff:     Slater & Gordon

Defendant:     WHL Legal Pty Ltd

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

Beer v Duracraft Pty Ltd [2004] WASCA 192

Bowen v Tutte (1990) Aust Torts Rep 81‑043

Briginshaw v Briginshaw (1938) 60 CLR 336

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Den Hoedt v Barwick [2006] WASCA 196

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Gray v Richards [2014] HCA 40; (2014) 313 ALR 579

Jones v Dunkel (1959) 101 CLR 298

Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 127 ALR 180

Montemaggiori v Wilson [2011] WASCA 177

Pollock v Wellington (1996) 15 WAR 1

Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370

Ramsay v Watson (1961) 108 CLR 642

Reynolds v The State of Western Australia [No 2] [2013] WADC 176

Sharman v Evans (1977) 138 CLR 563

Swick Nominees Pty Ltd T/As Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173

Thomas v O'Shea (1989) Aust Torts Rep 80‑251

Wade v Allsop (1976) 50 ALJR 643

Wilson v McLeay (1961) 106 CLR 523

MCCANN DCJ:

Introduction

1. This is an assessment of damages for personal injuries suffered by the plaintiff in a motor vehicle accident on 14 March 2010 (the 2010 accident).  The Insurance Commission of Western Australia has admitted liability for negligence on behalf of the defendant.

2. The plaintiff was born on 4 July 1966.  Prior to the accident she was employed in Brisbane as a nurse in the intensive care unit (ICU) of the Prince Charles Hospital and elsewhere.

3. The 2010 accident occurred approximately 70 km north of Williams on the Albany Highway.  The plaintiff was riding a motorcycle.  A motor vehicle being driven by the defendant crossed the middle line of the highway and collided with the plaintiff.  Both vehicles were travelling at high speed.

4. The plaintiff suffered multiple injuries, mostly to her right leg.  These comprised a comminuted fracture of the mid‑shaft of the femur, compound comminuted degloving fractures involving the tibia and fibula, a fracture of medial malleolus with posterior subluxation of the ankle, a fracture of the fifth metatarsal, a plantar wound of the big toe and ruptures of the posterior cruciate, medial and lateral collateral ligaments of the knee.  The fractures could not be repaired and the leg was amputated below the knee on 22 March 2010.

5. Her head injuries included swelling of the mid‑face with a laceration of the right forehead, which was sutured.  Her right pupil was fixed in a mildly dilated position (known as mydriasis).

6. The plaintiff also suffered a minimally displaced fracture of the right first rib and a significant laceration of the liver without a large amount of arterial bleeding.  This was managed conservatively.

7. The plaintiff complained of acute right shoulder pain, but radiology revealed no evidence of bony injury.  An ultrasound showed the rotator cuff to be intact with some swelling of the subacromial bursar.

8. Curiously, the statement of claim pleads that the plaintiff suffered other serious injuries including 'multiple' rib fractures (as opposed to a single fracture), a laceration of the bowel, a fracture of the right sternoclavicular joint, and a fracture of the pelvis.  There is no evidence to support any of those allegations.

9. Post‑operatively, mobilisation was by wheelchair.  The plaintiff progressed to elbow crutches and ultimately various prostheses for her right leg.  A substantial proportion of the damages claimed in these proceedings relates to provision for prosthetic legs in the future.  According to the particulars of damages, the plaintiff claims for an everyday prosthesis (which has a rigid ankle/foot), a life enhancement prosthesis known as a 'proprio' (which has an automatic, computer controlled articulated ankle), a social or cosmetic prosthesis (to enable her to wear a moderate high‑heeled shoe and other clothing for style or comfort purposes), a water prosthesis (to enable her to engage in activities in and near water, including showering) and a sports/recreational prosthesis (to enable her to be more active).

10. The defendant does not agree that all of these prostheses should be provided for or, if they are, disputes the regularity with which they will need to be serviced and replaced.

11. The plaintiff also contends that she suffered a mild traumatic brain injury in the 2010 accident and developed neuro-cognitive sequelae involving her memory, learning, concentration and other skills.  She also contends that she has developed neurological, psychiatric and psychological symptoms such as volatility, unpredictability and aggressiveness.  (For ease of reference, I shall refer to the psychiatric and psychological matters as 'psychological' unless the context specifically requires otherwise).  She contends that she has lost friends and is socially isolated.

12. It is common ground that the plaintiff suffers from neuro-cognitive and psychological deficits.  However, the defendant does not accept that she suffered an organic brain injury in the accident.  It is contended that a head injury which the plaintiff suffered in a motor vehicle accident on 17 May 1989 (the 1989 head injury) is solely responsible for her neuro‑cognitive deficits and for some of the psychological symptoms.

13. To place this issue in context, it is common ground that the plaintiff suffered cognitive and psychological deficits after the 1989 head injury.  Over time she made a very good recovery and returned to full‑time employment.  She went to university and qualified as a nurse in 2000 and progressed to become an ICU nurse by 2007.  In 2010 she had plans to study to become a nurse practitioner and eventually obtain a Master's degree.  She contends that she recovered from the 1989 head injury because of the brain's innate ability to self‑compensate and rehabilitate by employing healthy neurological function to make up for neurological deficits (involving the use of 'neuroplasticity' and 'cerebral reserve').  But, she has been unable to work since the accident and there is no suggestion that she reasonably could have done so. 

14. The plaintiff concedes that any brain injury suffered in the 2010 accident was only mild, but contends that it was sufficient to efface her recovery from the 1989 head injury.  In other words, the damage caused by the mild 2010 injury had a disproportionately adverse effect.  The defendant disputes this.

15. The substantive issues between the parties are whether the 2010 accident exacerbated the 1989 head injury, or alternatively whether any exacerbation is of a non‑organic nature in the sense of being psychiatric and/or psychological in aetiology and therefore open to a more favourable prognosis.

Evidentiary principles

1. I am required to make findings on the ultimate issues on the balance of probabilities based on a body of direct and circumstantial evidence.

2. In a circumstantial case an ultimate fact is taken to be proven if the court is satisfied (ie, can infer) based on the whole of the evidence that it is more probable than not that the fact occurred or exists (Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536, (Gibbs CJ and Mason J)). By 'more probable is meant no more than that upon a balance of probabilities … an inference might reasonably be considered to have some greater degree of likelihood' than others that are open (Jones v Dunkel (1959) 101 CLR 298, 310 (Menzies J)).

3. But, this is not an arithmetical exercise.  I am required to be actually persuaded as to the probability of a fact being true (Briginshaw v Briginshaw (1938) 60 CLR 336). Nor should I confuse mere conjecture with reasoned conclusion (Jones v Dunkel, 305 (Dixon CJ), 309 – 310 (Menzies J)).

4. Inferences 'from actual facts that are proved are just as much part of the evidence as those facts themselves' (Jones v Dunkel (309 (Menzies J)).

5. I am also mindful that a circumstantial case which is reliant on deduction by a process of elimination is potentially fraught with the fallacy that a hypothesis is correct merely because it is the only one left.  Findings must be supported by evidence and an assumption is not evidence (Swick Nominees Pty Ltd T/As Swick Drilling Australia v Norncott Pty Ltd [No 3] [2013] WASC 173).

6. The assessment of credibility is a multi-factorial task.  The appearance and demeanour of witnesses are relevant factors, but there is a danger in too readily drawing conclusions about truthfulness and reliability solely or mainly from such considerations.  Judges are encouraged to 'limit their reliance on the appearance of witnesses and reason to their conclusion, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events' (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30] – [31] (Gleeson CJ, Gummow, Kirby JJ)).

7. It is also useful to take into account the cooperativeness and frankness of witnesses and their willingness to make concessions.

8. An expert is permitted to give evidence of an opinion (which would otherwise be hearsay) with respect to a factual issue which requires expert elucidation if he or she is qualified by training or experience to do so.  Opinion evidence is admissible for the purpose of assisting the court to make findings of fact.

9. Opinion evidence must be based upon facts or stated assumptions that are proven (or bear sufficient correlation to facts which are proven) and must be explained in such a way that the court can comprehend it and make the necessary findings, or at least understand why it should be adopted or deferred to.  (Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370; Pollock v Wellington (1996) 15 WAR 1, 3 (Anderson J); Beer v Duracraft Pty Ltd [2004] WASCA 192 [78] – [80] (McLure J); and Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, [64] (Heydon JA)).

10. As with lay witnesses, the court is entitled to accept all of a particular expert's evidence, or none of it, or accept some and reject the rest, or simply put it to one side.  In this way findings can be drawn from evidence and opinions of more than one expert, irrespective of who adduced the evidence.

11. The assistance to be derived from expert evidence, ie, its weight, may also depend to some extent on the degree of specialisation involved in the relevant expert field, because some fields are more esoteric than others.

12. A number of expert reports were received in evidence by consent pursuant to s 79C of the Evidence Act 1906, but their weight remains a matter for me (s 79D).

13. There is an issue between the parties as to the admissibility of evidence of symptoms and history which the plaintiff provided to various doctors and which they recorded in their reports, but about which she gave no evidence in the trial.

14. The plaintiff contended that the evidence is admissible and relied on a number of arguments.

15. First, Mr Lampropoulos SC relied on the so‑called 'rule' in Ramsay v Watson (1961) 108 CLR 642, 649 that a history of current symptoms provided by a patient to a doctor is circumstantial evidence in its own right and the doctor can give evidence of the same.

16. Next, Mr Lampropoulos SC pointed out that each case turns on its own facts.  The plaintiff was called as a witness, but there was little or no cross‑examination of her to suggest that she had been untruthful with the report writers.  This was not a case in which the essentials of the plaintiff's history were put in dispute.

17. Finally, Mr Lampropoulos SC argued that statements in medical reports which were tendered are admissible under s 79C(3) of the Evidence Act since the history provided by the plaintiff was a 'statement' within the meaning of s 79B, she was a 'qualified person' and she was called as a witness.

18. I accept all of Mr Lampropoulos' submissions, but ultimately the weight to be given to the evidence is a matter for me and I am entitled to take into account all of the circumstances surrounding the giving of the history, the nature of the report and all other relevant matters touching on the assessment of credibility and weight.

19. In these reasons references to expert evidence are to the contents of reports unless stated otherwise.  In places, references are to page numbers of exhibits 4 ‑ 7, which contain documents relating to medical matters and the plaintiff's economic loss claim.

My observations of the plaintiff

1. In evidence the plaintiff was well groomed and wore numerous accessories.  Her hair was partly shaven and partly plaited and beaded.  She told me that she did the latter especially for the trial.

2. She wore her everyday prosthesis, which was fully visible below her skirt, and walked steadily with an antalgic gait.

3. She is clearly very intelligent and articulate, but occasionally she spoke in a noticeably hesitant way.  Often she appeared to be searching unsuccessfully for a relevant memory or for the correct word.  Dr Ewing described the latter as 'mild difficulty with word retrieval'.  To illustrate these various traits, she referred (ts 31) to being 'sequestered to other wards' during her early nursing career, but could not remember the name of the ward 'that supports ICU' – she said 'it's not coming to me at the moment'.  Nor could she recall the name of her partner in 2010 (ts 55).

