Graham Steven O'Neil v Thomas Kelleher
[2009] ACTSC 164
•11 December 2009
GRAHAM STEVEN O’NEIL v THOMAS KELLEHER
[2009] ACTSC 164 (11 December 2009)
No. SC 194 of 2006
Judge: Ryan J
Supreme Court of the ACT
Date: 11 December 2009
IN THE SUPREME COURT OF THE )
) No. SC 194 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: GRAHAM STEVEN O’NEIL
Plaintiff
AND:THOMAS KELLEHER
Defendant
ORDER
Judge: Ryan J
Date: 11 December 2009
Place: Canberra
THE COURT ORDERS THAT:
The plaintiff’s total damages are assessed to be $367,155.
The action stand over to a date and a time to be fixed in the week beginning 8 February 2010 for the making of any further orders (including orders as to costs) necessary to give effect to the reasons published this day and any agreement between the parties.
IN THE SUPREME COURT OF THE )
) No. SC 194 of 2006
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: GRAHAM STEVEN O’NEIL
Plaintiff
AND:THOMAS KELLEHER
Defendant
Judge: Ryan J
Date: December 2009
Place: Canberra
REASONS FOR JUDGMENT
The plaintiff, who is now aged 22 having been born on 19 June 1987, was injured on 11 December 2004 when a car driven by the defendant in which the plaintiff was a passenger collided head on with another vehicle. The parties have reached agreement on questions of liability and contributory negligence so, for present purposes, the matter has proceeded solely as an assessment.
The plaintiff’s history before the accident on 11 December 2004 has been marked by below average academic progress and numerous behavioural problems. Many of his difficulties have been attributed to attention deficit disorder with hyperactivity with which he was diagnosed in January 1994 after he had completed his kindergarten year at Richardson Primary School. Later in 1994, he was prescribed Dexamphetamine to mitigate the effects of his attention deficit disorder. Despite that medication, his school years were punctuated by frequent outbursts of verbal and physical violence against other students and teachers and by disruptive and destructive actions which he perpetrated both in and out of the classroom. From time to time he was directed to special needs classes or alternative programs conducted by the Weston School and the Yarralumla Behavioural Unit. His ordinary primary education was at Richardson Primary School and for year 6 at Torrens Primary School. He then completed year 7 and half of year 8 of secondary schooling at Calwell High School. During his school years the plaintiff came to the attention of the police on about three occasions in connection with certain property-related offences. At the end of 2001 he was enrolled in the Galilee Day Program for children with learning and behavioural difficulties. He ceased his participation in that program at the end of 2002 when he was aged 15. He then commenced to work with his father and brother, Michael, who were engaged in supplying plasterboard sheets to various sites around Canberra. The plaintiff worked as a truck driver’s offsider assisting in loading and unloading plasterboard and as a yardman at the premises where the plasterboard was received from the manufacturer and stored before delivery on-site. In the course of his employment with his father and brother, the plaintiff suffered a back injury after falling from a truck and was off work for a few days. He was also convicted and fined in relation to several offences involving motor vehicles. On 21 July 2004 he obtained a forklift driver’s licence.
On 1 July 2004 the work on which the plaintiff’s father and brother had been engaged was re-organised so that it was subsequently performed by a company, Let’s Race Plasterboard Pty Ltd controlled by a Mr Michael Gilmour in which Michael O’Neil was a shareholder. Thereafter, the plaintiff was employed, still as a truck driver’s offsider, on a regular weekly wage of about $480 and added forklift driving to his duties. He was regarded by his brother as being, throughout 2004, an enthusiastic and capable worker. That assessment was corroborated by Mr William Gorman, a family friend who worked as a relief driver from time to time for the plaintiff’s father and later for Let’s Race Plasterboard Pty Ltd.
During the period of employment with his father and brother and, more lately, with Let’s Race Plasterboard Pty Ltd, the plaintiff was convicted and fined or placed on probation in relation to several offences involving motor vehicles, including unlicensed use, driving while disqualified and driving while a special driver with an excessive blood alcohol content.
The collision on 11 December 2004 occurred at 2.50 am and, after it, the plaintiff was admitted to Canberra Hospital with injuries to the head, neck, shoulders, upper back and ankle. He was discharged from hospital on 13 December 2004 and, after a period of convalescence at home, because no work was available with Let’s Race Plasterboard Pty Ltd, began work manufacturing timber floor and ceiling trusses on an assembly line for Universal Truss Management Pty Ltd. He claimed to be unable to remember the sequence in which work had to be performed and, as a result, was frequently required to dismantle and re-assemble trusses on which he had worked. In consequence he left that employment after three weeks.
On 28 June 2006 the plaintiff suffered a lacerated arm after he fell while riding a pushbike and drinking a “stubby” of beer. He was treated for that injury as an out-patient at the Canberra Hospital. The plaintiff’s next employment was as a truck driver’s assistant and yardman for Neway Transport ACT. He claimed to have difficulty as a result of back pain in carrying photocopiers upstairs. After about seven weeks when he advised an inability to report for work for two days because of sickness, he was dismissed from that employment. In December 2006 the plaintiff moved to Dalby in Queensland to join his father. In company with his father, he undertook work “chipping” or weeding cotton plants. Because of the heat, that work had to be performed between 4.00 am and noon. The plaintiff was remunerated for it at the rate of $90 a day five days a week. After about ten weeks, he returned to Canberra and lived with his sister at 60 Cliff Crescent Richardson. After some months, he commenced work for Addeco Pty Ltd in Fyshwick where he was employed in a plasterboard yard loading and unloading trucks. Before obtaining that employment, he completed a questionnaire in which he indicated that he suffered from a neck or shoulder injury, persistent headaches “sometimes” and a head injury attributed to a “car accident” “two and a half years ago”, but no other medical conditions (see Exhibit 1). That employment lasted about three weeks and, shortly afterwards, the plaintiff resumed working for his brother, Michael, who was then engaged in fixing plasterboard. He claimed to experience pain and dizziness in performing various aspects of the work which he said he nevertheless enjoyed and was able to carry out because of the willingness of his brother to allow him sufficient latitude to accommodate his disabilities.
