Hulanicki v Walton - [2014] ACTSC 17

JESSICA IRENE HULANICKI bhnf HELEN HULANICKI
v CLARE LOUISE WALTON
[2014] ACTSC 17 (7 March 2014)

DAMAGES – Personal Injury – assessment – plaintiff suffered brain injury and unable to manage own affairs

DAMAGES – cost of fund management – whether fund management fees should be calculated on the basis of the ACT Public Trustee or a private trustee – no evidence Public Trustee superior so as to warrant higher fees – Crown has obligation to plaintiff under its parens patriae jurisdiction – Public Trustee a statutory enactment of parens patriae – overcompensation unlikely to arise

DAMAGES – cost of fund management – Richards v Gray [2013] NSWCA 402 applied – whether allowance should be made for management of sum awarded for fund management costs

DAMAGES – cost of fund management – Richards v Gray [2013] NSWCA 402 applied – whether allowance should be made for management of income generated by fund

DAMAGES – cost of fund management – Richards v Gray [2013] NSWCA 402 applied – whether deductions for likely outgoing early in the life of fund should be made prior to fund management calculation

Civil Liability Act2002 (NSW)
Motor Accidents Act 1988 (NSW)
New South Wales Trustee and Guardian Act 2009 (NSW), s41
Public Trustee Act1985 (ACT), ss 5, 12, 25, 47, 53F

Court Procedures Rules 2006 (ACT), r 1015

Nicholson v Nicholson (1994) 35 NSWLR 308
Richards v Gray [2013] NSWCA 402
Singh (by her next friend Singh) v Calvary Hospital ACT Inc [No. 2] [2009] ACTSC 57
Willett v Fulcher (2005) 221 CLR 627
Cadwallender v The Public Trustee [2003] WASC 72
Jones bhnf Jones v Moylan (1997) 18 WAR 492
Morris v Zanki bhnf Zanki (1997) 18 WAR 260
Secretary, Department of Health and Community Services v JWB & Anor (1992) 175 CLR 218
Todorovic v Waller (1981) 150 CLR 72
Commonwealth v Blackwell (1987) 163 CLR 428
Tchadovitch v Tchadovitch (2010) 79 NSWLR 491

Hallett v Schoevers (1992) 109 ACTR 1
Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118

No. SC 300 of 2009
Judge: Burns J
Supreme Court of the ACT

Date: 7 March 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 300 of 2009
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN:  JESSICA HULANICKI
  bhnf HELEN HULANICKI
Plaintiff

AND: CLARE LOUISE WALTON
Defendant

ORDER

Judge:  Burns J
Date:  7 March 2014
Place:  Canberra

THE COURT ORDERS THAT:

Judgment be entered for the plaintiff in the amount of $4,227,676.32.

Fund management on the judgment sum is awarded to be calculated by the parties in accordance with these reasons and provided to the court.

The parties be heard as to costs.

On 6 March 2006 the plaintiff, Jessica Irene Hulanicki, was 20 years old. Her life was going pretty well; she was employed in the real estate industry, in a position that she enjoyed and which promised opportunities for future advancement. At about 8:00 pm that day she was driving her Suzuki Swift motor vehicle west on Ginninderra Drive at Latham. At the intersection of Ginninderra Drive and Kingsford Smith Drive the defendant disobeyed a traffic light, entered into the intersection and collided with the plaintiff. The impact was quite forceful, and caused the plaintiff’s vehicle to collide heavily with a light pole. She suffered a severe brain injury which has subsequently had a profound effect upon her life and the lives of her family.

The defendant admitted liability for the plaintiff’s injuries, so these proceedings are an assessment of damages only.

At the time that she gave evidence the plaintiff was 28 years old. She attended primary and secondary school in the ACT. In high school she originally attended Merici College, but left halfway through year 9 to attend Belconnen High School. She completed Year 10 at Belconnen High School, but only completed one semester of Year 11 before leaving to take up employment. While she was at school she undertook work experience at a hairdresser’s. She testified that she loved fashion, including hair and beauty. At that time she had a dream of being a hairdresser. She started a hairdressing apprenticeship but found that the chemicals she came into contact with in that employment gave her dermatitis, obliging her to give up her apprenticeship. While she was at school she did some part time work in retail businesses, and later worked full time in this area after leaving school.

The plaintiff subsequently completed a certificate in business administration through an organisation called Capital Careers. In 2004, while she was undertaking that certificate, she became aware that a real estate organisation, L. J. Hooker, was looking for people to work in administration. She applied for a position and was successful. She testified that she loved working for L. J. Hooker, and at the time of her accident was in the process of being promoted, at least temporarily, whilst another employee went on maternity leave. She also completed a number of certificates at L. J. Hooker and hoped to become a real estate agent one day.

The plaintiff was employed at L. J. Hooker at Kaleen. She described the office as busy at times. She worked closely with the sales people who worked out of that office. She would assist with their advertising, and preparing their brochures. She was responsible for listing properties on sites such as All Homes, including uploading photographs. From time to time she would assist agents with appraisals of properties, and she also had limited dealings with members of the public when she was working on reception. She got on well with the management and other employees in the agency. She considered that she was good at her job. She testified that she was happy in the work that she was doing, and was proud of her work.

The plaintiff testified that she could remember nothing about her accident. She could not remember the day of the accident, or the preceding day, at all. She could remember bits and pieces of the end of her stay at the Canberra Hospital, before she was transferred to Liverpool Hospital. She said that she hated being at Liverpool Hospital because she was away from her mum and her friends and she just wanted to get home and be with her family. She said that she used to beg her doctor to send her home. While she was at Liverpool Hospital she did not have much of an understanding of the nature of her injuries. She knew she had hit her head because a large amount of her hair had been shaved off. She found that very distressing because her hair was very important to her. She also knew that there was something wrong with her right eye, which turned in towards her nose. Her doctors hoped that this condition would repair itself, however, when it did not repair itself after six months she had an operation to repair it. Before it was repaired it made her very sad to look in the mirror and see her injuries. Initially, when she was in hospital her mother told her that she was there because she was sick, although she was given further information about the nature of her injuries as the months went by.

She was in Liverpool Hospital from 18 April 2006 to 11 May 2006. At times during this period she would leave the hospital with her mother and walk to the Liverpool Shopping Centre. She noticed that she was a lot slower walking, and that her balance was off. Because her eye was still turned in, she had to rely on somebody else walking with her, usually holding on to her mother. She was very unsteady on her feet. Over time that unsteadiness improved, but she is still unable to wear very high heels. At Liverpool Hospital she underwent a rehabilitation program involving daily exercise and therapy. Being at Liverpool Hospital depressed her as there were a lot of people in the rehabilitation section who had suffered brain injuries and who were severely incapacitated. Her father stayed with her the whole time she was at Liverpool Hospital, and her mother came whenever she could. The plaintiff’s mother had to return to Canberra regularly to look after her son, the plaintiff’s brother Adrian. Her father looked after her while she was in hospital, looking after both her physical and emotional needs.

After her injury the plaintiff also noted a loss of hearing in her left ear. After three operations that improved, but it has never returned to normal. Similarly, the problem with her right eye has improved, but it also has not returned to its pre-accident condition. This makes her self-conscious, because her misaligned eye becomes more noticeable when she is tired. She believes that others around her notice her condition. Her right eye can no longer move to the extent that it could pre-accident, meaning that she has to move her head more frequently to avoid having double vision.

The plaintiff testified that fatigue is now a very real problem for her. By the afternoon she is always tired. By about 3:00 pm she is tired and needs to have a nap. She describes herself as being exhausted. If she does not have a nap she becomes “really, really cranky”. The plaintiff spoke of persisting feelings of frustration with her condition. She had very limited memory of the period after she returned home from Liverpool Hospital. She was unable to remember who had visited her in hospital, and at home after she returned from hospital. She had a vague recollection of her 21^st birthday in 2006 when she went out with some friends, but she did not stay out very long because she was recovering from an eye operation.

About a year after the accident the plaintiff returned to work at L. J. Hooker. She was very much looking forward to getting back to work. She found that the work did not come as easily to her as it had before the accident. She noticed that her vision was not as good as it was before. She left that position after about six months because she knew that she could not do the work anymore, and did not want to be unfair to L. J. Hooker. At the time she was working at L. J. Hooker after the accident, she did not realise that she was making mistakes; and when she later discovered that she was, she was devastated.

After leaving L. J. Hooker she found employment for three months working in a public sector training centre. She obtained that employment through an organisation called Advance Personnel. She also had a case manager provided by the defendant’s insurance company. The work in the training centre involved setting up rooms for training sessions, cleaning up after the training sessions and looking after the coffee area. Sometimes she had to set up five rooms, and she found the work very physical and fatiguing. She also found it very frustrating. The fact that the training rooms had to be prepared by a particular time caused her stress. On one occasion when she was supposed to finish at 4:00 or 5:00 pm, she was still cleaning the rooms at 6:00 pm by herself, and was crying and frustrated because she could not do it alone. She found it difficult to cope with the need to set up the rooms differently each day for different training groups. She had occasional difficulty in following written directions for setting up the training rooms. She found it difficult to interpret diagrams of the set up, which she found frustrating, a problem which was compounded by the fact that there was nobody for her to ask. She found the job beyond her abilities and so did not stay beyond her three month contract.

She then obtained employment at Gungahlin Lakes Health Club through her employment agency. Initially she felt she could cope with the work, but as time went on she found that she had too many things to do at once. She was responsible for answering the phone and also dealing with incoming people. She found the work too demanding. The plaintiff said that she cannot multitask anymore, and can only do one thing at a time.

The plaintiff then completed a course in nail technology (referring, of course, to fingernails) which was arranged through her employment agency. She subsequently had a trial doing this work, but had problems because of her eyesight difficulties. She stated that things look closer to her than they really are, or things look like they are far away when they actually are closer. She found that she could not file nails straight because of problems with her depth perception.

The plaintiff testified that she does her own make up; however she finds it harder doing make up on somebody else, because of the problems with her vision. Since the accident she has become prone to becoming frustrated and angry at home. This leads to her swearing at her parents and her brother.