4. In terms of personality, she was variously chatty, forthright, dogmatic, amiable and quite humorous in her evidence.  Sometimes she used extravagant facial expressions.  She was very frank about her prosthesis and injuries.  To some extent, words such as flamboyant, larrikin, disinhibited and extroverted would describe her.  I asked her about this (ts 56) and she accepted that she could be described as 'very extroverted'.  A number of witnesses who met her made similar observations.

5. As a result (I believe) the plaintiff does have a tendency to histrionics and grandiosity of language.  To use the vernacular, she 'calls a spade, a spade', but not always helpfully.  To illustrate, there have been occasions since the 2010 accident when she has given a history which was not borne out by evidence.  For example, she said in evidence that she suffered a fractured collarbone (ts 35) and a 'dislocated' right shoulder (ts 39) in the accident, but there is no radiological or medical evidence to support such findings.

6. Having said that, there is no dispute about her honesty, and nothing to the contrary was suggested in evidence or by any of the experts who interviewed her.

7. She made concessions when necessary.  For example, she accepted that she has significantly improved since the 2010 accident and that she can do numerous everyday tasks.  Nor did she rule out the possibility that she could return to gainful employment at some stage in the future ('never say never':  Ms Ruth Jodrell's report, exhibit 18, page 22).

8. In short, I accept her evidence unless I explicitly state otherwise.

Prior to 14 March 2010

1. I turn now to deal with undisputed facts and make findings in relation to relatively uncontroversial issues.  In making them I have taken into account these reasons as a whole – it is convenient to deal with these matters before dealing with the substantive issues and expert evidence thereon.

2. The plaintiff was born in England on 4 July 1966, but was brought up in New South Wales.

3. After leaving high school she attended a technical college in Gosford and undertook a secretarial course, which she completed at the age of 17 years.  She took up employment as a secretary for a period of about a year, but ceased because the work bored her.  She started her own car‑detailing business, sold that and took up employment in a factory as a chicken boner.  She was in that employment when the 1989 accident occurred.  She suffered significant facial fractures and a haemopneumothorax in that accident.  CT scans disclosed no evidence of any macroscopic brain injury such as haemorrhaging.

4. However, the plaintiff suffered acute cognitive symptoms including total memory loss.  For a period she was unable to recognise family members, school friends or her partner.

5. Her eyesight was also affected ('it went out, so I would see eight of you': ts 25), she suffered hearing loss and a complete loss of her sense of taste and smell.  She also suffered deficits with manual motor coordination.

6. As a result of complications she underwent a left temporal lobectomy which has left her with a very substantial scar across her skull, which I saw during her evidence.

7. Over time all of her symptoms improved and, amongst other things, she regained her normal eyesight and full sense of taste and smell.  Having regard to the nature of her facial injuries, and the evidence of Dr Du Plessis (ts 335, 341 – 342, 343), I find that her taste and smell symptoms were not neurological in aetiology.  The same applies to her vision problems (see [68] below).

8. She was determined to be independent and returned to work as soon as possible.  Later she obtained qualifications and employment doing bartending and waitressing.

9. She also ran her own landscaping business.  In 1995 she suffered a back injury from which she made a full recovery.

10. In 1997 she moved to Townsville where she obtained employment as a nursing assistant in a nursing home.  She also worked as a waitress and as a taxi driver.

11. In 1998 she commenced studying full‑time towards a Bachelor of Nursing Science from James Cook University.  She funded herself with casual employment, mostly as a taxi driver.  She completed the degree on time and with some excellence in December 2000.

12. She accepted in cross‑examination (ts 68 – 69) that she also suffered from headaches (which she histrionically described as 'grand mal' seizures) for which she had anti‑convulsant medication.  She agreed that she became irritable and aggressive under stress, readily fatigued and had poor temper control even as late as 1999.  She said that there were times when she was 'pretty messed up and very spontaneous'.  She also had memory, concentration and other cognitive difficulties, but these ended by 2001.

13. After graduating she worked for about three years as a general nurse in various rotations in Townsville Hospital.  She then moved to Brisbane and worked in the Redcliffe and Caboolture Hospitals.

14. She underwent a CT scan of her head on 16 February 2007 after complaining of vomiting and giddiness which she attributed (ts 69 - 70) to overwork and a lack of sleep (she was doing 12‑hour shifts and additional casual work).  The report of Dr David Wong (exhibit 1) noted the evidence of the previous right craniectomy, and previous surgery of the nasal bones, but otherwise found no abnormality.

15. In April 2007 she completed a graduate certificate in ICU and Emergency and Trauma Nursing at Queensland University of Technology.  In June of that year she took up a full‑time position as an ICU nurse at the Prince Charles Hospital in Brisbane.  She also worked on a casual basis for a nursing agency at the nearby St Andrew's Hospital.  These employments continued until the 2010 accident.

16. From a recreational point of view the plaintiff was active and participated in bicycle riding, horse riding, bush walking, roller blading, surfing and dancing.  She had piano lessons.

17. She described herself as an extrovert in certain situations and a fun person to be with, but at work she always controlled herself and maintained professional standards (ts 66).

The 2010 accident and acute hospitalisation

1. The plaintiff described the 2010 accident and the immediate sequelae in evidence (ts 33 – 35).

2. She saw the defendant's vehicle swerving as it approached her, she anticipated a collision, applied the brakes of her motorcycle and laid it on its left  side.  As a result the defendant's vehicle made impact low on her body – hence the damage to her lower right leg.  Nevertheless she said that she suffered a heavy blow to her head.  She said that her helmet was 'destroyed'.

3. She was in very significant pain and never lost consciousness, although she was given some pain relief by paramedics and sedation and pain relief at Narrogin Hospital.  There is evidence that she was combative (page 1299).  She testified (ts 35) that this was because she distrusted the paramedics and was frightened that they would make her injuries worse.

4. The ambulance officers recorded that she had two black eyes (page 1250) and staff at Narrogin Hospital noted that her right eye was 'swollen shut' (page 1269).

5. The plaintiff's Glasgow Coma Score (GCS) was 14/15 at all material times until analgesia was given at Narrogin Hospital, which signified that she opened her eyes to voices, was verbally orientated and obeyed commands (page 1249).

6. She was flown to Royal Perth Hospital (RPH) and admitted to the ICU, where she underwent numerous operations and procedures over several days, including the amputation of her right leg about 2 cm below the knee.

7. A CT scan of the plaintiff's head on 14 March 2010 (page 1421) disclosed no intracranial haemorrhage and no acute fractures.  Previous frontal craniotomy, right temporal burr hole and right frontal and ethmoid sinus fixation was noted.  All of this related to the 1989 injuries.  Nothing else of note was observed.

8. From an ophthalmological aspect, the pupil of her right eye was fixed in a dilated position and unresponsive to light (ie, the mydriasis).  On 22 April she complained of blurred vision for distances and reading (pages 1299 – 1301, 1331 ‑ 1332).

9. There is evidence that the mydriasis pre‑existed the 2010 accident and related to the 1989 accident.  Exhibit 27 (notes of the Royal North Shore Hospital dating from May 1989) record that the plaintiff's right pupil was 'fixed dilated'.  However, the note goes on to suggest that the problem may have resolved, which tends to exclude a permanent sensory injury or mydriasis.  I incline to the view that the vision problems of which the plaintiff complained in 1989 were related to vergence dysfunction which resolved (see Beverley Roberts, optometrist, page 1205).

10. The expert evidence was that the current mydriasis is probably of traumatic rather than neurological aetiology, and I find accordingly.  (See RPH notes and discharge records at pages 1299, 1331 – 1332, and Drs Todman (exhibit 9 and ts 218 and 223), Cameron (ts 268 – 269, 274) and Du Plessis, (ts 325 and 311 but cp 333)).  This finding is supported by the nature of the plaintiff's external head injuries in the 2010 accident in which she suffered heavy, blunt force trauma to her face and directly to the eye.

11. I conclude that the mydriasis was caused by the 2010 accident.

12. I move now to deal with post‑traumatic amnesia (PTA).  The term denotes the inability of the brain to lay down new memory in the immediate aftermath of trauma (Dr Steven Buckley, ts 240) and its presence is circumstantial evidence of a concussive, brain injury.

13. In cross‑examination the plaintiff said (ts 57) that she had a full recall of the accident, but that is debateable.  She gave a statement to police officers at Narrogin Hospital, although she said that she may have been wrong with some details, such as the colour of the defendant's vehicle (ts 58).  She testified about her concerns at the attempts of the ambulance officers to remove her jacket at the scene (ts 35), but said nothing of them attempting to cut her clothing off en route to Narrogin (page 1249).  It seems to me that that is a significant omission because it is the very thing that I would expect the plaintiff to have a memory of if, as she testified, she was so very vigilant about what the paramedics were doing.

14. The experts were not in agreement as to whether any mistakes in her recollection were evidence of PTA, but it appears that none of them were apprised of her failure to recall the attempts by the paramedics to cut off her clothes en route to Narrogin.  There is also evidence that the plaintiff suffered from PTA in Royal Perth Hospital, for which she was regularly tested with the Westmead PTA scale. 

15. Dr Buckley described the Westmead test procedure in evidence (ts 250 ‑ 253).  The records are in evidence (pages 1427 ‑ 1429) and in clinical notes contained in exhibit 22.  The test is usually administered by occupational therapists, nurses or physiotherapists.  It measures how long it takes a patient to register new memories.  For that purpose, the patient is provided with information comprising four novel facts each day and must be able to recall them next day.  There is also a précis of eight pieces of generic data which everyone is expected to recall at will.  The patient is deemed to have PTA until he or she remembers everything for at least three consecutive days, at which time PTA is deemed to be non‑existent from the first day.  The plaintiff had failed to achieve this standard when she was transferred to RPH Shenton Park on 30 March (when the testing ceased).

16. Drs Buckley (ts 252) and Ewing (page 5), Cameron (ts 271) and Du Plessis (pages 9, 19 and 25) said, and I accept, that narcotics can affect day‑to‑day memory, including (in the case of Ketamine) after usage ceases.  According to the plaintiff's notes, she received Ketamine until the evening of 29 March 2010 (exhibit 23).  Given that her last Westmead test (which she failed) was on 30 March 2010, I find that the testing was inconclusive (Dr Du Plessis said it was 'futile') and neither supports or excludes a finding that the plaintiff had PTA whilst she was in RPH.

17. It is not necessary for me to be persuaded of the existence of PTA on the balance of probabilities (since it is only a circumstantial matter), but in my view it is likely that the plaintiff had it to some degree given the force of the concussion, her GCS score and selective post‑accident memory.

After the plaintiff's discharge from Royal Perth Hospital

1. The plaintiff was transferred to the RPH's Shenton Park campus for rehabilitation on 1 April 2010.  She was discharged from there on crutches on 10 May 2010.

2. She was fitted with a preliminary prosthetic leg but, according to her evidence (ts 37), this only happened after she pressured the hospital staff who wanted her to wait until her knee was stabilized.  Surgery was performed for that purpose.

3. She continued to receive significant doses of medication to deal with pain, including phantom pain.

4. She lived in Perth for several months after being discharged from Shenton Park hospital.  Her partner travelled from Queensland to be with her and she received assistance from him and others.

5. She then returned to Queensland to live in Caboolture.  Her relationship with her partner ended soon afterwards and she has lived independently ever since, assisted by paid indoor and outdoor domestic assistance.

6. She described her symptoms, rehabilitation and activities of daily living in some detail in evidence.  The salient features of her evidence (which was not disputed and I accept it) were as follows.