After about three months Michael O’Neil had insufficient work to continue to employ the plaintiff who then undertook casual employment delivering hampers for Crisco Hampers. That seasonal work lasted for two weeks during which the plaintiff received $630 a week. In December 2007 the plaintiff again visited his father in Dalby and, since returning to Canberra, has not engaged in any paid employment. He believes that, if his brother Michael were able to obtain sufficient work in the plasterboard industry he, the plaintiff, would be offered employment by his brother. Because of his brother’s acceptance of his disabilities, he considers that he could probably sustain that employment despite his inability to give continued satisfaction to more demanding outside employers.
The plaintiff acknowledged that he has smoked cannabis since his early teens and continues to do so intermittently as it helps him relax and “feel good”. Since the collision on 11 December 2004, the plaintiff has incurred further convictions for various offences including cultivation and possession of cannabis and driving while disqualified and with a proscribed blood alcohol concentration. On 25 April 2008, he was charged with assault occasioning actual bodily harm. He explained that incident as attributable to a sudden loss of temper when an acquaintance tried to steal his mobile telephone.
On 28 June 2008, the plaintiff attended his general practitioner and was prescribed Effexor XR modified release capsules 150 mg and Panadeine Forte for pain relief.
Medical and other expert evidence
At the instigation of his own solicitors, the plaintiff has been examined by two consultant neurologists, Dr Paul Darveniza and Dr Ron Brooder.
(a) Dr Darveniza
In company with his mother, the plaintiff first consulted Dr Darveniza on 20 April 2006. In his report dated 26 April 2006, Dr Darveniza noted that the plaintiff’s mother had recounted that “prior to the accident he [the plaintiff] was a happy-go-lucky sort of chap, but now was withdrawn, argumentative and verbally abusive.” Dr Darveniza then recited the following history, apparently derived from the collective account of the plaintiff and his mother;
‘For the first six months he was quite forgetful, for instance he had difficulty recalling what he had done the day before, but subsequently this improved, but he still has an occasional memory lapse.
He says he can read, write and calculate, retain what he has read and there is no problem with his comprehension or expression. He can think clearly, and his attention and concentration span are normal. Since the accident he has suffered from post-traumatic headaches, three times per week, occurring anywhere over the head, lasting up to one and a half hours, of mild to moderate severity, throbbing in nature, partially relieved by Panadol or, if he is at home, lying down. There is no nausea, vomiting or intolerance to light, noise or movement. He was not prone to headaches before.
He has a frequent itching sensation over the left brow in the region of the scar, lasting a few seconds, occurring three to four times per day, and there has been persistent numbness about the scar as well.
He still gets an occasional ache in his neck, and the lap sash bruising recovered.’
In the light of that history and what he detected on examination, Dr Darveniza concluded;
‘In summary, this young gentleman was involved in a serious motor vehicle accident, sustaining a closed head injury with a large laceration over the left frontal region, overlying the frontal lobe, with probably skull fracture, leaving him with post-traumatic headaches and evidence of persistent frontal lobe dysfunction, given his adverse change in personality, becoming a somewhat morose, unfriendly, irritable and argumentative person, interfering with his social relationships and employability as described above.
It is now about 17 months since the accident, and he is unlikely to improve any further and hence, his current disabilities must be considered permanent.
……………..
In my opinion, he does remain fit for general duties, but clearly his frontal lobe dysfunction would impact on his employability as, since the accident, he has found it difficult to get on with other people. Employment in a benevolent environment would seem preferable.’
Dr Darveniza saw the plaintiff again on 19 October 2007 and noted that, since April 2006, his condition had remained stable. Dr Darveniza’s report of 29 October 2007 recited;
‘He has slight difficulty remembering the details of events the previous day, unless he is prompted. He still gets post-traumatic headaches over the left brow, once or twice per week, as previously described. He still has the frequent itching sensation over the left brow in the region of the scar, lasting seconds at a time, occurring three to four times per week, accompanied by persistent numbness about the scar.
He still gets an occasional ache in his neck, but the lap sash bruising has recovered.’
(b) Dr Brooder
At the time of that later assessment, Dr Darveniza had available to him the neuropsychometric and psychological report of Professor Reid which is summarised at [31]-[34] of these reasons. In the light of the information then available to him, which did not include the results of an MRI scan which he had requested in his earlier report, Dr Darveniza expressed these opinions in the later report;
‘In summary, this gentleman was involved in a serious motor vehicle accident, sustaining a closed head injury, with a large laceration of the left frontal region overlying the frontal lobe, with probable skull fracture, leaving him with post-traumatic headache and continuing evidence of frontal lobe dysfunction, with an adverse change in personality, becoming a somewhat morose and unfriendly, irritable and argumentative person, still interfering with his social relationships and employability.
