Jarldorn v Shaw No. DCCIV-97-45 Judgment No. D52

JARLDORN v SHAW
[1999] SADC 52

Judge Lowrie
Civil

THE ACCIDENT AND PLAINTIFF’S INJURIES

The plaintiff alleges that he has suffered serious injuries resulting from the negligent driving of the defendant in a road accident which occurred at Goodwood Road, Goodwood on 19 January, 1994. In the accident, the plaintiff sustained injuries to his left ankle and face. Subsequently, he was obliged to undergo craniotomy surgery and alleges because of the nature of this injury and subsequent surgery he has suffered minor brain damage which has seriously affected both his personal and working life.
The defendant admitted her driving was negligent.
The matter came on for hearing for the assessment of the plaintiff’s damages.
The defendant denies that the plaintiff has suffered any permanent or residual disabilities from his head surgery but accepts that he has suffered a degree of psychiatric trauma from which, with assistance, he will attain a full recovery.
The plaintiff gave evidence and called his friend, Michelle Trenorden, with whom he has been in a longstanding relationship, his mother, Eleanor Andrew, a school friend, Darren Birbeck, and the principal of the Hamilton TAFE College, a Ms Pritchard, where the plaintiff was enrolled in an art graphic course for a short period.
Both parties have called much medical, neuropsychology and psychiatric evidence.

EVIDENCE

I propose to review briefly the evidence of the plaintiff and his lay witnesses outlining my views of that evidence before examining the medical evidence.

PLAINTIFF’S EVIDENCE

Background

The plaintiff gave evidence in this matter over a long period and was subject to a very detailed cross-examination. The plaintiff is now aged 29 years and was born in Whyalla. His parents separated when he was an infant and he later settled in Adelaide with his mother. He said his early life was unsettled and he attended many different primary schools. However, the family settled in the southern districts and he attended the Reynella East High School from year 8 until year 12, being the years 1982 to 1987.
He said he had the impression in the early period that his mother was having an extraordinarily “rocky” time in her life and relationships. However, she eventually married a Mr Andrew when the plaintiff was about 14. This had been an ongoing relationship and his surname was changed to Andrew. The plaintiff has an older brother and he said this change of name “didn’t sit too well .... but that’s life”.
The plaintiff explained that he had an active and enjoyable time in his high school years involving himself with sports, the student council, equality councils and various organisations as well as drama activities. It was apparent in the early stage of the plaintiff’s evidence, that he has a particular bent towards drama and arts. He said in the main school production of “Lord of the Rings” he had the major role. He said he took an active part in and about the preparation of this production. It may well have been a high point in his school years. Obviously the plaintiff found this period of his life enjoyable and fulfilling. He mentioned he received a major citizenship award.
The plaintiff said he sat for matriculation purposes in 1986 and received a high achievement in arts. He said by the end of 1986 he felt that he would enrol for a second attempt at his matriculation. However, he said at this stage an Austudy problem developed with his parents and he was obliged to seek a job because his parents were obliged to repay some Austudy grants. He felt that “soured my stepfather a bit more”.
He said he was then employed as a camera salesman and photographic printer. He said he had been in part-time employment from about the age of 14. He had a number of jobs with this type of position until in about 1989 he was offered by a competitor a similar job. He also explained that he decided to re-enrol for his matriculation and realised he would have to support himself. Consequently he obtained a job in a foundry with his mother’s assistance. It was a fairly heavy manual job.
He said he again re-enrolled and commenced matriculation studies and supported himself in barman type duties. He was asked if his studies this time were successful and he said he passed but it wasn’t enough for university entry level. The plaintiff said that year he studied about five subjects and said it “wasn’t a brilliant pass”.
The plaintiff explained how he felt his lifestyle was hectic and decided to put his name down for a housing trust home which he obtained when he was about 22. He felt he had no other option than to take this housing trust home at Noarlunga Downs and leave home and felt he could “make what I could of life at the time”.
The plaintiff said he moved into his house, cared for himself in the house and garden. He explained how he endeavoured to get work and at one stage painted a mural and no doubt continued his interest in his art.
He said that he felt towards the end of 1993 he was “freelancing” and getting nowhere and that he should undertake further studies and pursue a graphic design course. He ascertained that there was a programme catering for this at the Hamilton Senior Campus. It was a one year certificate course which might enable him to “get your foot in the door” for higher tertiary training. He enrolled for that course in late January 1994. The next day when he was driving his friend’s vehicle unfortunately the accident occurred.
The plaintiff explained how after the accident he attended at the Hamilton campus and endeavoured to complete the course.
The plaintiff explained how he had some prior health problems when he was about 21 when he sustained a punch to the head and a broken cheekbone. He sought and obtained hospital treatment and considered that there were no ongoing health problems.

The Accident

The plaintiff briefly outlined the circumstances of the subject accident. He was proceeding towards Adelaide. His car became stationary in a line of traffic and he observed in his rear vision mirror the defendant’s approaching vehicle. He had the impression from its speed that it was not going to stop and so commented to his friend. That car collided with the rear of his car and projected or shunted his car at an angle into an oncoming vehicle.
He was asked the question:
“Q.... Can you recall what happened to you during these collisions.
A.Not entirely, but I do know that as I came back from after the impact of hitting the steering wheel with my head the blood was powering out on to my T-shirt. I do remember seeing the shocked face of the driver who we hit bang on, and seeing him on the shadow on the windscreen.”
He explained how he was suffering immense pain from his ankle because of the engine block being forced into the cabin area and he had to wait until he was released from the car. The plaintiff also explained how he was holding the gear stick and as a result of that corkscrewing action a finger was forced into his hand. The plaintiff said he was also conscious, apart from his painful ankle, of pain and discomfort in his face, neck and shoulders and chest.

Medical Treatment

The plaintiff was admitted to the Royal Adelaide Hospital and subsequently x-rayed. He was informed that his ankle was in poor shape and underwent an operation on both his ankle and ring finger. He said with his foot he believed he had suffered a multi-fracture of the talus which was repaired.
The plaintiff remained in hospital for about four days and was then discharged. He said he was able to walk with the aid of a crutch. After returning home his mother was able to obtain the use of a wheelchair which enabled him to get to his studies. He said the plaster remained on his leg for about two months.
The plaintiff said that physiotherapy was prescribed and carried out on his ankle movements and at this early time he was referred to the surgeon, Mr Hoare, for a report. He saw him in about April 1994. The plaintiff explained that every morning during this period he would have clear fluid coming from his nose. He said he explained this difficulty to Mr Hoare and, as a result of that, he was forthwith referred by Mr Hoare to a neurosurgeon. He then underwent a CAT scan as well as a lumbar puncture. The plaintiff initially saw Mr Carney, but, because he became unavailable, Dr Molloy attended to his ongoing treatment.
At this stage Dr Tomich became involved because of the isotope testing. The plaintiff outlined the painful nature of the lumbar puncture to assist in this testing. The plaintiff said that he accepted advice from Dr Molloy who performed a craniotomy on 27 April, 1994. He explained in detail this skull surgery and the repair of the hole to prevent the leakage of fluid. The plaintiff has a shaven head and the scar traverses the total frontal area of his skull. It is a very obvious scar.
Prior to the accident the plaintiff had suffered from eczema and since the accident this has become very prominent. I particularly observed this problem in and around his left foot and foreleg.
The plaintiff also outlined details of his nose surgery. He said that after the accident his nose was “mashed up” and he had difficulty breathing which he explained to Dr Tomich who he said had created new nostrils. Unfortunately, he suffered a post-operative infection which required further attention.
The plaintiff said that Dr Molloy had explained to him the nature of his head surgery and that it may result in him losing his sense of smell which has in fact been the case since the operation. Apart from these injuries, the plaintiff said that since the accident he has had difficulties with his neck and shoulder, but, it was now mainly confined to problems with his neck. This, particularly, had hampered his attempted studies. At times he said the neck pain was annoying and unbearable and he could not hold up his head, but this was a fluctuating type of problem. He said he did complain about neck pain to his general practitioner and had been referred for physiotherapy.
The plaintiff described how his problems had caused him such ongoing difficulties that he had returned to Mr Carney who arranged for further scans. Mr Carney then advised the plaintiff that he felt it was a soft tissue problem and referred him to a pain clinic which he attended. He did say that through this time he was prescribed an antidepressant drug called “Zoloft” which was “a sort of keep quiet pill, rather than them finding me a cure”.
He said he had also mentioned to Dr Molloy the pain in his neck and he had accepted Dr Molloy’s view that he has to live with this problem. He said he was aware that in 1996 because his problems were ongoing he returned to see Dr Molloy and was then referred for further x-rays which he said showed a reverse curvature of his spine, and shrinkage in discs, and, was then told that this was a problem he must learn to live with. He said this problem does cause him ongoing problems, including “pain and .... fatigue and agony at the end of the day, or my head is just too heavy”.
The plaintiff mentioned his ongoing difficulty with the flexibility of his ankle and said he had sought physiotherapy and also podiatry advice. He was advised to wear an instep which has assisted his walking pattern. However, he describes himself as being “slightly lame” and walking on uneven surfaces can cause pain.

