Macri v Bilich - [2004] WADC 133

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: MACRI -v- BILICH [2004] WADC 133

CORAM: EATON DCJ

HEARD: 18 FEBRUARY 2004

DELIVERED : 30 JUNE 2004

FILE NO/S: CIV 1934 of 2000

BETWEEN: ANGELO MACRI
Plaintiff
AND
PETER MORRIS BILICH
Defendant

Catchwords:

Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment - 4-year-old male child at the time of the accident - Post traumatic stress disorder - Turns on own facts

Legislation:

Nil

Result:

Award of damages $20,000

Representation:

Counsel:

Plaintiff: Mr A S Stavrianou
Defendant: Mr B C Sierakowski

Solicitors:

Plaintiff: Stoddart & Co
Defendant: Brian C Sierakowski

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

Jones v Dunkel (1959) 101 CLR 298
March v E & MH Stramare Pty Ltd & Anor (1991) 171 CLR 506
Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303

Case(s) also cited:

Baines v Liveris [2003] WADC 238
Bennett v Minister of Community Welfare (1992) 176 CLR 408
Durmanich v Charnaud [2003] WADC 181
Dyjak v Kelly, unreported; SCt of WA; Library No 940269; 25 May 1994
Harmony Shipping Co SA v Saudi Europe Line Ltd [1979] 3 All ER 177
Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 1 All ER 354
Naso v Cottrell (1995) 14 SR (WA) 256
Tremeer v City of Stirling [2002] WASCA 281
Watts v Rake (1960) 108 CLR 158
Western Australia v Watson [1990] WAR 248