………………
In my opinion, he remains fit for general duties, but his employability still remains limited by his adverse change in personality, as detailed above.’
Dr Brooder who saw the plaintiff on 11 October 2007 had available to him the first report of Dr Darveniza noted at [10]-[12] above and a further report from Dr Bruce Stevens dated 11 April 2006. The latter report has not been adduced in evidence. After describing the plaintiff’s “current clinical presentation” and his past clinical history, including the diagnosis in his childhood of attention deficit hyperactivity disorder, Dr Brooder gave these results of his clinical examination of the plaintiff;
‘During the consultation and examination Mr O’Neil did not demonstrate any apparent functional disability. His gait and general mobility were normal.
General physical examination revealed an obvious oblique post-traumatic scar extending from the medial aspect of his left orbit and eyebrow across into his left fronto-temporal scalp region at the hairline.
Mr O’Neill had presented appropriate to the clinical situation. He was reasonably well orientated in both time and place, however he was unaware of the exact date.
Mr O’Neil had an obvious mild impairment in his concentration and short-term memory function. He had difficulty recalling five of five given items after an intervening period of five minutes and his responses were quite slow with him only able to recall four of five given items without significant prompting. His general knowledge of current affairs was markedly impaired. Proverb interpretation was absent, however this may have been a reflection of his educational level. There were no apparent focal cognitive problems and his ability to calculate was normal.
Specific neurological examination had revealed Mr O’Neil’s visual acuity to be normal at 6/6 bilaterally. His visual fields were full and there was no evidence of visual inattention. His ocular fundi were normal with spontaneous venous pulsation present bilaterally. All ocular movements were full in all directions and no diplopia nor nystagmus could be induced. There were no focal cranial nerve abnormalities.
Sensation was slightly impaired over the left side of Mr O’Neil’s forehead extending from above the post-traumatic scar into the left side of his scalp.
Peripheral neurological examination had revealed all muscle power and tone together with the deep tendon reflexes to be symmetrical and normal. There were no peripheral sensory abnormalities present.’
Dr Brooder then went on to express these opinions;
‘As a consequence of the head injury Mr O’Neil is subject to continuing problems with his short-term memory function, his ability to concentrate and his ability to manage and plan multiple tasks. There has also occurred a significant change in his underlying psychological state with increased irritability, a tendency to be short-tempered with reduced impulse control. He had become generally more anxious. He was also subject to intermittent headaches and there was a persistent mild sensory disturbance over the left side of his forehead.
Mr O’Neil’s continuing problems and symptoms were associated with a significant ongoing functional disability that interfered with his ability to obtain and maintain regular employment. Although he had more recently obtained further employment, his continued employment was undertaken in a supported environment, as he was now being employed by his brother.’
In response to a request by the plaintiff’s solicitors to direct his attention to certain specified matters, Dr Brooder noted, amongst other things;
‘As a result of motor vehicle accident that had occurred in December 2004 Mr O’Neil had sustained the following injuries:-
vMr O’Neil sustained a relatively severe head injury associated with probable impaired consciousness and cerebral parenchymal damage involving his frontal and temporal regions.
vMr O’Neil’s head injury was also associated with an extensive laceration involving the left side of his forehead.
As a consequence of the head injury sustained in the motor vehicle accident in December 2004 Mr O’Neil is subject to the following disabilities:-
vMr O’Neil has a significant impairment in his short-term memory function.
vMr O’Neil has difficulty concentrating.
vMr O’Neil also has problems with managing and planning multiple tasks.
vMr O’Neil is subject to psychological changes including increased irritability, being generally more short-tempered and having reduced impulse control.
vMr O’Neil has also developed a mild anxiety state.
vMr O’Neil is also subject to continuing post-traumatic headaches related to his head injury.’
In venturing a prognosis, Dr Brooder observed;
‘Mr O’Neil sustained a relatively severe head injury associated with significant cerebral parenchymal damage involving his frontal and temporal regions. As a result he has developed marked neuropsychological changes that are associated with a significant ongoing disability.
Mr O’Neil has remained subject to persistent symptoms over a period of almost three years and over that period of time his symptoms have failed to resolve. I would consider that he is going to remain subject to persistent symptoms, neuropsycholgocial changes and an associated disability indefinitely.
…………..
I would consider that Mr O’Neil’s injuries and disabilities have significantly adversely impacted upon his employability both currently and in the future.
As a direct result of the injuries sustained and the associated disabilities Mr O’Neil is subject to ongoing permanent neuropsychological changes that will render it extremely difficult, if not impossible, for him to obtain and maintain regular employment in an open market place indefinitely. He has only been able to obtain further employment due to the fact that he is now employed by his brother, who is more understanding, significantly more tolerant and also more forgiving of his ongoing significant neuropsychological changes’
In conclusion, Dr Brooder recommended further investigation, evaluation and specific management of the plaintiff’s “relatively severe head injury” and advised that he should undergo a specific neuropsychological evaluation followed by referral to a specific brain injury management unit together with ongoing psychological and psychiatric evaluation and management.
