Heath v Wilson - [2010] WADC 38

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: HEATH -v- WILSON [2010] WADC 38

CORAM: FENBURY DCJ

HEARD: 15-19 & 22-23 FEBRUARY 2010

DELIVERED : 26 MARCH 2010

FILE NO/S: CIV 22 of 2008

BETWEEN: STUART DAVID HEATH
Plaintiff
AND
GLEN ANDREW WILSON
Defendant

Catchwords:

Damages - Personal injury - Severe damage including comminuted fracture to acetabelum, pelvic ramus - Hip replacement with two revisions, closed head injury - Turns on own facts

Legislation:

Nil

Result:

Judgment for plaintiff

Representation:

Counsel:

Plaintiff: Mr T Lampropoulos SC
Defendant: Mr J R Brooksby

Solicitors:

Plaintiff: Simon Walters
Defendant: WHL Legal Pty Ltd

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

Nil

FENBURY DCJ:

The claim

Mr Stuart Heath was injured in a motor vehicle accident at night on 7 June 2004. Whilst riding his scooter home from work he was involved in a collision at an intersection in Fremantle when his scooter was struck by a vehicle driven by Mr Glen Wilson.
It has been admitted on behalf of Glen Wilson that his negligent manner of driving caused the collision and Mr Heath's injuries. The injuries were extensive and severe. Much of what Stuart Heath claims about them is not in dispute. It is not suggested he is malingering or is in any way dishonestly trying to inflate his various claims for economic loss. There was the occasional suggestion Mr Heath exaggerated, or more accurately over emphasised, over reacted to, some aspects. But that tendency was accepted as being a consequence of the accident‑caused psychological injury and thus was compensable, or at least, not detrimental to his claim.
There being no dispute on liability, the Court is required to make an assessment of the damages Mr Heath should receive.

Background

Mr Heath was born in the United Kingdom on 24 September 1962 and was turning 41 at the date of the accident and is 47 now. He left school when he was 16 and after a period working as an upholsterer having completed an appropriate apprenticeship, he worked in a restaurant and decided to become a chef. He completed an apprenticeship in three years and in 1988 migrated to Australia. He married in 1989 and has two children. He was divorced in 2002.
Mr Heath's curriculum vitae is Exhibit 1. It establishes a steady work history in his profession as a chef from his arrival in Australia until the accident in June 2004.
Mr Heath was working as a chef at Falduzzi's Restaurant at the time of the accident. He was a "Sous‑Chef" which means that he was the second in charge, this being a technical description in the industry. He aspired to be a head chef some day.

The injuries

As indicated, Mr Heath's injuries were wide spread. The injuries and the effects of those injuries are pleaded in detail in par 4 of the statement of claim. They were described in detail in a report from the Emergency Department of Fremantle Hospital. It is obvious Mr Heath took the impact on the left side. His motorcycle helmet came off in the accident. He sustained a 5 centimetre laceration in the left parietal area. He had bruising to the left side of the chest and flank and the left side of the pelvis. He sustained multiple small abrasions to the upper limbs, bruising to the left elbow, multiple abrasions and bruises to the lower limbs, laceration above the right knee and bruising to the right foot. He suffered a comminuted fracture of the left acetabulum with associated deformity. A fracture of the left inferior pubic ramus and subluxation of the pubus. The fracture to the acetabulum extended upwards and laterally into the iliac body. He had fractured ribs and a fractured scapular.
Mr Heath was observed to have considerable variation in his Glasgow Coma Scale Scores and there was concern about significant head injury. A CT scan was performed but no fracture was detected. In spite of the absence of fracture and haemorrhage Mr Heath was described as having suffered an "acute brain injury defuse axonal injury/closed head injury with loss of consciousness". This injury seems usually to be described as a closed head injury.
Shortly the most significant injuries suffered by Mr Heath were the injuries to his hip and pelvis which were obviously very much damaged, and his closed head injury.

Treatment

The details of Mr Heath's injuries and immediate post accident treatment are comprehensively set out in the Fremantle Hospital report of Dr Hertnon dated 6 September 2004, Exhibit 22, which is at p 162 to p 165 of the plaintiff's book of medical reports.
Mr Heath remained at Fremantle Hospital for more than six days. The process of his treatment is fully set out in Exhibit 22. He underwent various x‑ray examinations and investigations including a check for spinal injury, intra‑cranial haemorrhage and a CT scan of his head. No evidence of any contusion or bleeding was discovered however Mr Heath's fluctuating scores on the Glasgow Coma Scale were a concern. A repeat CT scan was taken 10 hours later.
Mr Heath was further x‑rayed some hours later and then admitted to the hospital and the care of an orthopaedic surgeon. He was provided with a sling for his fractured scapular. The following day a pin was inserted in his tibia for the installation of traction for the acetabulum. Treatment was conservative and neurological observations were maintained hourly. Mr Heath's coma scale scores fluctuated and yet another CT scan was performed with normal results. Nevertheless there was continuing concern over his mental state. It was recommended that MRI be carried out but this never occurred.
By 11 June, some six days post‑accident, Mr Heath reported increased pain "all over" and he "remained confused at times but was easily re‑orientated". He was then transferred to Royal Perth Hospital with a request that "if suitable" an MRI be performed "to investigate Mr Heath's confusion".
Mr Heath underwent surgery involving open reduction and internal fixation of his left acetabulum the next day, 12 June. In Exhibit 13.1 orthopaedic surgeon Dermot Collopy described the procedure as follows:
"General anaesthetic. Little‑T surgical approach with simultaneous posterior approach to the acetabulum and iliac fossa approach to the anterior column. Findings were of a highly comminuted both column fracture with extreme comminution of the pelvic brim. Reduced and temporarily fixed with Ponsford interfragmentary screws and stabilised with pelvic reconstruction plates posterior column. Routine closure."
In his report of 1 October 2007, Exhibit 13.6, Mr Collopy described this operation as follows:
"His acetabulum pelvic fracture required very extensive surgery to reconstitute the pelvis and acetabular socket. Because of the highly comminuted nature of the fracture, it was impossible to restore the normal anatomy."
Mr Heath was warned to expect the early onset of post‑traumatic arthritis in the left hip. This prediction has been realised. He requires a hip replacement that even the defendant's expert Dr Rosenthal opined was needed "sooner rather than later". Before any such event could be completed however numerous plats and screws needed to be removed from Mr Heath's left pelvis and acetabulum. This operation took place on 12 March 2007. The extent of ossification around the plates and screws complicated the surgery.
Mr Collopy summarised his treatment of the plaintiff in his report Exhibit 13.6 which appears at p 156 to p 159 of the plaintiff's book of medical reports.
On the second page of this report Mr Collopy described the plaintiff's symptoms following his review on 30 January 2007 recording complaints by the plaintiff of slowly progressive left hip and groin discomfort as well as "significant skin sensitivity in the region of the scar of the left iliac crest".
On physical examination Mr Collopy wrote:
"He walked with a mild limp, but had good strength in the muscles of the left pelvis. The left hip had 10º of fixed flexion contracture and only 110º of overall flexion. There was no rotation permissible and abduction was restricted to half its normal range. He was exclusively hypersensitive to light touch in the skin overlying the iliac crest and the lateral hip. X‑rays revealed evidence of a reasonably congruous mildly mal‑united acetabular fracture with no evidence of major joint space narrowing nor any definite evidence of major post‑traumatic arthritis at that time."
As to prognosis Mr Collopy wrote:
"It is inevitable Mr Heath with go on to develop progressive post‑traumatic arthritis of the left hip and require hip replacement surgery. My belief at present is that the bulk of his hip symptoms relate more to the nerve damage and secondary skin hypersensitivity rather than to the underlying hip arthritis. As such, I have recommended postponement of thoughts of hip replacement surgery, at least for the time being. However, it is inevitable he will require hip replacement and in view of his relative youth, its likely he will require two or three hip replacements in the course of his lifetime."
This was the position some three years ago and there does not appear to have been much change, it seems to me, save that Mr Heath can walk without a stick, although he has a limp, and he has pain in the hip. It would continue to appear to be the case that the skin hypersensitivity problem looms large in the plaintiff's present situation.
On the question of residual disability Mr Collopy's opinion at that time was that "Mr Heath has a moderate painful restriction in the movement of the left hip, which equates to a 20 per cent loss of function of the left leg at or above the hip. When hip replacement is required, I would expect this degree of disability to increase to 30 per cent disability of the left leg at or above the hip, assuming it is a successful well functioning hip replacement".
Mr Collopy ended that report by stating that he believed Mr Heath's injuries can be categorised as "extremely severe".
There was very little cross‑examination of Mr Collopy. His evidence was similar to that given by two medical experts called on behalf of the defendant, namely Mr Anastas, orthopaedic surgeon and Dr Rosenthal.