7. She uses three types of prostheses, an everyday, a waterproof (for bathing) and a 'proprio'.  The proprio is particularly useful for walking on slopes, steps or uneven surfaces.  The plaintiff also finds that it helps her to recover from using the everyday prosthesis, which obliges her to walk with an antalgic or swinging gait that causes complications (including spinal discomfort).  She has regular (weekly) chiropractic treatment to deal with that.  But, the proprio is heavier than the everyday prosthesis, so she uses it with discretion.

8. She wears all of her prostheses with linings to protect her stump.  By February 2013 the stump had become quite unstable and she suffered pressure sores and skin breakdown.  She underwent plastic surgery to remove excess tissue.

9. She has regular reviews with her prosthetist, Mr Barry Leech, who works in the Gold Coast Tamborine area (approximately two hours' drive from Caboolture).

10. She occasionally uses elbow crutches or a wheelchair within her own home.  She has occasionally developed symptoms of carpal tunnel syndrome when she has over-used the crutches.

11. She suffers pain regularly, including phantom pain, but has not taken medication for some time (save, occasionally, for Mersyndol).

12. She feels that her personality has changed since the accident.  Her temper is now more easily triggered (although it has improved lately).  Ms Jodrell's report (exhibit 18, page 10 and elsewhere) sets out corroborative evidence which she witnessed in the plaintiff's home on 31 March 2014.

13. The plaintiff feels that she is also very pedantic and obsessive.  For instance, she finds that she becomes excessively focussed on a particular task – ie, concentrates too hard – to the exclusion of other daily activities.  Dr Ewing described this as 'perseverative' behaviour.  As a result she fails to prioritise and is poor at multi‑tasking.  Alternatively, she has trouble concentrating.  Ms Ruth Jodrell witnessed an example of this trait during her home inspection.  The plaintiff suddenly and inappropriately interrupted what they were doing to start cleaning an exhaust fan in the bathroom (exhibit 18, page 7).

14. The plaintiff believes that her eyesight is worse than before the accident.  She testified (ts 46) that it is 'still blurry and I need glasses [for reading] … whereas before, my vision was pretty good – really good'.  I find that this is a symptom of mydriasis and is therefore related to the 2010 accident, but I find that the impairment is only mild.

15. She suffers from vertigo and vomits on an almost weekly basis.  Therefore she no longer sleeps in a bed and uses a recliner chair.  Even then, she sleeps very little and can go days on end without doing so.  When she does sleep she tends to sleep for no more than two or three hours which she calls a 'catnap' (ts 51).  Dr Todman's evidence was that it is most unlikely that the vertigo is a neurological symptom and I find that it pre‑existed the 2010 accident, but it is still part of the plaintiff's make‑up and the defendant must take her as he finds her.

16. She is able to drive an automatic motor vehicle which has been modified so that the accelerator is on the left of the brake pedal.

17. She does neurolinguistic exercises on her computer (ts 58).

18. From a social point of view she spends most of her time at home and only has two close friends.  She walks her dogs, uses her computer, watches television and does 'quite a bit of exercise'.  She used to 'be obsessive' about exercising in order to control her weight, but she stopped because 'it was crippling me up' (ts 43).

19. She believes that her memory has been affected by the accident.  She testified (ts 45):

    Sometimes I remember things well, and I think, 'You're getting better'.  But then it'll come back.  I don't have facial recognition now.  A lot of people I know will walk up to me and I won't have a clue who they are, but apparently they are friends of mine, and that used to be a – a joke, that I needed a friend to tell me who my friends are.  So – and I still – I thought I got better with that, like, if I'm around someone longer, then I do.  I remember.  But if I haven't seen them in say, three months, I won't remember them.

20. From a cognitive point of view she finds it 'hard to focus' when called upon to write a letter or similar document (ts 59).

21. She testified (ts 46) that she feels that she could physically return to nursing work of some kind if her hours were appropriate, but she is very concerned that her cognitive deficits with multi‑tasking and her memory would render her 'dangerous'.

22. She testified as to her 'emotional state' (ts 56):

    Basically I only have one emotion now, I don't really do emotions.  Like I say, I have two speeds.

    … so I don't cry, … .  I'm more disassociated I think.  … I think I do have an aspect of clinical depression but it doesn't present in a normal way.

    … I'm just generally like this all the time [ie, smiling and cheerful].  Mostly until I trigger [ie she suddenly loses her temper and becomes abusive].

23. To illustrate, she said that she has refused to grieve over losing her leg (ts 56).  Other witnesses noticed this stoic tendency.

24. She has had regular treatment from a psychologist, Ms Anita Trendle, most recently approximately three or four months before the trial (ts 65 ‑ 66).

The expert evidence – neurological and psychological issues

1. All of the reports were detailed and professional.  Many authors had access to substantial briefs of evidence and historical and contemporary opinions.  It is not possible, nor in the ultimate result necessary, to set out the contents of each report at length.  I have taken them all into account, together with the evidence in the trial.  The fact that I may have extensively referred to, or quoted from, reports of particular experts does not necessarily signify that lesser consideration has been given to other evidence.

2. I commence by dealing with aspects of the radiological evidence.  It was common ground amongst the experts that the 2010 CT scan does not exclude the possibility that the plaintiff suffered organic brain damage in the 2010 accident.  This is because a CT scan is apt to identify haemorrhaging within the cranium or other macroscopic damage which is associated with catastrophic harm.  But the lack of such evidence does not preclude the possibility of there being damaged brain tissue at the microscopic or neuronal level which is not detectable by CT scan.

3. An MRI scan on 17 July 2012 provided such evidence.  The radiologist, Dr Wong noted in his report (page 1190):

   Prior bilateral frontal and right frontal craniotomy with hypo-intense SWI foci, likely haemosiderin.  Occasional small hyper intense foci present in the frontal lobes bilaterally are non-specific.  Small localised CSF signal in the right anterior-cranial fossa … .

4. Dr Wong said that the occasional small hyper‑intense foci in both frontal lobes and the small localised CSF signal in the right anterior cranial fossa could 'be related to prior trauma to both frontal lobes'.

5. Dr Todman concurred and also testified that the finding of haemosiderin was objective evidence of brain injury.  Haemosiderin is an iron deposit which can be caused by a small haemorrhage or micro‑haemorrhage.  Although it was not possible to firmly date the evidence to the 1989 head injury or the 2010 accident, or both, he inclined to the lattermost hypothesis (ts 229):

   … I think it is a fair statement to say that the 1989 accident is contributing at least in part to those frontal lobe abnormalities.

   But I think it's also feasible, in fact even likely, that both accidents have contributed to the abnormalities that are seen in the brain because … those memory and cognitive problems that she had after the 1989 accident and subsequently improved are now very much at the fore since her March 2010 accident.  She had very significant memory and cognitive symptoms, the kind of symptoms that would be associated with a mild traumatic brain injury and the kinds of symptoms that could potentially be associated with [the] white matter abnormalities on a brain MRI.

6. The plaintiff called Dr Jocelyn ('Jan') Ewing whose Doctorate is in Clinical Neuropsychology.  She has over 30 years' experience in clinical psychology and clinical neuropsychology and specialist expertise in the diagnosis and treatment of traumatic brain injury and trauma‑related psychological disorders.

7. Dr Ewing first saw the plaintiff for medico‑legal purposes on 20 and 22 October 2010.  The plaintiff presented as a pleasant, very cooperative woman who was well groomed and courteous.  Her appearance 'was flamboyant, with partially shaved hair on one side, long on the other and green finger nail polish'.  She was mildly disinhibited and mildly impulsive throughout, but could modulate her behaviour and focus on the task at hand when required.  She appeared to have reduced awareness or capacity to modulate the tone and volume of her voice.  Analgesia may have been relevant to that.  She saw the plaintiff again on 5 and 17 December 2012.

8. She administered numerous tests in 2010 and 2012.  She also had access to 1991 test results.  Her report dated 7 January 2013 was received in evidence (exhibit 6).  Her report dated 1 December 2010 was referred to in evidence, but not tendered.

9. Dr Ewing considered that the plaintiff's history, presentation and test profiles were consistent with an Adjustment Disorder of moderate severity with Mixed Anxiety and Depressed Mood, with features consistent with post‑traumatic stress disorder (PTSD) but falling short of the criteria required for that diagnosis.  In Dr Ewing's opinion the plaintiff's features of PTSD had improved somewhat by 2012 largely because (in her opinion) she had increased her use of dissociative mechanisms which had resulted in increased emotional numbing.

10. With regard to neuropsychological functioning, examination in 2010 revealed relatively intact functioning (average or above average) in many areas, but mild impairment (borderline to low average) in the following (page 8):

    (i)verbal abstract concept formation and abstract reasoning;

    (ii)immediate span and working memory;

    (iii)auditory selective attention (to which hearing difficulties may have made a contribution);

    (iv)analytic and organisational abilities for unstructured or complex material, associated with increased susceptibility to stimulus overload, difficulties in coding new unstructured or complex material in the absence of repetition;

    (v)a susceptibility to interference effects on consecutive memory tasks;

    (vi)self‑monitoring and correction of errors;

    (vii)experiential decision-making (learning/modifying behaviour following error feedback).

11. In Dr Ewing's opinion this profile was consistent with mild higher order executive dysfunction typically associated with a frontal lobe injury.

12. Dr Ewing felt that there was improvement by 2012, possibly because of the absence of analgesia in 2012 and improvement in pain management.  However, there was persistent mild impairment in relation to a range of matters including impulse control, controlled word retrieval, immediate span and working memory/mental tracking abilities, regulation of attention and concentration, organisation and planning activities for unstructured or complex material, self‑monitoring and correction of errors and facial recognition and face‑name associative learning (pages 28 – 29).

13. The plaintiff's performance on higher order executive tasks showed some variation across her 1991, 2010 and 2012 profiles, but overall they were similar and suggested largely intact higher order intellectual processes with mild impairments as above and also behavioural deregulation.

14. Dr Ewing explained (ts 138 ‑ 139) that the frontal lobes are involved in two related functions.  One tends to deal with the cognitive or more intellectual aspects of higher order functioning such as planning, organising, working memory, abstract reasoning and so on which I have already mentioned.  The other involves the orbito-basal, lower levels of the lobes which relate more to regulation of emotions and behaviour.

15. In Dr Ewing's opinion the plaintiff's 'perseverative' thinking and behaviours and other difficulties with behavioural and emotional regulation were consistent with frontal lobe dysfunction, particularly of the orbito‑basal region.  Dr Ewing felt that these could impact on the plaintiff's work skills.  She said:

    … the reliability with which [the plaintiff may put sound advice into practice] is actually reduced by the fact that she's got poor regulation of her emotions and behaviour.  So at ‑  at a time when she's calm and everything's going well, she may be able to put the advice into action.  But if she gets flooded with anger or some other emotion, that [may] … overwhelm her now less functional frontal lobes.

1. She felt (ts 143), that the plaintiff's higher order (executive) deficits 'are probably less severe than the emotional behavioural regulatory deficits'.  She also said (ts 163) that the research demonstrates that the most predicative indicia of a brain injured person's likely employment income are their regulatory processes rather than their intellectual processes.  This has informed my findings in terms of the plaintiff's future employment prospects.