Effects of Accident

The plaintiff said during school and between the years 1987 and 1994, he had been reasonably fit, engaging in walking and swimming, but since the accident he has not enjoyed these types of activities and now lacks mobility. He said in this time he also developed his artistic skills with the collection and preparation of miniatures, but now finds he cannot hold his head in any position for long periods and his health problems have affected these interests.
The plaintiff said that since the accident he has become rather forgetful and has noticed this in his private life with Michelle as he seems to forget small day to day events. He said Michelle will remind him that she has told him of certain matters and over a period of days he forgets such information.
The plaintiff said that he had been involved in a long engagement, or, friendship with a girl when he was about 20, but it was mutually terminated. He subsequently met Ms Trenorden and this friendship has continued since the accident.
The plaintiff said that after the accident he returned home to his mother’s house and then to the home of his friend, Michelle, who has very much been his caregiver since this time. Michelle has assisted him in his showering and general living. His mother assisted in the initial period, but that was “detrimental to both our health”. He said there had been a flare up between himself and his mother who did not help much any more.
The plaintiff outlined how Michelle was in employment and he would be left home to cope with the household tasks. He felt that he would endeavour to return to his studies. He felt there had been difficulties with the relationship between himself and Michelle and, at the present time, it was “getting back to being workable”.
The plaintiff said he had a “real low tolerance” and lots of things upset him. He said that after his mother’s marriage to Mr Andrew, a child was born of this marriage, Callum, for whom he initially was very close and involved in his upbringing, but, that friendship has completely gone. He was asked the reasons for this and he said:
“I can’t tolerate my mother, can’t tolerate my stepfather, and that’s pretty much - rather than get caught embroiled into forever arguing with them, I’ve just cut ties and, to me, not seeing them is quite a healthy solution for me.”
The plaintiff described how in 1995 he decided to repeat his studies at Hamilton TAFE. He said he was still having set backs with his neck. He did not complete that 1995 year. He felt that it was due to the problems with:
“... the neck strain, the pain, dealing with operations, just recovery from the head and then going into a nose one sort of just knocked me about a bit. Even the anaesthetic and stuff life that, even in recovery, I was just continually vomiting type of thing. It is just real shock to the system for me.”
The plaintiff described now that he has become very much a back seat driver and has continuing problems riding in a car and he seemed to be forever reaching for the brake pedal as a response in all situations.
The plaintiff then said in 1996 he decided to attend the Kingston TAFE. He felt that was “more of a hands-on type of thing. It was slower, you could negotiate a lot more”, and, he thought he might be able to cope and through that gain entrance into, for instance, the North Adelaide Arts School. However, he did not complete that year. He thought this was at a time when he was obliged to undergo a second nose operation.
The plaintiff said he attended at the North Adelaide School of Art, but unfortunately was unable to complete the full components of that course requirement. The plaintiff described how he obtained good scores but he was unable to complete deadlines and “maintaining sound study habits was just an uphill battle for me”.
The plaintiff said that in 1997 again he was obliged to undergo further surgery with some complications and the following year he returned to the North Adelaide Arts School.
Both he and Ms Trenorden have attended and gained much assistance in regard to their respective lives through the assistance of Mr Mark Reid, the neuropsychologist. Mr Reid had suggested to him that perhaps his further studies should be on a part time rather than a full time basis.
The plaintiff said he has not had any major employment since the accident although he has endeavoured to secure such employment.

Assessment of Plaintiff

The plaintiff during his evidence in chief was very forthright and direct and at times wordy in his responses. He tended at times to be argumentative and had clearly expressed his anger at the “system”. He mentioned, for instance, that he at one stage had read a report from a Dr Tottman who had not seen him. He had subsequently contacted him because he viewed his report as ambiguous and offensive and he certainly disagreed with matters stated in that report.
The plaintiff when giving his evidence faced and looked directly to the questioner, and, occasionally when looking at me he would in effect turn the whole of his torso/shoulders rather than make any neck movement. It was apparent when giving his evidence he had little or any neck movement.
The plaintiff also outlined how he had experienced concerns when he attended the office of Professor Wood. He said on entering the office he saw a young lad who he felt looked “pretty trendy”. Professor Wood then arrived in the reception area and went into his office. He said although he was in there for some time it became quite apparent to him that Professor Wood had made a poor attempt to remove lipstick from his face. He said this kept playing on his mind and eventually when there was a break in that examination he went home. The break was made on the pretext that he was going to move his car but, in fact, he then went home.
The plaintiff outlined that he had seen many psychiatrists during the legal process. He felt he had received the most assistance from Mr Reid in regard to his problems particularly within his relationship with Michelle and the reasons why in his view he had become short-tempered and intolerant.
The plaintiff said that this relationship since the accident had some “bad stages”, but they managed to stick together after they had gathered more information. He felt the relationship is now a lot stronger. However, they had obtained separate rooms in the house and separate beds because of his “constantly shedding skin” and continual waking up as these problems would irritate Michelle.
The lack of finance for the plaintiff has caused him concern since the accident. He said he had applied for Austudy and a disability pension and ended up losing both. He had run-ins with people about this funding and now “pretty much Michelle feeds, clothes and shelters me”.
The plaintiff was asked a number of questions about aggressive or violent incidents in his past life. He admitted that in October 1990 he was involved in a car park incident, assaulted, and admitted to the Flinders Medical Centre. At that time he said he was very drunk and had been told by friends that he was in the car park and he had abused a driver who then stopped, the occupants alighted and he was assaulted. There were suggestions that he had been kicked or hit in the head and had suffered a cracked cheekbone. The plaintiff said he was concussed, but denied that his nose was injured.
He was asked questions in cross-examination about the discovery of his CSF fluid leak and he replied:
“A.... It would have been April. Like, that’s when they discovered the hole. It was four months afterwards when they decided that they better do something about it, so that’s four months of walking round with a hole in my head.
Q.     You’re angry about that, aren’t you.
A.     Why not?
Q.     That the medical treatment didn’t pick that up earlier.
A...... If you’re walking around with a gun loaded to your head would you be happy about that; that it could go off at any point and you might be dead?
HIS HONOUR
Q.     Anyway, you’re angry about it.
A.     I was infuriated.”
The plaintiff was asked the following question:
“Q.... How long after the subject motor vehicle accident did it take you to notice any personality change in yourself.
A.This is a period of five years, and there’s been other major events in that, like operations, recovering from operations, trying to learn to walk again, that type of thing, so when they actually started appearing doesn’t really manifest itself into a full-blown problem until the two nose operations, when it’s apparent to everyone that I’m not the person that I once was.”

The plaintiff said he noticed these changes:

“Between ‘95 and ’96, when I decided I wanted to kill the family dog, okay, when I realised I was punching holes in the wall is when I was losing my grip on reality.”