(c) Dr Farnbach
Dr Farnbach is a consultant psychiatrist whose report on the plaintiff was commissioned on behalf of the defendant but tendered by Counsel for the plaintiff. That circumstance gave rise to a contention on behalf of the plaintiff that, on a strict application of the rules, Counsel for the defendant had no entitlement to cross-examine Dr Farnbach. However, I determined, in the exercise of the Court’s discretion, to grant leave to Mr Ryan of Counsel for the defendant to cross-examine Dr Farnbach, subject to certain restrictions which were observed. Under the heading “Current Status”, Dr Farnbach made these observations of the plaintiff which, under cross-examination, he characterised as consistent with symptoms of either or both, depression and post-traumatic stress disorder;
‘He lacks motivation for work, for leisure activities and for entertainment. He said that he “just can’t be bothered”. His mood is low and he is unhappy about 40% of the time. In general, he is much less happy than he previously was, and he said “I would love to be as happy as I was”. About twice a week, he cries. He is unhappy because he worries about where his life might be going. He wakes up unhappy in the morning and his mood stays much the same throughout the day; there is no pattern of daily variation in his mood. Pleasant events and activities may raise his mood slightly, briefly.
He tells himself that life is not worth living and he has thought of suicide recently. His energy is low and he tires easily. His concentration is low. He is self-critical. His appetite is reduced and he eats irregular meals. His weight has fallen by 10kg in two years. His sleep is impaired. It takes him one to two hours to get to sleep, after which his sleep is broken.
Hi thinks about the motor vehicle accident (i.e. he imagines it) often, several times a week. He thinks that he has nightmares because he fairly often wakes during the night, feeling afraid and knowing that he has had a bad dream, but he cannot ever recall the dream.
As a car passenger or driver, he is anxious. He avoids situations where he might bump his head. He said that he has lost interest in activities that used to give him pleasure.
He is irritable, he sleeps poorly, his concentration is impaired, and his startle response (jumping at a sudden noise) is increased.’
Dr Farnbach recorded that the plaintiff, when very young, had been diagnosed as suffering from attention deficit hyperactivity disorder (“ADHD”) for which he had been prescribed Dexamphetamine by Dr T McDonald, a paediatrician. Dr Farnbach’s report also recited in a summary way the plaintiff’s poor record during his school years of disruptive and anti-social behaviour and coming to the notice of the police, noting that “he grew worse as he grew older.” Dr Farnbach then summarised, in these terms, the results of his examination of the plaintiff’s mental state and his psychiatric assessment of the plaintiff;
‘MENTAL STATE EXAMINATION:
He was casually dressed and groomed. He wore a cap and kept it on throughout the interview. He was cooperative, but his manner was bluff, and his responses were nearly always brief and minimal. There was no abnormality in the form or content of his thinking. His affect was unhappy and flat, and did not lighten at any stage. There were no evidence preoccupations or morbid beliefs. His intelligence and general knowledge impressed as being in the average range. His memory and concentration were normal.
SUMMARY AND ASSESSMENT:
Graham O’Neil is a 20 year-old man with a prior history of attention deficit hyperactivity disorder and antisocial behaviour, and an extensive record of interactions with the police and the courts.
In December 2004, he sustained a closed head injury (and some other injuries) in a motor vehicle accident. He has no memory of the accident. Since the accident, he has been mostly unemployed, and four attempts to work have lasted only briefly, and he was dismissed from two of those jobs.
He now leads a very quiet life, drinks very little alcohol (by his account) and, compared with his previous life, is leading a relatively blameless existence.
He is depressed and the diagnosis is Major Depressive Disorder. He also has symptoms which would suggest a diagnosis of Post-Traumatic Stress Disorder, except that he has no memory of the accident and, for him, the traumatic event is simply something that he imagines. He states that he had no problems with depression or anxiety disorders before the accident. He was treated, successfully, for attention deficit disorder, but has had no treatment since leaving school at the age of 16 years. Since the accident, he has had no treatment for any psychiatric condition, or any effort at rehabilitation. He was assessed by a rehabilitation provider and a course of rehabilitation was suggested, but, as far as I know, nothing was done.
His current depression warrants treatment.’
In response to specific questions of him by the defendant’s solicitors, Dr Farnbach opined, amongst other things, that the plaintiff’s psychological injuries “are consistent with his having had an accident such as the one described”, and “his depression is of moderate severity which is sufficient to cause a significant reduction in his employability and in his capacity for work.” In venturing a diagnosis, Dr Farnbach observed;
‘The diagnosis is Major Depressive Disorder, moderate severity. The main symptoms are that his mood is depressed for almost half the time, he says that he is much less happy than he previously was, that he cries once or twice a week, tells himself that life is not worth living, and has recently thought of suicide. He is also irritable. He has low motivation, his energy is low and he tires easily, his concentration is impaired, he is self-critical and lacks confidence, his appetite is low and he has lost 10kg in weight in two years, he sleeps badly, taking too long to go to sleep and waking during the night, and he presumably has bad dreams, although he cannot recall them.
Apart from the depressive disorder, he is anxious as a car driver or passenger, and he is phobic about injuring his head again, so he avoids games, pastimes, and types of work which might introduce a possible risk of his striking his head.’
Dr Farnbach reiterated that the plaintiff had ADHD and an antisocial personality disorder and considered that he had a need for psychiatric or psychological treatment which to date he had not received. That treatment, in Dr Farnbach’s view, would include the prescription of an SSRI anti-depressant, perhaps in conjunction with Dexamphetamine for the ADHD, and cognitive behaviour therapy. In relation to the plaintiff’s capacity to work, Dr Farnbach indicated;
‘His present fitness for work is marginal. It appears that he wants to work, as he has had four jobs since the accident, and found work a week or so before this interview, but because of his diminished concentration, motivation, energy and confidence, and his irritability, the chance of his lasting long in any job is greatly reduced. Further, it is likely that he still has attention deficit hyperactivity disorder (ADHD), as the condition persists into adulthood in about half of the children who have it, and he still had it when he was 16 years of age. ADHD would add to his difficulties at work.