EATON DCJ: On 15 December 1988 the plaintiff was four years old having been born on 16 November 1984. On that day he was seated in the front passenger seat of his mother's car wearing a seat belt. His mother, Linda Louise Macri, was driving the family sedan to her children's school to collect them. Those children were the plaintiff's two older sisters. They attended, at the time, Ashburton Primary School. Linda Macri's vehicle was stationary on Southern River Road waiting to turn right into Ashburton Drive. She was waiting for a cross‑walk attendant to stop oncoming traffic. He did so which meant, in the absence of oncoming traffic, Linda Macri could turn right into Ashburton Drive. As she did another vehicle, coming from behind her and attempting to pass, crashed into the right hand side of her vehicle causing it to jump the kerb and eventually come to rest on a building site. She said that she was momentarily unconscious as a result of the accident. When she came to there was smoke and dust. She didn't realise what had happened. She then saw her sister running towards the car with her two daughters. She realised what had happened and then noticed that her son was on the floor of the vehicle. She tried to open her door. Her sister got to the passenger's door and opened it, picking up the plaintiff who was crying. Linda Macri said that she had a big cut on the top of her head and was bleeding profusely. One of the school teachers took her to the nearby Ashburton surgery where she was attended to by a doctor who inserted sutures to mend the cut. Describing her vehicle immediately after the accident Linda Macri said that there was blood on the windscreen and on her side window. Apart from the head injury she had cuts to her legs, bruising and torn ligaments.
Following her attendance at the surgery she returned home. She subsequently suffered aches and pains.
Linda Macri eventually made a claim for damages arising out of the negligence of the driver of the other vehicle involved. That claim, she said, was settled in 1998. There was no trial.
It was clear that, immediately after the accident, Linda Macri was not concerned for the plaintiff who was apparently not injured at all. He was not taken for any treatment but rather returned home. She said that, subsequent to the accident, she noticed changes in his behaviour. He had nightmares and would wake up screaming during the ensuing couple of weeks. Another change that she noted was that he began soiling his pants in the week following the motor vehicle accident. At first she thought that the soiling itself was an accident but it started to occur on a daily basis. It wasn't, she said, that he completely emptied his bowels but rather, on some occasions, there was a small amount of soiling and, on other occasions, a lot. Initially she thought that both the soiling and the nightmares were a temporary reaction to a bad experience but they proved to be persistent. Eventually she took him to see her general practitioner, Dr Ho, in the first week of January 1989.
Linda Macri was not happy with Dr Ho's attitude. She sought a referral and eventually took her son to see Dr Melvin Wall, a paediatrician. She explained that the attendance upon Dr Wall came about because her son had been diagnosed with attention deficit disorder ("ADD"). Apparently the diagnosis had been made by a social worker at his school who said that her son had ADD and that she should see a paediatrician. She said that there was a very high percentage of ADD children at that school, particularly from grade 1 to grade 3. It appears that the plaintiff was then in grade 1. Dr Wall prescribed dexamphetamines.
The soiling problem progressed such that within two months it was occurring every second day and by the end of the year on a daily basis. The plaintiff began school. Towards the end of grade 1 and going into grade 2 the soiling problem became worse. It began to happen at school to the point where teachers would telephone Linda Macri and ask her to collect her son. She said: "I went down to get him and they would have him in the shower cubicles." When asked who would do that she said "the teachers". She described how a teacher would squirt her son with a hose to clean him down.
Linda Macri said that as her son got older the soiling became less and less frequent but that until about grade 5 it was a daily occurrence. He completed grade 3 at Ashburton Primary School and changed in grade 4 to Forest Crescent Primary School. When asked why there was a change Linda Macri explained that it was to do with his behaviour at school which, it appears, was not just a problem of soiling but involved other behavioural aspects. For example, he had been taking a pocket knife to school.
Linda Macri said that over the years her son's soiling, beyond grade 5, slowly improved. Coming to the present, it seems that the plaintiff still lives at home. His mother does his washing. When asked if there was still evidence of soiling she replied that there was and when asked how often she replied: "probably once or twice a week".
The plaintiff described his recollection of seeing his mother in the driver's seat immediately after the motor vehicle accident with blood all over her head. He said that in the year after the accident he had nightmares, waking up screaming. He said that he still has them but not very often. He could not remember when the last nightmare occurred. He said that he did not have nightmares prior to the accident. Their frequency had decreased a lot over the years. When asked about other changes experienced by him after the accident he said that he started having temper tantrums at about six and a half or seven years old.
He said that, as at the date of the motor vehicle accident, he was fully toilet trained. All members of his family who gave evidence agreed that that was so. He said that he began, a couple of weeks after the accident, to soil himself. He said that he first went to pre‑primary school and then to primary school. He had the soiling problem at both. There were times when he had to go home from school because of it. His mother would collect him. His problem continued into high school but the frequency began to fall away. When asked whether he still had the soiling problem he said that he did but not very often. He associated its onset with stress. It happens still, he said, about once or twice a month.