The plaintiff was pressed about his reasons for lack of complaint of his personality changes to examining surgeons and at one stage he said:
“A.... I wasn’t aware of what it was. I thought I had just physical problems that I was getting over, not psychological brain problems as well. We hadn’t put our finger on that until we saw Reid, and that’s when we attribute part of the problems of breaking up the relationship, it was really me flying off the handle.
Q.You noticed that as a symptom during ’94, ’95 and ’96.
A...... When you are riddled with pain you’re not worried about things like ‘I’m pissed off’ type of thing. You just want to get rid of the pain in your neck, in your ankle, in your head, you know, that’s what you’re trying to deal with, is pain management not behaviour management. That’s, like, way down the line.”
He said that he felt he was losing tolerance and that often in various examinations by numerous specialists he was annoyed.
The plaintiff was asked if he had ever been sacked from employment and he volunteered that this had occurred when he had a job with a Chemmart pharmacy at Beach Road, Christies Beach in about 1989. He said the reason was because an apprentice had interfered with the operations of a machine and it failed to work. He was unable to fix this machine, then said words like it is “a complete box of shit”. He said he was subsequently phoned at his home and because of these statements his employment was, he considered unfairly, terminated.
The plaintiff denied that he had kicked the machine, but admitted that he had a personality clash with a man called Mr David Smith who had sacked him. He denied kicking the machine or swearing loudly, but admitted there could have been people in the shop when he had his outburst. He said he had not lost his temper at work on prior occasions.
The plaintiff was pressed in cross-examination about allegations of absence of symptoms or any complaints until 1996. He said, or regarded, himself as having a whole host of problems and it was apparent in his cross-examination of his anger at a number of specialists to whom he had been referred by the defendant’s advisors.
At one stage he was asked whether his neck was examined in 1994 and he answered:
“No, the only helpful doctor I had was Lehonde Hoare. Others were quite dismissive, seeming to think that I couldn’t afford anything or their time, and pretty much didn’t really want to examine me and would rather I was out of the room as soon as possible. Graves, being a surgeon, this is his attitude, and I found Magasdi a very dismissive and non-helpful doctor.”
In cross-examination he was asked to indicate the amount of neck disability and it appeared to be a total movement of something less than 45 degrees to left and right. It was a very guarded and limited movement. Also, in cross-examination, there was anger directed towards his mother and stepfather for their lack of support after his initial attempt at matriculation.
Counsel for the defendant endeavoured to ascertain the extent of the plaintiff’s social and work activities between leaving school and the date of the accident. He initially said he endeavoured always to pursue his arts studies. He was then asked:
“Q. You’d bludged.
A...... I did up my house, I planted trees, I grew a vegie garden. I tried to become a bit more self-sufficient. I planted peach, apricots, citrus, hazelnut, passionfruit vines, raspberries, grapevines, kept broccoli, grew corn, grew sunflowers, kept myself to myself and tried to get on with life.
Q.Would you describe those years, 1991 to 1994, as a period in which you bludged.
A...... No, I would say it was a year in which I couldn’t secure a job due to the job market of the recession.
Q.Wasn’t that phrase the phrase that you used when describing those years to Mr Reid, when you first saw him.
A...... I probably told him I bummed about a bit, but you might be taking me out of context.”

Eventually he said:

“I’ve had a bit of a rocky road of a life, mate, so, yes, I was sort of much trying to put my life in context as to where I should be going in the future.”

The plaintiff again reiterated his acceptance and the assistance he had received from Mr Reid and said:
“He cleared up a lot of the residue problems and what they were attributed to, rather than me flying around the shop accusing everyone of everything and getting totally hostile. He brought clarity. It didn’t fall into place. I have still been trying to deal with the residue problems.”,

and felt that since this time he is no longer depressed but has become hostile.

The plaintiff admitted that he had some psychiatric counselling before the accident about a mistake that he had made in his life when he:
“..... followed some friends to the hills once and took magic mushrooms and ended up at Glenside with drug-induced insanity. I put that behind me and got on with life”.
The plaintiff said this had occurred when he was aged 22 and he was aware that he had spent some days in Glenside under surveillance. He reiterated the mistake and said he got on with his life and has not had any similar experience nor treatment. He agreed that this occurred in June 1993 and prior to his admission he was living with his mother. The problem had developed and she took him to see his practitioner, Dr Liew, and from there he was admitted to Glenside. He proceeded to describe the situation of where he was restrained and that it was a very unsettling experience.
The plaintiff was finally asked in cross-examination a number of questions reflecting on his veracity and they were:
“Q.    The truth of the matter is you had no neck pain until late 1996.
A.     That’s false.
Q.     No concentration problems after 1994.
A.     That’s false.
Q...... Your failure in 1995 at studies had nothing to do with your motor vehicle accident injuries.
A.That’s false.
Q...... The reasons you were unsuccessful in ’95 and ’96 was because you lost interest with the subjects.
A.That’s completely incorrect.
Q...... Compensation issues are important to you, aren’t they.
A.Not really.
Q...... If you wanted to, you know quite well you could have studied this year.
A.That’s incorrect.
Q...... The reason you didn’t study was to bolster your claim.
A.That’s false.
Q...... You’ve been able to move your neck fully up until the very month that you come to court to give evidence before his Honour.
A.That’s totally incorrect.
Q...... Your restrictions in the last month are feigned.
A.That’s totally incorrect.”

Plaintiff’s Mother, Mrs E Andrew

The plaintiff’s mother, Eleanor Andrew, gave evidence and impressed me. She outlined how she was married at 18 and separated at 27 with custody of the two boys of that marriage, Dale, and her younger son, Hayden. She said she eventually moved to Adelaide with her sons, eventually settling in Happy Valley and while she was there she met her current husband, Mr Andrew. They married in 1981 and there is a son of that marriage, Callum, who is now aged 14.
Mrs Andrew said Hayden lived with her and her husband until about the age of 22. She believed Hayden preferred living at home. She said she had always described the family as a happy family unit and they all got on well. She said there were a few “hiccups” but regarded their family as a unit. She said after the birth of Callum she thought Hayden adored him and took a great interest in his rearing and regarded them as very close.
She said before the accident Hayden was a happy go lucky type of son, and well-motivated and he was always a person with many ideas. She said she believed he enjoyed his years at high school, where he had many active roles particularly in drama and the artistic side of that education.
After his school period she recalled a time when he decided to move away from home and obtained a small housing trust unit. She explained how the family was involved with the fitting out of this unit and contributed to that fit out. However, she continued to take an interest in Hayden. This was at a time when she was not working on a Wednesday and she would go shopping with him and they would often go to films.
Mrs Andrew outlined that he had a friendship with a young lady called Rebecca for many years but that eventually ceased. She said they had been going out since they were 15 and it was an amicable parting of the ways, but he still retained their friendship.
Mrs Andrew was aware of the plaintiff’s intention shortly before the accident to study at Hamilton TAFE. She was aware that he had an artistic bent in his make-up and was supportive of this intention.
Mrs Andrew always regarded the relationship between her son, herself and his stepfather as very good because Hayden was so easy going and there were consequently never any problems. She regarded her unit as a normal family.
Mrs Andrew explained that after the accident and when he was discharged from hospital he went to live with Michelle and they assisted in maintaining two houses. That is the residences of Hayden and Michelle. She obtained a wheelchair and that assisted him in attending Hamilton TAFE. Both she and Michelle were involved in transporting the plaintiff to Hamilton TAFE. She described this as heavy work but she had no problem in coping. She said his leg was in plaster at this time and clearly he was in pain but he seemed to be motivated to get on with his studies.
She said in this early period she noticed when he complained about his runny nose she felt that he was getting frustrated and no-one seemed to be listening to his complaints. She said further x-rays were taken and a fracture diagnosed and further hospitalisation occurred with the surgery to his head.
Mrs Andrew was well aware of an incident in 1990 when he was assaulted in a car park. She became aware of that when he confessed to her that he had been drinking and commented to her that he would not be drinking again. She said that her experience with him over many years did not disclose any alcohol problems.
Mrs Andrew explained that after the surgery to his head she visited him and she had “never seen anything like it in my life”. She found his state “horrendous” in the intensive care unit and observing the head staples and his swollen face and being kept continually awake and being observed in the recovery period. She said she was unsettled by that experience. However, over the next months the plaintiff recovered.
Mrs Andrew did note following this period that when she told him something, a short time later he would ask the same question and he appeared to have a total lack of concentration. She observed him getting frustrated that he could not seem to read properly or retain facts, but it was the repetitiveness of the questions that she noticed. She said he was not angry but seemed more confused than anything. She was asked:
“Q.... Over the period since then, have there been any changes to his personality that you’ve noticed?
A.All I can say now is there is this rude stranger living in my son’s body, because that’s what he is.”
She went on to explain the difference in her son’s relationship with people particularly her son, Callum. He previously had a close caring friendship with Callum but the same is now non-existent. She explained how he is very short tempered and has no diplomacy in his presentation at all and most of the time she described him as “rude and angry all the time; angry, rude and he’s self-centred”. Before the accident he was, or she regarded him, as a popular person at his school and with his friends but now nobody wants to be around him and he ends up referring to himself as “poor me”.
She said prior to the accident he had many friends and now the only people he has contact with are Michelle and a school friend, Darren Birbeck, who she said still has some patience with him, otherwise he has alienated every other person by his rudeness. She said:
“There is no answer to it. I don’t now how you’d ever make Hayden back to Hayden again. I don’t know how it would ever happen.”
Mrs Andrew gave her evidence in a very quiet, concerned and caring manner and explained how she finds it impossible to cope with the plaintiff. She mentioned she was driving him to TAFE one day but because of his attitude she stopped the car and asked him to leave, and, had refused to take him any more because of his outbursts.
In cross-examination, Mrs Andrew remembered a time in 1993 when the plaintiff was admitted to Glenside Hospital and said at this time he was stupid. He was attending Flinders University with friends and there was a trip when they ingested magic mushrooms and the result was “traumatic”. She took him to her local doctor and the doctor placed him in Glenside. She said he was not violent, he was very angry and mentioned things like people watching him. After taking him to the local doctor he was taken by police car to Glenside. She had no idea why the doctor did not arrange for an ambulance, but “he sat in the back and got there” until they arrived at Glenside where he was admitted.
She said she visited him each day at Glenside and noted he was angry for several days but by the third day he was pleading to be taken home. By the fifth day, he was discharged and returned home.
The plaintiff made much of his mother and stepfather’s refusal to sign Austudy forms to repeat matriculation and this was confirmed by Mrs Andrew. She said the plaintiff discussed this with her husband and they felt that the plaintiff should have some time working rather than continuing with Austudy and although this may have caused him some initial concern, he accepted that position. She agreed that they were obliged to repay some of the Austudy debt, but it was not really an issue with him.
In cross-examination, Mrs Andrew agreed that in the last 18 months to two years she felt that his poor behaviour had become markedly worse. This was of great concern to her. She felt that his nasty and aggressive character was present all the time.
She was asked in cross-examination about the years where he seemed to have no employment particularly after about 1991 and she said “Hayden just rolled with the punches” and perhaps he was having “time out”, but she had never seen him not do anything. He was either drawing or reading and she could not describe him as “bludging”.