Mr Heath's evidence

Mr Heath recalled nothing about the accident and indeed had amnesia until he first woke up in Royal Perth Hospital at Shenton Park. He recalled nothing about spending nearly a week in Fremantle Hospital post‑accident.
After discharge from Shenton Park on 16 July 2004, Mr Heath underwent extensive therapy. He had to build up strength so as to be able to walk on crutches. He spoke of the difficulties and pain he endured in this process, particularly in his left leg and side.
Mr Heath was discharged in a wheelchair and crutches and went to stay with friends, the Nordstroms, for about seven weeks. During this time the Nordstroms provided him with gratuitous services. Mr Heath estimated that the Nordstroms, especially Marcus Nordstrom, assisted him in various ways for about 21 hours per week.
In September Mr Heath returned to the United Kingdom so he "could be looked after" by his mother, Doreen Roberts. He had no family support in Australia. Mr Heath stayed in the United Kingdom until July 2005. Whilst there he appears to have made use of his time and done his best to recover. He attended hospital on many occasions and underwent therapy including hydrotherapy. He had physiotherapy on his left leg. His mother looked after him this entire time and, according to Mr Heath, she spent about 28 hours per week on his care.
By the time he returned to Australia Mr Heath was walking but still required the use of a walking stick. He stayed with the Nordstroms again for two weeks and then moved into his own accommodation in Bicton. The people from whom he rented his room assisted him with support during this time to attend medical appointments and generally to get about. Mr Heath was not driving. Mr Heath estimates that his landlord assisted him to the tune of about five hours a week.
Mr Heath formed a relationship with a woman named Marija Jukic in about April 2007, and she gave evidence on his behalf in the hearing of this matter.
Ms Jukic assisted Mr Heath extensively and she continues to do so.
Mr Heath said that he stopped using a walking stick sometime in 2007.
Throughout this period and until the present time, Mr Heath has not driven a motor vehicle. He does not even have a driver's licence any more. He does not drive because he is "petrified" of being on the roads. He thinks people drive too quickly. He is worried that he is going to be involved in another accident.
It is now more than six years since the accident. Mr Heath speaks of benefiting from recently provided psychological assistance and there seems to be some optimism that some time he might be able to return to driving. In the meantime he described getting about by bus and occasionally on the pushbike.
Mr Heath also walks for considerable distances but he says that this is at a slow pace. It takes him, for example, more than two hours to walk about 6 kilometres.
Mr Heath described walking with a limp and he certainly did so in court, favouring his left leg.
A major source of discomfort and irritation for Mr Heath is the highly sensitive area on his left leg between his hip and knee. He described is as being "sort of dead" but that "it hurts one heck of a lot if anyone touches it or even brushes against me".
This sensitivity is something which affects Mr Heath's enjoyment of life, has done for some time, and according to the evidence is likely to do so indefinitely. It also interfered with his sexual life in that any contact with the area was not conducive.
Mr Heath attends a gymnasium regularly and uses the hydropool. He described that he has suffered some loss of his sense of taste. He also described in some detail difficulties in bending, stooping and squatting. He also gets dizzy when he attempts to do these things.
Mr Heath also described discomfort on prolonged standing. He also suffers from headaches.
He also described the effects of his dental injuries and he appears to have had discomfort and inconvenience for a considerable period however his teeth seem to have settled down now.
Mr Heath was asked questions about any effect from the accident upon his memory and concentration. His view was that he found it very hard to concentrate. He had lost ability to concentrate. He found himself to be very easily distracted. He said that unless he writes something down he forgets it by the evening.
Mr Heath also described an impairment in his organisational skills. He finds that unless he writes it down he has significant problems. He suffered from none of these issues before the accident.
Mr Heath also described having a short temper which he did not have before. He gets angry quickly, especially in circumstances involving travel as a passenger on the road. He says that he gets very anxious about things and he has problems being in a crowd.
Mr Heath also described difficulties with urinary incontinence. If he is intending to put himself in a situation where access to a toilet might be difficult, he wears a nappy. He finds wetting himself very embarrassing.
Mr Heath described the injuries' effect upon his sex life as basically resulting in him not having a sex life at all. He said:
"I don't get an erection at all. But I suppose the beauty of that is I don't think about sex at all either." (T45)
He has sought chemical assistance on prescription but that has not worked very well either. As he put it at T45:
"… one of them did work and when it worked I wouldn't let my girlfriend anywhere near me because she touched my leg."
Mr Heath also described difficulties with veering to the left when he is walking and riding a pushbike. He had an accident on his bike which he says was the result of that disability. He broke his arm.
Mr Heath also described using a TENS machine for pain relief which he uses every night for up to six hours until he gets up in the morning. He uses this machine to alleviate discomfort in his left leg.
He also described having consulted a urologist for his urinary incontinence problems and a doctor specialising in sexual problems. Neither of these practitioners has been able to provide permanent symptomatic relief.
He stated that he has not been able to work since the accident. The essence of his evidence seems to be that he had physical difficulties, cognitive deficits but also had suffered a profound loss of self‑confidence.
Mr Heath said that he presently spends his time going to the gymnasium whenever he can, sleeping in the afternoons, and assisting in the preparation of meals. He takes a variety of medications. He also seeks compensation for a cosmetic disability arising out of the significant surgical scarring in the area of his left hip, and this claim was supported by a number of photographs.
Mr Heath also said that prior to the accident he was quite active playing beach volley ball, a lot of soccer, diving, water skiing and running but that he can engage in none of these activities now.
The cross‑examination of Mr Heath was relatively brief. Little of what Mr Heath said is contentious in the action. Indeed counsel for the defendant, Mr Brooksby, candidly, and I think appropriately, advised the Court that the defendant did not seek to suggest Mr Heath had failed to exercise any relevant earning capacity prior to trial and he should be entitled to compensation for economic loss for the entire period between the accident and trial.
In cross-examination counsel made a half-hearted attempt to suggest that Mr Heath's work history was patchy or, as he put it, peripatetic.
There was a gentle challenge of the plaintiff's claim for past gratuitous services, noting the difference in the claim for services provided by the Nordstroms immediately post-discharge of 21 hours per week by comparison with the claim relating to services provided by Mr Heath's mother when he stayed with her in the UK being 28 hours per week. Mr Heath candidly observed that "my mother's a mother". There appeared to be general acceptance that perhaps that claim was inflated.
Counsel explored with Mr Heath the benefits of having recently received psychological treatment that was referred by the Insurance Commission of Western Australia. Mr Heath said he found this very helpful. He identified a number of aspects where he was assisted including sexual counselling, anger management, and his views about using public transport.
Mr Heath stated that he wanted to work. He stated that he did not drive a motor vehicle but he gets about by public transport or by riding a bicycle. He appeared to have some optimism about his future. He said he would be prepared to undergo training and to attempt to return to the workforce.
The relatively recently experienced benefits of psychological counselling is one of the imponderables in this case. Mr Heath seemed to me to be a person who will continue to improve in his outlook and situation but how much and to what extent is unclear. His accident‑caused anxiety and fears about driving, being in public and matters of that kind would seem to me to be likely to be curable. He is well disposed to seek that cure.
Mr Heath's preparedness to be trained and to seek other work is another imponderable. My impression of him was that he would be likely to try to find something useful to do, to find some remunerative work, when this litigation is concluded. I say that subject of course to the significance of any cognitive deficit which I shall soon refer.
Indeed the main area of dispute in the case relates to the evidence about the existence of and causation of any cognitive defective.
Before leaving this area I shall mention the evidence of Marija Jukic, Mr Heath's fiancée. Ms Jukic was an environmental consultant working full-time. She formed a relationship with Mr Heath in April 2007, became engaged in February 2009, and commenced to cohabit with him in August 2009.