He complained that currently his back gets sore at work. He said that he first noticed the back pain when he was seven years old.
He complained also that he currently gets headaches "all the time". When asked if he could remember when he first got headaches he replied: "not really". At high school he went to see the school nurse, Murray Masters, about his pain and headaches. He complained to the school nurse of back and neck pains and headaches. The nurse responded by rubbing Tiger Balm on his back, neck and temples. He suggested taking medication for the problem. The plaintiff said he refused to do so "because I hated taking medication."
His counsel asked: "What sort of feet have you got?" and he replied "flat feet". He said that his flat feet affected his ability to play sport.
By his Amended Statement of Claim the plaintiff alleges that the driver of the other vehicle involved in the motor vehicle accident on 15 December 1988, one Peter Morris Bilich, was negligent. That is admitted by the defendant. The plaintiff says, further, that as a result of the negligence he suffered injury particularised as follows:
"1.Soft tissue injuries to his cervical or cervical‑dorsal and lumbo‑sacral spine.
2.Soft tissue injury to the abdomen area.
3.Post‑traumatic stress disorder.
4.Psychological injuries and associated problems including those of the bowel.
5.Head injury."
The plaintiff seeks damages for the injuries suffered by him resultant upon the defendant's negligence. The defendant admits that, as a result of the collision, the plaintiff sustained "some injury and damage" but otherwise does not admit the various allegations raised by the plaintiff in his statement of claim and puts the plaintiff to proof of the particulars pleaded by him. Specifically, there is a denial of any loss of earnings or earning capacity.
What impact, if any, did the motor vehicle accident on 15 December 1988 have on the plaintiff? His mother thought, immediately after the accident, that he needed no treatment because, apparently, he had suffered no injury. It appears that other members of the family shared that view.
The plaintiff could recall seeing a doctor at some stage after the motor vehicle accident. He remembers Dr Albert Ho but could not remember when it was that he saw him or how many times he did so.
In cross‑examination the plaintiff admitted that he began soiling when he commenced pre‑school. He clarified that by saying that he thought it began at the beginning of 1989.
It would appear that Dr Ho was the first medical practitioner seen by the plaintiff following the accident. He was a general practitioner. He could recall seeing the plaintiff after the motor vehicle accident but couldn't recall when. He saw him on more than one occasion.
By letter of 30 January 1990 he wrote to Peter A Brindal & Co, solicitors for Linda Macri, as follows:
"Angelo did not sustain any physical injury but mum complained that since the accident he has been very irritable, has a poor appetite and is suffering some weight loss.
Examination revealed no abnormality and was reassured that it is a temporary problem and should resolve with time. I reviewed him again in May 1989, he was still having the problems as described, with nightmares at night. He was having temper tantrums, especially when in a motor vehicle. I reassured mum and advised that it should resolve with time."
Oddly enough, there is no mention in that letter of a bowel problem although Dr Ho had referred Angelo Macri to Dr CJA Holme, a radiologist, who, by letter of 15 December 1989, reported to Dr Ho that: "faeces are present in the colon and rectum. The intestinal packing is otherwise normal. No stone or mass lesion is shown." There had been no treatment for seepage or soiling at that stage.
On 13 March 1990 Dr Melvyn Wall, paediatrician, wrote to Dr Ho thanking him for referring Angelo with both faecal soiling and behaviour problems. He said that he first saw the plaintiff on 6 March 1990 just after he had commenced year 1 at Ashburton Drive Primary School. It was clear that he had commenced pre‑school at the beginning of 1989. In his report Dr Wall noted that the plaintiff had been involved in a motor vehicle accident around the time of the onset of the soiling. The other aspect of the referral involved behavioural problems. In his report Dr Wall noted that he had been "quite OK at pre‑primary last year and he only started school proper this year."
As to the soiling problem Dr Wall confirmed what he referred to as "faecal loading" and prescribed oral Senokot to clear the bowel. With regard to the behavioural problems Dr Wall said:
"I feel that although the motor vehicle accident could have triggered the constipation problems his present demeanour is more likely related to his starting school particularly as he tends to be a rather socially immature child anyway. Possibly the transition from pre‑primary to primary school has not been tolerated well though with mother's reporting that he has now improved a little, I do not feel that anything further needs to be done at present."
By letter of 27 March 1990 Dr Wall wrote in similar terms to P A Brindal & Co, solicitors. He said:
"The co‑incidence of the onset of bowel symptoms with the motor vehicle accident is probably significant with regard to this problem which by this stage of course, has become a physical problem and one which will hopefully settle when the medication and close follow‑up, which will certainly be required."
By letter of 10 December 1990 Dr Wall wrote to P A Brindal & Co reporting that the plaintiff's constipation problems had relapsed due to the fact that he had not been on medication for two or three months. He had started soiling again, undoubtedly due, he said, to chronic constipation. The treatment was re‑started. His behavioural problems noted earlier had seemingly resolved. He commented in that report that the bowel problem, at that stage, did not appear to be related to the motor vehicle accident.