In 2009, the plaintiff obtained employment with a business which designed office furniture. She would undertake administration work. One of the owners of the business used to work for the plaintiff’s employment agency and she was very good to the plaintiff. Unfortunately, the business went bankrupt and the owners moved to Melbourne. In her work with that business the plaintiff would answer the phone and undertake keyboard tasks. Telephone calls were infrequent, although there were times when the business was busy.

The plaintiff testified that by 2009 she had realised that she could not deal with stress anymore, and could not multitask. She became frustrated. She gave an example that if her parents go away for the weekend, and she wants to clean the house by putting the dishwasher on or doing the washing before her parents come home she cannot do those things at the same time because she becomes flustered and frustrated. She tries to think which one she should do first. On one occasion when they did go away, she burnt herself while she was trying to do some cooking. She was trying to cook for herself and her brother, and because she was rushing, she burned her arm.

The plaintiff’s last job was at a business called Adore Tea, where she worked in a warehouse packing orders and making them ready to be dispatched. She worked there for approximately 5 or 6 months. She obtained that employment through her employment agency. There were probably six or seven people working in the warehouse at that time. Her work involved reading a written order and collecting all the teas and other things that had been ordered and putting them on a bench. The teas were contained in boxes on shelves in the warehouse. If the plaintiff had difficulty reaching the boxes because of her balance problems she would ask someone else to help. She undertook this work standing up. She was only able to work 12 hours a week (4 hours a day, 3 days a week) on medical advice. She testified that she did not think that she would be able to work longer hours because she became too fatigued. She said that the work was not physical, but there was a lot of running around and she had to concentrate on what she was doing. She said that it made her mentally tired, which affected her concentration. Unfortunately, for financial reasons the plaintiff’s position was made redundant.

When asked to say what her problems currently are, the plaintiff said:

Okay. Number one, frustration with the way my life is. Like, people around me, like, for example, all my friends, you know, they’ve all got careers, and they’re all, for example, all my friends, you know, they’ve all got careers and they are all, you know, travelling overseas and buying houses, and things like that, and I’m left behind because I can’t have a career anymore, and I can’t go overseas and, you know, things like that. Like, so the biggest one is frustration. I’m also fatigued a lot more than how – than I ever used to be. Angry, because, like, I get really frustrated that I can’t do the same sort of things I used to be able to do. I can’t think. I can’t multitask anymore. I can’t solve problems anymore. I have short-term memory loss. Like, I can’t remember saying, you know, may be exactly what happened last Friday, or last, like, Tuesday. Like, someone might say, “what did you do last Tuesday?” And I am like “I really can’t remember”

The plaintiff stated that her problems constantly upset her, because she is unable to have a normal life.

The plaintiff testified that she has been on a number of medications since she left hospital. One of the medications was designed to assist in regulating her menstrual cycle because she had not had a normal cycle since the accident. However this medication, apparently, clashed with other medication and it was ceased. She continues to have problems with her menstrual cycle, which is most unpredictable. She stated that this is going to make it a lot harder for her to have children, and she does not like it because she does not feel like a “proper woman”.

The plaintiff now has an embarrassing problem with facial hair requiring her to have laser treatments. She has these treatments once a month. She was unsure whether these treatments had been paid for by the defendant’s insurer, because she found dealing with those issues too difficult and usually left them to her mother. The plaintiff understood that she would have to have that treatment for the rest of her life.

The plaintiff testified that she thought her memory was not improving. She tried to read, but if she left off reading a book for a day or so she would forget what she had already read. She also had problems watching movies because she easily became disoriented. She said that most of the time she is happy, but that every day she feels frustrated. She hoped that the completion of this court case would provide some closure by removing the need to see specialists. She hoped to travel overseas. She said that she had accepted that she was never going to have a career. She was unsure about whether she was likely to get married, and that because of her hormonal problems having a family would be difficult for her.

At home, the plaintiff still argues with her mother because she does not do jobs around the house properly, and does not recognise that she has not done them properly. The plaintiff used to do her own washing, but had problems sorting items before placing them in the washing machine. Her mother now does the washing. Her parents have also commented on her poor time management skills. She is frequently late for, and has even missed, appointments. She uses her mobile phone to remind her of those things, but sometimes she forgets to put the appointments into her phone. She said she recognises the strain that she places on those around her when she is angry and frustrated, particularly her parents. She feels terrible about this, but she cannot do anything about it. When she loses her temper, she is unaware of it. It is only later that she realises that she has lost her temper. She said that she had lost a lot of friends following the accident, because they could not cope with the way she became. She continues to have a good friend who has stuck with her and to whom she is able to speak. She is aware that others think that she is now self-centred. She is aware that on occasions she talks a lot, but she cannot control this.

After her brain injury, the plaintiff’s driver’s licence was automatically suspended. As at the date that she gave evidence she had regained her driver’s licence and was able to drive. A condition of regaining her licence was that she has to wear special glasses both during the daytime and at night. When she is driving somewhere unfamiliar she uses her iPhone to navigate. However she prefers not to go to places that she does not know, because she gets flustered, frustrated and angry if she gets lost. She tries to go to familiar places to avoid the possibility of getting lost. She is not confident about finding her way if somebody gives her directions; she prefers entering the address into her iphone and receiving voice directions telling her “what to do, where to go”.

Since the accident the plaintiff has found that her appetite has fluctuated, resulting in her weight also fluctuating. She has become more interested in fitness programs since the accident as her doctor advised her it was good for her brain. It also helps to keep her busy. Since the accident she finds that she sleeps in a lot, commonly rising at 9:00 or 10:00 am, and sometimes later. She normally goes to bed before 11:00 pm, but sometimes finds it difficult to get to sleep, depending upon what she did during the day. When she sleeps in the afternoon she normally sleeps for about an hour. If she sleeps any longer than that it disturbs her sleep pattern at night.

Before the accident the plaintiff did not suffer from headaches, but since the accident she has suffered excruciating migraine type headaches regularly. She takes medication for this, and does not drive a motor vehicle when she has a headache.

Since the accident she has only had one boyfriend, a man 11 years older than her named Brad. She met him at a takeaway cafe when he smiled at her. She could not remember if she knew him or not, so when she walked past him she said hello to him. He introduced himself and gave her his phone number. They talked for a while and he said that he would like to take her out to dinner. She waited for a long time before ringing him because she did not want to have to explain her situation. She did not want to have to explain about her eye, and why she did not work. However, her mother and her friend encouraged her to call Brad. She did, and they went out for dinner. He was employed as a roof tiler and had two children from another relationship. She and Brad had a relationship for three years, ending about six months before she gave evidence. He suffered from a bipolar condition and used to regularly smoke marijuana. They did not at any stage cohabitate.

The plaintiff stated that she would like to have children one day, if she met the right partner. But she did not know if she could manage it because of her fatigue and inability to do more than one thing at a time.

In cross-examination the plaintiff agreed that overall her relationship with Brad had been happy. Brad’s parents had a house “down the coast”, and the plaintiff and Brad went there are a lot. They went fishing and for walks on the beach. Sometimes they would go to the markets, and sometimes they would go to a club for dinner. Occasionally they would also have Brad’s children with them. When they went to the coast for weekends they cooked a lot of barbecues; Brad would do the barbecue and the plaintiff would make a salad. Sometimes they would go to the club to eat dinner. Both of them washed up after dinner, and shared other domestic tasks while they were down the coast. Brad lived with his parents in Bungendore. She frequently visited Brad at his home, and assisted in some household duties there.

She agreed that she could do shopping, so long as someone gave her a list of things to buy. She has cooked for herself and her brother, and also her boyfriend, but with supervision. She had made lunch for Brad when they were together, but only sandwiches. She agreed that she may be able to cook simple meals such as pasta and sauce, but it was clear that she had had little experience in cooking since the accident.

The plaintiff testified that from time to time she and Brad went out to dinner, to shows and to the cinema. Brad also met some of the plaintiff’s few friends. The plaintiff agreed that she had a reasonable social life, “but not like before”. The plaintiff said that they broke up because they did not “see eye to eye” on a number of topics, including her desire to move out of Canberra some day.

The plaintiff agreed that she had always been interested in fashion and cosmetics. That was why it came as a shock to her to find that half her head had been shaved after the accident. She spent thousands of dollars on hair extensions.

The plaintiff agreed that she frequently used her iPhone, mostly for text and phone calls and Facebook. She also used it for navigation in her car. She would also play games with friends using her phone. She did not use iTunes because it was too complicated for her. She did not have a credit card or a bankcard, so she could not use it because you had to use a credit or a bank card to buy things from that site. She agreed that she did a lot of text messaging with friends, and sometimes sent them photos.

The plaintiff testified that her last holiday had been at Port Macquarie with her parents. She had also been to Phuket in Thailand on two occasions, once with her brother’s then girlfriend and once with another friend. She testified that she could not go on holidays by herself as she would lose things and get lost. However, even leaving those problems aside, she said that she would not want to travel by herself anyway. When asked whether she would have been interested in travelling by herself before the accident, the plaintiff said that she would have loved to “do a Contiki now, like by myself, because you get to meet people, but can’t – I can’t”. She subsequently agreed that even before the accident she would have enjoyed travelling more with a friend or family member or partner.

The plaintiff was cross examined about her performance academically in high school. She had little recollection of her performance. She did recall that she ended a relationship with her first boyfriend in Year 10, which led to her becoming upset and missing some school. She said that she did not leave in Year 11 because she found it too hard, but simply because she wanted to go out and find full time work. She agreed that the Certificate II in Business she completed provided her with basic office skills, such as how to send an email and how to use programs such as Word and Excel. She said that her first job at L.J. Hooker was as a Business Systems Operator, but she would also cover reception during the lunch hour. Her role as a Business Systems Operator was essentially data entry. She also had to print off brochure and advertising material and keep the filing up to date. The tasks of a Business Systems Operator grade two were the same as those for a grade one, but in addition involved answering phones, and more communication with agents and clients. During the time that she was at L.J. Hooker, the plaintiff completed two in-house training courses, Certificates I and II in Business System Operation. These were specialised courses assisting her to understand and use the systems and equipment that L.J. Hooker used. She also commenced, if not completed, a Certificate III in Business System Operation at L.J. Hooker. The plaintiff testified that she did not simply enjoy the office administration work at L.J. Hooker, she loved the idea of becoming a real estate agent. She agreed that the Certificates that she undertook at L.J. Hookers were not directed towards obtaining qualifications as an agent, but they were a step along the way. Enrolment records tendered at the hearing show the plaintiff withdrew from a Certificate IV in Property (Real Estate) following the accident.