Ms Jukic said that between April 2007 and August 2009 she performed gratuitous services for the plaintiff for about four hours per week.
Since commencing to live with Mr Heath she said that her services she provided had increased and were "were more around" 20 hours per week. Ms Jukic said that Mr Heath had physical disabilities. He could not lift anything of any significant object above shoulder height. He walked unsteadily, he limped and he tended to veer. She said that he was often anxious. He became wound-up and angry in shopping centres and in crowds. She said that sex was a "non‑event". She said that he was extremely forgetful.
In cross–examination Ms Jukic conceded that much of what she did for Mr Heath, he could do for himself but it would take him much longer and he would have some difficulties.
I think that Ms Jukic's estimate of the hours that she provided was excessive.

Closed head injury and cognitive deficit

There is no doubt that Mr Heath suffered a forceful blow to his head in the collision. He was wearing a motorcycle helmet. It was somehow knocked off and found some distance away on the road. He suffered a 5 centimetre laceration to the left parietal area.
I have already recounted the steps taken in the emergency department at Fremantle Hospital investigating whether Mr Heath had fractured his skull or suffered a brain haemorrhage. Those investigations were triggered because of Mr Heath's fluctuating scores on the Glasgow Coma Scale.
The various CT scans taken were normal. The recommended MRI procedure was unfortunately not performed, either at Fremantle or in Royal Perth Hospital as suggested.
The diagnosis concerning Mr Heath's head injury was that he had suffered an "acute brain injury diffuse axonal injury/closed head injury with loss of consciousness".
The axon is a nerve fibre. Thus it is that a nerve fibre or fibres in Mr Heath's brain was injured in the accident.
There has not been any specific treatment for Mr Heath's head injury. Apparently the brain tends to do its healing naturally.
Mr Heath and his civilian witnesses have given evidence of various adverse changes in Mr Heath's personality, behaviour, and mental function since the collision. It was not suggested that any of this evidence was untrue or unreliable. I accept the evidence of Mr Heath's symptoms in this aspect of the case which briefly are, in summary form, a loss of concentration, increase in forgetfulness, organisational disabilities and anxiety and personality change.