Ms M Trenorden

The plaintiff’s close friend, Ms Trenorden, was called and outlined her involvement with him over a number of years. Ms Trenorden is a tailor/ dressmaker by trade and obviously leads a very full working life. She outlined how she was able following 1991 to purchase a block of land at Woodcroft and subsequently built a house on that land where she now resides. The house was completed in 1993.
Ms Trenorden said that she first met the plaintiff through friends when she was living in a flat while her house was being built. She thought he was different to a lot of young men that she had met and described him as “sensitive, quiet, caring, fun” and their friendship developed. This has become a very close friendship. She described all the facets of his character that she so much enjoyed and particularly said he was a “Mr Fun Guy”.
Ms Trenorden felt that their friendship became serious in the period before the accident and in this time she came to know and enjoy the friendship of his parents and their family including Callum, the younger brother. She regarded Callum and the plaintiff as very close. She said she was aware that he was not employed but described him as “always busy” working on painting his miniatures, sketching caricatures and reading.
Ms Trenorden was at work when she was advised of the accident and travelled to the hospital. At the hospital she was told he was being x-rayed. She said she waited for an hour and tried to contact his mother, but could not reach her and decided to go for a walk to the x-ray room. When she found him she said “he was calm a bit dreamy, glad to see me, kind of felt a bit relieved that he wasn’t by himself anymore”.
After being discharged they initially went to his mother’s home, but decided that it would be preferable if he came to her home where he stayed for about a week and then lived between his flat and her home in the following months. She explained that his mother was able to get an old wheelchair which was of assistance to him because they could get him to his studies and he was able to place drawing paper across the front of this chair.
Ms Trenorden was aware of the subsequent craniotomy and after returning home she said all his needs were attended to by herself and his mother. After his head surgery Ms Trenorden said the plaintiff was “harder and harder to live with”. She said:
“I guess at first we put it down to he was afraid that he might lose his artistic skill or something like that from having his brain poked around in. He was forgetful, worrisome, tired, short-tempered, lethargic, couldn’t think clearly. He would tell you something one day and then he would tell you the exact same thing a day later. I guess that covers the gamut of what he was like.”
Despite these problems she said he was able to get back to his studies at Hamilton TAFE, but she gradually noticed that the journeys when his mother was involved with the plaintiff were very argumentative. She could hear them arguing outside the house.
Ms Trenorden was impressive and emotional, as one would expect, in endeavouring to describe his condition which was subject to “temper tantrums, screaming fits, swearing at inappropriate times”. It seemed to her, he was continually “angry, argumentative, frustrated, depressed” indeed quite the opposite to his character before the accident.
There came a time when she and the plaintiff attended Mr Mark Reid and his explanation of certain matters about the plaintiff’s presentation was of assistance to them in their coping with their day to day traumatic lifestyle because of the plaintiff’s instability. Mrs Andrew had said that she expressed great concern in the manner in which Michelle had coped with the plaintiff in this time. Clearly the counselling with Mr Reid has been of great assistance.
Ms Trenorden outlined how she has financially supported the plaintiff for a considerable period now and she was optimistic about their future.
In cross-examination, Ms Trenorden was asked many questions as to whether the presentation was developed and perhaps increased in the last two years prior to trial and she said she felt it was deteriorating in all this time. She felt it was a gradual deterioration since the car accident, particularly as his relationship with his mother had taken its “final dive the last couple of years”.
Questions were developed about his neck pain and particularly:
“Q.... But he didn’t start complaining about his neck really until 1996, did he.
A.No, he started complaining about it a lot more about then.
Q...... He didn’t get any treatment until right at the end of 1995.
A.No, but he had also been complaining about it. He was on Austudy. The treatment that he had got for his neck up until then was me giving him massages.
Q...... That was just before he went to get massages from the physio, wasn’t it.
A.Virtually from the time that he could start getting massages on his neck, was when I started doing it, so it would be probably a month or so after he had his head operated on that I can clearly remember.”
Ms Trenorden was asked about when he was at work and he allegedly kicked a machine and she felt that really would be out of character, that he would not have kicked the machine. She felt he could have used strong language about the machine’s performance.
Ms Trenorden maintained in cross-examination the manner in which his personality has changed for the worse since the accident and subsequent surgery. I accept that evidence.

Mr D Birbeck

100 The plaintiff also called his friend, Darren Birbeck, a young man now aged 29, married with two children, who attended both primary and secondary school with the plaintiff until he completed his matriculation in 1986. Mr Birbeck then attended the Flinders University and completed a Bachelor of Economics degree and is now working as an accountant.

101 Mr Birbeck outlined their long period of friendship before the accident and their friendship since that time. Mr Birbeck explained that Hayden at both primary and high school was very outgoing, perhaps not academically inclined, but forthright in his opinions and involved in a whole range of student activities and a person who got on well with all his fellow students and teachers. He was asked whether the plaintiff had then tended to be aggressive or argumentative and he said “not overly so, no”. He recalled that he was very active in all what he would call extra-curricula activities at the school, and was involved in the school council and school plays in which he actively participated. He felt that he always had a flair towards the arts. He also viewed his dramatic ability as quite profound and was aware that he received a citizenship award for his work at this time. However, he was aware that the plaintiff did not fare well in his matriculation studies but by this time he said he was in a different stream to the subjects being studied by the plaintiff.

102 Since leaving school in 1986 he has kept up his friendship with the plaintiff and in that time since his friendship with Michelle as Michelle and his wife play in the same netball team.

103 He was asked how he would describe the plaintiff’s personality and relationship in this time and he said:

“Same as at school really; just easy-going, generally get on well with a lot of different sorts of people. For instance, my mother particularly was fond of him, it was that age bracket. It didn’t matter what age they were, he’d tend to be able to interact well with them.”

104 Mr Birbeck said that since the accident he felt the plaintiff had become very erratic and short-tempered. He said before it was easy to strike up a conversation with the plaintiff and now it was not the case and when he was with him, for instance at netball games, he would not know what to expect. What has happened is his circle of friends has disappeared and “I haven’t seen him a lot in the last couple of years since my daughter was born, because our circumstances have changed .... he has really pulled away, a lot”. Mr Birbeck mentioned how his wife feels uncomfortable in his presence as she does not know what to expect and “I guess that is why we haven’t seen as much of him. I only really meet him at netball”.

105 In cross-examination it was put to him as to whether aggression was part of his make-up before the accident particularly the incident of the kicking of the machine and swearing and Mr Birbeck said that he certainly had never shown any aggression or anger towards him in that period.