2. Dr Ewing said that it is difficult to estimate the plaintiff's pre‑morbid capability (prior to the 2010 accident) because of the 'demonstrated clear recovery in the 20 years prior to 2010'.  Nevertheless, she felt that the evidence suggested that the plaintiff 'likely functioned within the middle to upper band of the average range pre‑morbidly in terms of overall general intellectual ability'.  That opinion is supported by the plaintiff's academic and professional achievements between 1998 and 14 March 2010.

3. Overall, Dr Ewing believed the plaintiff's neuropsychological functioning was now worse and therefore considered that it had been impaired by the 2010 accident.

4. She was unsure whether the 2010 accident caused a new traumatic organic injury, but in her opinion it is 'quite possible' (page 26 and ts 131).  Evidence which supported that hypothesis was the reduced GCS score (14/15), mydriasis, facial swelling, initial combativeness and fluctuating scores on PTA assessment.  She believed that the GCS score and PTA showed that the plaintiff had 'definitely' received a concussive blow to the head (ts 131). 

5. Dr Ewing accepted that there was countervailing evidence, namely the plaintiff's continual consciousness and recall of events surrounding the accident, including the blow to her head itself and the events following (until the administration of narcotic analgesia), the absence of evidence of recent intracerebral abnormality on the CT scan of 14 March 2010, the possibility that severe pain and shock accounted for the GCS score which was only reduced because of eye closing – the plaintiff's orientation and verbal responses were intact – and her initial combativeness and PTA assessment could reflect the combined effects of severe pain (and pain relief), and her pre‑morbid neuropsychological state.  Further, she allowed that the mydriasis was irrelevant if it was attributable to a direct traumatic injury to the eye (as I have found) rather than a traumatic brain injury.

6. Either way, Dr Ewing believed that any new organic injury would have been 'relatively mild and unlikely to result, on its own, in persistent significant symptoms associated with brain injury' (pages 9 and 29).

7. However, she believed that even a mild new injury could have been sufficient to 'unmask' the 1989 head injury.  (In cross‑examination (ts 140) she agreed that 'unmasked' is not a technical or diagnostic term.  It seems to me that she used it synonymously with 'relapse').

8. Dr Ewing explained that the deficits caused by multiple closed head injuries, even mild ones, can be cumulative in effect.  That is to say, overall impairment can be more severe if the recipient already had a 'reduced cerebral reserve' as a result of a previous brain injury.  She explained this concept in her report (page 9):

   … there may have been a mild concussive brain injury that contributed to an 'unmasking' of her previous serious head injury symptoms.  This suggestion rests on the concept that an individual may be able to learn alternative pathways and effective compensatory strategies to minimise the effects of significant brain injury in everyday life (neuroplasticity).  However, they do so by using much of their cerebral reserve and the effects of the injury can re‑emerge when that reserve is reduced for some reason.

9. Neuroplasticity does not involve the development of new cells, but rather the learning of a new way to do something with undamaged cells (ts 165).  She agreed that 'neuroflexibility' might be a more apposite term (as being less suggestive of actual organic change).

10. Cerebral reserve (or 'cognitive reserve') involves the ability to use available brain potential to compensate for deficits (ts 166).  To illustrate, she explained that when someone is tired, but wants to continue to function at a certain level, they draw on some of their cerebral reserve to function at the same level despite the fatigue.  She said (ts 167) that:

    … if that reserve capacity is also being drawn upon in order to cope with pain or in order to cope with stress or in order to cope with anxiety then there's less available [and] is therefore [… harder …] to maintain performance.

11. Accordingly, Dr Ewing testified that the plaintiff's persistent pain and psychological adjustment difficulties since the 2010 accident were relevant.  She explained (page 30; emphasis added):

    … prior to the current accident she had managed to compensate for her frontal lobe impairments through a range of strategies and she was able to function effectively in everyday life in both her social and occupational roles.  However, with the additional stress of constant pain, life as an amputee, sleep disturbance and post‑traumatic intrusive and dissociative symptoms, the impact of her original frontal lobe injury has been 'unmasked' and exacerbated and she is no longer able to compensate effectively for the original damage (this is referred to as a 'conditional lesion' by Sbordone, 1996).

12. In Dr Ewing's opinion (ts 161) the plaintiff is unlikely to make another recovery, although it is not impossible because she has shown a degree of resilience in the past.  Her opinion was based on her findings that between 2010 and 2012 there was 'no real evidence' that neuroplastic compensatory techniques had been taking place.  She felt that this was because of 'the ongoing nature of her pain and her psychological condition' as well as the possible cumulative effect of multiple head injuries.

13. Based on a history provided by Ms George of having suicidal ideations and attempts Dr Ewing believed that the plaintiff was a high suicide risk especially in view of her reduced capacity for impulse control.  I discount this opinion because I am not satisfied that the history is sufficiently supported by the plaintiff's evidence in the trial itself.

14. In her report at (page 29) Dr Ewing gave the opinion that the plaintiff is not capable of returning to employment in intensive care nursing.  She said:

    Not only would the physical demands be too exhausting and likely to intolerably aggravated her pain, her poor capacity for emotional and behavioural regulation, unreliable working memory and difficulties with planning, organisation, self-monitoring and error correction would make her unsuitable and unsafe as a registered nurse. 

15. In her oral evidence (ts 277-278) she clarified that her opinion related to nursing in an ICU environment which she regarded as being more demanding than general nursing duties.  She said:

    Well, her complaints of memory disturbance, speech disturbance, concentration, mood swings.  There may be other factors that stop her going back to work.  She's got a below the knee amputation which is quite a significant injury for a young woman, especially working in a nursing environment.  But as far as the neurological assessment, you know, I'm not talking about any psychiatric assessment where she may have anxiety, depression.  From an orthopaedist or a pain specialist here, she's got all these other problems.  Just from a purely neurological assessment I thought she could return to general ward duties or some form of low-grade nursing full-time activity. 

16. I requested her to clarify what she meant by 'low-grade nursing' and she acknowledged that general nurses work very hard.  She said:

    … she could be a community nurse, she could be working as a nurse in a factory environment doing first aid work and some assessments on injured workers, and a medical assessment of – in the industrial environment.  She could be working in a government department, Department Health in some duty there as a nurse.  She could also run an outpatients at a hospital where she's just collecting notes and arranging patient triage and so forth without being acutely involved in the acute management of, say, some trauma victim or an intensive care environment … [she could be a] school nurse.

17. Dr Ewing's evidence drew heavily upon her very extensive clinical experience.  In my view this is an advantage in a case of this nature.  Dr Cameron has a high opinion of her (ie, 273).  Her evidence was balanced, open‑minded and addressed countervailing hypotheses.  I have placed weight on it in arriving at my ultimate findings.

18. The plaintiff called Dr Donald Todman, who is a neurologist with 30 years' experience.  Dr Todman saw the plaintiff for medico‑legal purposes on 11 July 2012.  His reports dated 11 and 31 July 2012 are exhibit 9.

19. Dr Todman noted the history and evidence, particularly features such as the plaintiff's problems with short term memory, concentration and other cognitive functions.  He concluded that she had suffered concussion in the 2010 accident and that her ongoing features supported a diagnosis of 'a mild traumatic brain injury' known as post‑concussion syndrome.  The diagnostic criteria are that the patient suffered either a head injury or some kind of an acceleration/deceleration injury, and also exhibited cognitive symptoms such as memory loss, psychological and/or psychiatric symptoms (including anxiety) and suffered physical symptoms such as headaches and dizziness (not to be confused with vertigo).  Acute loss of consciousness is not a diagnostic requirement (ts 219; 223 ‑ 224).

20. Dr Todman explained that this diagnosis is not precluded by the normal CT head scan of 14 March 2010.  To the contrary, he said that a normal CT scan is a diagnostic requirement for post‑concussion syndrome because 'the nature of concussion and a mild traumatic brain injury is an injury that's occurred at a neuronal or perhaps microscopic level which has affected brain pathways and neurones without necessarily showing any abnormality … on brain imaging, at least acutely' (ts 227 – 228).

21. From a neurological point of view, Dr Todman firmly doubted that the plaintiff has any ability to perform any paid work.  He said (ts 230 ‑ 231) that her condition has plateaued and her likely prognosis is for symptoms to continue at their current level, with the possibility of some mild improvement.  He recognised the symptoms may not be severe in an everyday setting, such as conversational speech, but he would prefer to elucidate the magnitude of her injuries in a clinical setting.  He conceded (ts 232) that there was some prospect of the plaintiff being able to work if her disabilities were limited to her mild traumatic brain injury, but from a global perspective taking into account all of her injuries and disabilities, she is unemployable.

22. The defendant called a neurologist, Dr John Cameron who saw the plaintiff for medico‑legal purposes on 23 October 2012.  His reports dated 26 October and 30 November 2012 are exhibit 11.

23. On examination Dr Cameron observed the plaintiff to sit comfortably, she was orientated and her speech was normal.  She gave a sequential detailed history and there was no evidence of mood disturbance or disinhibition.  She did not present as flamboyant.  He was mindful, however, that he saw her for only one hour and accepted that she could behave differently or exhibit different moods on other occasions.

24. Dr Cameron found the plaintiff's sense of smell intact, she had normal visual fields and fundi and her visual acuity uncorrected was 6/6 in the right eye and 6/4 in the left.  He noted the mydriasis in the right eye and concluded that it was caused by local trauma (ie, blunt force directly to the eye) rather than a neurological injury.

25. He noted that the MRI brain scan of 17 July 2012 'revealed no acute injuries except findings compatible with a previous severe head injury'.

26. Having regard to the GCS score, the RPH discharge summary and diagnosis and the evidence of blunt force trauma (notably the traumatic mydriasis), Dr Cameron concluded that the plaintiff had 'suffered a mild concussive injury' in the accident.  He said that it was quite likely that this had aggravated her pre‑existing neurological impairments, in that her pre‑morbid problems had 'come to the forefront' (a 'flare‑up': ts 268).  Although the aggravation was mild, it was intrusive in day‑to‑day activities.

27. Dr Cameron agreed with Dr Ewing that successive head injuries can have a cumulative ('additive') effect, even if the second only involved 'mild structural damage' (ts 275 – 276).  The patient can be drawn 'down a step further in their ability to do' things.

28. Dr Cameron agreed with Dr Ewing's assessment that the aetiology is multifactorial.  He said (ts 276):

    I believe there is a component of brain injury suffered in the second accident which is causing her present collection of symptoms.  There are also other factors I suspect which are outside my field, like anxiety and depression, pain, sleep disturbance … [but] she has suffered a structural head injury in the second event sufficient to cause some further problems.

29. As I construe this evidence, he does not regard the neurological component to be significant.  He said (report page 9 and ts 277 – 278) that from a purely neurological point of view the plaintiff is capable of returning to nursing on a full‑time basis 'but perhaps in more general ward duties rather than in the demanding critical care units', but psychological problems and pain would complicate the situation.  He had in mind community nursing, occupational health and assessments, school nursing, governmental duties, running an outpatient clinic and similar occupations.

30. In Dr Cameron's opinion the 1989 head injury was 'a very severe head injury' and 'far more severe' than the 2010 injury.  He based this opinion on the fact that the 1989 head injury occurred in circumstances where the injuries required surgery.  I am not persuaded by that reasoning because the surgery was necessitated by complications of the plaintiff's facial (nasal) injuries [see [45]).