It was suggested to the plaintiff that at the time of the accident she had no real idea of what real estate salespeople did. She disagreed with that, saying that half of the work she did for them “was learning”, presumably meaning that she was learning about real estate sales. She agreed that she did not have any contact with clients and that she had not gone out with salespeople to see what they did outside the office.

The plaintiff agreed that life had improved after the initial intensive treatment she received following the accident, but she was still not the same person that she used to be. She agreed that she had been able to regain her driver’s licence, had been able to socialise again, had been able to have a relationship and had been able to look after herself in terms of her personal care. She also agreed that with some difficulty she had been able to undertake domestic tasks. She was able with some difficulty to plan her day by writing down those things she needed to do. When asked about her ability to manage money, she said that whenever she got paid from Centrelink she withdrew her whole pay and gave it to her mother because she was very bad at managing money. By that she meant that sometimes she would spend too much and would not have any money left for the rest of the fortnight. She would spend money on things that she did not need, like clothes or handbags. She said that she buys things because she is sad about where her life is at the present time, so she buys things to cheer herself up. It was suggested to her that if she did not have her mother to hold her money for her, she would be able to ration her money until the end of the week. The plaintiff responded that she ”tried to do that” but cannot.

In cross-examination the plaintiff also referred to her ongoing problems organising herself and managing her time. She has some difficulty in waking up in the mornings, with her mother having to encourage her to get out of bed for appointments. She said that it is not that she prefers to stay in bed, but her concept of time is not now what it was before the accident. She said that in the morning when she gets out of bed she makes herself a juice or coffee, and then showers herself and gets dressed. She does not usually eat breakfast. Her mother usually makes her lunch. If her mother is not home she just has toast for lunch. It was suggested to the plaintiff that if she was living in a small apartment she could keep it clean. She said that she could do basic chores such as making her bed. She felt that she would need to be shown how to clean a house properly before she could do it herself. She was interested in having her mother show her how to cook a range of meals.

She felt that she needed supervision when cooking because she was “clumsy”. When asked what she meant by that, she referred to the incident where she burned her arm while trying to manage more than one task simultaneously in the kitchen. When it was suggested to her that had only occurred once in seven years, the plaintiff said:

That’s correct but also I had, like, when my mum used to work my mum used, like, it was a roast for dinner and she wrote down instructions for me to follow. And what happened was I got distracted by, like, my friend came over and I got distracted from the time I had to put the roast in the oven to the vegetables, like, I think it was half an hour difference and I couldn’t – or 15 minutes or 20 minutes – I could not understand, like, from what my mum wrote down how long the roast had to be in the oven for. I couldn’t readjust the timing and the, like, according to the time that I had just realised, oh my god I had to put the roast in the oven. I didn’t understand the timing difference so I burnt, accidentally, the vegetables and the roast was not the best. So, it was a disaster.

It was suggested to the plaintiff that she had learned from this experience. She said:

But one thing about – yes – but one thing also you have to understand is that I get very stressed and upset when I do things wrong because I feel as though somebody of my age should be able to know how to do it. And I get upset because, and frustrated, that my brain doesn’t work the same way anymore…
I don’t cook anymore because of that reason. I’ve been disorientated. Like, scared from it, like, put off. It has scarred me. Like, I know that may sound silly to you but to live day in and day out being disappointed in what I’m capable to do now is very hard.

The plaintiff said that after dinner she likes to watch television. She has a DVD player at home which she can operate. She is capable of getting herself to bed of an evening. She said that sometimes she wakes up in the middle of the night for no reason and finds it difficult to fall back asleep.

The plaintiff agreed that she would like to learn new skills in order to make herself more independent. She agreed that if she had a partner in the future she would like to be able to cook for him. She also agreed that if her partner was working she may employ a cleaner periodically to do a complete clean of the apartment. She said that she would also like to find part-time work for herself in the future, although her immediate plan when this court case was concluded was to travel. She was not currently registered with an employment agency, although she intended to register in the future. Her brother has told her he is willing to travel overseas with her, but would prefer it if she brought a girlfriend with her.

The plaintiff said that she would eventually like to buy a small house if she was able to find a partner. She was unsure whether she would stay at home with her mother and father until she found another partner.

In re-examination the plaintiff was asked what she had meant when she referred to herself as clumsy. She said that sometimes she would drop things or spill things or she would lose things. When asked how she came to lose things, she said:

I try my hardest to put them in a safe place and easy to remember where they are but then when, like, I go away for like 5, 10 minutes and I go back to get that item I can’t remember where I’ve put it even though I tried my hardest to put it in a, like, and easy spot to find it but I just, yes, can’t find it.

The plaintiff went on to say that sometimes she would forget why she had gone to a room, such as her bedroom. She said that she would go to a room to look for something, and would then forget what she was looking for. When that happened she felt frustrated and angry with herself.

Finally, in re-examination the plaintiff was asked whether she was able to learn new things. She answered:

Yes. I always try to learn new things. Like, I try to learn new games. Like, my mum’s friend said [sic] that played Words With Friends, you know, and I’m getting good at [sic] because I’ve been doing it for so long and I learnt that because of my mum’s friend., Yes, just I like to learn new things all the time. It doesn’t mean that I’ll remember them but I still like to learn new things.

Helen Irene Hulanicki

Helen Hulanicki testified that she is the mother of the plaintiff. She said that the plaintiff is currently 28 years old, and she has a younger brother, Adrian, who is a licensed electrician and is in the process of setting up his own business. After the plaintiff was born, Mrs Hulanicki said that she worked at the Canberra Labour Club for about seven years before becoming employed at Woolworths. She worked at Woolworths for 20 years, retiring in April 2013. At Woolworths she worked in the cash office. She has been married for over 30 years.

Mrs Hulanicki said that the plaintiff had always been a really good child who enjoyed going to school in primary school. Her initial secondary schooling was at Merici College, where she engaged in a “laptop program”, doing all of her work on a laptop computer. She left Merici College and went to Belconnen High School where she became involved in a relationship with a young man which led to her missing some classes. She commenced Year 11 at Ginninderra College, but did not complete college.

While she was at college she participated in work experience at a suburban hairdresser, and after leaving college she obtained an apprenticeship as a hairdresser. Mrs Hulanicki said that the plaintiff loved working as a hairdresser but had to give it up because she started getting bad eczema on her fingers to the point where they were splitting so badly she could hardly wash hair anymore. Thereafter she obtained various retail positions, including working at Woolworths for a while. The plaintiff had then indicated that she wanted to do something more with her life, and arranged to undertake an administration course at Capital Careers. Through that course she got a job at L. J. Hooker. Mrs Hulanicki said that the plaintiff loved working at L. J. Hooker and was really interested in the job. She said that the plaintiff obtained the position at L. J. Hooker on her own, and was very happy about being offered the job. The plaintiff got on very well with the staff in the office where she was employed. Mrs Hulanicki said that she was quite proud of the plaintiff at that stage because she was really trying hard to get ahead. She had been through a stage of life where things were not great, but had matured and was really determined that she wanted to make something of herself.

Mrs Hulanicki said that the plaintiff was in Canberra Hospital for about two and a half months before she was moved to Liverpool Hospital. She said that she initially stayed with the plaintiff every day, from 8:00 in the morning until 9:00 at night. Mrs Hulanicki began to suffer from anxiety, for which she received medication. She said that the plaintiff preferred her to assist with her care in hospital rather than the nurses. She did things for the plaintiff such as shaving her legs, washing her hair and bathing or showering her. She also had to assist the plaintiff in using the toilet because she was very unbalanced. For a long time the plaintiff could only eat extremely soft foods. In addition she had to stay in bed in order to avoid falling and disrupting her fractures. The plaintiff was restrained in bed, and when she got out of bed and sat in a chair she also had to be restrained. Mrs Hulanicki said that the plaintiff would want to move from the bed to the chair and vice versa on a regular basis, and that she would assist the plaintiff in doing this. It would take a while for Mrs Hulanicki to undo the restraints, which would cause the plaintiff to become angry.

Mrs Hulanicki recalled that the plaintiff remained at Liverpool Hospital for about three or four weeks. She and her husband stayed with her for as much of that period as they could, both taking leave from their employment. The plaintiff became very depressed in Liverpool Hospital, and eventually those treating her allowed her to return home on the basis that Mrs Hulanicki arranged rehabilitation for her in Canberra. When they returned to Canberra the plaintiff received the services of a private rehabilitation consultant through the defendant’s insurers. When the plaintiff returned home, Mrs Hulanicki was still showering her because of her balance problems. Initially, the plaintiff also had to have somebody walking with her everywhere she went because of her balance problems. She was diagnosed with vertigo, and her doctor recommended a gym programme.

After three months Mrs Hulanicki had to return to work, but her husband had a much longer period of long service and personal leave accumulated. Her husband continued taking the plaintiff to medical appointments, rehabilitation sessions and the gym. In the early days after she returned home, the plaintiff also did a lot of resting and sleeping.

Mrs Hulanicki testified that, after returning home, the plaintiff was initially looking forward to going back to work. However, after a few weeks at work, the plaintiff would come home every day very distressed. She told Mrs Hulanicki that she was not coping. She was also very tired all the time. Mrs Hulanicki suggested that the plaintiff resign, because it was not fair on those the plaintiff was working with. It apparently did not surprise Mrs Hulanicki that the plaintiff was unable to cope with her former employment. She testified that the plaintiff, in the months leading up to her return to work, was “still very much like a small child”. She would say inappropriate things, and had commenced swearing, which was something that she did not do prior to the accident. She would also engage in childish behaviour, such as putting her hand up in the middle of conversation and asking “Can I talk? Can I talk?”