Medical evidence

Apart from the evidence of Dr Turner, Mr Heath's long term treating general practitioner, Mr Heath's case on the issue of his closed head injury and his cognitive deficit was commenced by Professor F L Mastaglia.
Mr Heath was referred to Professor Mastaglia by his solicitor, for examination and a report for medico‑legal purposes. Professor Mastaglia was the only neurologist to give evidence in the case. He is a consultant and is eminent in the field. He saw the plaintiff twice being 25 January 2007 and, three years later, on 4 February 2010.
Professor Mastaglia's opinion was that Mr Heath suffered a "moderately severe traumatic brain injury in the accident and that as a result of this he has been left with a significant cognitive impairment in the areas of short term memory and concentration, as well as problems with balance and motor coordination in the limb".
Professor Mastaglia stated that he reached that conclusion based upon a number of indicators, exclusive of neuropsychometric testing, that led him to that view. The professor explained his views in a lengthy answer commencing at T132.
There were five factors that influenced the professor in his formation of the above opinion. The first factor, or indicator as he put it, was that there was substantial trauma to the left side of Mr Heath's head. His motorcycle helmet came off. He suffered a left parietal laceration.
The second factor related to the duration and type of amnesia from which Mr Heath suffered. He suffered both retrograde and post‑traumatic amnesia following the collision. Mr Heath could not recall events after the accident. He could not recall being in Fremantle Hospital for five days at all. His first recollection after the accident was waking up in Royal Perth Hospital. Professor Mastaglia said that on the scale of 0 to 7, where 7 is the best that you can have, "with no amnesia" and 0 is where there is amnesia longer than three months, that Mr Heath would be a 2 or a 3 on that scale of 7.
The third indicator was the depth and length of unconsciousness post‑accident. Professor Mastaglia referred to the fluctuating Glasgow Coma Scale scores and reviewed the various scores noting that it wasn't until about 6 am on the morning of the accident that the plaintiff approached a normal GCS score. Professor Mastaglia compared that with the concussion suffered by a footballer, who has a very brief period of unconsciousness, with no post‑traumatic amnesia and who would normally regain a GCS score of 15 within a very short time. He felt that the length of time before it was that Mr Heath regained that fitness score of 14 or 15 and retained it was indicative of significantly and relevantly deep periods of unconsciousness and a sign of the effect of the trauma on the brain.
The fourth indicator, which Professor Mastaglia as a neurologist, found "very telling" was the neuroimaging in the form of the brain scans that were completed. He noted that the two CT scans done in the emergency department, required because of concern about fluctuating levels of consciousness, were reported as being normal. However he observed that the CT scan is not a very sensitive test and his opinion was that it is unfortunately often the case in this sort of patient that a CT scan is normal. He said "a CT scan is not sensitive enough to show up, for example, the micro‑haemorrhages that we talked about before, that were subsequently demonstrated on the MRI scan or to show up some of the more subtle changes in the white matter tracts of the brain that are referred to, I think, in the MRI report as DAI, diffuse axonal injury".
Professor Mastaglia explained:
"This is where the nerve fibres in the tracts of the brain that connect different parts of the cerebral cortex and also connect the brain with lower centres can be actually damaged by the sheering forces imparted by a blow to the head."
Professor Mastaglia then explained how it was that the micro‑haemorrhages discovered in the MRI were on the right parietal area of the brain. He explained a "contrecoup injury" where there is a blow to the left side of the skull which accelerates the skull, the brain lags behind for a micro‑second and then "slams" into the right side of the skull on the deceleration following the blow. Hence damage on the right.
The fifth and last factor that impressed Professor Mastaglia was the:
"… neurological findings that I, as a neurologist, found when I examined this man with the conventional neurological examination and which we've been through briefly before. In other words, the impairment of fine finger dexterity in the hands, the changes in muscle tone or spasticity, the pronator catch in the upper limbs, the brisk reflexes – these three things together indicating very classical signs of damage to the descending cortical motor pathways coming down to the spinal cord and controlling the movement and coordination of the limbs and dexterity. And in addition to that, the impairment of balance suggest that there was probably also some damage to the cerebella connections between the cortex and the cerebellum, which is the balance centre of the brain at the back of the brain."
Professor Mastaglia went on to express his views, as a neurologist, on the significance and usefulness of the sort of psychometric testing that is carried out by neuropsychologists. Having read the reports of Ms Coxon and Ms Vidovich, he noted that both psychologists found signs of problems in memory, which was one of Mr Heath's chief complaints. Although the reports of Vidovich were critical of those of Coxon, Professor Mastaglia felt there was a common thread in relation to problems of memory and in spite of the appearance of head‑on conflict there was not much difference on analysis between the two opinions. Professor Mastaglia felt that neuropsychometric testing was sensitive, and more so than tests administered by neurologists but that there were still substantial limitations. As he put it at T138:
"For one thing I think they may still miss relatively mild degrees of cognitive impairment which individuals may be experiencing in their everyday life. Secondly, as I mentioned before, there are always differences between the way different psychologists do the testing and, therefore, the comparability of studies is a problem. And, thirdly, I think probably the major misgiving about these – this neuropsychological testing is that I've found that it relates poorly to what's happening in everyday life, in an individual's everyday life in terms of … their memory for everyday events; their ability to concentrate on things to get their life together."
I emphasise that Professor Mastaglia was the only neurologist to give evidence in this case and that his evidence was unchallenged by comparable relevant expert testimony.
Before leaving my reference to Professor Mastaglia, it is notable that in his opinion Mr Heath was unfit for any form of employment indefinitely. I do not accept that that is the case for reasons which will be explained later, but as to the causal connection between the collision and Mr Heath's head injury and his cognitive deficit, I found Professor Mastaglia's evidence impressive.
Dr Raymond Wu, consultant psychiatrist, was called to give evidence on behalf of Mr Heath. He was Mr Heath's treating psychiatrist. The difficulty with his evidence was that he had not seen Mr Heath since December 2005. He relied for much of his opinion on the reports of Leonie Coxon and I did not find his evidence particularly helpful, without wishing to appear to criticise him and I make no further reference to it.
I mention Dr Turner, Mr Heath's treating general practitioner. Her evidence relevantly supported Mr Heath's account of behavioural variations following the accident. Dr Turner observed manifestations of behavioural problems when she had contact with Mr Heath in the course of her professional relationship with him as his general practitioner.
Evidence from another psychiatrist, Dr Claudio De Felice, was called.
Dr De Felice was another psychiatrist to whom Mr Heath was referred for a medico‑legal report. He saw Mr Heath on four occasions.
Dr De Felice's opinion was that Mr Heath was suffering from what he called an "adjustment disorder with anxious mood". However Dr De Felice seemed to me to capture the debate by what he said in the last paragraph of p 3 of his report of 23 May 2006 being Exhibit 11.2.
"Mr Heath continues to describe the significant anxieties and fears that have troubled him since his MBA [motorbike accident]. He has the same fears that I have described previously. I still would describe these fears as 'adjustment disorder with anxious mood'. I note the reports of Dr Wu and Ms Coxon which indicate their diagnosis of post traumatic stress disorder, and that of Dr Wu concludes that Mr Heath is suffering from agoraphobia. I wouldn't disagree with these diagnostic conclusions, but I think that his various fears are still best labelled as an 'adjustment disorder with anxious mood'. Whatever the diagnostic label one might apply to such symptoms, I think it is relevant to identify that these fears have arisen either in response to the experience of his MBA of 2004, or in response to the physical symptoms and limitations he has experienced subsequent to his MBA.
…
I am still of the opinion that Mr Heath has cognitive deficits secondary to a closed head injury."
And again on p 4:
"Notwithstanding such uncertainties, and the uncertainties as to the appropriate diagnostic conclusions, it is still relevant to note that Mr Heath has experienced a number of cognitive symptoms subsequent to his MBA, and in my opinion, these symptoms have been precipitated by it, whether directly or indirectly."
Dr De Felice's conclusion was that although the head injury was significant, Mr Heath's symptoms are mild. He felt that given six years have passed since the MBA it is uncertain how long Mr Heath may feel the effect of his symptoms. If the diagnosis of adjustment disorder was correct then his view was that this can become chronic. However, if it was a post‑concussion syndrome was appropriate it can often pass with time but does not always do so.
Dr De Felice felt that Mr Heath would be unlikely to be able to work in his previous occupation, and this does not appear to be controversial.
The defendant called evidence from a psychiatrist, Dr Srna who wrote two lengthy reports. Dr Srna's view was that Mr Heath's presentation was characterised by many inconsistencies. He did not feel that Mr Heath required any psychiatric treatment. He disagrees with the opinion of Dr De Felice and seemed to be of the view that Mr Heath had exaggerated in giving his history and itemising his symptoms. He however agreed that if everything that Mr Heath had stated was accepted then there was no reason to differ with the diagnosis of Dr De Felice but the difficulty was that he did not accept what Mr Heath said. He had difficulty in arriving at a particular diagnosis but seemed to prefer the possibility of a cognitive disorder "not otherwise specified".
That then leaves the evidence of Leonie Coxon, called on behalf of Mr Heath. She is a clinical psychologist who has been trained for and has some experience in administering neuropsychological testing. Evidence from Mandy Vidovich and Michael Hunt, neuropsychologists, both of whom provided reports for and gave evidence on behalf of the defence.
As was apparent Ms Vidovich was very critical, almost aggressively so, in her comment about the opinions of Leonie Coxon. Mandy Vidovich was backed up by Mr Michael Hunt.
Leonie Coxon is a clinical and forensic psychologist of many years experience. She has an impressive curriculum vitae. Ms Coxon wrote one report on 11 January 2006 after four consultations in November and December 2005 which is Exhibit 15. Ms Coxon subjected Mr Heath to a series of tests, a psychometric assessment, which are standard tests in this area and she reached conclusions which are summarised on p 7. She stated:
"Mr Heath's reports of memory deficits are well reflected in his neuropsychological test profile, where the most sensitive indexes were mildly impaired. According to expert neuropsychologist, Professor David Tolsky these visual memory indexes are considered 'red flags' or an indicator of brain dysfunctions following a traumatic brain injury.
Mr Heath's reported fine motor skills deficits are also well reflected in his grip strength and manual dexterity results, which render him severely impaired on the left side and more moderately impaired on the right.
There was evidence of mild problem solving difficulties in the more complex problem solving tasks.
Ms Coxon also considered that Mr Heath was suffering post traumatic stress disorder and she recommended certain treatments to assist his situation. She felt he could not return to work as a chef. She did not think he would be able to compete in the open workforce at the time of her examination which was in 2006."
The essence of Ms Coxon's report was that she found Mr Heath to have suffered a cognitive deficit which she attributed to his having suffered traumatic brain injury.
The two neuropsychologists who gave evidence on behalf of Mr Wilson strongly disagreed with this opinion. Although the existence of cognitive complaints appeared to be accepted Mandy Vidovich felt they were the product of Mr Heath's "immersion in his physical, pain and adjustment issues, in association with stress and anxiety related to his ongoing medico‑legal claim".
Ms Vidovich later concluded that Mr Heath had made a very satisfactory cognitive recovery.
Ms Vidovich was most concerned about an apparent deterioration in Mr Heath's performance on testing at later appointments. In her report of 30 October 2009 Ms Vidovich stated on p 4, in the penultimate paragraph:
"From a cognitive perspective, the effects of his neurological insult have not significantly altered his capacity for employment or his ability to drive. Any day‑to‑day fluctuations in his cognition are likely to be a product of his pain state, medication regime and mood issues."
In her final report of 23 January 2010, Ms Vidovich continued on a similar theme. Ms Vidovich's opinions were backed up by Mr Michael Hunt who is an eminent clinical neuropsychologist who has often given evidence in this Court. His view in the last sentence of his last report was:
"I remain of the opinion that his test performances over the various assessments undertaken do not provide indication to suggest there to be any cognitive deficiency likely to have a significant impact upon his occupational capacity."
As I have mentioned both Ms Vidovich and Mr Hunt were very critical of Ms Coxon's opinions, interpretation of test results and her conclusion.
The resolution of issue between competent and experienced experts can be difficult in these cases however, of course, it is part of the task of assessment. Where there is no concern about fabrication or deliberate exaggeration in a plaintiff seeking damages, then more weight can be given to the history, the complaints and the symptoms. I accept Mr Heath's evidence of symptoms that suggest cognitive deficit. I accept Mr Heath had no such symptoms before the collision in which he sustained widespread injury including the closed head injury above described.
There is hot dispute between Messrs Coxon and Vidovich/Hunt on whether the cognitive deficit suffered by the plaintiff is a result of injury to the brain. It is difficult to resolve that dispute but, perhaps stepping back, I have no doubt that one way or another the cognitive deficit Mr Heath suffers was accident caused. There was a lot of "fuss" between Messrs Coxon and Vidovich/Hunt and the battle lines were blurred by the smoke of intradisciplinary criticism and bruised egos. Messrs Vidovich/Hunt were very critical of Coxon's conclusions and reasoning making remarks about her that I thought were unnecessary.
However, it seemed to me that there was common ground that Mr Heath had a mild cognitive deficit. The violent disagreement was on the causation. I find it difficult to make a sensible distinction and I prefer and accept the views of Professor Mastaglia, and Dr De Felice and to some extent Leonie Coxon in support of the conclusion that I have just made.
There seems to be no doubt that, somehow, Mr Heath suffers from a cognitive deficit which is a result of Mr Wilson's negligence. It may not be important to identify the precise causation of the deficit. It may be related to closed head injury, or to post‑concussion syndrome, or to the psychological effects or a mixture of these.
What is important is that it was caused by Mr Wilson's negligence. The duration of Mr Heath's symptoms does not seem to be predictable depending upon causation. It is not said that cognitive deficit from closed head injury is permanent whilst cognitive deficit from post‑concussion syndrome or psychological effects or both will resolve. The important or significant matter is that it is over six years now since the injuries were sustained and Mr Heath still suffers from some degree of cognitive deficit. It is not said on behalf of Mr Wilson that this will resolve completely.
Mr Heath is likely to have made and I think would be likely to continue to make adjustments and acquire coping mechanisms to deal with his cognitive deficit. This is especially so given Mr Heath is well motivated to retrain and return to work.