……
His disability since the accident has lasted for the whole time since the accident, up to the present time. The fact that he wants to work, but is unable to keep a job, is evidence that he is unfit for work. I do not think that working with restrictions would improve his employability or his capacity to work, except that he should be able to cope better with a job that carries no chance of his being struck on the head.’
Under cross-examination, Dr Farnbach expressed the view that, with appropriate treatment, the plaintiff had a “likely” or “probable” prospect of improving his psychological condition and his personality disorders, however caused, to a point where he could sustain remunerative employment to a reasonable and gradually increasing level.
(d) Ms Ravagnani
A recommendation that the plaintiff receive treatment and professional rehabilitation assistance was also made by Ms Suzanne Ravagnani, an occupational therapist and psychotherapist, who saw the plaintiff (accompanied by Mr Matthew Barton, his sister’s boyfriend) on 21 June 2006 and again around September or October 2007. In a letter to the plaintiff’s solicitor dated 22 June 2006 Ms Ravagnani stated that the plaintiff had suffered a “significant injury” as a result of the accident, resulting in depression and “signs of cognitive changes”. She observed;
‘Mr O’Neil does appear to want to find work and would like to “get on with his life” but really he does not have the personal resources to work out how to do that.’
Ms Ravagnani later issued a report on her assessment of the plaintiff, dated 22 October 2007, in which she referred to the reports of Dr Stevens, Dr Darveniza and Associate Professor Reid and observed;
‘3. RELEVANT MEDICAL INFORMATION
Reports made available suggest the following:
a) Mr O’Neil suffered a closed head injury in this accident – laceration to left side forehead.
b) Mr O’Neil suffered a whiplash injury to his neck.
c) Mr O’Neil’s pre-morbid cognitive and behavioural difficulties have “added to his inability to adjust and overcome the psychological affects [sic] of this accident”.
d) Mr O’Neil suffers permanent psychiatric impairment.
Reports further suggest that Mr O’Neil has been left with the following residual difficulties:
e) Scarring [to] left forehead.
f) Post traumatic headaches.
g) Persistent frontal lobe syndrome – adverse changes in personality include “becoming a somewhat morose, unfriendly, irritable and argumentative person, interfering with his social relationships and employability”.
h) Adjustment disorder with anxiety; Major depressive disorder.
4. MAIN DIFFICULTIES REPORTED BY CLIENT
a) Pain – Mr O’Neil reported regular pain affecting his neck, lower back and hips. He stated that he regularly suffers “pain in his head” (“under the eyebrows”). He also stated that he suffers some pain in his right shoulder.
b) Numbness on the left forehead – Mr O’Neil described an “itchy pain” in the left forehead.
c) Headaches – regular and severe.
d) Physical difficulties – Mr O’Neil stated that he has difficulty with high impact activities such as jumping (particularly on his bike) as it “sends a jolt” through his head. He has difficulty bending which causes “a rush of blood to the head” and he feels “unsafe” when riding his bike (for fear of falling).
e) BMX bike riding – Mr O’Neil explained that he previously had “very good balance” and was fearless which made him “an excellent BMX rider”. He has not been able to regain his previous level of competence in this sport.
f) Personality changes – Mr O’Neil stated that he had been previously “annoying, disruptive” and that he had problems with authority. He explained that he is now withdrawn and quiet and things that he would previously have joined in now aggravate him. He stated that he has been anti-social and that he has “lost his patience”.
g) Fear of falling and further injury.
h) Relationships – Mr O’Neil explained that he previously was quite popular and had lots of friends. He explained that he now “can’t keep friends”. He stated that “friends steal things from him” and he “gets angry and hits people sometimes”.
i) Emotional difficulties – Mr O’Neil stated that he feels “very sad” and emotional. He stated that he “can’t cope with normal workplace shit” which would not have bothered him before. His brother-in-law explained that he had previously been “a little shit to live with” but that he is now very difficult as he “doesn’t hold back” Mr Barton stated that he now holds back so as “not to set Graham off”. Mr Barton also explained that prior to the accident Mr O’Neil was never home. He was very sociable. He stated that he now “doesn’t go out” which is very different from his pre-injury personality.
j) Eyes water – Mr O’Neil stated that his eyes water when he reads (they did not do this before the accident). He stated that “it is becoming a real problem”.
k) Sleep disturbance – He explained that his neck aches while lying and that he feels some pain with rolling over and moving in bed.
l) Loss of confidence.
m) Loss of motivation to do anything at all – includes preparing meals and domestic tasks.
n) Memory problems – Mr O’Neil stated that his memory was always “variable” but he feels that it is “much worse” since the accident.
o) Work – Mr O’Neil stated that he did not know what to do about work. He stated that he wanted to work and expressed an interest in working as a fireman. He explained that he finds working with other people very difficult.
p) Medication – Mr O’Neil stated that he doesn’t like to take medication. He uses Panadol or Nurofen to ease pain and headaches.
5. FUNCTIONAL RESTRICTIONS & RECOMMENDATIONS FOR FUTURE NEEDS
Overall Impression: Mr O’Neil presented as a lost soul in some ways. His past history of behavioural problems appears to have branded him as difficult and this has adversely affected his treatment since this accident. He has been left to his own devices which, as stated by Dr Reid, has compromised his recovery considerably. He reports regular headaches, neck pain and back pain and he appears to harbour some fears around his physical ability. He reports difficulty relating to people and difficulty dealing with stress (particularly work stressors). Whilst I am not able to apportion the level of impairment that is attributed to this accident it seems clear that Mr O’Neil’s physical and psychosocial function have been impaired by this accident.’