By letter of 10 April 1992 Dr Wall reported to P A Brindal & Co that there had been a further relapse with the bowel problems and that the plaintiff would require a three month course of Microlax enemas to be given on Mondays, Wednesdays and Fridays together with liquid paraffin on a daily basis. He reported:
"His other problems remain quiescent and he appears to be in good spirits."
By letter of 15 June 1993 Dr Wall wrote to P A Brindal & Co as follows:
"I would confirm that Angelo continues to be treated for attention deficit disorder but that this is unrelated to his motor vehicle accident, the problems of which are now resolved."
In August of that year he reported to Dr Pong of the Ashburton surgery that the plaintiff's bowels continued to be okay and that he had been off medication for a considerable time. He was discharged from follow‑up so far as that problem was concerned. It appears that he was continuing on dexamphetamine medication.
By letter of 12 July 1994 to Dr Pong Dr Wall reported that the plaintiff was soiling again. In February 1995 the soiling problem continued.
Dr Wall was called by the defendant. In evidence‑in‑chief he confirmed that he saw the plaintiff as a result of a written referral from Dr Ho. He said that, in a letter from Dr Ho, he had been advised that the soiling problem had commenced about nine months after the motor vehicle accident. The history given to him by Linda Macri at the time of the first consultation was that it had commenced at around the time of the motor vehicle accident. Dr Wall, in cross‑examination, admitted that there was no specific reference in Dr Ho's letter to nine months and his understanding of the onset of the bowel symptoms after nine months was the result of an inference that he drew from the fact that Mr Ho's letter of 30 January 1990 made no mention of the bowel symptoms at all. That inference might not be reliable given that Dr Ho had referred the plaintiff to the radiologist, Dr Holme, for x‑rays of the lower bowel in late 1989. Dr Wall's conclusions were also based on information contained in a report forwarded to him by Dr Finlay‑Jones, a psychiatrist. That report was prepared in December 1995. Again, he relied on his own inferential reasoning to conclude that the bowel symptoms had appeared several months after the motor vehicle accident. Dr Finlay‑Jones himself did not give evidence. His report is not in evidence.
The inference drawn by Dr Wall from the two documents referred to created a good deal of heat in the course of Dr Wall's evidence because it appears to be the basis of his denial of a causal relationship between the motor vehicle accident of 15 December 1988 and the bowel problem but a careful reading of his evidence and his reports suggests that that was not necessarily so.
The evidence which squarely and unequivocally denied the causal relationship between the two was that of Dr Richard Hill, paediatric gastroenterologist, called by the defendant. By letter of 7 March 1996 he reported to Peter A Brindal & Co, solicitors. He had seen the plaintiff on 23 November 1995 and again on 29 February 1996 because of his problems with constipation and, on the second consultation, obesity. In that report he said:
"In my opinion, Angelo has not suffered any disability as a result of his motor vehicle accident. Chronic constipation and obesity are both common problems in our community."
In his evidence he mentioned that he had seen Angelo Macri in 1993 and again in 1995 and 1996. He described the plaintiff as having a condition called secondary constipation. That condition is to be distinguished from primary or ordinary constipation where children have not become toilet trained or learnt to be continent. Secondary constipation occurs where they have been toilet trained but for one reason or another retain faeces within the bowel with the result that the rectum or lower end of the large bowel becomes extended. They then lose sensation and function. With a large accumulation of stool there is leakage known as soiling. The whole condition is known as secondary constipation with an acquired megacolon. Dr Hill said that it was a common condition and eminently treatable requiring both medicine and an adherence to a sensible and appropriate diet.
Dr Hill said that he took a history from the plaintiff's mother. In that regard he said:
"I should add that I knew that this was in relationship to a motor vehicle accident and I asked in the history about relationship of the soiling and the car accident and there was no close association."
Putting that to one side Dr Hill concluded that there was no causal relationship between the bowel problem and the motor vehicle accident. I asked him to clarify that conclusion. In response he said:
"The majority of children who have constipation as a consequence of a severe car accident or accident of any kind have very extensive neurological damage, mental retardation, epilepsy, cerebral palsy, a whole range of very severe neurological disturbances. The reason is that there's what's called a brain‑gut axis and the brain is far more than something that tells us to read the newspaper. It actually controls all of the other activities of the body. So patients who have either spinal damage or central nervous system damage can develop constipation and that is an entirely different kettle of fish to those children who you see are functioning normally in the office, who relate well to – have no evidence of neurological disturbance, walk, talk etc normally, so it is usually very obvious if something is due to neurological damage as a consequence of an injury as opposed to simple secondary constipation. Indeed this boy had been toilet trained prior to me seeing him first which indicates to me that he was neurologically normal at that stage and cognitively normal as well. Constipation isn't something you do because you're bad or wicked or misbehaving; its something that happens to many children through no fault of their own."