Assessment non‑economic loss – general damages

Unarguably Mr Heath was severely injured in this collision. And unarguably the injuries included a number of fractures which have left Mr Heath with significant residual symptoms including a need for hip replacement with two revisions, each of which of course involves major surgery with all that that entails. He also suffered other fractures and a cosmetic disability.
He has also been left with a hypersensitivity down his outer left thigh, sexual malfunction, occasional urinary incontinence and a cognitive deficit, anxiety and related psychological problems and phobias.
The collision greatly adversely affected Mr Heath's life and continues to do so. Furthermore, by reason of his hypersensitivity to touch on the thigh, his hip symptoms and discomfort, his hip scarring, his difficulties with anxiety, forgetfulness and loss of concentration and the like, Mr Heath will be constantly reminded of something he has tried to forget, namely the day in which his life was changed forever.
The prescribed maximum amount payable by way of damages for non‑economic loss in respect of cases of this kind, being Amount A as referred to in the legislation, is $327,000.
Consistent with the Motor Vehicle (Third Party Insurance) Act 1943 the award of damages under this head is to be made following an assessment of the appropriate percentage of a worst case scenario that the factors in this case represent.
In my opinion as a result of the pain and suffering and loss of enjoyment of life suffered by the plaintiff as a result of the collision including his musculoskeletal injuries, his sexual dysfunction and occasional urinary incontinence, his cognitive deficit and his neurological and psychological problems an award of 50 per cent of the maximum amount is appropriate namely, $163,500.

Past loss of earnings

It is conceded, appropriately as I have observed, that Mr Heath has not had any relevant working capacity since the collision and is entitled to claim loss of earnings for the entire period of 5.82 years. The only disputation is the weekly rate at which it is to be assumed Mr Heath would be earning, but for the collision.
On behalf of Mr Heath it was asserted that the appropriate calculation for Mr Heath's earnings for the basis of this assessment would be the average earnings over the three years prior to the collision which was asserted to be $735 per week gross or $577.09 net.
It was asserted on behalf of Mr Wilson that the appropriate basis for the calculation would be the earnings during a three‑month period of employment prior to the accident which averaged out at $501 per week. This submission was made even though it appeared to be the fact that Mr Heath was receiving, in addition to that sum, cash in hand because his employer was trying to sell the business and inferentially wished to keep business costs down in representations with any prospective purchaser. Counsel for Mr Wilson submitted that this would be an appropriate level although "admittedly at the lower end of relative earnings for chefs in the metropolitan area".
I accept the basis of calculations submitted by counsel for Mr Heath which is $577.09 per week, which I think, in any event, is conservative.
Following through with the calculations set out in Mr Heath's "Particulars of Damages" dated 23 February 2010, on p 5, utilising a period of some 303 weeks or 5.82 years between the date of the collision and the date of judgment (26 March 2010) the result is $222,705 gross or $174,858.27 net.
It is also claimed that throughout that period of nearly six years Mr Heath would have earned wages over and above that sum due to overtime, wage increases, promotion and the engaging in higher paid employment. A claim is made for $150,000 to take account of this. The basis for the claim is reliance on the evidence of Mr Tinelli to the effect that a sous‑chef would earn $60,000 per annum in 2004 but $70,000 now. Similarly, a head chef would have earned about $68,000 in 2004 but about $82,000 per annum now. It was pointed out that if Mr Heath went and worked in the north‑west for a mining company he might earn even more. A global amount of $150,000 is sought.
Counsel for Mr Wilson at T421 said:
"We think he's entitled to economic loss to the present time. He would be entitled to full economic loss until such time as he can be retrained, treated and have confidence to get back into the workforce."
No submission was specifically made with respect to a separate allowance over and above the calculation for past loss of earnings, for the loss of opportunity to earn any additional wages over and above such as is claimed.
I think the quantification of the claim as a global amount of $150,000 is too high. However there is no doubt that if Mr Heath had remained in the workforce his income would have been greater than $577 net per week, presumably increasing over the 5.82 year period since the accident. He might have been a head chef by the time of the accident and in receipt of $82,000 net per annum instead of the $38,000 to $40,000 per annum basis for the calculation ($735 x 52 = $38,220). On the other hand Mr Heath may have had periods of unemployment or employment at a rate of less than that of a head chef, he may have continued to be a sous‑chef.
This is very much a question of impression and assessment and I think some allowance should be made and would award $60,000 which results in $234,858.27.
I was informed during submissions that "advances" have been made which total $75,737.50 which should be deducted (T420) which give $159,120.77.