Ms Ravagnani recommended that the plaintiff undergo rehabilitation, including case management, supervised exercise, physiotherapy, acupuncture or massage (for his neck and back), ergonomic education and training, and vocational assessment and counselling. She further advised that the plaintiff would require “12 hours of treatment (physiotherapy, acupuncture or massage) every two [months] while symptoms persist” and would benefit from a memory foam pillow to alleviate his neck pain when lying down. She also determined that the plaintiff would require twice-yearly visits to his general practitioner and continuous over the counter medication to alleviate his pain.
Ms Ravagnani concluded that the plaintiff would require “a small amount of domestic assistance with very heavy tasks” such as gardening and housework, as well as for shopping, meal preparation and transport, “while he undergoes rehabilitation and while his physical symptoms persist”. Ms Ravagnani determined that the plaintiff would require approximately 318.71 hours of assistance per year.
In relation to the plaintiff’s prospects of employment, Ms Ravagnani stated;
‘From a physical point of view Mr O’Neil should be able to manage light manual work and sedentary work in the longer term. His psychosocial difficulties compromise his ability to secure and sustain suitable employment and medical reports speculate that this may be a permanent outcome. Mr O’Neil requires vocational assessment and counselling to help him find work which suits his physical, intellectual, social and financial needs.’
In a table under the heading “Summary of Future Needs”, Ms Ravagnani concluded that the plaintiff would incur a one-off expense of $22,504 for rehabilitation and an annual cost of $11,351.22 for other treatment and assistance.
(e) Associate Professor Reid
Professor Reid, a clinical neurospsychologist and consultant psychologist conducted various psychometric tests on the plaintiff. He also had available to him the report from Dr Darveniza dated 26 April 2006 and a report dated 2 July 2006 from Dr Badaines, a clinical psychologist, which was not received into evidence. On 16 October 2007, Professor Reid reported results of the tests which he had administered and concluded that there had been “no significant decline in [the plaintiff’s] information processing skills following his accident.” After noting a significant discrepancy between the plaintiff’s verbal and non-verbal intellectual abilities in favour of the latter, Professor Reid suggested that;
‘It seems likely however that this discrepancy arises from longstanding problems with verbally mediated cognitive processes rather than Acquired Brain Injury from his head injury.’
Similarly, the plaintiff displayed to Professor Reid impairment in his serial auditory verbal learning but no impairment in his ability to recall complex visual information. No impairment was detected in his planning and organisation skills, non-verbal reasoning and sequential thinking. However, there was some impairment “in his conceptual skills and ability to adapt and regulate his behaviour given feedback in a test of card sorting, verbal fluency and speed and flexibility of thinking.”
By way of a mood and behavioural assessment of the plaintiff, Professor Reid observed;
‘It seems he has become more irritable and short tempered, suffers bouts of depression and anxiety, sleep disturbance and difficulties with interpersonal relationships. These symptoms are all consistent with an Adjustment Disorder with mixed disturbance of emotion and conduct.’
After reiterating aspects of the plaintiff’s pre-accident condition and his history of events stemming from the collision, Professor Reid concluded;
‘On neuropsychological assessment he was found to be of low average intellectual ability. He has specific deficits in his verbal intellectual functions compared to normal nonverbal intellectual abilities. He also has problems with auditory verbal learning, conceptual skills, adaptive ability, verbal fluency and speed and flexibility of thinking.
It seems from the history and medical reports, that Mr O’Neil sustained a mild traumatic head injury in his motor vehicle accident on 11 December 2004. As such I am of the opinion his cognitive problems as shown on neuropsychological assessment are most likely due to premorbid factors rather than brain injury. I am however of the opinion that he has developed an Adjustment Disorder with mixed disturbance of emotions and conduct as a result of his accident. Furthermore, I am of the opinion his prior verbal intellectual and learning difficulties, have added to his inability to adjust and overcome the psychological affects of his accident.
It is now over two years since his accident and if one applies MAA guidelines for assessment of permanent impairment, his impairment is considered permanent. As such, I am of the opinion his psychiatric impairment is likely to continue to affect his interpersonal relationships and capacity to hold down a full time job outside of the supportive environment of working in his family business.’
(f) Dr Pascall
On 17 December 2007 the plaintiff was also examined by Dr Virginia Pascall on behalf of the defendant. In her report dated 25 January 2008, Dr Pascall expressed the opinion that, in the subject collision, the Plaintiff may have sustained a soft tissue injury to the neck but considered that injury and “all other injuries” to have resolved long ago and not to “constitute a cause for complaint at this time.” She concluded at p 8 of her report;
‘Mr O’Neill’s alleged personality changes are not a direct consequence of the motor vehicle accident; that is, they are not due to an Acquired Brain Injury.
He was profoundly depressed by the scar on his forehead after the accident, and still remains depressed although less so. There was a period in which he was overly anxious about car and bike travel, and even about further injury to himself, such as with working, but that has abated now.
His complaints regarding personality changes can be attributable solely to the effect of his depression and embarrassment about the scar.’
Dr Pascall also observed, at p 11 of her report on the plaintiff, that;
‘He did not impress me as someone who is trying to maximise the effect of his injuries, but rather that he has little understanding of the extent of the injuries and sees them as a way of explaining his mood and symptoms that might be associated with local and extracranial trauma to the frontal region but not with Acquired Brain Injury.’