The plaintiff now has difficulty in organising herself. Mrs Hulanicki said that without assistance it would probably take the plaintiff two or three hours to get herself ready if she had an appointment. Mrs Hulanicki said that she encouraged the plaintiff to be as independent as possible, but “it wears you down after a while”. She said that the plaintiff also tries to be independent, but she becomes very frustrated because she knows her limitations. The plaintiff now has a problem with self-motivation. If left to her own devices she will take a long time to prepare herself for the day. She is now easily distracted. She becomes very frustrated with her disabilities.

Prior to the accident the plaintiff was a good driver. Subsequently, whilst her driving skills are adequate, she has problems with her depth perception which cause her some problems, but she manages. She had a lot of friends prior to the accident, but now has limited personal contact with friends. She is usually home every night in her bedroom sending messages on Facebook or playing games. She no longer has much of a social life. She occasionally goes out for somebody’s birthday, and very occasionally may go clubbing with her friends.

Mrs Hulanicki described the plaintiff’s former partner, Brad, as being very good and caring towards the plaintiff. Mrs Hulanicki, however, had an argument with Brad which resulted in him no longer attending her home. The plaintiff, therefore, spent more time at Brad’s home. She said that the plaintiff was very upset when the relationship with Brad broke down.

Mrs Hulanicki testified that the plaintiff follows written instructions if they are left for her. However, if she gets distracted she cannot easily adapt to changed circumstances in following written instructions.

Mrs Hulanicki testified that she has attended a meeting with the public trustee. She considered it an excellent idea that the plaintiff’s funds be managed because the plaintiff has no idea of taking care of her own funds. She said that the plaintiff tends to overspend, saying that she has nothing in her life now but shopping.

Mrs Hulanicki said she does not like to leave the plaintiff at home alone, because she does not tend to prepare meals for herself, even though Mrs Hulanicki has left frozen meals in the freezer. The plaintiff tends to neglect herself in that way. Mrs Hulanicki believed the plaintiff can use a washing machine, but usually does not do so because Mrs Hulanicki usually does the washing.

Mrs Hulanicki testified that she has seen no improvement in the plaintiff in the last 12 months. She cannot make decisions for herself, and always needs someone to guide her.

In cross examination, Mrs Hulanicki agreed that the plaintiff would like to be more independent. She agreed that if she was taught the right way, she could probably be more independent, “but if anything went wrong she’d then self-doubt and she get back to square 1 where she’d be stressed over it going wrong”. She also accepted that after this case is over, there will be an opportunity for an occupational therapist to teach the plaintiff independent living skills. She was aware that the plaintiff and Brad had occasionally gone away together for weekends, and that on those occasions the plaintiff assisted Brad with some of the household tasks.

Although the plaintiff was welcome to live with Mrs Hulanicki for as long as Mrs Hulanicki was physically able to cope, she hoped that the plaintiff would one day find a partner. However, such a person would have to be aware of all of her disabilities.

Mrs Hulanicki said that she understood that the alternative to the public trustee was a private trustee. She said that they preferred the public trustee as “there’s more certainty of them not going bust, I suppose”. She agreed that she did not know a great deal about professional fund managers such as Perpetual Trustee. She said that the most important thing for her was that the plaintiff’s money was taken care of so that it would last the plaintiff her lifetime.

Mrs Hulanicki agreed that during the time the plaintiff spent in hospital there were staff ready, willing and able to attend to her needs, and that if she or her husband had not been there to do things for the plaintiff, the staff would have done it.

Later in the hearing Mrs Hulanicki was recalled to give further evidence. She testified that the plaintiff has been “fixated” on leaving home since she returned home from the hospital. She is aware that the damages to be awarded to the plaintiff will be held in trust, and that it will be for the trustee to determine how it would be spent, but she would be pushing for the plaintiff to have a small unit close by the family home. Mrs Hulanicki confirmed that her health and that of her husband had been adversely affected by the plaintiff’s accident, and the need to care for her.

In further cross examination Mrs Hulanicki said that she had noticed over the last couple of years her husband was not coping at home, even with the simplest of things. She said that he had coped reasonably well for a couple of years after the accident, but that it all became too much for him.

Mrs Hulanicki said that while the plaintiff wants to travel overseas, she also wants to move out of the family home. She accepted that the plaintiff had travel overseas on two previous occasions, and that those trips had gone satisfactorily. He also accepted that the plaintiff had spent weekends in Sydney with girlfriends without any problems. She also accepted that there were no definite plans at the present time for the plaintiff to move out of the family home. It was suggested to her that the plaintiff would stay at home with her parents until some other arrangement was made, and Mrs Hulanicki answered:

I’m presuming only for a short time, though, because I think we both need to have our space away from each other. It’s – as much as we love her and we want to be able to give her that supported home, it’s just not working because we are all falling apart as a family. And I think it’s only fair to her and us if she does have her unit, because that’s something that she’s always wanted and I think it’s only fair for her to try and develop independence away from us so that we can still support her as the family unit, not just deal with all her problems, because I really don’t think that we down the track would be able to survive that.

Mrs Hulanicki said that she wants the plaintiff to have an apartment because it will be easy to maintain. She agreed that a cleaner could be engaged to come in once a week or once a fortnight to give the apartment a thorough clean. She is prepared to provide the plaintiff with emotional support, but finds it difficult to continue to provide physical assistance. She agreed that she would stay in contact with the plaintiff in the future, and would probably speak to her every day. She would probably also visit the plaintiff a couple of times a week.

Lisa Rock

Lisa Michelle Rock gave evidence for the plaintiff. She is the sales system manager for L. J. Hooker, working for seven franchises. She commenced working at L. J. Hooker in Canberra in May 2004, after previously having worked for other L. J. Hooker franchises on the south coast of New South Wales. In about June 2004 she was a Business Systems Operator at L. J. Hooker when the plaintiff commenced at L. J. Hooker. Business Systems Operators managed all the administration for the sales teams in real estate. Ms Rock was the lead Business Systems Operator, and it was part of her duties to train the plaintiff. The plaintiff’s duties included managing sales from the appraisal stage, listing presentations, following up appraisals, managing the database, processing all the advertising including internet advertising, arranging window cards, brochure orders and letter drops. She also processed sales, exchanged sales, receipted trust monies and processed sales through to settlement. Ms Rock went on maternity leave on 28 February 2006, shortly before the plaintiff’s accident. The plaintiff took over Ms Rock’s duties while she was on maternity leave. It was anticipated that she would continue in that position while Ms Rock was on maternity leave, and would continue to assist when she returned to work part time. Effectively, the plaintiff was to become the lead Business Services Operator at the franchise.

As part of her duties Ms Rock assessed the plaintiff’s efficiency in her duties. She said that the plaintiff was well able to carry out the job. She was very efficient, and had learned to prioritise tasks, and take notes of what she needed to do. She and the plaintiff would take jobs from seven or eight agents throughout the day, and the plaintiff managed to prioritise that. She could also liaise with sales people quite well. The plaintiff would also, from time to time, fill in on reception. She related very well to customers. She also had very good computer skills. Before the accident, Ms Rock discussed potential career paths within the real estate industry with the plaintiff. The plaintiff had indicated she wanted to move into a personal assistant role initially, and later into sales. She said that there were career paths available to the plaintiff within L. J. Hooker which would have allowed her to move into sales after gaining experience as a Business Systems Operator. She was aware that the plaintiff was engaged in an in-house training program run by L. J. Hooker at the time of her accident.

Ms Rock testified that she has completed courses which would enable her to become a registered real estate agent, but she has not sought registration because she did not want to go down that path. However, having completed the necessary courses to achieve registration, and having worked with the plaintiff, she was of the opinion that the plaintiff would have been able to complete the courses required to obtain registration as a real estate agent. At the time that she commenced work at L. J. Hooker, the plaintiff was 18 years old. Ms Rock said that in the time that she worked at L. J. Hooker, she saw the plaintiff’s concentration and responsibility develop such that they were willing to allow her to take over the lead Business Systems Operator role. Before the accident the plaintiff had no problems with her memory, and had a lot of friends in the workplace.

Because of the plaintiff’s accident, Ms Rock returned to work earlier than anticipated, and was working at L. J. Hooker when the plaintiff returned to work. The plaintiff returned in her former position, and Ms Rock was required to supervise her. She said that the plaintiff was different when using the computer, a lot more hesitant. She crashed the office system a couple of times, requiring others to bring it back online. Staff at L. J. Hooker were unwilling to tell the plaintiff about these mistakes. When she returned to work at L. J. Hooker it became obvious very quickly that the plaintiff was not capable of performing all of her former duties. Ms Rock noted that the plaintiff was a lot clumsier, and had a much reduced attention span. Ms Rock was often required to fix the plaintiff’s work after she had gone home. Over time she noticed a change in the plaintiff’s motivation to work. Initially she was keen to get back to work, but when it became apparent to her that she could not perform to the level that she had previously, her motivation and interest started to wane. The plaintiff also came into conflict with others in the workplace. Ms Rock discussed the plaintiff’s problems in the workplace with Debra Weir, the plaintiff’s case manager, and it was decided that it would be best if the plaintiff were to leave. Ms Weir spoke to the plaintiff, and ascertained that the plaintiff herself was not happy at L. J. Hooker and wanted to try a different career path. The plaintiff apparently thought she might like to work in childcare, and Ms Rock organised work experience for her at a childcare centre. The plaintiff lasted only about one week.

Ms Rock testified that she remained in contact with the plaintiff after she left L. J. Hooker, although they have lost contact in the last couple of years. She used to see the plaintiff regularly for lunch, but found it quite hard to maintain that friendship. She described the plaintiff as very needy, and as a full-time working mother she did not have the time to devote to the plaintiff.

In cross examination Ms Rock said that in the ACT in order to qualify as a real estate agent you do not need a Year 12 certificate. She said that when the plaintiff returned to work at L. J. Hooker after the accident, she was there for between six and 12 months. She said that there is a distinction between a registered real estate agent and a licensed agent, with the latter requiring extra study and the additional cost of yearly renewal of the licence. She agreed that the skills involved in working in an administrative capacity as a Business Systems Operator are quite different to the skills involved in being a real estate agent. She accepted that at the time of the accident the plaintiff had some training and experience in administrative or clerical duties, but had no experience in sales. She also accepted that there was really no way of saying how the plaintiff would have coped in a sales role within the agency. She agreed that the plaintiff resigned her position at L. J. Hooker, and was not dismissed.