Interest on past loss of earnings

Interest at the rate of 6 per cent per annum from 5 June 2004 to the date of judgment (being 26 March 2010) (303.0 weeks or 5.82 years) ÷ 2 because the loss is progressive which gives:
$159,120.77 x .06 x 5.82 x .5 = $ 27,782.49
Add that to $159,120.77
$186,903.25
which is past loss of earnings and interest.

Past loss of superannuation and interest

Following the language in the particulars, the basis for calculation is the plaintiff's loss of past gross earnings being $222,705 being the amount of past gross earnings without deduction for the advance made of $75,737.50. Adding the global award for the loss of opportunity for higher wages of $60,000 = $282,705. The plaintiff claims 9 per cent of gross earnings lost or $282,705 x 9 per cent = $25,443.45 plus interest at the rate of 6 per cent per annum from 5 June 2004 to the date of judgment on 26 March 2010 (5.82 years or 303.0 weeks) ÷ 2 or:
$25,443.45 x .06 x 5.82 x .5 = $4,442.47 = $29,885.88
Less 15 per cent (Jongen v CSR) $25,403.00

Past gratuitous services

In the particulars of damages dated 23 February 2010 a claim for past gratuitous services is formulated which seeks an amount of $92,963.75 inclusive of interest. A claim is made for gratuitous services provided by Mr and Mrs Nordstrom, Mr Heath's mother Doreen Roberts, Mr Heath's friend Mr G Carey and Mr Heath's fiancée Ms M Jukic.
Counsel for Mr Wilson submitted that the claim for gratuitous services was "somewhat too high but at the same time conceding that some assistance will have been necessary". Counsel also said T425:
"One always has to approach these things with a degree of scepticism, I suppose, … one can't say a great deal about these gratuitous services save to refer you to what is recorded – the doctors have recorded over the months and years since the accident happened …"
Counsel's reference to "what was recorded" related to a very helpful white ring bound folder provided by counsel entitled "Submissions and Chronology of Physical Problems, Psychological and Cognitive Problems, Activities and Past and Future Medical Treatment". This document helpfully identifies relevant references in various medical reports on specified topics. Under the tab "Miscellaneous" it identifies complaints and medical findings in relation to various activities including bending, carrying, kneeling and lifting. Under the tab "Domestic Duties" it lists references in the medical reports of Drs De Felice, Harper, Rosenthal and Burke and the reports of Vidovich, Optima Health and the like relating to Mr Heath's abilities to carry out domestic duties. Generally speaking it would appear under review of those complaints and findings that Mr Heath has ability to carry out aspects of domestic work but it takes time. Similarly, the tab entitled "Self‑care, Cooking and Shopping" had helpful summaries.
In my view the claims for gratuitous services made on behalf of Mr Heath are generally excessive, although not all of them. The claims in part seem to suggest that the need for gratuitous services increased at one stage, which I cannot accept. Generally speaking, with regaining health and ability to deal with the aftermath of the accident, it would be expected in my view that the need for such services would decrease.
I shall refer to the way that the claim was formulated in the particulars of damages abovementioned under the heading "Past gratuitous services". In doing so I observe that a number of the calculations appear to be incorrect on their face and are of less utility for my purposes than they might otherwise be. It would have been more helpful if counsel or more probably his instructing solicitor, checked the calculations before submitting them to the court in schedule form.
The claim relating to services provided by Mr and Mrs Nordstrom in the amount of 21 hours per week, or about three hours per day, for 1 August 2004 to approximately 1 September 2004, being 4.6 weeks, at the rate of $21 per hour, or $441 per week (not $126 as specified) totalling $2,028.60, would seem to me to be fair and reasonable and I allow it.
The claim made in relation to work carried out by Mr Heath's mother, Ms Doreen Roberts, which services were provided in the year following, in the amount of 28 hours per week (seven hours per week) is excessive. Mr Heath was cross‑examined about this and observed that "My mother's a mother", which struck me as being some acknowledgement that the claim was inflated. By the time Mr Heath got to the UK to live with his mother in my view he was in a better situation than he was when he was with the Nordstroms, and I think two hours a day for seven days a week is not unreasonable and consequently the calculation should be done upon the basis of 14 hours per week but otherwise I would follow the calculation which, at $21 per hour, gives $294 per week for 52.4 weeks and $15,405.60. Of course that makes no allowance for recovery and improvement that I think would have been achieved during that year. I would discount the sum of $15,405.60 to $12,500.
Relating to the services provided by Mr G Carey, this claim seeks five hours per week for a period of 213.2 weeks or 4.1 years. I think this claim is excessive and makes no allowance for improvement. One year is from 1 July 2005 (when Mr Heath returned to Australia from the UK) to 1 August 2009. Again five hours per week at $21 is not $84 per week but $105. I would allow for one year or 52 weeks at five hours per week at $21 per hour which gives $5,460. For the second year I would allow three hours per week at $21 per hour which gives $3,276.
There is an obvious overlap in the assistance claimed to have been provided by Mr Carey for 2008 and 2009 with the claim advanced on behalf of services provided by Mr Heath's fiancée Ms M Jukic. I would allow the claim related to Ms Jukic at the rate of three hours per week at $21 per hour for 122 weeks which gives $7,686.
In respect of the claim for services provided by Ms Jukic from August 2009 I would also allow three hours per week from approximately 2 August to 26 March 2010 being 34 weeks at $21 per hour or $63 per week totalling $2,142. This results in $33,092.60.
I award the sum of $33,092.50 for past gratuitous services plus interest x .06 x 5.82 x .5 = $5777.97 = $38,870.47.

Future medical treatment

In the particulars the plaintiff claims the sum of $150,000 by way of a global amount for future medical treatment but it is purportedly justified by reference to listed needs in the schedule. I shall follow that list for ease of reference, as counsel for the defendant set out to do commencing at T422. The list is based in part upon the evidence of Dr Andrew Harper being Exhibits 30.2 to 30.5 inclusive (being his medical reports) and also evidence he gave de bene esse on 1 February 2010. Dr Harper is an occupational physician. He first Mr Heath in late 2005. He provided detailed records of complaints made by Mr Heath concerning his symptoms, records as detailed as any of the reports tendered in evidence, if not more detailed.
Counsel for Mr Wilson dealt with the claim for future medical treatment (T422) where he stated:
"He will be entitled to future medical – an allowance for future medical treatment. … To a large extent, in terms of future medical treatment, depends what your Honour finds in terms of what the future holds for him. For example physiotherapy, hydrotherapy and rehabilitation, I see the plaintiff's claim for rehabilitation at $3,500. I don't demur from that figure. I think that – I was going to suggest to my friend that something between $3,000 to $4,000 would be appropriate and I would certainly agree that a rehabilitation course of three and a half should be allowed."
Returning to the schedule Mr Heath claims physiotherapy $1,500 per year. Dr Harper felt intermittent physiotherapy might be required to the tune of $800 (p 5 report of 14 December 2009) – Exhibit 30.5.
Hydrotherapy is claimed at $620 per year and I am unable to find any reference to that in the evidence.
As to rehabilitation, as I have indicated it is conceded that $3,500 would be appropriate.
A review by a psychiatrist is claimed at approximately $200 per session. There is a variety of diagnosis about Mr Heath's mental condition in the evidence in this case, and I have made some reference to it earlier in the review of the evidence relating to the existence of a cognitive deficit. The amount sought is not specified, only the rate. I think some psychiatric review is appropriate.
There is a claim for "follow‑up" by the family doctor at approximately $700 per year. That does not seem unreasonable. There is a claim for orthopaedic treatment including hip replacement two or three times in his lifetime which is quantified at $100,000 (corrected to $110,000 during submissions). I shall deal with this at the end of this discussion under this head.
A claim for dental care is disputed. I am unaware of any evidence for the need for ongoing future dental care although of course dental injuries and the provision of repair work usually requires renewal. I think it is not unreasonable to provide for some allowance.
No figures were given concerning the cost of ongoing urological/sexual medication "for the rest of his life". Nor was any evidence provided relating to neurological review and treatment (claim of $15,000) acupuncture (claim of $1,000) assessment and treatment by a pain clinic ($5,000).
There was a claim for costs of an exercise programme which required gym membership. Given the situation the plaintiff faces with his musculoskeletal condition I think some allowance along these lines should be made but not for 41 years. This is another error in the schedule that would have been picked up if anyone had bothered to check the calculation. Mr Heath is 47, not 37. The multiplier is 31.90 not 41.23. I think the sum claimed is excessive.
There would need to be psychological counselling and treatment.
Counsel for the plaintiff conceded that this global amount claimed of $150,000 is too high and in my view that is an appropriate concession.
Before arriving at a global amount I shall refer to the cost of hip replacement.