Dr Pascall also noted that she had not been furnished with either a CT scan of the plaintiff’s brain or a neuropsychometric assessment of the plaintiff, each of which had been requested by Dr Darveniza. She went on to conclude, at p 13 of her report;
‘His agitation and impatience at this time are pre-existing behavioural problems. There is no evidence of behavioural problems that could be attributed solely to brain injury, even if such brain injury were able to be substantiated.
With regard to the physical injuries, I would like to exclude ocular neuromotor damage through appropriate testing. Other physical complaints, associated with the orbital fracture and the laceration, are abating and should be considered resolved.’
In respect of the plaintiff’s post-accident capacity for work, Dr Pascall considered that he;
‘… is, most likely, as fit for work now as he was prior to the accident. Certainly his ability to be employed is dependent on his ability to control his frustrations, impulsiveness and anger and he needs a commitment to turning up and being reliable, but that is no different than it was prior to the accident and possibly better than it was prior to the accident.
I would like to exclude any ocular problem, but apart from that, he is physically capable and physically unrestricted for work.’
Dr Pascall acknowledged the possibility that the plaintiff is not presently capable of working as a forklift driver due to residual damage to an ocular muscle but considered that, apart from that possibility, the plaintiff no longer has any work restrictions. She expressed the further opinion that the plaintiff would have been ill-advised to undertake outdoor work for 12-18 months after the collision.
In respect of the plaintiff’s ability to lead a normal life, Dr Pascal opined that it is probably better now than it was before the collision as the establishment of a relationship with his girlfriend demonstrates an improved degree of self-control and anger management.
(g) Other experts
There was received into evidence a report from Dr David Ho, a radiologist, who conducted an MRI brain scan of the plaintiff on 15 October 2007. As a result of that scan, Dr Ho concluded;
‘Focal or generalised atrophy is not seen. No evidence of diffuse axonal injury. Ventricular system is of normal dimension, remaining mid line in position. Posterior fossa is clear.
There are inflammatory changes present in the right mastoid. Mucosal thickening and mucous retention are noted in the left component of the frontal sinuses, there is also mild mucosal thickening in the left anterior ethmoidal air cells.
As noted at [15] of these reasons, a report provided by Dr Bruce Stevens which had been seen by Dr Brooder was not received into evidence. As well, the report by Dr Badaines which, as noted at [31] above, had been seen by Associate Professor Reid was not received into evidence. Nor was a report by Dr Pauline Langelludeke, another clinical psychologist and neuropsychologist, which had been commissioned by the plaintiff’s solicitors. In respect of each of the report of Dr Badaines and that of Dr Langelludeke, the plaintiff’s solicitors asserted a claim of legal professional privilege.
Consideration
I have not been able to conclude on a balance of probabilities that the plaintiff has suffered an injury to the frontal lobe of his brain, the effects of which are still detectable by a CT or MRI scan or other objective examination. However, I am satisfied that, as a result of the collision, the plaintiff has suffered neuropsychological changes which have impinged adversely on his ability to obtain and hold a job and on his general enjoyment of life. I consider that those changes have been mitigated with the passage of time and the plaintiff is likely to achieve a moderate degree of further improvement but not to a point where he can sustain permanent full-time employment.
I find that, due to the effects of the ADHD from which the plaintiff has suffered since early childhood and his resultant psychosocial dysfunction, his capacity for full-time employment was already markedly diminished before the collision. I consider that his pre-accident working capacity was of the order of 75% of full capacity because his ability to obtain and keep a job depended in large measure on the availability of employment in a benevolent environment as afforded, for example, by working with his father or his brother. It is difficult precisely to quantify the effects of the collision on his ability to undertake remunerative employment, but I consider a reasonable assessment to be that it has been further reduced to 50%.
General damages and interest
In my view it is reasonable to allow general damages in the sum of $90,000. I shall allow a further sum of $5,000 for interest on a component of $50,000 which I have apportioned as referable to the pain and suffering which the plaintiff has already experienced as a result of the collision.
Out-of-pocket expenses
Hospital, medical and like expenses to date have been agreed in the sum of $2,470.
Future medical, pharmaceutical and physiotherapy expenses
Precise quantification of the plaintiff’s future medical and pharmaceutical expenses is not possible. There is no suggestion that he will require further surgery as a result of the collision. Nor has he so far undertaken the psychiatric or psychological treatment which Dr Farnbach thought he requires. Nevertheless, it is appropriate to make some allowance for treatment or counselling of that kind and also for regular, but not frequent, monitoring by a general medical practitioner. I allow $13,500 in respect of those expenses. It has been agreed that the plaintiff will require a daily dose of Efexor at a weekly cost of $7.82 and either Panadeine Forte at a cost of $14.40 a week or alternatively Nurofen at a cost of $5.50 a week. I have adopted the less expensive of those alternatives making a total allowance for pharmaceutical expenses of $19,967. Ms Ravagnani suggested that the plaintiff will require “12 hours of treatment (physiotherapy, acupuncture or massage) every two years while symptoms persist @ $90 per hour = $540 per year.” On that basis, I have allowed a further $15,568 under this head.