Adrian Hulanicki

The plaintiff’s brother, Adrian Hulanicki, was 16 years old at the time of the plaintiff’s accident, and was 23 at the time he gave evidence. He has recently started his own business as an electrician, but continues to reside in the family home with his parents and the plaintiff. He has been involved in the plaintiff’s care since the accident. There have been occasions when his parents have been away overnight when he has had responsibility for the plaintiff. To his knowledge, the plaintiff has not spent a night alone since the accident. He testified that he would be fearful of leaving the plaintiff alone at night because she would probably hurt herself. He said that she would probably go into the kitchen and leave the stove or oven on, or something like that. He said that the plaintiff struggles to undertake small tasks, and becomes frustrated. He testified that her emotions are very hidden, but when she is sad she becomes very quiet and withdrawn. She may go and hide in her room for days. He said that the necessity of caring for the plaintiff had affected his parents greatly, and had also placed a strain on him.

Adrian Hulanicki was cross examined about the trip the plaintiff took to Thailand with his then girlfriend. He said that he was not happy about the plaintiff going on the trip, and tried to talk his sister and his then girlfriend out of going. He was unable to go with them due to work commitments. He agreed that when the plaintiff returned home she said that she had enjoyed herself. He said that he had also been concerned when the plaintiff went away for weekends with her boyfriend, but he knew that Brad lived with his parents. He had met Brad’s parents and they were “very lovely people, they were very caring people”.

He testified that when he was home alone with the plaintiff he would watch her “most of the time”. He had never seen her leave the stove or oven on, but had been told by his parents that she had done so in the past. He agreed that the plaintiff frequently went to the gym by herself, and that he was not aware of her coming to any harm at the gym. He was also aware that the plaintiff drives herself places she wants to go.

Ian McCubbin

Ian McCubbin is a real estate agent and a franchise owner of a number of L. J. Hooker franchises. He testified that he is familiar with the level of earnings available to real estate agents and others involved in the real estate industry in the ACT. He said that junior administration people would probably earn around $40,000 a year, and a personal assistant to a real estate agent would earn around $40,000 a year plus bonuses. Real estate agents would earn $45,000 - $50,000 at the lower end, with an ability to earn much higher remuneration. He said that an income of $75,000 - $80,000 a year would be expected for a reasonably skilled operator.

A statement dated 29 April 2009 prepared by Mr McCubbin was tendered as evidence. In that statement he recorded that the plaintiff began her employment at L. J. Hooker in Kaleen on 8 June 2004. Although she had no experience at that time, she quickly proved to be a good employee. He described her as even tempered and well mannered, and keen to learn the job. She worked well with her colleagues and handled the workload without any complaints or problems. She developed friendly relationships with staff and clients. By late 2005 and early 2006 Mr McCubbin thought of the plaintiff as an ideal employee. When Lisa Rock was due to have maternity leave in about March 2006, the plan was for the plaintiff to move into the position of senior Business Systems Operator to replace Ms Rock. Mr McCubbin did not have any conversations with the plaintiff about her future career plans, but he thought that it was realistic that she could take the next step to become a personal assistant to a member of the sales staff. He also believed that, at a later time, with more maturity and experience, she could have moved into property management or sales.

He described the plaintiff as being a very different person when she returned to work after the accident. She had poor concentration and forgot a lot of detail that was easy for her to retain before the accident. She had difficulty seeing the computer screen clearly. She made mistakes apparently related to her lack of concentration and her reduced ability to handle the complexities of the job. She also began to have some mood swings after the accident. She became more frustrated about her own work problems, because she could not do the things that she had done before the accident. He said that the plaintiff began to lose interest in the job, and he contacted her rehabilitation caseworker to assess the situation and assist the plaintiff. Subsequently the plaintiff said that she could no longer continue in the job, although she stayed at L. J. Hooker while she was helped to relocate to another position.

In cross examination Mr McCubbin agreed that the plaintiff remained at L. J. Hooker for the best part of the year after her return to work. He said that they worked with the plaintiff’s case workers for some time to overcome the problems she was facing until it reached the point where it was clear that it was just not going to work. He also agreed that the plaintiff had not completed her training to the point where she could have made a decision about whether she wanted a career in sales or in some other aspect of real estate.

Dr Christian Wriedt

Dr Christian Wriedt, a neuroradiologist, prepared a report dated 31 October 2013. He noted that on a CT of the plaintiff’s brain performed on 6 March 2006 the following was observed:

a) a depressed fracture of the right parietal with mild comminution along the anterior edge of the fracture. There was a small underlying right-sided extra dural haematoma and a small left-sided sub dural haematoma in the parietal region;

b) a transverse fracture of the base of the skull extending from the mastoid, involving the right petrous temporal bone, the clivus, the body of the sphenoid and extending through into the floor of the pituitary fossa. High density fluid within this sphenoid sinus was consistent with blood;

c) free intracranial air, lying above the fractures through the mastoid and petrous temporal bone air cells;

d) fluid is present in the middle ear cavities on both sides, and in the clinical setting is most likely blood from the traumatic fracture;

e) subarachnoid blood was present in the quadrigeminal cistern and in the left sylvian fissure;

f) hemorrhagic contusion of the left anterior temple [sic] lobe and adjacent posterior aspect of the frontal lobe. Hemorrhagic contusion was also present in the posterior and posteromedial aspects of the right temporal lobe; and

g) there is mild mid line shift from right to left. There is also diffuse swelling within the brain with effacement of the cortical sulci.

Based upon the pattern of fractures and their location, the force occasioning the fractures was almost certainly applied from the right side. He considered the transverse fracture of the skull base to be consistent with a high impact force. In his report Dr Wriedt was asked to express an opinion whether the pathology to the affected areas of the plaintiff’s brain increased the risk of the plaintiff developing dementia including Alzheimer’s disease, or general deterioration in function as she aged. After noting that functions of the brain vary according to the handedness of the patient, he said:

There has been substantial injury to the medial aspect of the right temple [sic] lobe. This area is involved in the pathological changes found in Alzheimer’s disease (the changes are also found elsewhere in the brain) and as such the patient will most likely have a substantial reduction in brain cells and their connections with other parts of the brain. I cannot quote a scientific paper to you but one would expect that this patient would be more likely to develop dementia such as Alzheimer’s disease. In addition to this, the brain has shown a generalised shrinking consistent with a reduction in brain substance. The extensive changes in the deep white matter of both cerebral hemispheres would also make it likely that there is interruption of connections between different parts of the brain and hence loss of function due to this is highly likely.

Dr Wriedt expanded upon his opinions in oral testimony. It is not necessary to record in detail all of his evidence in chief, much of which involved explaining radiological images of the plaintiff’s brain. What was of significance, to my mind, was his observation that certain aspects of the plaintiff’s brain, in particular the sulci, show the type of pattern that you would not see on a normal 21-year-old, and which one would expect to see for somebody who is in their 60s or 70s or someone who has done something to abuse their brain, such as high alcohol consumption or abuse of drugs.

In cross-examination Dr Wriedt said in relation to the prospect of the plaintiff developing dementia or cognitive deficits in later life:

In dementia, Alzheimer’s dementia which is the commonest form of dementia, when you look at the brain substance there are – loss of brain cells in certain areas and there’s replacement or deposition of certain proteins which are called amyloid, amongst other descriptors, and when you correlate the histology findings – in other words, what is seen under the microscope with MR, one of the things is that the changes are associated with a loss of brain substance. If you then step one step from that and there’s a type of imaging called functional imaging where you can look at the activity of the brain, and you can look at it in multiple ways, but one of the ways in which you can look at it is with a type of glucose and the brain cells work on glucose. So when you then look at those particular functional imaging there is a reduction in function in the areas that correlate with imaging. So, if you tie in the histological finding, loss of the brain cells, amyloid deposition, the anatomical findings and the functional findings there is a loss of brain substance. So if you have a loss of brain substance in this setting, it’s not unreasonable to argue that as time goes on you will get more loss of cerebral tissue, because that’s what happens with this, as we get older we do lose brain cells no matter how smart we think we are, and it’s how we compensate for that. And if you – part of how you compensate is your reserve. So if you reduce your reserve then it becomes difficult to compensate. And if you look at other forms of dementia, which one of the next commonest one in this society is what they call multi-infarct dementia, and that’s associated with multiple small losses of blood flow to certain areas of the brain, which then kill the cells. And as you go on with these multiple little attacks of blood vessel interruption and loss of brain tissue you get to the point where it becomes… dementia. So there is a very well recognised form of dementia called multi infarct dementia. So that was the basis of what I was saying, that we still have gaps in our knowledge about how to correlate certain macroscopic findings with functional findings.

In cross-examination Dr Wriedt agreed that the state of scientific knowledge on any correlation between brain damage and the onset of dementia in someone such as the plaintiff was not such as to demonstrate scientifically a correlation. He accepted that his evidence concerning the prospect of the plaintiff developing dementia as a consequence of her injuries was only a theory. He also accepted the proposition that the literature on the subject suggests a significant difference between genders in terms of the risk of developing dementia following traumatic brain injury, with males being at greater risk.