Hip replacement

As I have indicated the fact that Mr Heath will have to undergo surgery involving hip replacement was uncontroversial. There was some mild variation in opinion about whether, considering Mr Heath's age, he would need a third operation involving a second revision of the hip. There was no dispute that he would have to have a second operation.
At the time of trial Mr Heath was 47 years of age. By reference to the expectation of life tables for males 10 years ago Mr Heath has a life expectancy of 31.9 years. Rounding this up I think it's reasonable to proceed upon the basis that he has a life expectancy of 32 years.
Mr Heath needs a hip replacement "sooner rather than later" according to the defendant's medical expert Dr Rosenthal. According to Mr Collopy, in October 2007, Mr Heath would need the replacement within the next "three to five years".
Estimates of the period for which a hip replacement will last depend upon the degree of activity and the weight of the patient, and vary between 10 and 15 years.
It seems to me that it is highly likely Mr Heath will require two revisions which amount to a total of three operations. For the purposes of calculations it should be assumed he will have a hip replacement "now" (within a very short period of time from now), and then a revision in 15 years and then a second revision, say, 12 years there after. This would mean that Mr Heath would have an operation in 2010 and 2025 when he was 62 years of age and 2037 when was 74 years of age. I should have mentioned that I have selected 12 years because the evidence (Mr Anastas T 243) was that it would be between 10 and 15 years for the second revision.
I accept the evidence, for the purpose of the exercise that the replacement would cost about $30,000 and that each of the revisions would cost about $40,000.
Using the 6 per cent discount multiplier tables for the value now of a lump sum of $40,000 in 15 years, $40,000 x .417 = $16,680.
Similarly for 27 years, the value now of $40,000 is $8,280 giving a total of $24,960.00 which if added to the cost of the original hip replacement of $30,000 gives $54,960.
In my view, in relation to future medical treatment, an appropriate award by way of a global amount taking an account of the way the claim was particularised and including hip replacement would be the sum $85,000.

Future non‑medical needs

The claim for an allowance for future non‑medical needs made on behalf of Mr Heath was accompanied by very detailed arithmetic calculations and totalled some $89,284.13. The claim appears to be based upon the evidence of the occupational therapist, Mr Kerry Jones whose reports are Exhibits 9.1 and 9.2.
Counsel for Mr Wilson dealt with this claim at T423 as follows:
"Now there's a schedule in the plaintiff's particulars relating to future non‑medical needs. There are recliner lift chairs, the plaintiff has still put in as part of his claim off road/on road driver training and de‑sensitisation, as part of the claims he wishes to make and again I have no problem with that. Bike panniers, automatic transmission – again no difficulty with that but it's interesting that it should be claimed.
And realistically, I don't have too much to say about those other than in relation to domestic assistance, where I think that Mr Heath is capable of carrying out his work. Some allowance might be made for the heavier duties but I don't think to the extent claimed, but again, I leave that to your Honour. I make no comment about the other matters.
Sir, my comment in relation to those is the only query we have relates to the extent of domestic assistance he requires about the house, given what we've extrapolated from the various reports in the white folder which your Honour has."
I do not propose to critically analyse every calculation contained in the schedule under this head, given counsel's observations, save to address the claim for domestic assistance. This claim is divided into two parts, external and internal, and seek external domestic assistance in the sum of $26,758.56 and internal domestic assistance for life in the sum of $49,186.50 – which totals nearly $76,000 of the claim under this head. I note that this claim is over and above the claim for gratuitous services. It refers to what I would understand to be cleaning including housework.

There is no doubt in my view that Mr Heath does have some ability to do his own housework. He is not totally disabled from that and there are plenty of references in the materials, which have been helpfully summarised and highlighted in the white folder to which counsel made reference, under the tab "Domestic Duties" to justify the view that the primary difficulty is how long it takes Mr Heath to do this work.
Especially now that he is living with his fiancée, I have every confidence that the two of them will work out some reasonable system whereby the duties will be performed and he will contribute. It will be more difficult than it would be for other people who have not sustained the sorts of injuries he has and do not have the other difficulties from which he suffers and it is not unreasonable for some allowance to be made but I do think that the amount claimed is very excessive. I would allow the sum of $13,000 for future non‑medical costs, following the detailed costings in the claim except for the claims for domestic assistance for which I would allow a discrete global amount in the sum of $12,000. For future non‑medical needs the award under this head is therefore $25,000.