31. Notwithstanding that caveat, I was impressed with Dr Cameron's evidence.  He is very experienced and I found him to be open‑minded.  His opinions were based on a wide cross‑section of material and data and he had a clinical perspective.

32. The defendant also called Dr Lodewicz Du Plessis.  Dr Du Plessis is a neurologist and a rehabilitation specialist.  He saw the plaintiff for medico‑legal purposes on 19 March 2014 and his reports dated 16 April 2014 and 10 July 2014 were received in evidence (exhibit 16).

33. The first report is very lengthy and detailed.  I am satisfied that Dr Du Plessis reviewed virtually all relevant available documentation.  He summarised that material carefully and at length in his reports.  He took particular note of Dr Ewing's neuropsychological test results and her opinion on them.  He also noted her diagnosis of an adjustment disorder with mixed anxiety and depressed mood with post‑traumatic features and other psychological evidence.

34. On examination Dr Du Plessis found that the plaintiff was 'very gregarious, friendly and spoke very freely about her significant injuries' from the outset.  He felt that she was exhibiting 'possible slight frontal lobe disinhibition symptoms'.  But, in summary, he made no other findings on examination to suggest any organic neurological deficit.

35. Based on the evidence available to him, he assumed that the plaintiff was 'significantly affected' by the 1989 head injury and made a good recovery, but 'never recovered fully'.  In his opinion the changes reflected on the MRI scan in 2012 were all the result of the 1989 head injury.

36. In his opinion the evidence that the plaintiff had sustained a brain injury of any significant severity in the 2010 accident was very tenuous and that 'most if not all' of her subsequently reported symptomology is attributable to the 1989 head injury.  He based this on the normal 2010 CT scan, the non‑conclusive GCS score during the acute phase and the fact that the plaintiff's symptoms were similar to many of the early sequelae of the 1989 head injury.  He completely discounted the PTA test results.

37. He accepted that it was possible that the plaintiff suffered a 'very mild [short term] traumatic brain injury' in the 2010 accident in the sense of mild concussion which had a transient effect on her overall level of functioning, but in his opinion there was no evidence to suggest that there would be any 'carry‑over effect'.

38. In his opinion the plaintiff's 'apparent ongoing problems can however be explained on the basis of physical discomfort or the development of secondary psychological and psychosocial issues because of the loss of her right leg'.  In evidence he explained that depression and anxiety can interfere with cognition and memory, and any pain (eg, a headache) can interfere with concentration.  In other words, the neurology does not change, but the psychological ability to cope does (ts 354).

39. It follows that he did not agree with the experts who believed that there had been an accumulation of the neurological effects of two concussions.  He pointed to a 2008 publication by a neuropsychologist (Dr McCrea) entitled 'Mild Traumatic Brain Injury and Postconcussion Syndrome' in which the author contended that the effects of a second mild brain injury are likely to be very minor if there was a good recovery over many years from the initial brain injury.

40. In Dr Du Plessis' opinion the plaintiff's orthopaedic injuries and the need to use a prosthesis are the primary barriers to her returning to her pre‑accident nursing employment.  In his opinion she could function in a teaching and administrative capacity.  He accepted that her disinhibition and gregariousness could be inappropriate and surmised that she had been able to adequately manage it prior to the accident.  In his view returning to some form of employment would be therapeutic and advisable, initially on a part‑time basis but increasing to full‑time capacity within a year.

41. It became apparent during cross‑examination that Dr Du Plessis' opinion  as to the aetiological primacy of the 1989 head injury relied on two premises.  First, that the plaintiff suffered significant neurological deficits from the 1989 head injury and had residual problems at all material times, and second, that the concussion involved in the 1989 head injury was more severe than the 2010 accident.

42. Cross‑examination revealed a potential difficulty in that Dr De Plessis did not specifically address his mind to the evidence of the sequelae of the 1989 head injury.  Rather, his first premise was simply an assumption.  He said (ts 349):

    … based on the fact that I knew she had a severe brain injury initially I would have expected some residual problems.

43. As will be seen ([200]), I have not accepted that the 1989 head injury was 'severe' from a neurological point of view.

44. Dr Du Plessis was challenged on the basis that he works extensively as an expert or assessor for insurers and other bodies whose interests might be regarded as antithetical to those of plaintiffs and other claimants.  To be blunt, his impartiality was questioned.  I have gained no assistance from this cross‑examination.  It is not uncommon for expert witnesses to accept instructions predominantly or exclusively for either claimants or respondents and this may have more to do with the wishes of their clients than anything else.  There is no evidence that Dr Du Plessis has exhibited partiality during his career and he emphatically refuted an innocuous attempt to suggest otherwise in a line of questioning which referred to a commercial television programme which referred to him.  I am not satisfied that there is any general or particular basis for concern about Dr Du Plessis' impartiality, or any expert witness for that matter.  The reliability and weight of Dr Du Plessis' evidence will be assessed in accordance with orthodox principles.  As it happens, in my opinion he was well‑intentioned, earnest and did his best to assist the court.  He deferred to other experts where necessary (such as the field of neuropsychology), made concessions and corrected himself where appropriate.

1. The defendant called a neuropsychologist, Professor Jonathan Foster, who prepared a report (exhibit 19) based on a medico‑legal assessment of the plaintiff on 1 May 2014.

2. Professor Foster took a lengthy history, considered a large amount of documentary evidence and administered a number of neuropsychological tests of the same kind as Dr Ewing.  However, he was unable to complete the testing because the plaintiff abruptly terminated the process after three hours.

3. Dr Foster noted that the plaintiff was generally cooperative, but at times she was 'indignant, oppositional and disagreeable … outspoken and disinhibited in terms of her presentation. … She manifested somewhat pronounced facial expressions' and a 'somewhat emotional tone and responsiveness throughout the interview and assessment'.  Professor Foster described some of the things he witnessed (ts 462):

   She wasn't able to control her inhibitions very well, in terms of shouting at a friend who was there to support her, and cursing the taxi driver, not being very pleasant towards me on occasion.

4. He said that this emotionally disregulated behaviour was consistent with frontal lobe damage.

5. So far as the neuropsychological assessment was concerned, Professor Foster found that the 'test performance indicated relatively well preserved capacity relative to anticipated functioning across several domains investigated'.  He said that there were 'some apparent memory difficulties … with verbal episodic encoding and delayed visual reproduction'.  He said that 'visuospatially coordinated movements also showed some evidence of a degree of relative weakness as did elements of visuospatial construction'.

6. He also found evidence of 'moderate levels of stress and depression‑related symptomology'. 

7. Professor Foster went to some trouble in his report (much of it excessively pedantic) to discredit Dr Ewing's report.  For example, he was critical of terminology such as 'unmasking' and 'conditional lesion'.  I found this unhelpful, and it is unnecessary to go into it in detail. 

8. He also disagreed with Dr Ewing's opinion that it is difficult to accurately estimate pre‑morbid capacity.  He was critical of her for having failed to carry out formal assessments for that purpose, namely the NART and demographic methods, which he did carry out (exhibit 19 page 16).  I also found this evidence unhelpful for the following reason.  Professor Foster explained (ts 426‑427) that neuropsychology uses standardised instruments to evaluate cognitive and behavioural capacities which are mediated by the brain.  The focus is on the hardware or organic structure of the brain, the neurological capacity and 'clinically significant deficits'.  He said that 'the neuropsychological assessment is a snapshot because it's given at a discrete time and place' within a 'constellation of features [which] can be changing' (ts 433).  I would describe that as an empirical science and it seems to me that the result of any given series of tests could only be relevant for the time when they were administered and changes over time could only be accurately assessed by comparing comparable sets of test results.  As I understand it, that was all Dr Ewing was saying.  Further, in any event I have not found Professor Foster's evidence about the NART and demographic methods to be very helpful at all, either generally or as to their significance in terms of the plaintiff's case.  In the result, I have not been persuaded that any test administered to the plaintiff since the 2010 accident is capable of providing conclusive empirical evidence of the difference (if any) between her pre‑and post‑morbid neurological capacity.  It merely falls into the body of circumstantial evidence from which I have made my findings.

9. I gained the impression that Professor Foster sensed a lack of intellectual and professional rigour in Dr Ewing's work.  Intellectual rigour is obviously a good thing, but it seems to me that Professor Foster allowed his own strict academic standards to obscure his role as an expert witness, which was to collect objective or empirical evidence where possible and to provide expert assistance (opinions) to the court in respect of factual assumptions which could be the subject of my findings.  Professor Foster did poorly in the latter respect.  To illustrate, he insisted that he could not accept that the plaintiff worked effectively as an ICU nurse without being provided with evidence that she did.  ('We don't know how many near misses there were during that period' ts 457).  He was unwilling to assume it to have been so just because she had been employed as such for five years.  In his view (ts 455) it was not 'beyond the realms of possibility' that she used drive, motivation and assistance to become an ICU nurse which, he felt (somewhat patronizingly), was not the same thing as becoming a nuclear scientist (ts 456; see also 457 ‑ 458).

10. For all this, I still found Professor Foster to be helpful in some ways.  He has formidable academic qualifications and, as he correctly said, 'we're all operating in learned disciplines where we have to be precise' (ts 457).  And he does do some clinical work.

11. Returning to his evidence, in his opinion the 1989 head injury was 'very severe' (44) and the salient event which caused sequelae such as some loss of intellectual capacity which has continued to the present day.  At the most, the 2010 accident only had a minor impact which was benign from a neurological perspective.  He pointed to the fact that there was no evidence of significant brain injury from a radiological point of view, the GCS score of 14/15 entailed well‑preserved capacity and there was no loss of consciousness.

12. He believed that there was no change in the plaintiff's pre‑morbid capacity because there was 'quite a similarity' (ts 439) between his assessment in 2014 and that of Dr Reid in 1991.  He said (ts 444 – 445; 489) that the 1991 profile was 'so similar' to the 2014 profile that the 'most parsimonious interpretation' (ie, the most conservative interpretation) was that they were 'directly related to each other without any intervening events'.

13. Professor Foster accepted that it is unlikely that the plaintiff will be able to return to her pre‑accident employment as an ICU nurse.  He said that it would not be prudent having regard to the high pressure of the ICU environment.  But, he qualified this by saying that 'it may be it never was [prudent] in the past' either (ts 453, 454).  In his opinion it is reasonable to expect that she will improve her functional capacity.  He felt that she had a relatively positive prognosis with regard to everyday functioning and future employment, but recommended the services of an occupational rehabilitation agency to assist with identification of suitable employment.  (Ms Jodrell made a similar suggestion).

14. Turning to the psychiatric evidence, the plaintiff called Dr Quentin Mungomery.  He saw the plaintiff for medico‑legal purposes on 6 August 2013 and his report of the same date was received in evidence (exhibit 3).

15. It is a thorough report which drew on information from the plaintiff's personal history, a wide range of medical reports relating to the 1989 head injury and the 2010 accident, the plaintiff's current symptoms and a mental state examination.

16. The plaintiff told Dr Mungomery that she was continuing to have problems sustaining concentration, with irritability and sleeping.  Her irritability levels fluctuated with the severity of her physical pain.

17. On mental state examination Dr Mungomery observed that the plaintiff was 'mildly disinhibited' and her affect (ie, the observable range of her emotional expression) was 'mildly restricted and congruent with her mood which was mildly depressed, irritable and anxious'.  She was 'somewhat distractible' but her judgment (ie, psychotic health) was not particularly impaired.