Professor Michael McCrea

Professor Michael McCrea, a clinical neuropsychologist in the departments of neurosurgery and neurology at the Medical College of Wisconsin gave evidence via telephone. His report of 8 May 2013 was received as part of Exhibit 8, the plaintiff’s medical expert reports. Professor McCrea’s expertise was principally in the area of the effects of traumatic brain injury. He noted the injuries sustained by the plaintiff (which are not in dispute) and noted that her injury had resulted in significant physical, neurocognitive and neurobehavioural impairments that negatively impact her ability to function independently. These included:

a) Neurocognitive Impairments: Serial neuropsychological assessments over a period of several years have demonstrated findings of significant impairments across multiple cognitive domains, including memory, attention, working memory... and higher order executive functions... These cognitive domains are well recognised as highly vulnerable to the effects of severe [traumatic brain injury] and, in this case, are consistent with the functional neuroanatomy of [the plaintiff’s] multi-focal brain trauma. Although [the plaintiff] showed some degree of recovery in cognitive functioning after the acute post injury period, most recent neuropsychological assessment also demonstrated lasting and significant impairments in cognitive functioning more than 4 years out from her trauma.
b) Posttraumatic Headache: [the plaintiff] suffers from persistent headaches secondary to her [injury] which may be triggered or exacerbated by tension and/or physical and cognitive exertion, and therefore, necessitate activity limitations.
c) Sensory Impairments: [the plaintiff] has significant right-sided visual impairment that affects her mobility and other activities that require fully intact visual function. She now requires glasses for driving and reading, and experiences blurred vision with fatigue. [She] also has significant hearing loss in her left ear since her [injury].
d) Neurobehavioural/Neuropsychiatric Impairments: ...[the plaintiff] continues to deal with the psychological and emotional effects of her [injury], and the resulting impact on her functional abilities and lifestyle... She reports being frustrated and angered by frequently confronting the acquired impairments from her [injury] and how they limit her functioning on a daily basis... [S]he is forced to balance her wish for complete independence with the reality that she requires some degree of assistance and support due to the nature and extent of her impairments. This often causes emotional strain and tension for the individual, their family and others who make up their social support, and may also negatively impact the quality and depth of peer and social relationships, which is reportedly evident in [the plaintiff’s] case... [To the extent that the plaintiff] may lack insight into or not fully appreciate the nature and effect of her acquired impairments... [issues arise concerning her safety].
e) Balance and Vestibular Impairments: [the plaintiff] continues to experience disequilibrium and balance problems that require her to be tentative in her movements and navigation, and limit her ability to freely engage in a variety of physical activities that she would otherwise be able to perform...
f) Other Functional, Social and Leisure Impairments: the combination of [the plaintiff’s] physical, cognitive, sensory and behavioural impairments resulting from her brain injury have a significant negative impact on her ability to perform normal daily functions customary for the average adult...

Professor McCrea considered the plaintiff’s impairments and disabilities arising from the motor vehicle accident to be permanent, with no further recovery or improvement expected. He was of the opinion that her impairments and disabilities would permanently and significantly limit her social, vocational and functional abilities. In addition, he considered her to be at heightened, longitudinal risk of further midlife or late life cognitive and functional decline based upon her history of severe traumatic brain injury. In Professor McRae’s opinion, the scientific literature consistently documented the association between a history of traumatic brain injury and increased risk of dementia. In addition to the memory and cognitive impairments characteristic of Alzheimer’s disease, dementia associated with traumatic brain injury is more often characterised by more prominent emotional and behavioural features (for example, depression, agitation and irritability) which makes for complicated care planning. He considered that the plaintiff’s increased risk of dementia was based upon her history of severe traumatic brain injury, a period of unconsciousness exceeding 30 minutes, the duration of her post-traumatic amnesia (45 days), the time before she could follow commands (11 days) and the multifocal vascular and structural injury present on neuro-imaging studies. He stated that the association between severe traumatic brain injury and increased risk of dementia was well established in the scientific literature, including a fourfold or greater increased risk of dementia associated with a history of severe traumatic brain injury. He said that it is difficult to predict the precise age of onset of any dementia, but thought that it was reasonable to predict an age of onset in the plaintiff’s 60s. He thought that the plaintiff would require significant care across her lifespan, relative to her same age peers without a history of traumatic brain injury. The level of care she would require was predicted to increase with advancing and progressive impairment, and may ultimately result in a need for a round-the-clock supervision and nursing.

Cross-examination of Professor McCrea centred upon an examination of the scientific literature concerning the association between traumatic brain injury and the early onset of dementia. Professor McCrea was taken to a paper entitled “Risk for late life re-injury, dementia and death among individuals with traumatic brain injury: a population-based study” by K Dams-O’Connor and others in the Journal of Neurology, Neurosurgery and Psychiatry, February 2013. He agreed that the paper found that a history of traumatic brain injury, including all severity traumatic brain injury, was not associated with elevated risk for developing dementia or Alzheimer’s disease. Professor McCrea agreed that a number of other studies quoted in the literature did not support a connection between traumatic brain injury and the early onset of dementia, particularly in females. He was asked to explain why that literature did not support his proposition, and replied:

There are really two critical points in evaluating the science on the association between a history of traumatic brain injury [(TBI)] and risk of dementia. The first that is prominent, that is prominent throughout the literature, is that risk for dementia after TBI is moderated by TBI severity. Those with severe TBI are at highest risk of dementia in the range of that four- plus- fold risk. Those with moderate TBI are at intermediate risk, in that twofold range. And those with mild TBI, even with loss of consciousness, are at no elevated risk. So studies that are inclusive of the all severity spectrum of TBI will of course show no effect or association between history of TBI and dementia, regardless of the outcome metric. By including mild TBI, the effect of it is often washed out, and you’ll find no overall effect for TBI. In many of these studies you will find a very low number of females in that moderate and severe TBI category. Therefore the effect in females is effectively washed out in their hazard ratios or odds ratios. So most importantly, risk of dementia after TBI is moderated by TBI severity, and those in the severe TBI category are at far and away the highest risk of dementia. Furthermore, patients with severe TBI and persistent chronic impairments stemming from their TBI are at the highest overall risk.

Professor McCrea accepted that it is difficult, if not impossible, to predict a precise year or age of onset of dementia for someone who has suffered severe TBI, or even a very imprecise range of years. In the United States roughly less than 10% of women with dementia have an age of onset before 70, and roughly 25% have an age of onset in their 70s. The risk goes up considerably once a person reaches their 80s. He thought that a period of five years from the time that a person suffering dementia required skilled care until their date of death was a reasonable estimate.

In re-examination Professor McCrea said that there is no biologically plausible reason why a severe traumatic brain injury may lead to early onset dementia in a male, but not in a female. He then expanded upon his earlier evidence concerning the relevance of the studies referred to in cross examination:

What I’m referring to there is if one conducts a – either a prospective or population-based study on the association of TBI, globally speaking, across all levels of severity, from mild to moderate to severe, and the risk of late onset dementia, you will find no effect, because the overwhelming majority of traumatic brain injuries in the world, in excess of 80% of all traumatic brain injuries, fall into the mild category.
... And individuals with the [sic] history of mild TBI are not at any elevated risk of dementia relative to the general population. So in essence by – by including individuals with mild TBI in large number[s], in either prospective or population-based studies, you will find no affect between generically [sic] TBI and dementia. But when you are able to isolate the risk in individuals with severe TBI or moderate TBI you will indeed find a stepwise effect, meaning zero association or increased risk in the mild group, a moderately increased risk in the moderate TBI group, and a severely elevated risk in the severe TBI group.

In re-examination Professor McCrea was also taken to the evidence of Dr Wriedt concerning abnormalities revealed in the plaintiff’s neuro imaging. He said that these abnormalities support the biological plausibility of the plaintiff going on to develop early dementia, and supported his view that it was probable that the plaintiff would develop dementia in her 60s.

Professor Kurt Jellinger

Evidence on behalf of the plaintiff was given by Professor Kurt Jellinger, an eminently qualified expert in neurology, psychiatry and neuropathology and the head of the Institute of Clinical Neurobiology in Vienna, Austria. Professor Jellinger provided a report dated 16 May 2013, and also gave evidence via telephone. Professor Jellinger was provided with a comprehensive package of reports and medical records relevant to the plaintiff’s injury and its consequences for the plaintiff. Based upon that material he concluded:

1....it can be stated with definite certainty that all of disabilities including cognitive deficits and behavioural dysfunctions of [the plaintiff] are the sequelae of the motor vehicle accident of 6 March 2006.
2.In view of the fact that all the disabilities including cognitive and behavioural deficits described in various reports in 2010 were seen/observed about or even more than 4 years after the accident, it can be suggested with high certainty that these are definitely permanent...
3.With regard to international clinical and scientific experience... it appears very probable or almost certain that most of [the plaintiff’s] incapacities, in particular her cognitive and behavioural deficits, will progress in intensity in the future...
4.Since, according to international clinical and scientific studies severe [traumatic brain injury], as suffered by [the plaintiff], [is] considered a major risk factor for the development of dementia and/or Alzheimer’s disease, usually much earlier than in subjects with no history of severe [traumatic brain injury], it appears very probable that [the plaintiff] will develop deterioration of cognitive and other higher brain functions in the future...
5.The probable progression of [the plaintiff’s] disabilities, in particular cognitive and behavioural deficits, according to internationally documented experience, will increase the necessity and extent of future care and rehabilitation measures...

In cross examination, Professor Jellinger reiterated his view that severe traumatic brain injury is a very high risk factor, not only for Alzheimer’s disease, but for all kinds of dementia. Professor Jellinger thought that an exact estimation of the degree of increase in risk of dementia in the case of young females with severe traumatic brain injury was almost impossible. He accepted that it was further complicated by the fact that the risk of developing dementia following traumatic brain injury appears greater in males than in females, but considering the severity of the plaintiff’s brain injury he believed it supported the suggestion that she would develop a cognitive impairment or dementia. Professor Jellinger also agreed that it was almost impossible to determine the likely age of onset of dementia. He accepted that the age at which traumatic brain injury is suffered is an important risk factor for the development of dementia, with older people having a higher probability of developing the condition. Professor Jellinger also accepted that factors such as the severity of brain injury are only predictors of the probability of developing dementia, and the outcome is extremely variable between different individuals.

Professor Jellinger was taken to a number of studies concerning the likelihood of dementia developing after a traumatic brain injury, and in particular the likelihood of it developing in females. Professor Jellinger noted that these were statistical studies, and that they did not specify the severity and extent of the brain injuries in the subjects.

In re-examination Professor Jellinger said that he hesitated to apply the statistics in the various studies to which he had been taken to the plaintiff’s case, because they had been intended to predict the correlation between brain injury of varying severities is and the early onset of post-traumatic dementia. He also stated that the gender differences in the studies were indicative of the sample of persons who were studied, because they were drawn from the ranks of people who played contact sport, and in particular American football.