Future loss of earning capacity

The claim put on Mr Heath's behalf under this head is put upon the basis that he will not be able to return to meaningful employment in the future because, for all intents and purposes, he is permanently incapacitated from any employment. It is argued that, given his age of 47 years, and his notional retirement age at 70, that he should receive an award upon the basis that he would have worked for 23 years. The basis of calculation is put as $735 gross per week or $577.09 net per week.
In addition it is claimed that Mr Heath would have earned additional wages over and above that abovementioned figure due to "overtime, wage increases, promotion and engaging in higher paid employment" and he claims a further global amount of $150,000.
It is then conceded that there might be a nominal percentage discount for "any retained earning capacity".
Obviously it is put on behalf of the defendant that this claim is inflated. It is put on behalf of Mr Wilson that the evidence supports a conclusion that after approximately 18 months, during which retraining might occur, Mr Heath should be capable of some form of work.
The medical evidence upon which Mr Heath relies primarily comes from Professor Mastaglia, the neurologist, Dr De Felice, psychiatrist, Dr Andrew Harper, occupational physician, and the general practitioner, Dr Turner. The opinion of Professor Mastaglia and Dr De Felice is that Mr Heath is unfit for any form of employment indefinitely. Each of these witnesses gave evidence and was cross‑examined. They were impressive witnesses and experts in their field.
Dr Andrew Harper saw Mr Heath on four occasions, being in each of the years 2005, 2006, 2008 and 2009. His final report dated 14 December 2009 was Exhibit 30.5. This was a lengthy and detailed report and it contains a very helpful and extremely detailed history of complaints and current symptoms which, it is noted, were current as at last December and some five and a half years after the accident. I do not propose to recite at length the symptoms noted by Dr Harper but he covered the topics of left hip pain, memory and concentration problems, mood changes, impaired balance, amnesia, left arm numbness, neck and back pain, facial pain, fatigue and sleep and urinary incontinence.
He said that the left arm numbness, neck and back pain, facial pain and fatigue and sleep problems had abated.
Dr Harper felt that Mr Heath's ability to carry out the normal activities of daily living had improved. He was asked specifically concerning Mr Heath's work capacity and he stated on p 4 of his report as follows:
"Current work capacity is severely reduced. He is incapacitated for occupations such as chef, waiter or caterer. The requirements of coping with stress, being able to move confidently and with balance in confined spaces would preclude him from all work as chef. His agility and balance are insufficient to work as a waiter. A caterer requires to be able to make clear decisions, plan, organize and cope with stress. He is also incapacitated for a manual occupation. He is unable to drive. He does have some very limited work capacity which would include manual upholstery work. … I feel that his anxiety would preclude him from any managerial responsibility. His anxiety and associated cognitive symptoms would preclude him from clerical work, sales and store work. The combination of impaired static postures, anxiety and cognitive symptoms would preclude him from functioning effectively in customer service, telemarketing or as a console operator."
And further at par 6:
"Restrictions are to avoid stress, decision making, crowds, confined spaces, climbing, repeated looking up, quick movements, tasks requiring good concentration and memory, repeated lifting and carrying, driving, repeated bending, squatting, prolonged sitting and prolonged standing.
These restrictions preclude him from competing for gainful employment in the open workforce.
His injuries may preclude him returning to any form of gainful work.
Stuart Heath has multiple permanent disabilities. My opinion is that he would be unable to complete for employment in the open workforce. His condition is stable."
These opinions are supported by Mr Heath's general practitioner Dr Turner who wrote a large number of reports but I shall refer only to the last one being Exhibit 7.19 and dated 29 December 2009.
I do not propose to refer to the report specifically but it is in similar terms to that of Dr Harper. An additional factor to be borne in mind about Dr Turner's evidence is that she was Mr Heath's general practitioner prior to the accident. She knows him well and has treated him for a long time. Clearly, some of the difficulties that are referred to concerning Mr Heath's use of public transport and matters of that kind may well still be ameliorated by the psychological treatment Mr Heath is receiving. However, the sense of Dr Turner's reports is consistent with that of the other medical practitioners referred to above.
Marshalled on the other side are the reports upon which reliance is placed by counsel for Mr Wilson. Dr Rosenthal and Mr Anastas, orthopaedic surgeons, have the view that Mr Heath is fit for sedentary employment. Dr Burke, an consultant rehabilitation physician, however, had similar views with Dr Harper but felt that Mr Heath had some retained capacity, for full employment, theoretically, but that his level of anxiety as at October 2008 was so high that he would be unable to return to employment until it was better controlled. Dr Burke, however, did seem to have the view that there was retained earning capacity. The neuropsychologists Vidovich and Hunt, of course, have the view that Mr Heath has no traumatically caused brain injury that has resulted in cognitive deficit. Their view is there is some retained capacity, as was the view of Ms Greenwell of WorkFocus and Professor Mulvey who is the managing director of LabourNet. Ms Greenwell's view was a head chef might earn $70,000 per annum but no more.
In considering Mr Heath's prospects of returning to the workforce after more than six years, with his physical and mental difficulties, the combined effect of those difficulties, the "spread" of them, should not be ignored or overlooked.
Mr Heath, seeking employment, would present to an employer as a person who has, or will have, serious issues with his hip including loss of function (up to 25 per cent), the certainty of surgery, hypersensitivity (putting sexual dysfunction and occasional urinary incontinence aside) together with a mix of psychological issues, anxieties and probable cognitive abnormalities.
In my view most employers would be unlikely to give Mr Heath a second interview let alone employment. In competing with other persons for a position, he would be unlikely to be selected. It seems to me that although he might be able to function in a physical sense and thereby be able to engage in employment, realistically he has lost a great deal of his earning capacity.
There is another factor that I think is significant on future economic loss that seems to me to be ignored. The collision in which Mr Heath was injured occurred nearly six years ago (5 June 2004). He was severely injured with widespread injuries including closed head injury and he suffered significant post‑traumatic psychological harm of one kind or another depending upon the expert.
Despite this it was not until December 2008 that Mr Heath commenced receiving treatment from a psychologist, Catherine Harford, having been referred by her general practitioner, and the costs thereof being met by Medicare Mental Health. Mr Heath stated that he found the sessions with Ms Harford to be very helpful, and he stated as much to Dr Harper. Ms Harford wrote only the briefest and most unhelpful report (Exhibit 31). However the strong impression that I got from the evidence was that there was some optimism, certainly in Mr Heath, that this belated treatment might make a significant difference to his life. It seems to me that it might make a significant difference to his earning capacity as well. That is as a matter of common sense.
In my view the assessment for loss of future earning capacity should be made on the basis advanced on behalf of Mr Heath. I found the witnesses called on his behalf to be more impressive than those called on behalf of the defendant. I refer particularly to the evidence of Dr De Felice and Dr Turner. I did not see Dr Harper give his evidence but his report is impressive. Of course Professor Mastaglia was unchallenged by competing equivalent expert evidence.
The weekly rate of income relied upon in the calculations put forward on behalf of Mr Heath is conservative given the evidence of what a head chef may now be able to earn which is said to be in the region of $70,000 per annum, or $1,400 per week gross. The obvious conservatism of that basis of calculation enables me more easily to accept a notion of an additional global sum being appropriate due to overtime, wage increases, promotion and the like.
The starting point however should be that asserted on behalf of Mr Heath which is $577.09 per week. This sum multiplied for 23 years being 661 gives $381,456.49.
In my view the global amount sought of an extra $150,000 is excessive, but I think $60,000 is reasonable given the conservatism of the calculation and the other reasons I have explained above.
Thus the sum of $441,456.49 is the net figure. In my view there should be a discount for retained earning capacity but that it should not be greater than 25 per cent.
Thus $441,456.49 less 25 per cent = $331,092.37.

Future loss of superannuation benefits

Following the figures through, the gross future earnings lost would be $481,835 plus $60,000 = $541,835 less 25 per cent = $406,376.25 x .09 = $36,573.86 to give a figure for future loss of superannuation benefits.
Less 15 per cent (Jongen v CSR) $31,087.78

Future gratuitous services

There is a claim for future gratuitous services it is said Mr Heath will require bearing in mind further treatment and of course surgery involving hip replacements and the like. A global sum of $50,000 is claimed. It is not supported by any calculation. I think this sum is excessive and would allow $5,000.

Future travel costs

There is a claim for future travel costs quantified at $15,000. This is on the basis of additional travel expenses relating to medical treatment and the like. I think that sum is excessive. I cannot see a basis for this estimate noting that it is claimed as a global sum. I think with psychological treatment Mr Heath will be better able to travel on public transport than previously. With any luck he should be able to begin driving perhaps. Or riding a bike. I would allow him $2,000 future travel costs.

Summary of awards

Non‑economic loss  $163,500.00
Past economic loss and interest  $186,903.00
Past superannuation and interest  $ 25,403.00
Past gratuitous services  $ 38,870.47
Future medical treatment  $ 85,000.00
Future non‑medical needs  $ 25,000.00
Future economic loss  $331,092.37
Future loss of superannuation benefits                  $ 31,087.78
Future gratuitous services  $   5,000.00
Future travel costs  $   2,000.00
$893,856.62