Mr D Smith

106 The defendant called a Mr David Smith, a pharmacist, who became involved in a Chemmart at Christies Beach in 1986. He became acquainted with the plaintiff who was then an employee of that pharmacy. Subsequently Mr Smith became a partner and owner of those premises in 1989 and was aware shortly after that time of an incident of the plaintiff involving a machine. He said he was aware because he heard it and it seemed to be quite an explosive incident when the plaintiff was swearing in the vicinity of this machine. He said also at this time there were customers in the shop. He heard a loud thump of the machine and an angry voice. There was only the plaintiff in the vicinity of the machine and it was consistent with a person kicking the machine. He said he heard the word “fuck” mentioned on an occasion and at least “shit” and it was Hayden who had mentioned these words.

107 He said at this time he observed that Hayden had come from the mini-lab area and he seemed upset and quite angry. He called him aside and talked to him and described that he felt his behaviour was inappropriate. He felt that his anger was not controlled at that point and as a result of that his services were terminated. He was uncertain as to whether his services were terminated then or by a subsequent phone call, but he left the employment.

SUMMARY OF LAY EVIDENCE

108 The plaintiff’s whole presentation of his evidence was most unusual. He was examined and cross-examined over a long period. His presentation did not alter. At times he became very annoyed which was apparent from his demeanour and long answers to questions, answers which often involved illustrations which were hardly relevant. At times he seemed incapable of answering a question in a straightforward manner. Some answers were given in a most aggressive tone. Body movements, particularly when answering questions when he was obliged to turn to face me, were movements almost totally from the shoulders involving no neck movement. My impression and view as he gave his evidence was that he is a very disturbed young man. A question always present was the nature of his character prior to the accident and/or what part the accident and operative procedures had played in his current life and presentation.

109 What was apparent in that evidence was the frustration and anger particularly towards his mother and stepfather in regard to their alleged lack of support in his endeavours to go further with his academic career after his initial failed matriculation. One gained the impression from him that they had been totally un-supportive. During his evidence the plaintiff was directing blame to any person rather than himself.

110 He was subject to a detailed cross-examination over his pre-accident anger and events in his life. As seen from the chemist shop incident, he could easily become angry and aggressive over a relatively small issue.

111 The evidence of his mother and close friend, Michelle, was all revealing. That evidence is very important when considering his current presentation. That evidence shows that his mother and to a lesser extent her husband have been totally supportive of the plaintiff. This is apparent from the way he lived with them until the age of almost 22. It also shows her support and care for him in all aspects of his life even after the accident until his difficult argumentative traits of character forced her to step back from their relationship.

112 There is no doubt that there has been a dramatic change in his personality since this accident and these features are now playing major roles in his day to day life. I accept his mother’s evidence. Pre-accident he may well have been able to keep control over the anger and short-temperedness in his personality. However, since the accident he has a lack of self-control as seen from the manner of his court presentation.

113 The work incident shows a pre-existing aggressive part of his personality. However, that was only one day in his life. He appears to have kept that part of his personality under control. There was no evidence of short-temperedness or aggression in his make-up as evident to his mother, Michelle or Mr Birbeck.

114 I accept his mother’s evidence that he did not have any alcohol problems. He made full admissions about the incident in 1990 in the car park and his conduct which led to the assault.

115 Much was made of his period in Glenside. His mother was the prime mover in this hospitalisation, noting strange aspects of his behaviour and taking him immediately to their general practitioner and joining with his recommendation for admission to Glenside. She thereafter visited him daily noting his pleas to come home. There have been no further examples of this type of conduct. She regarded it as a type of peer pressure exercise. The plaintiff said that he viewed himself as having learnt his lesson from this episode. I view the incident in that manner.

116 The evidence of his close school friend, Darren Birbeck, is important. I accept his evidence about the outgoing nature of the plaintiff at high school, but gradually following the accident his conduct has alienated all of his friends. I can accept that evidence from my own observations of the plaintiff. I viewed him as a difficult and disturbed young man. His mother’s description of a “rude stranger” in her son’s body is accurate.

117 Ms Trenorden’s evidence was also important. There was no doubt about the genuineness and truthfulness of her evidence and of the turn around in the plaintiff’s personality so much so that it became almost impossible to conduct a day to day association with him, but, having been counselled by Mr Reid, she has persevered with her relationship. She is most conscious of and appreciates all the features of his past life which she admired and led her into a permanent relationship with the plaintiff. However, at the present time his behaviour causes her much distress. She is optimistic and has put up with his behaviour whereas others, like his mother, have desisted in their offers to help, or friendship and, indeed for appropriate reasons, Ms Trenorden deserves to be admired. Although she is optimistic about their future, one can only have reservations.

118 Having made those observations and findings, it remains for me to consider the medical evidence and as to how that reflects on the lay observations of the plaintiff and other witnesses.

MEDICAL EVIDENCE

119 The plaintiff has been the subject of considerable medical examinations and many directed to whether there has been any organic damage to his mental capacity by reason of the injury and subsequent craniotomy surgery. All of the relevant specialists including psychiatrists, psychologists, and neuro-psychologist were called to outline their views. That evidence can be summarised as follows.

Mr Hoare

120 Mr Hoare, orthopaedic surgeon, spoke to a number of reports he has provided concerning his examination and observations of the plaintiff. Mr Hoare first saw the plaintiff in April 1994 and explained the very significant forces that are required to fracture the talus bone in the ankle. He explained it was an unusual event that does require a huge volume of violence to achieve that fracture. He viewed the plaintiff as having an ongoing permanent disability in relation to that ankle. He also explained the injury to the ring finger, the twisting type injury that caused it to break.

121 He accepted that the double nature of the impact, both the rear and front end and the forces involved, were sufficient to throw his head forward and fracture his skull and nose.

122 During the first examination the plaintiff explained to Mr Hoare how he had trouble controlling fluid from his nose. Mr Hoare became very anxious about the possibility that he may have had:

“..... cerebrospinal fluid fistula through the cribriform plate in the roof of his nose which means a direct communication between the nose and the subdural space around the brain. I advised him not to blow his nose”.

He immediately referred him to a neurosurgeon. It was these very able observations and reference of Mr Hoare that led to the plaintiff’s referral to Mr Carney and subsequent surgery which confirmed the views of Mr Hoare.

123 Mr Hoare also mentioned to the plaintiff that with the nature of the accident there would have been some violence to his cervical column and neck. He accepted the plaintiff’s problems with his neck.

124 Mr Hoare has had a lifetime experience in orthopaedic areas particularly in trauma from road accidents. When he saw the plaintiff it was not long before he determined that he “wasn’t suffering from sinus catarrh and that he had a cerebro-spinal leak” and said that if it had been overlooked he could have died. He reiterated the forces required to cause such an injury.

125 Mr Hoare was cross-examined about the plaintiff’s presentation to him and particularly the effects of subjective responses. Mr Hoare accepted that the plaintiff had a loss of smell and outlined the reasons where the relevant area was repaired was concerned with this area of sensitivity.

126 Mr Hoare felt that, after reading all of the material, he was not convinced that the plaintiff was not concussed in the accident, simply because of the force at which his head had hit the dashboard fracturing his nose and the skull base. He viewed that as sufficient to produce a form of concussion no matter how momentary. He pointed out in regard to the hospital notes that observations were made by junior medical officers and perhaps were not all that conclusive.

Dr Molloy

127 The neurosurgeon, Dr Molloy, outlined her involvement with the plaintiff and particularly the subsequent surgery. She outlined the nature of this surgery which she said:

“...... you have to remove the front of the skull, pull both frontal lobes of the brain up to get underneath the brain to find the tear in the dura, which is the lining of the brain, and then put extra lining there to fill up the holes.”

128 Dr Molloy advised that during this surgery she noticed the smell nerves:

“There was atrophy of one of the - there’s two nerves for small, and the one on the left was atrophic, it had been damaged and torn, and there was hole in the dura on that side, and on the right the dura was reddened and looked like it had almost worn through, but I couldn’t actually see a hole.”

129 She said the damage to that part of a person’s brain was consistent with him hitting his head in the accident.

130 Dr Molloy was aware that there was debate between neuropsychologists and others about whether the plaintiff had suffered any minor brain damage, particularly evidencing itself by way of personality changes. She answered in the following manner:

“A.... It is very common with this kind of injury if there is a basic skull fracture, particularly one severe enough to cause a CSF leak, there is damage to frontal lobe and that is usually seen as a change of personality; people becoming irritable and emotionally labile. They are the main problems. Sometimes with concentration, and other changes like that, but mostly personality and labile emotions are the main problem.
Q.You have seen Mr Jarldorn on a number of occasions; what have you noticed about his personality, and mood, and lability.
A...... I obviously didn’t know him before, he seems to have all those; he describes changes of personality but he does seem to have a very usual personality that goes with head injuries.”