Other assistance
The plaintiff has made an additional claim for damages assessed in accordance with the principles established in Griffiths v Kerkenmeyer (1977) 139 CLR 161. Most of that assistance was said by Counsel for the plaintiff to be directed to overcoming difficulties occasioned by his diminished memory function. Examples were given of minutely detailed written itineraries and instructions prepared by his mother or sister to enable him to travel to Sydney and there to attend various medical examinations which had been appointed for him. In my view, assistance of that kind, which I accept was provided, was more than actually required and the need for similar assistance in the future is unlikely to be as pronounced or as regular. In addition, Ms Ravagnani suggested that the following allowance should be made in respect of assistance required by the plaintiff in the performance of domestic tasks;
‘As a result of his physical and psychosocial difficulties Mr O’Neill will require a small amount of domestic assistance with very heavy tasks such as gardening and housework while he undergoes rehabilitation and while his symptoms persist. He requires the following:
ACTIVITY
HOURS Required
Hours per YEAR*
COST per year@ $33 per hour
Domestic assistance
0.5 hours per day
182.5
6022.50
Lawn mowing & gardening
2 days per month
26
858
Shopping, meal preparation & transport
3 hours per fortnight
78.21
2580.93
Home maintenance & Spring Cleaning
4 days per year
32
1056
Estimated Totals
318.71
$10,517.43
* Calculated by multiplying weekly rate by 52.14 weeks Source; Home Care Service’
I do not accept that analysis as reasonably reflecting Mr O’Neil’s present needs for domestic assistance. Nor am I persuaded that his need for assistance of that kind will continue undiminished throughout his presumptive working life. He presently resides with his girlfriend and her mother and the evidence does not suggest that he is, or will be, required or expected, to engage to the extent hypothesised by Ms Ravagnani in the domestic tasks which she has instanced. It was contended by Counsel for the plaintiff that provision for assistance with memory function should be made on the basis that two hours per week of such assistance will be required at a rate of $21 an hour yielding a total of $62,962. For other assistance of a domestic nature Counsel did not press for the adoption of Ms Ravagnani’s analysis but suggested that $20 a week should be allowed for a concededly small amount of assistance yielding a total additional amount of $30,443.
For the reasons already indicated, I do not consider that Mr O’Neil’s diminished memory now requires, or will require in the future, assistance as extensive or costly as has been suggested by his Counsel. I similarly regard the claim for other assistance in the performance of domestic tasks as exaggerated. Making what I think is an appropriate discount for contingencies, I shall allow under this head a total of $34,000 for assistance of both kinds.
Loss of earnings
Mr McIlwaine SC who appeared with Mr J Pappas for the plaintiff suggested that compensation for past economic loss should be quantified as $80,000 being 186 weeks at $480 a week less earnings actually derived of approximately $9,000. I accept that the plaintiff worked for Let’s Race Plasterboard from July 2004 until the day of the accident. A Group Certificate tendered in evidence states that his employment by Let’s Race Plasterboard terminated on 11 November 2004. However, that Group Certificate was not prepared until 13 July 2005 and I consider it more likely than not that the date of termination which it records was a mistake and that the termination did not occur until 11 December 2004 which I believe to have been the last day worked by the plaintiff before the accident. Despite the plaintiff’s relatively good work history over the five months during which he was employed by Let’s Race Plasterboard, it cannot be assumed that, but for the accident, he would have remained in that employment for the suggested period of 186 weeks. Neither his father nor his brother Michael, who was apparently a partner with a Mr Gilmour in Let’s Race Plasterboard, continued to work in that business for any significant time after the plaintiff’s employment ceased. Having regard to the intermittent and poorly remunerated work undertaken by the plaintiff before 11 December 2004 and his parallel record of trouble with the police, I consider that the claim for past economic loss has to be discounted substantially. I shall apply a discount rate of 40% which reduces the claimed figure to $48,000 on which I shall allow interest at 5% per annum for five years making a total loss under this head of $60,000.
Future economic loss and superannuation
Counsel for the plaintiff erected this claim for diminished earning capacity on an assumed life of 44 years that would yield $642,000 [“$500 x 44 years (1284)”] from which Counsel suggested there should be a discount for retained working capacity of 30% yielding a net figure of $449,400. I regard the assumed weekly wage of $500 as a reasonable starting point but, for the reasons explained at [44] above, it is appropriate to allow for contingencies or vicissitudes by imputing to the plaintiff a retained capacity of 50% and to attribute to the collision a diminution in the plaintiff’s future working capacity of only 25% resulting in an amount of $135,500 in damages to compensate for future economic loss. To that amount there should be added 9% or $12,150 representing compulsory contributions by employers to a superannuation entitlement of the plaintiff. There will, accordingly, be a total allowance under this head of $147,650.
Conclusion
Taking into account what I have concluded should be allowed for each component of the plaintiff’s claim, his total damages are assessed to be $376,155. There will be an order or declaration to that effect and the action will be stood over to a mutually convenient date and time in the week beginning 8 February 2010 for the making of further orders to give effect to the reasons published today and any agreement which has been reached between the parties, including orders as to the costs of the action. Unless all necessary further orders are to be made by consent, each party, at the hearing to occur in February 2010, should bring in minutes of the further orders which he contends should be made to dispose of the action.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Ryan.
Associate:
Date: 11 December 2009
Counsel for the Plaintiff: Mr R McIllwaine SC with Mr J Pappas
Solicitor for the Plaintiff: United Legal
Counsel for the Defendant: Mr P D Ryan
Solicitor for the Defendant: Moray & Agnew
Date of hearing: 28, 29, 30, 31 July and 1 August 2008
Date of judgment: 11 December 2009
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