18. Dr Mungomery considered that the plaintiff sustained a mild traumatic brain injury in the 2010 accident.  That diagnosis was based on the 'mildly reduced' GCS score, right pupil mydriasis, 'initial combativeness and fluctuating scores on formal PTA assessment'.

19. He also diagnosed co‑morbid psychiatric disorders, namely an Adjustment Disorder with mixed anxiety and depressed mood, Post‑traumatic Stress Disorder (PTSD) in remission with residual features and Dementia.  That opinion is supported by the neuropsychological test findings of Dr Ewing and Professor Foster and relies on symptoms which I have found to exist.  The diagnoses are uncontradicted, completely understandable and not unexpected.  I accept them.

20. Dr Mungomery also noted personality abnormalities which he felt were due to the head injury (having regard to the neurological and neuropsychological assessments).

21. In Dr Mungomery's opinion the overall impairments associated with the co‑morbid brain and psychiatric injuries have resulted in total incapacity to undertake work as a registered nurse on a full or part‑time basis.  He said that this was due to 'ongoing difficulties with sustaining concentration and memory on mentally demanding tasks in worklike environment, increased interpersonal irritability, likely aggravation of her mixed depressive and PTSD symptoms if exposed to routine stressors found in a work environment including dealing with trauma cases, difficulties with multi‑tasking and dealing with the emotional needs of patients'.  He also pointed to the 'demonstrated impairment in planning, organization, self‑monitoring and error correction, poor capacity for emotional and behavioural regulation and unreliable working memory … '.

22. Dr Mungomery also doubted whether the plaintiff could perform the duties of a medical receptionist or similar occupation because such occupations require high level cognitive skills and she has problems staying on task.  He also felt that her tendency to irritability and poor interpersonal skills would militate against such employment.

23. Having regard to the severity of the co‑morbid injuries, the ongoing and perpetuating stressors (including physical factors) and current symptomology, he felt that the plaintiff's prognosis was guarded and she had a permanent impairment.  He accepted (ts 113 ‑ 114) that some of her symptoms were amenable to treatment with antidepressants, mood stabilisers and sleep enhancers.

24. Both parties adduced evidence from consultant physicians in rehabilitation medicine, namely Dr Buckley for the plaintiff and Drs Joel Silbert and Vernon Hill for the defendant.  None are specialists in neurology or psychology, but I am satisfied that rehabilitation medicine requires a multi‑disciplinary skill-set.  Neurological cases represent a significant proportion of Dr Buckley's practice.

25. Dr Buckley saw the plaintiff on 13 December 2012.  His report dated 25 February 2013 was received in evidence (exhibit 10).

26. Based on the plaintiff's hospital records covering the immediate post‑traumatic period and her recovery thereafter, he diagnosed a 'traumatic brain injury' in the 'very severe' range.  He said (report page 14; emphasis added):

    In my opinion, putting together the whole story of a high speed, head‑on motorcycle collision, prolonged post‑traumatic amnesia in hospital, the identification of clear and new cognitive impairment (impairment of facial recognition) and an obvious alteration to her capacity to cope with ordinary day‑to‑day living arrangements, points to the likelihood that the reason for her current incapacity is related to traumatic brain injury, complicating a pre‑existing brain injury which she had managed to substantially overcome.

27. Dr Buckley said that prolonged PTA was the best predictor of the extent of brain injury in the absence of radiological evidence.  He said that it is highly predictive for ongoing high cognitive deficits as well as emotional and behavioural deficits.  He understood that the Westmead PTA scaling showed that the plaintiff had PTA at least during her last five days in RPH (ts 240 ‑ 241).  But I have made a finding ([75]) that the Westmead PTA scale results should be discounted.  Dr Buckley acknowledged in cross‑examination (ts 252) that he had failed to pick up from the RPH clinical notes (which he had read) that the plaintiff was on Ketamine at all material times and accepted that he had 'made an error'.

28. There is another difficulty.  The plaintiff's difficulties with facial recognition are not new (post‑2010) and he relied on a somewhat catastrophic history which is not borne out by the plaintiff's evidence.  The plaintiff told him (report page 7):

    Memory:  she said that she now uses her phone to remember 'everything'.  She said that she can remember many things for about half an hour if she does not use her phone, but then many things will be forgotten.  She said that often she fails even to recognise people that she has met before, in addition having difficulty remembering their name.  She loses her items if she hasn't put them in their proper place.  She has repeatedly locked herself out of her car and out of her house, and she has now placed many hidden keys, and can't remember where they are hidden.  She frequently goes out and leaves the home unlocked, even despite her great concerns regarding home security.

    …

    She … became lost at the airport, and then lost again in the shops before she came to my rooms.  She often has difficulty finding her car in a car park, and regularly becomes lost when driving, even when using her GPS, and she told me that her friends see this as a 'running joke'.  She has significant difficulty tracking time, particularly over longer periods, and, for example, she thought that she would usually know if someone had arrived earlier, or would not realise that someone had arrived late.

29. Further, Dr Buckley's diagnosis of a 'severe' head injury having occurred in the 2010 accident is not supported by any other witness.

30. I do not propose to place any weight on his evidence on the neurological issues.

31. Dr Silbert testified that he would defer to experts in respect of neurological and psychological issues.

32. Dr Hill saw the plaintiff on 18 October 2012.  He also proceeded on the basis that the plaintiff had suffered a severe brain injury as a result of the 1989 accident but 'undoubtedly made a good, however not a complete recovery'.  Under the heading 'Background information' the plaintiff told him that she 'found that she had had to "apply herself a great deal harder in order to pass exams" because of memory problems that she acquired as a result of the 1989 accident' (page 13).  In his opinion the plaintiff had suffered a 'minor traumatic brain injury' in the 2010 accident which 'would not have resulted in such severe memory problems [as she also reported to Dr Hill], had she not had the previous injury' but it was 'extremely difficult to try and define the extent to which the first injury has contributed to this second memory problem'.

33. In Dr Hill's opinion it was relatively early to be commenting on the possibility of further cognitive improvement and he noted that Dr Ewing would soon be carrying out further neuropsychological testing (on 5 and 17 December 2012).  Given that Dr Ewing's findings on that occasion were similar to her 2010 findings (which were before Dr Hill) it is pertinent to note his opinion:

    … if she does not get any further improvement, her present problems with memory will undoubtedly impact upon her future ability to work.  She is certainly unlikely ever to be able to return to full‑time nursing in an intensive care situation.

34. Later he said that she 'certainly has the potential to work in a sedentary occupation, although this would depend on her ability to cope with her ongoing neurogenic [phantom] pain'.  He had in mind some form of part‑time employment, preferably home‑based where she could work at her own pace and said that it would 'be logical to look for employment in an area related to nursing', possibly in some form of nursing education.

35. This is not a case in which any one expert witness has been in a position to provide a complete answer to the issues.  I have taken into account a wide range of evidence including objective radiological evidence (or the lack of it), neuropsychological testing, the plaintiff's symptom history and neurological capabilities at all material times (ie, since suffering the 1989 head injury), the existence of co‑morbid conditions such as her physical impairments and her underlying personality.

36. I turn now to make findings, commencing with the following basic matters.

37. First, the brain has neuroplastic capabilities, which enable healthy areas to compensate for dysfunction in unhealthy areas. 

38. Second, healthy brains do not always function at full capacity, ie, 'cerebral reserve' can usually be drawn upon. 

39. Third, the effects of concussive injuries on the brain can be cumulative (accumulation), so that a mild injury can combine with a pre‑morbid injury to produce effects which are disproportionate to the later injury's inherent seriousness.

40. I am satisfied on the balance of probabilities that the plaintiff has some higher order, executive deficits which are partly explained in terms of a neurological aetiology.  They correspond to the outcomes which would be expected of a head injury and are corroborated by the findings of the 2012 MRI scan.  What caused them?

41. Based on the overwhelming weight of the expert evidence, I conclude that the plaintiff suffered a concussive head injury in the 1989 accident. However, I am not satisfied that it was 'severe' or 'very severe' as Drs Ewing, Cameron, Du Plessis, Foster and Hill suggested. It is my impression that many of these experts (see Dr Du Plessis at 337, 345, and Professor Foster at 441, for example) based their opinion on the poor prognoses proffered (and later gainsaid by events) by those who treated and assessed the plaintiff after the 1989 accident. Dr Todman was inclined to discount the aetiological importance of the 1989 head injury because of the nature of the plaintiff's recovery thereafter, that is, he ignored those prognoses. In particular, he took into account that she was performing at a high cognitive level as an ICU nurse immediately before the accident. I have found Dr Todman's opinion to be very persuasive for that reason and because many of the putative neurological or sensory symptoms of the 1989 head injury (vision, taste, smell) resolved and were not neurological in aetiology in my opinion (see [49] and [68]). And no significant organic injury was identified in 1989, such as a haemorrhage or skull fracture (not to be confused with the facial‑nasal injuries and complications of surgery for the same).

42. My finding is important and I have not made it lightly.  After thorough analysis and deliberation I feel that it explains a lot about this matter and resolves the conundrum of how the plaintiff made such an ostensibly remarkable recovery from the 1989 head injury.  So, it is not necessary to analyse this case in terms of the 'unmasking' of 'severe' pre‑morbid deficits, or the accumulation of 'mild' on 'severe' deficits.  It is a case of 'mild' (if any) on 'mild' deficits.

43. This conclusion is supported by Dr Ewing's impression that the plaintiff's neuropsychological profiles for higher order executive tasks were largely similar across 1991, 2010 and 2012.  Professor Foster's 'parsimonious' interpretation should be given weight here.  The perservative trait which the plaintiff now manifests has probably existed since 1989 (at least) and helped her to achieve what she did in the 20 years after the 1989 accident.  (I sense that she was alluding to this when she told Dr Hill that she had to 'work harder' at university).

44. I next find that the plaintiff suffered a concussive head injury in the 2010 accident.  Support for that finding is to be had in the facts that she suffered facial and eye injuries, her GCS score was 14/15, and there is evidence that she had some degree of PTA.

45. Next, I find that the plaintiff's higher order, executive capabilities worsened after the 2010 accident.  It is difficult to envisage how she could have studied and worked as she did from the late 1990s until 14 March 2010 with the higher order, executive impairments set out at [110] and [112], even allowing for her perseverative trait.

1. Against this background there is no dispute that the award of damages should include $330,105 for past economic loss (item 12), of which $145,000 has already been advanced.

2. Interest on past economic loss (item 13), should be calculated at 3% per annum for 4.64 years on a principal sum of $185,100, namely $25,766.62.

3. Past loss of superannuation benefits and interest on the same (items 16 and 17) have been agreed in the amounts of $39,282 and $5,468.05 respectively.

4. I turn now to future economic loss (item 14).  An award for economic loss (past or future) is an award for the damage to the plaintiff's earning capacity as an economic unit and not for loss of earnings per se (see Medlin v State Government Insurance Commission (1995) 182 CLR 1; (1995) 127 ALR 180 and Montemaggiori v Wilson [2011] WASCA 177).

5. Findings must be made as to her original earning capacity and her potential earnings in the alternative employments now open to her (her retained earning capacity).  The former has been agreed, but the latter is not capable of precise calculation because I am required to assess intangibles which will be susceptible to positive and negative contingencies over a period of approximately 19.5 years from November 2014 to age 67.