Dr Patricia Jungfer

Three reports from Dr Patricia Jungfer, a consultant psychiatrist, were tendered by the plaintiff. The first report, dated 12 October 2010, noted that the plaintiff was then a 25-year-old single woman who sustained an extremely severe traumatic brain injury on 6 March 2006. Acute-care clinical indicators of Glasgow Coma Score of 3, CT scan findings of multiple abnormalities and a formally measured period of post-traumatic amnesia of 45 days indicated that her injury was categorised as extremely severe. Post accident there had been consistent abnormalities in psychometric testing consistent with the type of injury that she sustained. Testing in 2010 continued to describe abnormalities of new learning, information processing and executive functioning. The plaintiff impairments and deficits from a cognitive perspective were considered permanent. Dr Jungfer noted that in 2008 the plaintiff presented with increased depressive symptoms and was treated with medication, with ongoing adjustment issues related to the accident process persisting. Dr Jungfer expressed the opinion that the plaintiff’s then current conditions were that of a cognitive disorder secondary to a traumatic brain injury and Adjustment Disorder with anxious mood. In the past the plaintiff had suffered a Major Depressive Disorder which was in remission on pharmacotherapy at the time she was seen by Dr Jungfer. Dr Jungfer was of the opinion that the plaintiff’s capacity for paid employment would be severely restricted on the basis of her brain injury impairments. She would also require assistance, supervision to live within the community, and attendant care. She did not think there would be any future improvement.

Dr Jungfer’s second report is dated 30 July 2013. At that time Dr Jungfer considered that the plaintiff no longer had any functional psychiatric disorder. She remained of the opinion that as a consequence of the plaintiff’s traumatic brain injury, she had difficulties with “new learning, memory functioning, information processing and executive skills”. She also had difficulties with regulation of her emotions, had a propensity to be outspoken, lacked insight into the full nature of her impairments and could be impulsive. Dr Jungfer considered these impairments to be consistent with that of a cognitive disorder following traumatic brain injury. Dr Jungfer considered that the plaintiff’s condition had stabilised, and that she would have a permanent requirement for support and care and her longer term employment prospects would be severely restricted. She also expressed the opinion that the plaintiff, as a consequence of her injuries, would have impoverished social networks as there had been unfavourable changes to her personality.

The question is what is reasonable compensation in these circumstances. Whilst it is true that the fee of the NSW Trustee is somewhat lower than that of the Trust Company, the fees proposed to be charged by the trust company as ultimately negotiated are competitive with the fees of the other private trustees whose fees are in evidence...
...[I]t is also necessary to take into account the concern of the respondent’s mother in relation to the NSW Trustee which the primary judge recognised was legitimate, the length of the life of the fund, the need for constant communication between those having day-to-day care of the respondent and the fund manager, and to the fact that White J approved of the appointment of [Trust] knowing of the fee differential between that company, the other private trustees and those of the NSW Trustee. Taking all those factors into account, it seems to me to be reasonable to award an amount for fund management fees on the basis of those charged by the Trust Company.

The decision in Richards v Gray was made in the context of the provisions of the NSW Trustee and Guardian Act2009 (NSW), and in particular s 41 of that Act:

41 Orders by Supreme Court for management of affairs

(cf PE Act, s 13)
(1) If the Supreme Court is satisfied that a person is incapable of managing his or her affairs, the Court may:
(a) declare that the person is incapable of managing his or her affairs and order that the estate of the person be subject to management under this Act, and
(b) by order appoint a suitable person as manager of the estate of the person or commit the management of the estate of the person to the NSW Trustee.

(2) The Supreme Court may make an order on its own motion or on the application of any person having a sufficient interest in the matter.
(3) For the purposes of this section:
(a) evidence of a person’s Capability to manage his or her own affairs may be given to the Supreme Court in any form and in accordance with any procedures that the Court thinks fit, and
(b) the Court may personally examine a person whose capability to manage his or her affairs is in question or dispense with such examination, and
(c) the Court may otherwise inform itself as to the person’s capability to manage his or her own affairs as it thinks fit.

(4) Subsection (3) also applies to an application arising out of the operation of section 37 (2) of the Powers of Attorney Act 2003.

In the ACT, Rule 1015 of the Court Procedures Rules 2006 (ACT) requires that monies recovered by a party under a legal disability (and there is no doubt the plaintiff is such a person) must be paid into court.

Section 25 of the Public Trustee Act1985 (ACT) provides:

25 Payment of money etc to public trustee on behalf of person under disability
(1) Where, in the proceedings, it is adjusted or ordered, or it is agreed, that money, not being money to which subsection (3) applies, be paid to a person under disability (whether or not that person is a party to cause or matter), the money –
(a) shall be paid into court; and
(b) shall, unless the court otherwise directs, be paid out to the public trustee.

These provisions were the subject of consideration by Refshauge J in Singh (by her next friend Singh) v Calvary Hospital ACT Inc [No. 2] [2009] ACTSC 57. The plaintiff in that case was born significantly and permanently disabled, and sued by litigation guardian to recover damages for her disabilities, claimed to have been the result of the negligence of the defendants. The parties agreed upon a compromise of the proceedings, which was later approved by the court. The plaintiff’s litigation guardian wanted the judgment monies to be managed by private trustees, and not the Public trustee. She therefore sought an order to that effect under s 25 of the Public Trustee Act.

Referring to Willett v Fulcher (2005) 221 CLR 627, and Cadwallender v The Public Trustee [2003] WASC 72, Refshauge J considered the regime established by r 1015 of the Rules and s 25 of the Public Trustee Act as “in part, a statutory enactment of a portion of the parens patriae jurisdiction of the Crown which is exercised by the court to protect those persons under a legal disability” (at [11]). His Honour went on to identify three options available to the court in exercising its discretion as to the management of damages awarded to a person under a legal disability: investment of the funds by the court itself, payment of the funds out of court, or transfer of the funds to trustees. Refshauge J noted that the third option is more usually chosen, in which case the court has power to appoint the public trustee, a trustee company or an individual private trustee (or trustees). His Honour stated that the option to appoint the Public Trustee is a statutory one (s 25 Public Trustee Act) and that it has been said (Jones v Moylan (1997) 18 WAR 492 at 496; Morris v Zanki bhnf Zanki (1997) 18 WAR 260 at 284 – 286) that there is a predisposition in favour of appointment of the Public Trustee. Refshauge J then, at [25], quotes from Morris v Zanki at 286:

[I]t is no more than a predisposition... The court has a duty to consider the future management of the verdict moneys and it has a discretion. The governing consideration is “what is best to be done for the [person under the disability]”. He discretion must be exercised judicially. It cannot be determined arbitrarily. Where the court is asked to exercise the power to place funds with a private trustee rather than the Public Trustee the judge must examine all of the circumstances and decide what is in the best interests of the person for whose benefit the funds are held. This will, of necessity, require a consideration of available options and alternatives. But this is not to say that a predisposition towards the Public Trustee is an impermissible fetter on the discretion. It serves a number of purposes. It indicates that the onus is on the person seeking the exercise of the discretion in his or her favour to establish grounds on which the order should be made. It means that if no application is made or if no good reason is shown for preferring a private trustee, the Public Trustee will assume the role. We have chosen the adjective “good” (in relation to the reasons that are advanced in support of the application) quite deliberately. We would avoid other possible descriptions such as “cogent” or “special” or “exceptional”.

In Jones v Moylan, as Refshauge J observed, Wallwork J at 496–7 gave three reasons for the predisposition in favour of the public trustee:

The court noted that some of the reasons for this predisposition are briefly the role of the Crown as parens patriae, the fact that the Public Trustee is a statutory office holder established specifically to administer estates which require protection and the existence of flexibility within schemes for disabled persons.

It is a significant factor weighing in favour of the plaintiff’s damages being managed by the Public Trustee, that the holder of that office is a statutory appointee subject to supervision by the Crown, and that management of her funds by the Public Trustee fulfils, to the extent possible, the Crown’s obligation of responsibility for the affairs of the plaintiff. As the High Court said in Secretary, Department of Health and Community Services v JWB & Anor (1992) 175 CLR 218 at 259:

[t]he parens patriae jurisdiction springs from the direct responsibility of the Crown for those who cannot look after themselves...

The defendant submits that any award of damages to the plaintiff to compensate her for the cost of fund management should be limited to the lower fees charged by Perpetual Trustees for the following reasons:

a)there is no evidence of superior performance, including investment performance, by the Public Trustee compared to Perpetual Trustees;
b)there is no evidence to suggest that there will be any difficulties in communication between perpetual Trustees and the plaintiff or her mother, a factor which was referred to in Richards v Gray;
c)unlike Richards v Gray, a fund manager has yet to be appointed; if the cost of fund management were to be calculated on the fees charged by the Public Trustee, the plaintiff may subsequently choose to have her funds managed at lower cost by Perpetual Trustee, in which event she would be over-compensated; and
d)unlike the situation in Richards v Gray, the evidence in this case indicates that the fees charged by the Public Trustee are not competitive with the fees of other trustee companies, including Perpetual Trustees.

I accept that there is no evidence to support the proposition that it is reasonable to award damages for the cost of fund management by the Public Trustee based upon superior performance by the Public Trustee, compared to trustee companies such as Perpetual Trustees. Similarly, there are no circumstances personal to the plaintiff or her guardian that make appointment of the Public Trustee more appropriate.

The issue of overcompensation is most unlikely to arise. The plaintiff, through her guardian, has indicated a preference for her damages to be managed by the Public trustee. By virtue of r 1015 and s 25 of the Public Trustee Act the damages awarded to the plaintiff must be paid into court and, unless the court otherwise directs, must then be paid out to the Public trustee for management. As such, the court, and not the plaintiff or her guardian, controls the funds until they are paid out for management. When there is no application for the funds to be otherwise dealt with, s 25 mandates their payment to the Public Trustee. In the unlikely, hypothetical case of the plaintiff making an application to have the funds managed by Perpetual Trustee, where the court has already awarded damages based on the cost of having the funds managed by the Public Trustee, there would need to be more put before the court to justify making the order than evidence that it would be cheaper for the plaintiff to have the fund administered by Perpetual Trustees. That amount awarded to the plaintiff for fund management is not a sum awarded to her for use at her discretion. It is a sum awarded to compensate her for the cost of fund management by the trustee she has chosen, being the Public Trustee. In my opinion, the court would not countenance such an application based on the relative cost of management of funds alone, where plaintiff has been compensated fully for that cost.