131 Dr Molloy also mentioned that the plaintiff had complained to her about neck pain and she had arranged for x-rays to be undertaken which showed some “reversal of the normal cervical lordosis” and she felt that he had sustained some muscolo-ligamentous injury in the accident. He continued to complain of neck problems.

132 Dr Molloy in cross-examination admitted that she was not aware of the plaintiff’s personality and she assumed it in her answer about his personality the matters she observed post-accident.

Mr Carney

133 The defendant called Mr Carney, a qualified and well-recognised neurosurgeon, a person to whom the plaintiff was first referred. Mr Carney was unavailable to proceed with the surgery which was then undertaken by his partner, Dr Molloy. Mr Carney was well aware of all the debate in this case between the neuropsychologists and others, but it was his view that because the plaintiff did not have any loss of consciousness it was unlikely that he had suffered any significant brain damage and very unlikely that a personality change would result. He was aware that some of the neuropsychological testing had not shown any cognitive deficiency. This supported his view of the unlikely position that significant brain damage occurred in the plaintiff.

134 He was asked a question by myself:

“Q.... You mentioned a couple of times the word ‘significant’. You are leaving the door open a bit there, are you.
A.Not very far. I think - someone in an accident of that nature that doesn’t loose consciousness, I find it very hard to see they can suffer brain damage. One can’t absolutely exclude this, but it just seems very, very unlikely.”

135 Mr Carney viewed that if a person was going to have personality changes then they would immediately follow the trauma in question.

Mr M Reid

136 The plaintiff called Mark Reid whose qualifications were accepted. He is an eminent neuropsychologist. Mr Reid had seen the plaintiff in late 1997 on several occasions and provided a detailed report in January 1998.

There was an initial skirmish about certain comments in Mr Reid’s reports about the dynamics of brain injury in which counsel questioned Mr Reid’s qualifications. A voir dire on those qualifications occurred and Mr Reid explained his qualifications and background and conclusions concerning frontolateral damage as compared with frontobasal damage and the relationship between that and the potential for brain damage flowing from such injuries. Mr Reid, as I say, said that apart from his intensive learning he has seen, he thought, in the area of 8,000 cases involving head trauma. He examined those people in relation to brain damage from such injuries. I viewed him as competent to give that evidence and was interested in his findings.
It was apparent that Mr Reid had spent considerable time not only with the plaintiff but with Ms Trenorden and had placed reliance upon Ms Trenorden’s observations of the plaintiff’s current personality and characteristics. His testing did not reveal any specific difficulties in any cognitive skills. He said he had verbal fluency and his ability to shift mental set or line of thought was normal. However, he viewed it highly probable that the plaintiff suffered from some injury to the frontobasal region of the cortex which has resulted in a degree of personality change. He based this on what he called a “cluster” of symptoms of personality change described by the plaintiff and observed by Ms Trenorden which “is entirely consistent with those changes in personality seen with damage to this region. The impulsivity, the change in sense of humour and the instantaneous lability of mood are all very typical”. However, having said that it is clear from his report and evidence that he felt there was a small amount of residual disability that occurred because of this damage.

139 He did point out that after seeing other people similar to the plaintiff who had had this cluster of symptoms they had not shown any cognitive deficits in other parts of the brain. Mr Reid confirmed that he had seen reports of psychiatrists including that of Mr Bollard and they did not cause him to change his opinion. Mr Reid was at pains to point out that there may be other factors of a non-organic or non-brain damage which may be evident in his presentation but there was a component in that which he felt was related to brain damage.

140 Mr Reid had noted Dr Kutlaca’s report and his diagnosis of an adjustment disorder with some mixed emotional features and confirmed that they were from a DSM-IV classification system. There has never been an MRI scan or any other form of brain scan taken. This is a pity, bearing in mind the great volume of medical material.

141 Counsel placed before Mr Reid details of factual matters of his stay in Glenside Hospital and Mr Reid said there was no other consistent history and he would look at that episode as a one-off situation. Mr Reid pointed out:

“Neuro-psychology, by definition, is looking at the relationship between brain damage and behaviour, whether that behaviour be cognitive or whether it be overt behaviour, including personality and emotion. That is our brief, if you like.”,

as distinct from neurosurgeons who look at those aspects but from another area. Mr Reid viewed the suggestion of no brain damage if there was no loss of consciousness as “old”. He did not believe that was the situation at the present time from literature he has read and his studies. He quoted:

“In fact, the concept of diffuse axonal damage, even after minor traumatic brain injury, is now occupying quite a lot of the literature.”

142 Mr Reid was cross-examined about the alleged non-emergence of changes to personality until two years after the accident and he agreed that if that was the situation that it would lessen the probability of damage. He mentioned of course there may be other issues, pain and similar disabilities masking the presentation.

Associate Professor Wood

143 The defendant arranged for the plaintiff to be examined by Associate Professor Wood on 30 March, 1998. This was an occasion when the plaintiff attended, commenced his examination, but then explained that he viewed the professor as wearing lipstick and when a break came he immediately left and did not return.

144 Professor Wood is a highly qualified and well-recognised neuro-clinical psychologist with much practical experience in the same manner as Mr Reid. Professor Wood outlined that any neuropsychological assessment required about a four hour appointment. He said he allows a first period, a break and then continues with his investigations. Professor Wood had read Mr Reid’s report and been aware of his testing as well as the views of Dr Bollard. Professor Wood outlined the nature of his testing and produced some of the tests that he undertakes. In his view, like others, he reached the tentative view from that testing that the plaintiff had not suffered from any cognitive deficits.

145 He initially mentioned that from reports, he believed that the plaintiff had not suffered a loss of consciousness. However, it was pointed out to him in late evidence of Ms Trenorden that when she attended the plaintiff in the Royal Adelaide Hospital she noticed particularly that the plaintiff had a “dream-like” presentation. Professor Wood then readily admitted that that was interesting as it sounded like “concussion”. In any event, even if that was present he would not change his views.

146 The view of Professor Wood was that although clearly the plaintiff had suffered a significant blow to the nasal region which resulted in a tear to the dura and the onset of the CSF leakage, as far as he could determine, the plaintiff did not suffer any traumatic injury to the brain.

147 In his report he finally commented:

“The question of a change in personality is more difficult to establish without reference to an independent opinion. Whilst a change in personality is by no means uncommon following a traumatic brain injury, it is more difficult to conclude that such a change has occurred following a neurosurgical procedure which did not involve direct surgery on brain tissue, if my understanding is correct. There have been some claims on this point, but no experimental studies. From the history obtained, there is at least the possibility that Mr. Jarldorn had difficulties in relating to other people prior to the subject accident. He said that he was dismissed from his employment on the basis of one occasion when he abused a machine verbally. This response seems to be excessive and therefore it would be important to explore his employment history in more detail with the benefit of the views of his former employers.”

148 Professor Wood explained that it was his view that the plaintiff did not suffer any brain damage which would result in a change to his personality, but, there were other factors of significance, including pain and depression, which resulted in people who are depressed complaining of impaired memory, and, often pain can lead some people being unable to sustain their relationship because of chronic pain. Professor Wood mentioned other areas including the Glenside Hospital notes, the failed matriculation endeavours, and the work incident as being suggestive of his pre-accident personality. He viewed him as being susceptible to the effects of alcohol and may well become aggressive in that condition. He said he was mindful of his traumatic youth and childhood background and those matters pointed to him being rather a disturbed young man well and truly before the accident and thus there was the possibility of a psychotic-like disorder of longstanding.

149 Professor Wood viewed the plaintiff as having those difficulties in his pre-existing personality and with this type of current trauma that relates to symptoms. However, he viewed him as requiring a fairly structured future programme. He also pointed out the long period of unemployment prior to this accident and saw him requiring skilled psychiatric treatment for at least a year.

150 I accept that Professor Wood was not wearing, nor does he wear, lipstick.

151 Professor Wood said that even though he partially completed his examination he viewed that it was sufficient for him on which to base his opinion. When he was cross-examined Professor Wood said he had the impression that the plaintiff was very angry with his mother and particularly his stepfather and that this fact had contributed to their ongoing problems. I accept the mother’s evidence that this is not in fact an accurate position. If his mother’s evidence was to be accepted about their background Professor Wood said in view of that he would view the plaintiff as being a very disturbed young man and has been for a long time.