6. The plaintiff contends that allowance should be made for the fact that she would have in due course done further training and progressed to become a Nurse Manager with a greater earning capacity than a registered nurse.  The defendant accepts that premise which, in accordance with Mr Thompson's report, values the future component of the plaintiff's original earning capacity as at 5 November 2014 in the sum of $903,971.

7. The plaintiff contends that she is totally and permanently incapacitated for work and has no retained earning capacity.  Therefore she submits that the award for future loss of earning capacity should be $903,971 less any allowance for the usual contingencies.

8. The defendant submits that the plaintiff has significant retained earning capacity which can be calculated on one of three scenarios.  Scenario 1 is based on the assumption that she is fit to work full‑time for 48 weeks per annum earning at least the adult minimum wage which, after tax, equates to $580.90 per week.  Scenario 2 relies on the approach set out in Bowen v Tutte (1990) Aust Torts Rep 81‑043 and assumes that the plaintiff has a retained earning capacity of 50% of her original earning capacity. Scenario 3 assumes that the plaintiff has retained earning capacity commensurate with fitness to work full‑time in a wide range of occupations which would draw upon her existing qualifications, such as a medical receptionist, medical records clerk, sales representative, admissions clerk, recruitment consultant, vocational education teacher and many others. The earning capabilities of occupations of those kind are set out in a report of Professor Mulvey (exhibit 15).

9. The defendant called Mr Justin Swed who is a registered psychologist and a rehabilitation counsellor.

10. Mr Swed prepared a report dated 10 September 2014 (exhibit 17) which addressed occupations which were available to the plaintiff in the open labour market based on her pre-accident education and work experience, and the average earnings for those occupations.  He had no contact with the plaintiff, but he did have access to some medical reports.  In his view, occupations such as medical receptionist, medical records clerk, sales representative, admissions clerk, recruitment consultant specialising in health and nursing occupations, and some TAFE teaching in health, would be suitable.  He also gave evidence as to the availability of occupations of that kind which suggests that there is reasonably good availability.

11. In cross-examination (ts 379) Mr Swed confirmed that he assumed that the plaintiff  still had all of the skills that she enjoyed prior to the 2010 accident and that she was a 'clearly intelligent woman', and (ts 381) that someone with nine years' experience in nursing would have the necessary transferrable skills.  He also took into account her earlier work experience in customer-focussed occupations such as waitressing and taxi driving.  He recognised that the plaintiff would need to have 'intact judgment and decision making ability' (ts 382).

12. I have already made some preliminary findings relating to the plaintiff's retained earning capacity ([213], [214] and [239]).

13. I am satisfied that she is neurologically and psychologically unfit to return to any form of clinical hospital‑based nursing of the kind she performed before the 2010 accident.  In particular, in my opinion the plaintiff's disinhibition and deficits in the area of working memory, communication and concentration are contra‑indicators.  She feels this way herself and regards herself as a 'danger'.  In my view, that self‑assessment is correct and would almost certainly be shared by potential employers.  Medlin illustrates that weight can and should be given to the opinion or decision of the plaintiff if it is reasonable.  Her options are limited.

14. I am not satisfied that her orthopaedic impairments would by themselves absolutely preclude a nursing career.  She is mobile and fit and I am satisfied she could perform a very wide range of nursing duties on many wards or in a similar environment from a physical point of view.  I am not satisfied that the obvious lifting and other physical restrictions of some forms of nursing would absolutely preclude her from obtaining employment, because nursing is a varied profession and orderlies are often provided.  However, inevitably she would be non‑competitive in a number of areas where there would be competition from able‑bodied applicants (see Wade v Allsop (1976) 50 ALJR 643, 647 (Stephen J)).

15. To compound matters, there is the co‑morbidity of the plaintiff's neurological, psychological and orthopaedic impairments.  Overall, I find that her prospects of obtaining any form of ICU or general nursing work in a hospital setting are non‑existent.

16. Given that finding (ie, the plaintiff's original earning capacity has been effaced), the onus of proof lies on the defendant to prove any retained earning capacity (Thomas v O'Shea (1989) Aust Torts Rep 80‑251). For the following reasons I am not satisfied that such has been done, that is, I reject the defendant's scenarios 1 and 3. On the evidence and my findings (including as to co‑morbidity), I find that it is most improbable that the plaintiff will readily find any kind of alternative full‑time employment, even with the assistance of an agency or a specialist rehabilitation service or employment provider. This is because her impairments will very likely preclude any form of employment in a busy, team‑orientated or collaborative environment or one involving lengthy hours, and there will always be physical restrictions. I do allow of the reasonable possibility that, with time, her purely psychological problems will settle and her prospects will improve. But realistically, her horizons of employment will be very constrained both in terms of the type and quantity.

17. In my opinion the approach mandated in Bowen v Tutte is appropriate based on the evidence, which satisfies me that there is a real possibility that the plaintiff will be able to obtain some form of meaningful part‑time employment.

18. She has overcome adversity in the past, is very determined, wishes to lead a normal and independent life, has work‑ready skills and is not totally unable to do work of any kind at all.  I am satisfied that she will seek and in due course obtain some form of meaningful employment.  I am satisfied that limited opportunities will come her way.

19. The employment may indeed be employment in relatively benign areas of quasi‑nursing such as in schools, hostels and in occupational health, for which she could work at her own pace and remains neurologically and psychologically suited.  In this respect I accept Dr Ewing's opinion, which she is well qualified to give as she has worked in an advisory role for the Nursing Association in respect of the suitability of nurses to return to their profession after a brain injury (ts 139).

20. Other possible occupations include a medical receptionist or clerk in a variety of roles, provided stress levels are low and constant and large scale teamwork is not a vital aspect.

21. In other words, I am satisfied that the plaintiff has some retained earning capacity and will seek to exercise it using her professional and tertiary skills in some way, but on a limited part‑time basis, say about 16 hours per week (two eight hour days, or four 4 hour days).  That would equate to a little over 25% of her original hours, but it is unlikely that her entitlements would be commensurate with those of a nurse manager.  I assess damages on the basis of the loss of 80% of her earning capacity which also includes some discount for the normal vicissitudes.  The award is therefore $723,176.80.

22. Future loss of superannuation (item 17) should be determined on the same basis, that is to say, by using the plaintiff's figure and reducing it by 20% to $104,615.20.

23. I move now to the plaintiff's claim (items 18 and 19) for provision to be made for past gratuitous care, services and assistance, together with interest, for which she claims (respectively) global sums of $50,000 and $6,960 (3% for 4.64 years).

24. She submits that she received the therapeutic benefit of her partner coming to Western Australia and visiting her whilst in hospital (and relies on the principles in Wilson v McLeay (1961) 106 CLR 523) and then gratuitous assistance from him (and friends) for approximately one year subsequently. This included personal, household and travel assistance while she adjusted to daily living. She testified (ts 55 ‑ 56) that her partner remained in Perth until she returned to Queensland and 'was a big help to me'. The Insurance Commission has funded a handyman/gardener and housekeeper for some years, to a value of $57,907.20 (item 20).

25. The defendant accepts that the plaintiff required gratuitous assistance for a brief period following her discharge from Shenton Park Rehabilitation Hospital until she returned to Brisbane, notwithstanding the lack of any corroboration, but submits that any gratuitous assistance she received would not exceed the $6,500 threshold provided for in s 3D(5), s 3D(6) and s 3D(7) of the Motor Vehicle (Third Party Insurance) Act 1943 (WA).

26. I agree that the plaintiff's evidence lacked particulars, but it is still possible to make findings.

27. First, with the exception of her partner's reasonable travel expenses I am not satisfied that a large Wilson v McLeay allowance should be made.  I accept that she benefited from his presence whilst she was in hospital and there are RPH clinical notes which show that he attended meetings in a supportive capacity, but there is insufficient evidence to suggest that it was important or made much therapeutic difference.  On the contrary, the plaintiff's evidence (which is corroborated by some medical records) suggests that she was very proactive on her own behalf.  Nor was she extremely ill and/or bedridden and/or demoralised for a lengthy period of time and in need of constant care, company or consolation.  In this respect it must be remembered that she was mobile within a few weeks of being injured.

28. I turn now to address the situation after the plaintiff was discharged from hospital.  I fully accept that she needed assistance adjusting to independent living and tending to her own care, but this tapered over time.  The multiple aspects of this are set out in the report of Brody Christie (occupational therapist and rehabilitation consultant) dated 17 August 2010 (pages 1159 ‑ 1173).  Her needs in the first 12 months were extensive.  For instance, she needed someone to drive her to appointments, shopping and so on.  Approximately 20 hours per week for approximately 12 months at $30 per hour (the rate contended for by the plaintiff) would be appropriate.  I would round this to $36,000 to include a modest allowance for her partner's travel and assistance whilst she was hospitalized. 

29. Interest should be allowed on that amount in the sum of $5,011.20.

30. Item 20 represents the claim for past care and assistance that has been paid for by the Insurance Commission in the sum of $57,907.20.  That should be included in the judgment sum.

31. There is no dispute as to the plaintiff's need for future paid care and assistance (item 21).  She claims $234,742.70 comprising $69,540.70 for a handyman for three hours per week and $115,970 for a housekeeper for five hours a week (including a 5% discount for contingencies in both cases) and an additional global sum of $50,000 to account for the contingencies of future deterioration and aggravations requiring an increase in assistance.

32. The defendant has done a more detailed analysis based on Ms Jodrell's report which makes allowance for domestic cleaning, assistance with heavy cleaning, gardening, bin management and house management and paid care from age 70.  The resultant amount is $244,460.25.  In my view the defendant's calculation is preferable as being more detailed, there is no proven need to allow for contingencies and $244,460.25 is the award.

33. I move to the plaintiff's claim for past and future travelling allowances in the sum of $15,000 (item 22).  This item is said to be for travelling to and from medical appointments (and the like) and is sought on a global basis.

34. The defendant has pointed out that the plaintiff's claim for special damages includes an allowance for past travel expenses in the sum of $24,545.50 so I assume the $15,000 claim is for the future.  The defendant concedes an amount of $5,000 should be allowed for that.  The plaintiff has complete independence and mobility at the moment, so the cost relates to driving herself.  I would allow $12,000 as representing 1,500 km per annum (say $750) for 40 years.

35. Medicare and other indemnities (item 23) are agreed in the sum of $1,433.

36. I turn now to the plaintiff's claim for provision to be made for future fund management fees and costs in the sum of $244,310 (item 24).  This relies on Dr Buckley's report (page 18; emphasis added):

    In my opinion, Ms George's capacity to manage her own funds would be considered at some risk.  However, I am not convinced that her incapacity would reach the point at which administration of the funds via [statutory means] would be advised.

    There is no doubt, however, in my mind, that she will require professional funds management advice in view of the traumatic brain injury she sustained.

37. This evidence cannot be accepted because, read in the context of the report as a whole, it relies on an assumption which I have rejected, namely that the plaintiff has suffered a significant traumatic head injury.

38. Dr Ewing said (page 30) that 'despite her increased tendency to influence by others and her general impulsivity' the plaintiff has 'adequate decision‑making capacity' in terms of legal matters, 'managing a large settlement sum' and appreciating the need to take advice as required.