The evidence certainly demonstrates that the ACT Public Trustee is more expensive than Perpetual Trustees, although whether the difference is such that the charges imposed by the public trustee are “uncompetitive” is debatable. The question is, whether those factors identified in Singh v Calvary Hospital by Refshauge J as founding a predisposition towards having the funds managed by the Public Trustee make it reasonable to impose on the defendant the extra cost of the Public Trustee, compared to Perpetual Trustees, managing the plaintiff’s damages. On balance, I am satisfied that they do. The Public Trustee is a public servant (s 5 Public Trustee Act), meaning that he holds office under the Executive government. This provides for direct supervision and control of the Public Trustee by the Crown in its parens patriae jurisdiction. I note also that the ACT effectively indemnifies the Public Trustee against any liability arising out of any act or omission: s 12 Public Trustee Act. Similarly s 53F of the Public Trustee Act attaches to the ACT any liability that would otherwise attach to members of the investment board under certain circumstances. I note that the function of the investment board is to advise the Public Trustee on the investment of money in the hands of the Public Trustee: s 47. There is no evidence of equivalent safeguards being in place with respect to Perpetual Trustees.

Fund management on fund management

In written submissions after the Court of Appeal handed down its decision in Richards v Gray on to December 2013, the plaintiff’s legal representatives sought to distinguish the decision on the basis that the decision was based on the methodology adopted by the respondent in that case in calculating the future progress of the fund. In my opinion there is no merit to this submission. The decision of the Court of Appeal in Richards v Gray sets out principles of general application, and cannot be dismissed as applicable only to the particular facts of that case. By reference to cases such as Todorovic v Waller (1981) 150 CLR 72, Commonwealth v Blackwell (1987) 163 CLR 428, and Tchadovitch v Tchadovitch (2010) 79 NSWLR 491, the Court of Appeal determined that the discount rate applicable with respect to, inter alia, damages awarded for a liability to incur expenditure in the future is “designed to take into account the effect of inflation and notional tax on income earned from the fund”. With respect to the question of fund management on fund management Bathurst CJ said at [144]–[147]:

There is a certain logic in making an award for damages for fund management on fund management. Once it is accepted that a plaintiff who is incapable of managing a fund as a consequence of injuries received as a result of the defendant’s negligence is entitled to compensation for the cost of a fund management, it may be said to follow that if the fund management fees themselves require management, an allowance should be made to the plaintiff for that fact.
However, I do not think it is appropriate to make such an award. The general principle is a court is not concerned with what a plaintiff does with his or her damages. Although this has been modified in the case of a plaintiff who is incapable of managing his or her award by reason of the injuries sustained, it does not seem to me appropriate to extend this principle to awarding a further amount to cover fees for managing that fund by the multiple iterations proposed.
The court is required in a case such as the present to provide what is a reasonable amount for the costs of managing the fund. It is open to the respondent or perhaps more accurately those representing her, to choose a fund manager with the approval of the court and to negotiate the terms on which the fund manager will be paid. The court should not, in my opinion, order additional amounts on the assumption that fees would also be paid on the amount set aside for fund management costs or indeed on the basis that in the particular case the chosen manager levies fees in such a way as to require the amount set aside for fund management to itself be managed.
Further, as a number of the cases which have rejected such a claim have pointed out, the calculation of the amount to cover fund management on fund management involves either speculation as to the performance of the fund in any given year, or assumptions as to the rate of dissipation of the fund management award which in all probability will bear little relation to reality. The uncertainty of speculation involved is even more apparent when the calculation is done in multiple iterations to produce the ultimate result. It is not for the court to speculate on every possible circumstance but rather to give fair compensation. The provision of an amount for fund management costs in my opinion achieves this result. To provide further funds would lead to the respondent being over-compensated. It was in this sense that Meagher JA in Rosniak (No1) used the expression “double counting” in rejecting a claim of this nature.

In the instant case it is not clear whether the plaintiff will be able to negotiate fees payable to the public trustee, and nor was there any evidence that Perpetual Trustees may be willing to negotiate their fees. That is, however, of no significance. The matters referred to by Bathurst CJ at [147] of his reasons are sufficient to justify the rejection of the plaintiff’s claim.

I note that Beazley P and McColl JA agreed with the reasons of Bathurst CJ.

Basten JA came to the same conclusion for different reasons.

While the decision in Richards v Gray is not strictly binding on this court, in my opinion I should follow it. The plaintiff’s claim for fund management on fund management should be refused.

Fund management on fund income

The plaintiff’s legal representatives also argue that the decision in Richards v Gray on this issue is also distinguishable on the facts of that case. In my opinion, it is not. Regarding such a claim, Bathurst CJ said at [138]–[139] and [142]:

I do not believe this claim should be allowed. First, it does seem to me to be contrary to the requirement in s 127 (1) that the present value of a liability to incur expenditure in the future is to be qualified by adopting the prescribed discount rate. As I have indicated, the discount rate assumes a rate of return sufficient to provide the injured plaintiff with fair and just compensation for the claimed loss: Nominal Defendant v Gardikiotis... The return is assumed to take into account the cost of earning income which would include any fees payable on a consequence...
There are other difficulties. First, the application of a mandatory discount rate... was intended to avoid the need to consider the rate of inflation, consequent changes in wages or prices and the incidence of income tax. The consideration of the income earned on a fund for the purpose of the calculation involves either making two artificial assumptions, one as to the income earned on the fund on an ongoing basis and the other as to the rate of depletion of the fund, or alternatively the court after hearing evidence making an assessment of each of these matters. Even if the cost of earning the income was not taken into account for the discount rate set under s 127, there seems no basis to make an assumption as to the actual income earned for the purpose of the calculation and the court would inevitably be speculating as to what income would be derived from the fund from time to time...
Finally it is said that the exclusion of an award for fund management on fund income will operate unfairly... It cannot be said with any certainty that it will operate unfairly. This will depend on the needs of the respondent and the performance of the fund over a period of 67 years, something that is inherently uncertain.

Early outlays

The defendant’s submitted that it was agreed that there may be an initial outlay of around $500,000 from the judgment sum being the probable cost of purchasing a residence for the plaintiff. However, she accepted that such payment was subject to the Trustee’s approval. In Richards v Gray, deductions were sought for Griffiths v Kerkemeyer costs, solicitor and client costs and for house modifications, Bathurst CJ said of such deductions at [132]–[133]:

The payment out of the fund for house modifications and the costs of a swimming pool is a matter of... speculation. There was no evidence when it would occur and the primary judge was correct in my opinion in concluding that the payment of such amounts would depend on the position of the fund and the needs of the respondent at any given time.
In these circumstances it does not seem to me to be appropriate to make any deduction from the fund for the purpose of the calculation of fund management costs. It must be remembered as I pointed out earlier, that the method of calculation of these costs does not necessarily reflect what would occur over the future and is, as McHugh J explained in Nominal Defendant v Gardikiotis supra, a hypothetical construct. Consistent with that approach it is not appropriate, in my opinion, to speculate whether payments will be made and to adjust the fund accordingly.

Consistent with Richards v Gray, I do not believe it is appropriate to speculate on how or when the plaintiff’s Trustee may seek to dispense the damages awarded. It is not appropriate that any deductions beyond any payments already made by the defendant be deducted prior to the calculation of fund management.

CONCLUSION

I award damages as follows:

General damages

$375,000.00

Interest on General damages

$30,000.00

Past loss of earnings (incl. Superannuation)

$298,393.53

Interest on past loss of earning

$95,485.93

Past treatment expenses

$162,497.72

Future wage loss

$1,252,592.30

Future superannuation losses

$137,785.15

Past domestic care

$234,300.00

Interest on past domestic care

$74,976.00

Future care

$1,177,323.25

Independent living training

$9,300.00

iPhone

$9,830.00

Vital call

$10,197.00

Glasses

$29,387.08

Rehabilitation specialists reviews

$7,500.00

GP visits

$10,000.00

Medication

$11,867.86

Gym

$22,779.50

Case manager

$56,795.88

Travel assistance

$124,584.50

Hair removal

$44,080.62

Future dental

$3,000.00

Future childcare

$50,000.00

$4,227,676.32

ORDERS

I order judgment for the plaintiff in the amount of $4,227,676.32.

I award fund management on that sum to be calculated by the parties in accordance with these reasons and provided to the court.

I will hear the parties as to costs.
I certify that the preceding one hundred and eighty nine (189) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 7 March 2014

Counsel for the Plaintiff:  Mr A J Bartley SC with Mr F Tuscano
Solicitor for the Plaintiff:  Ken Cush & Associates
Counsel for the Defendant:  Dr K Rewell SC with Mr D M Wilson
Solicitor for the Defendant:  DLA Piper Australia
Dates of hearing:  11-12, 14-15, 18-21 November 2013
Date of judgment:  7 March 2014

General damages	$375,000.00
Interest on General damages	$30,000.00
Past loss of earnings (incl. Superannuation)	$298,393.53
Interest on past loss of earning	$95,485.93
Past treatment expenses	$162,497.72
Future wage loss	$1,252,592.30
Future superannuation losses	$137,785.15
Past domestic care	$234,300.00
Interest on past domestic care	$74,976.00
Future care	$1,177,323.25
Independent living training	$9,300.00
iPhone	$9,830.00
Vital call	$10,197.00
Glasses	$29,387.08
Rehabilitation specialists reviews	$7,500.00
GP visits	$10,000.00
Medication	$11,867.86
Gym	$22,779.50
Case manager	$56,795.88
Travel assistance	$124,584.50
Hair removal	$44,080.62
Future dental	$3,000.00
Future childcare	$50,000.00
$4,227,676.32