152 Professor Wood commented on the final passage of Dr Bollard’s report as follows:

“HIS HONOUR
Q.Bollard said ‘I accept what Mark Reid said and all those things he’s noted, particularly from the girlfriend, and there’s a possibility, but it’s pretty low, of brain damage,’ and I suppose you may well go along with that suggestion.
A...... I would take what Dr Bollard said in his final paragraph as a fair statement of the - just you cannot prove a negative. You can’t prove something that doesn’t exist.
XXN
Q...... Dr Kutlaca, in his final conclusion, said that he thought the brain damage was possible.
A.Yes.
Q...... Same sort of thing.
A.It’s probably as distinct from possible - semantic, but it’s an important one. I think it’s possible that there is so many other factors involved that I think the probability is low, and I think that’s what Dr Bollard said also.”

Dr Tomich

153 The plaintiff also called Dr Tomich, an ear nose and throat surgeon, who has been very involved with the treatment of the plaintiff since 1994. He was initially involved at the request of Perrett & Partners with the placement of nasal pledgets for evaluation of a possible cerebrospinal fluid problem. Following this he became actively involved in 1995 in regard to the functional and cosmetic nasal deformity of the plaintiff in regard to the injury suffered in the accident and carried out reconstruction of the nose correcting the deviated nasal septum as well as the cosmetic surgery to improve the function of the nose because of the depressed fracture of the right nasal bone.

154 The plaintiff underwent this surgery in January 1996 and Dr Tomich reported that he believed that the surgery was successful and the plaintiff’s problems stabilised. Dr Tomich did note the loss of sense of smell problem. The plaintiff then underwent further nasal/sinus surgery. He eventually said in his report of 18 November, 1997, that the condition was stable, both sinus cavities were clear and indeed from his very detailed testing, confirmed that:

“.... this partial loss of sense of smell can be attributed to his original subject accident but in particular the anterior cranial fossa injury that resulted in the initial cerebro-spinal fluid rhinorrhea which was treated initially by Dr Cindy Molloy, Neurosurgeon.”

155 Dr Tomich in his evidence confirmed in a positive manner the details of his written reports and confirmed in his view the plaintiff did have a substantial impairment of sense of smell. Dr Tomich again pointed out from his testing he is very confident that he can make a finding if the patient is malingering, and, he had no doubt whatsoever that in the plaintiff’s case this was not the case and that this permanent loss of smell was evident.

156 He explained although he used the words “substantial impairment” that it would be something in the order of 15-20% of a normal sense of smell.

FINDINGS ON MEDICAL EVIDENCE

157 Dr Molloy confirmed that with this type of injury, particularly one severe enough to cause a CSF leak, that there is damage to the frontal lobe and that is usually seen as a change of personality, people become irritable emotional and labile.

158 I was impressed with the evidence of Mr Reid. Clearly, when the patient had been referred to the pain clinic numerous people were involved with his ongoing care under the supervision of Mr Reid. I place emphasis on his views because he was the one person who spent considerable time not only with the plaintiff but with Ms Trenorden and placed reliance upon her observations of the plaintiff. After the long period of study of the plaintiff and discussions with Ms Trenorden he came to the view that the plaintiff had suffered damage to the frontobasal region of the cortex which had resulted in a degree of personality change.

159 He had reservations as I have of the evidence of Professor Wood as his investigation was interrupted by the plaintiff leaving his surgery. With respect to Professor Wood, I find difficulty in accepting his views based as they were on a partial examination without full recourse to all of the background details including how the plaintiff acts in his day to day life by those close to him. I mentioned to him the manner of the evidence of the plaintiff’s mother and he commented, if accurate, it now shows a permanently disturbed young man. However, the lay evidence does not support such a finding prior to the accident.

160 The psychiatric evidence in this case did not take the matter further. The plaintiff’s psychiatrist, Dr Black, changed his views after the benefit of third party observations. It is very apparent that both psychiatrists agree that he has some form of adjustment disorder. For instance, it may well be that if Mr Black had also seen Ms Trenorden that may well have in some way influenced his views and quite properly so.

161 Dr Kutlaca clearly was not of the view that the plaintiff had psychiatric problems and was of the view that it was not his brain injury that was causing his personality changes, that it was possible, but no more. He also mentioned he placed some reliance on Dr Tottman’s report. Dr Tottman was not called. From what I can understand, Dr Tottman did not attend the plaintiff. I do not regard that type of psychiatric evidence as a proper base for any finding.

162 The very experienced orthopaedic surgeon, Mr Hoare, was the only person who mentioned that the extreme forces in this accident were sufficient to break the talus bone in the ankle. This type of break is most unusual, and, requires a significant volume of force to the ankle to achieve that fracture. One can then translate that into the impact of his upper body.

163 As I have mentioned, he said:

“The cluster of symptoms of personality change as described both by Mr. Jarldorn and observed by his girlfriend, Michelle, is entirely consistent with those changes in personality seen with damage to this region. The impulsivity, the change in sense of humour and the instantaneous lability of mood are all very typical.”

164 I note that the occupational physician, Dr Graham Wright, also supports those views.

FINDINGS

The plaintiff prior to the accident had very much led a carefree and probably self-centred life since the many attempts at matriculation. He, with the assistance of his family, had become independent and no doubt enjoyed the manner of his life. He initially had employment until the outburst, but thereafter was able to carry out work as a barman. Clearly, the work outburst was out of the ordinary. It does show evidence of immediate and uncontrolled anger, but accepting the evidence of his mother, Ms Trenorden and Mr Birbeck, he was able to control such impulsivity. This carefree approach to life was one of the appealing sides of his character which led Ms Trenorden into their relationship.
As at the date of the accident, he was close to his family and particularly his young half brother. He was enjoying his permanent relationship with Ms Trenorden and then planning another attempt at graphic art qualifications. The plaintiff has at all times had a flair for artistic type work and no doubt these qualities reflect in his personality and this, to some extent, may explain his change of name.
Much has been made of his lack of anger/temper control as evident from the work incident and the Glenside Hospital detainment. The magic mushroom episode was a crassly stupid activity, no doubt with others, both experimenting and perhaps, as his mother mentioned, a peer group exercise. That activity must be seen as a one-off situation and, as he suggested, a lesson well learnt.
However, particularly since the head surgery, there has been this marked change in his personality. His erratic and argumentative behaviour is common. He is now very short-tempered and, with that anger, there are, consequently, some depressive moods. He has become violent. As Ms Trenorden said, his “mood swings are terrible” and opposite to the person she had known before the accident. His mother described him now as a “rude stranger”. The lay evidence of his current personality was consistent and unbiased and the tragedy is that the plaintiff seems to have little insight into his problems.
The comments of Bright J in Dibbins v Dibbins (1978) 80 LSJS 165 are most appropriate when the learned judge said:
“This case is an example of the useful principle that where medical evidence is in conflict the primary consideration may be the credibility of the plaintiff. True, the medical specialists, with their skill and experience, can move parts of the body so as to test the range of involuntary movement. They can also, by means of diagnostic aids, detect the presence or perceive the apparent absence of physical abnormalities which might be the cause of claimed symptoms. They can also, with their knowledge of anatomy, give a valuable opinion as to whether claimed symptoms are consistent with each other or with a suggested physical cause. But ultimately we must come back to the symptoms. Of course, anatomical signs detected by the medical specialists or the absence of such signs may tend to establish that the patient is telling untruths about or is exaggerating her symptoms. But it is the symptoms that are central not the signs. I hope that I am not being unduly idiosyncratic when I say that if reliable independent evidence clearly indicates that the patient is credible, one does not disregard his or her complaints merely because the signs suggest that little or nothing is seriously wrong. Failure to recognise this simple truth has, I should think, led to the death or invalidity of many patients. Medical science has advanced very far but it is still not always capable of producing unqualified and indisputable answers.
Very often there is no reliable independent corroboration of the patient’s account. In such a case, obviously, the medical evidence is of the greatest importance, especially if the medical evidence is all one way. But if the doctors disagree the judge still has to decide, and he may not make it his first concern to assess the relative credibility of the doctors. I think he may first assess the evidence of the patient.”
My observations of the plaintiff were consistent with the tenor of the evidence of his mother and close friends of his poor behaviour pattern since the accident and surgery, and, the reason for those changes were explained by his medical and neuropsychological evidence. I mentioned the reservations I have with the specialist evidence tendered by the defendant. I am also mindful of comments of the former Chief Justice in Watts v Rake [1960] 108 CLR 158 at 160:
“If the disabilities of the plaintiff can be disentangled and one or more traced to causes in which the injuries he sustained through the accident play no part, it is the defendant who should be required to do the disentangling and to exclude the operation of the accident as a contributory cause.”
As I have mentioned, I had difficulty in accepting the thrust of the views and opinions of the defendant’s specialists. There was certainly no base for the indeed forceful arguments of defendant’s counsel.