39. In evidence (ts 145) Dr Ewing pointed out that she took into account that the plaintiff was 'emotionally explosive and that she had made some poor judgments in minor financial decisions' in that she understood that her friends had 'often commented on the fact that she was lending money or giving away money but she protected herself from that by making sure that she didn't have access to too much money'.

40. I accept Dr Ewing's evidence.  I am not satisfied that the plaintiff has any need of funds management advice or assistance by reason of her injuries.

41. During closing submissions the issue arose as to whether a person in the plaintiff's position should nevertheless have provision for funds management fees purely because she is now required to manage a large sum of money which she would not otherwise have had to do and for which she is not professionally qualified.

42. As a matter of common sense, there is something to be said for that proposition.  The management of a large capital sum which is intended to provide for 40 years, and yet eventually be exhausted, is a daunting prospect and prudence would suggest that anyone in that situation should place the matter in professional hands, at least to some extent.

43. But the proposition is not supported by the authorities since the plaintiff has not been incapacitated to the extent of needing financial management.  (See Nominal Defendant v Gardikiotis [1996] HCA 72; (1996) 186 CLR 49; Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627; Gray v Richards [2014] HCA 40; (2014) 313 ALR 579 and the helpful discussion in Reynolds v The State of Western Australia[No 2] [2013] WADC 176 [509] ‑ [524] (Herron DCJ). The principles on which the assessment of the capital sum has been awarded make no assumptions relating to the means of investment and predicate that an adult person who has no relevant incapacity can attend to these matters (see Gray [64], citing McHugh J in Gardikiotis [55], [66]).

44. Turning to item 26, the parties agree that provision should be made for extra costs which the plaintiff will incur when travelling on holidays.  The issue mostly relates to the plaintiff's comfort when she uses aviation.

45. She claims a global sum of $50,000 because she will need additional leg room and easy access to aisles and therefore will need to travel by premium economy or business class.

46. The defendant contends that an allowance of $15,000 should be made on the basis that there is no evidence as to the plaintiff's future travel plans and wishes.  In my opinion that submission is misconceived because the plaintiff is in no position to say what will happen in the future with any precision at all.  Her life has been on hold whilst she recovered from her injuries and pending the outcome of these proceedings.

47. As a matter of principle, the award of damages is to compensate the plaintiff in current monetary terms for what has been lost or impaired.  So far as the future is concerned, a finding is open that she will want to travel around the country and abroad from time to time, as this is quite normal.  Indeed, it is such a normal part of everyday life these days that it would be possible to take judicial notice of the likelihood.  I have stopped short of doing so in this case and, instead, draw support from the fact that the plaintiff has travelled in the past (she was on holidays in Western Australia when the 2010 accident occurred) and will have more free time than she did in the past, and travel could be expected to partially mitigate the pain and suffering and loss of amenities of life which fall to be compensated as non‑pecuniary loss.

48. In my opinion provision should predicate that the plaintiff should use premium or business class travel on long‑haul domestic and international flights, but it will not always be necessary for her to do so since bulkhead, exit row and aisle seats can sometimes be arranged in advance with the airline.  But that is a relatively insignificant consideration.  The substantive question to be addressed is the regularity with which the plaintiff will be travelling in a way which requires her to upgrade.

49. An email from Flight Centre to the plaintiff's lawyers (exhibit 29) establishes that there is a very significant price differential between business and economy class flights in Australia.  Whilst there is no direct evidence of it, an inference is open that this is even more the case on international flights.  If one hypothetically predicates that the plaintiff makes five trips over the next 10 years, two of which are international, there will be little or nothing left of the $15,000 suggested by the defendant, even allowing an appropriate discount for the deferral of the expenditure.  On the other hand, the sum of $50,000 is more than triple the defendant's allowance and in my view would be excessive.  I adopt the mid‑point of $32,500 which represents about $2,000 per annum for life, which seems to me to be foreseeable.

1. I can now turn to item 2, which is the plaintiff's claim for non‑pecuniary loss.

2. Pursuant to s 3C of the Act, I am required to make an award assessed as a percentage of a most extreme case ($390,000). The approach to that assessment is discussed in Den Hoedt v Barwick [2006] WASCA 196 [5] (Wheeler J) and [95] ‑ [98] (Buss J). I must address where this case sits in a scale of which a most extreme case (such as catastrophic head injuries or widespread paralysis) is the apex.

3. The plaintiff contends that her loss should be assessed as 75% of a most extreme case ($292,500).  The written submissions list the many injuries she suffered (and some that she didn't), her many symptoms and residual disabilities and loss of enjoyment of life.  Those which have been proven are indeed multifarious.  The scope and minutiae of the awards for future treatment, aids and appliances serve to illustrate the numerous ways in which her activities of daily living and broader capabilities have been compromised.

4. The defendant contends that the plaintiff's loss should be assessed at 55% of a most extreme case.

5. I take into account the many aspects of the plaintiff's loss including physical and psychological suffering, the loss of social and intimate relationships, the loss of employment, recreational interests, and disfigurement. 

6. As regards the amputation, the defendant submitted that some form of paraplegia or worse would be necessary in order to attract an assessment of more than 50% and that the total assessment should reflect a degree of concurrency or overlap between the effects of the orthopaedic, neurological and psychological domains.  I accept the first contention and acknowledge the force of the second.  But every case is different and it could also be contended in a given case that the co‑morbidity of injuries has an exponential or at least wholly cumulative impact.  In my view this case lies between the two positions.  Were it not for her neurological and psychological deficits the plaintiff would, in my opinion, have already come a long way towards mitigating the harm caused by the amputation.  She is (or was) that type of person.  Indeed, she could very well have resumed some form of nursing (see [239]).

7. Whilst recognising that there are many relevant factors, two features of this case are pre‑eminent in my reasoning.  First, the amputation of the plaintiff's leg and pain have had grievous consequences for her in a number of ways, but the loss of the ability to properly exercise, recreate and enjoy the outdoors as she did before the 2010 accident has been a heavy loss which, by reason of the unique features of her own amputation (including the parlous state of her knee) has restricted her prosthetic options.  I am satisfied that she will seek to be as active as possible from a recreational point of view, but she has lost much and, counter‑productively, her endeavours might make her feel that loss even more keenly.  Second, the plaintiff's neurological and psychological deficits are significant and should be substantially reflected in the assessment.  I particularly refer to her problems with behavioural regulation and her dysphoric symptoms which affect her in many important ways.

8. If all I had to assess was the amputation per se (together with the minor orthopaedic‑related sequelae of that) I would make an assessment of 50%.  But a significant increment is required for the neurological and psychological factors, whilst still recognizing the concurrency aspect.  Looking at the matter as a whole, I am satisfied that an assessment of 65% of a worst case is appropriate, ie, $253,500.

Conclusion

1. The plaintiff is entitled to judgment in the sum of $3,032,601.50, some of which has already been advanced to the plaintiff or paid on her behalf.  As a matter of principle it is appropriate for the judgment to be structured in that way.  The discharge of the judgment must take that into account.

SCHEDULE OF

ASSESSMENT OF DAMAGES

Item No.	Head of damages claimed [and paragraph of reasons]	Award
2.	Damage for non– pecuniary loss [414]	$253,500
3.	Special damages [240]	$35,894.30
4.	Interest on special damages [240]	$4,996.49
5.	Future medical treatment and medication
5.1.1.	General practitioner review [245]	$6,000.00
5.1.2	Orthopaedic specialist [240]	$1,285.36
5.1.3	Plastic surgeon [240]	$1,285.36
5.1.4	Consultant physician (prostheses) [246]	Nil
5.1.5	Consultant physician (brain injury) [247]	Nil
5.1.6	Clinical psychologist (over 36 months) [240]	$8,077.50
5.1.7	Clinical psychologist (ongoing after 36 months) [240]	$4,651.88
5.1.8	Consultant psychiatrist (over 24 months) [248]	$8,618.75
5.1.9	Pain management specialist [240]	$1,364.84
5.1.10	Physiotherapy [251]	$5,000.00
5.1.11	Gym membership [254]	$10,000.00
5.2	Pharmaceutical (antidepressants medication) [240]	$1,489.60
5.3	Pharmaceutical (pain medication) [240]	$4,042.00
5.4	Gym membership for activity coordinator [254]	Nil
5.5	Optometrist/optician [257]	$5,709.32
5.6	Chiropractic treatment [251]	$40,000.00
5.7	Future lower limb and carpal tunnel surgery [263]	$34,151.47

5.8	Bursal injections [264]	$5,000.00
6.	Prosthetic appliances, aids and equipment
6.1.1	Everyday prostheses [302]	$63,074.00
6.1.2	Life enhancement (proprio-replacement of entire prostheses) [302]	$168,063.63
6.1.3	Life enhancement (proprio-replacement of proprio foot every 24 months) [302]	Nil
6.1.4	Social (moderate high heels) prostheses [303]	$73,483.16
6.1.5	Waterproof prostheses [307]	$129,778.25
6.1.6	Recreational prostheses  [292]	Nil
6.2	Yearly maintenance [311]	$142,962.43
6.3.1 – 6.3.5	Prostheses liners and socks [314]	$147,116.71
6.3.7	Skin relievers [318]	$9,401.69
6.3.8	Dream‑skin [322]	$14,421.86
6.4 – 6.9	Battery replacement (proprio); foot cover replacement (proprio); proprio maintenance; socket adjustment; socket replacements – labour; socket replacements – components [337]	$160,000.00
7.	Equipment, aids and appliances
7.1	Modified manual wheelchair [240]	$15,854.07
7.2	Cushion [240]	$1,632.34
7.3	Heavy duty crutches [240]	$522.02
7.4	Ferrules [240]	$77.73
7.5	Shower bench seat [240]	$303.95
7.6	Hand held shower hose [240]	$200.82
7.7	Grab rails in shower and toilet [240]	$112.29

7.8	Bath board [240]	$28.63
7.9	Bath shower hose [240]	$48.75
7.10	Book/iPad rest [339]	$87.98
7.11	Flexliner straddle seat [240]	$306.00
7.12	Kitchen traymobile [240]	$94.52
7.13	Long handled dust pan and broom [339]	$128.88
7.14	Washing machine plinth [339]	$452.07
7.15	Online shopping [240]	$3,233.60
7.16	Portable wheelchair ramp [240]	$386.52
7.17	Electric wheelchair [342]	$17,500.00
8.	Home modifications [345]	$10,000.00
9.	Motor vehicle modifications [240]	$4,527.50
11.	Future case management fees [353]	$20,000
12.	Past economic loss [358]	$330,105.00
13.	Interest on past economic loss [359]	$25,766.62
14.	Future loss in earning capacity [378]	$723,176.80
15.	Past loss of superannuation [360]	$39,282.00
16.	Interest on past loss of superannuation [360]	$5,468.05
17.	Future loss of superannuation [379]	$104,615.20
18.	Past gratuitous care services and assistance [385]	$36,000.00
19.	Interest on past gratuitous care services and assistance [ 386]	$5,011.20
20.	Past paid care and assistance [387]	$57,907.20
21.	Future paid care and assistance [389]	$244,460.25
22.	Past and future traveling allowance [391]	$12,000.00

23.	Medicare and other indemnities [392]	$1,443.00
24.	Funds management fee [397]	Nil
25.	Activities coordinator fees [353]	Nil
26	Future holiday expenses [406]	$32,500.00
TOTAL	$ 3,032,601.50