DAMAGES

Non Economic Loss

165 The claim falls to be assessed pursuant to section 35a of the Wrong Act 1936. I am obliged to apply a multiplier which at that time was 1430.

166 The plaintiff has undergone many operations including the major cranial surgery. The repair of his left ankle was carried out successfully, but, has left him with a permanent disability of that ankle with ongoing pain. After this initial surgery, the plaintiff was very much pre-occupied with his cerebro fluid leak and thereafter the cranial surgery. In this time no doubt disabilities and problems with his ankle and to a less extent his back were secondary. Also in this period, he underwent continuing nasal surgery.

167 He has suffered a permanent loss of portion of his sense of smell. The significant and permanent injury is the change in his personality. The plaintiff has a shaven head and the scar traversing his scalp is most evident. I am not sure of the reasons for his shaven head, but, he is conscious of the scarring.

168 In all the circumstances, I assign a numerical value of 18 which translates into a figure of $25,740.

Past Economic Loss

169 The plaintiff’s income in past years on the information before me is almost non-existent. I have perused copies of his tax returns from 1989 to 1993. The only year in which he earned a reasonable sum was the year he worked in the mini-lab during 1989 and earned approximately $12,000. His income thereafter is dismal. For the year 1990 he gave his occupation as a “full-time student”, but had earned with casual work in excess of $7,000. For the year 1991 he was unemployed and received unemployment benefits together with income of $1,551 as a barman at the Colonnades Tavern. For the years 1992 and 1993 his main income was unemployment benefits.

170 At the time of the accident, he was about to embark on his studies at the Hamilton Senior College. He outlined that he was proposing to use that as a base for further study in Graphic Art studies at the Underdale Campus of the University of South Australia. The evidence of the principal of that college was that art graduates in their various fields prefer to work in home type situations rather than the commercial work force. I believe the plaintiff is not academically inclined. This is quite apparent from his numerous attempts at his matriculation studies.

171 Clearly the plaintiff has some artistic skills, but I have reservations about his art/graphic abilities and I certainly cannot make any finding that those abilities would translate into a proficient graphic or commercial artist. The plaintiff may well have followed the home/type course as an expression of his art and indeed I view this as the probable likely event. This on the one hand is, or may be, a fulfilling and interesting daily work lifestyle and a way of life that cannot be criticised, but, it does not translate into a reasonable income, or, for that reason any income.

172 I have to do my best to endeavour to in some way base a sum for what is now in excess of seven years since this accident. It was unlikely that the plaintiff would exercise his laboratory and film developing abilities but probably more likely he could have worked and earnt some moneys as a casual barman. One could speculate that with some maturity and the nature of his permanent relationship with Ms Trenorden these factors may translate into a desire to secure some type of employment in this period. However, the effects of this accident to his personality have been disastrous. I view him very much now, because of these dramatic changes to his personality, as being unemployable. This area of assessment, as indeed his future, is very much on the basis of a loss of a chance of employment.

173 Doing the best I can in all these circumstances, I propose to allow the sum of $35,000 for his past economic loss.

Future Economic Loss

174 The plaintiff as I have mentioned has this ongoing personality disorder. It is a substantial ongoing disability. To a lesser extent his ankle injury means he is not a person fit to do heavy work, work that he could have carried out prior to the accident.

As I have mentioned, I observed his bizarre presentation. I view him as almost unemployable. I place much reliance on Mr Reid’s views that some assistance may be given to him to better understand his ongoing problems. Mr Reid perhaps best summed up that when he said:
“I have seen a number of people like Mr Jarldorn with a greater or lesser degree of personality change including those components which, really in their more gross from, can lead to very antisocial behaviour. The one of the other features in a lesser from is a lack of tact or a lack of awareness of social norms. Coupled with that an impulsivity in the tendency to say things without weighing up consequences, certainly in such people, to put them in an employment category where it involved a lot of interaction with the public such as someone serving in a store where there are disagreements - I would advise against that because such people can over-react and that is not tolerated by employers. Such people I would suggest are better employed in a back room situation such as a Storeman.”

176 Dr Wright who has had experience in placing injured workers in employment said “I can see significant difficulties in putting (the plaintiff) into a new work place”. I accept that this is the position. If Mr Jarldorn is to be employed he would require certainly a sympathetic and understanding employer. That may well be an understatement. Not only sympathetic and understanding, but a very tolerant employer. This is not impossible but a most difficult part. Clearly the plaintiff has suffered a very significant loss of earning capacity which translates into economic loss.

177 The assessment in this area is difficult because of the absence of any significant income before the accident, and, being unable to find that the plaintiff would have satisfactorily completed a graphic design course. As against this, the plaintiff was a capable young man and able to cope and manage the technical carrying out of his mini-lab duties and casual bar work. I am also conscious of the fact that his cognitive abilities were not impaired. However, his employment prospects in any area are very bleak.

178 The decision of Walker v Bridden (unreported judgment of the Full Court delivered on 1 September, 1986); Versace v Messer (1993) 172 LSJS 409; Gray v Motor Accident Commission (1998) 158 ALR 485 and Malec v J C Hutton Pty Ltd [1990] 169 CLR 638 are of assistance.

179 In this quandary I derive some comfort from the remarks of their Honours Justices Brennan and Dawson in Malec v Hutton. Whilst their Honours agreed with the orders proposed in the majority judgment in that case they commented (at 640):

“Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation.”

180 Doing the best I can in all the circumstances, I propose to award a sum of $150,000 under this head of damage.

Special Damages

181 A tendered schedule summarises such expenses which total $23,660.

182 A recent affidavit of the solicitor for the plaintiff exhibited a schedule establishing that the total amount of special damages claimed by the plaintiff was $23,011. There was a small balance owing of $649. However, the defendant raised objections to paying for a drafting table, board and ancillary machine of $1,200 on the basis that the plaintiff would have been obliged to purchase the same in any event. I accept that submission.

183 However, not reflected in the figure is an advance made by the defendant of $3,500 for general assistance. The plaintiff has accounted for the expenditure of this sum (including the $1,200) except the sum of $376.

184 The position is then as follows:

Moneys advanced

$3,500

Money expended by plaintiff (including $1,200)

3,124

Moneys owing by plaintiff

376

Reinstate cost of table

1,200

1,576

Moneys still owing by defendant

649

Amount owing by plaintiff

- $927

185 At settlement, the plaintiff will be obliged to account to the defendant for the sum of $927.

Future Medical Expenses

186 Evidence was given that the plaintiff is on prescribed medication including a prescription drug, Zoloft. The plaintiff will require this drug for an indefinite period at an annual cost of $243.60. He will require continuing attendances on his medical practitioners. I assess this in the sum of $3,750.

187 The accident has manifested itself with a significant increase in his eczema problems which in itself require ongoing medical care.

188 I propose to allow the sum of $5,000 under this general head of damage.

Gratuitous Services

189 The harshness of the statutory provisions is apparent in this case. I can make no allowance for Ms Trenorden and the care she has lavished on the plaintiff since the accident. However, his mother did give assistance in regard to the period in which she endeavoured to take him to the college.

190 I allow a sum of $1,000 under this head.

Interest

191 The plaintiff is entitled to a small award of interest on the past economic loss content of this award. I fix the sum of $2,000.

192 The position is as follows:

Pain and suffering - numeral 18

$25,740.00

Past economic loss

35,000.00

Future economic loss

150,000.00

Future medical expenses

5,000.00

Gratuitous services

1,000.00

Interest

2,000.00

TOTAL

$218,740.00

193 I will hear the parties on the question of costs.

Moneys advanced	$3,500
Money expended by plaintiff (including $1,200)	3,124
Moneys owing by plaintiff	376
Reinstate cost of table	1,200
1,576
Moneys still owing by defendant	649
Amount owing by plaintiff	- $927

Pain and suffering - numeral 18	$25,740.00
Past economic loss	35,000.00
Future economic loss	150,000.00
Future medical expenses	5,000.00
Gratuitous services	1,000.00
Interest	2,000.00
TOTAL	$218,740.00

[1999] SADC 52

21 April 1999