I then asked him, putting aside the question of neurological damage, whether the onset of the problem of secondary constipation might be related to trauma. He replied:
"I don't believe that there is any evidence. The only things I would think that would tend to cause problems with constipation and trauma might be a blunt abdominal trauma which might then result in an operation with adhesions and scarring and direct involvement of the colon itself, but a car accident itself I don't believe would have any effect on or cause constipation."
In cross‑examination Dr Hill was asked whether his opinion would change if the evidence was that from December 1998 there had been a soiling problem immediately following the accident. He replied "that's not the history that I obtained." When pressed in cross‑examination it transpired that Dr Hill had inferred from the information that had been provided to him from Linda Macri that the soiling problem had begun a year or two prior to 1993. In evidence he admitted that he did not have a specific recollection of precisely what had been said to him or what he had said to her. He was asked whether, if the soiling problem had begun immediately following the motor vehicle accident as a matter of fact, he would be as confident in his view that the accident had no role to play in relation to the development of constipation. He replied that he would explain that soiling is something that doesn't develop unless the person has been constipated for several months. It is not something that develops within one week of suddenly becoming constipated. When asked whether it might be an emotional response to the accident he replied: "You don't have overflow soiling for emotional reasons." When asked to explain he said: "You do not develop overflow incontinence and soiling within one week of an emotional disturbance."
The plaintiff called Dr D O Watson, consultant physician, who saw him on 24 January 2002. He obtained a history primarily from the plaintiff. Referring to the motor vehicle accident he said: "The problems with his bowel started within a year. He was seeing Dr Wall I think about 15 or 18 months later and Dr Wall was saying that he just had symptoms for about 15 months." It was Dr Watson's understanding that the soiling problems had developed within 12 months of the motor vehicle accident. He explained:
"The presence of constipation merely implies that the transit time, that is the time that it takes for that liquid material when it enters the large bowel to reach the rectum and be excreted, is longer. In the context that I envisage was happening to Mr Macri at this age, he was becoming more and more constipated because the transit time was slowing down. He then had an increasing amount of increasingly dry and therefore irritating faecal material which starts off obviously in the rectum but dams back. The bowel really only has one response to that and that is it excretes mucus and water into the bowel and flushes it out, and that's the basis of soiling."
In cross‑examination Dr Watson agreed that to a degree he would defer to Dr Wall's opinion given that Dr Wall was a consultant paediatrician and that he saw Angelo Macri not long after the motor vehicle accident.
It does appear that there may well have been an inclination in the reporting to medical practitioners to closely associate in time the onset of soiling with the motor vehicle accident to bolster the temporal connection between the two. I accept the evidence of Dr Hill to the effect that the type of secondary constipation and soiling or seepage suffered by the plaintiff would not have developed with any degree of immediacy and that the condition would take time to manifest itself in the form of seepage or soiling. I do not accept that the soiling manifested itself within the first week of the motor vehicle accident but I do accept that it did so within the first 12 months of the motor vehicle accident. It is not possible to be precise. Certainly, by December of 1989 Dr Ho had referred the plaintiff for radiological abdominal examination. I accept that prior to the motor vehicle accident the plaintiff was fully toilet trained.
To the extent that there is to some degree a temporal connection between the onset of the problem of soiling or seepage and the motor vehicle accident there is also a temporal connection with the commencement of pre‑school in 1989. It is the case that, as a matter of fact, the plaintiff began pre‑school at the age of four years and commenced primary school at the age of five years. Dr Wall expressed the view that the plaintiff, when he examined him as a five year old, appeared to be "a little immature for his age."
Dr Wall did not exclude the possibility that the motor vehicle accident triggered the bowel problem. In cross‑examination by the plaintiff's counsel he said that it was his view that if there had been no motor vehicle accident the plaintiff would most likely have developed the symptoms. He said: "It's not that common for emotional‑type problems to trigger off the symptoms but it is a possibility." As I have already mentioned Dr Hill was firmly of the view that overflow soiling is not caused by emotional factors. The other expert who gave evidence on the point was Professor George Lipton, a consultant psychiatrist, who said in his report of 8 February 2004:
"If the soiling was a consequence of the trauma, as in my opinion it is, then the effect of this symptom on his life is profound and interacts with his other problems to his detriment."
In his evidence Professor Lipton spoke of encopresis being in two forms, primary and secondary. The secondary kind, he said, occurred when a child who has been toilet trained has a period of passing normal motions and then, as a result of a traumatic or upsetting event, reverts and begins soiling again as though he or she had lost their toilet training. The great majority of those secondary types of encopresis, he said, tend to be related to emotional factors. In his report he said:
"I would regard this as significant because a regression in toilet training as a result of an emotional trauma is not uncommon."
My understanding of the evidence is that neither Dr Hill nor Dr Wall diagnosed a regression in toilet training. The secondary constipation diagnosed by Dr Hill was, he said, a common condition that was eminently treatable. His area of speciality was that of paediatric gastroenterology. He has been a consultant gastroenterologist for the past 23 years and when asked how many children he would have seen with constipation problems over that time he replied five to five and a half thousand patients. It follows that the plaintiff's problem fell squarely within his area of speciality and that he was eminently qualified to give an opinion. Dr Wall had been a consultant paediatrician for 10 years when he saw the plaintiff for the first time. He said that the diagnosis was of constipation with secondary soiling due to that problem. He said that he explained to the plaintiff's mother the reason for the soiling and made it quite clear to her that it was certainly not due to an emotional problem. He said that he pointed out to Linda Macri that the condition was not caused by the motor vehicle accident and that it was a very common problem which tended to occur in children who had a predisposition to become constipated. He though it was most likely to be related to school, either the transition to pre‑school or the transition from pre‑school to primary school. His description of the physical process leading to the plaintiff's soiling was the same as that given by Dr Hill. Clearly he did not find that there had been any regression or reversion to a pre‑toilet training state even though the consequence of the condition diagnosed might appear to the onlooker to be just that. He said:
"The differentiation between that and a child who is just soiling but whose bowel is not full is the presence of absence of constipation. This is categorised and is actually in the diagnostic and statistical manual of mental disorders in children although its not actually caused by psychiatric or emotional causes in over 90 per cent of cases."
In his opinion the word "encopresis" meant the passage of faeces into a place that's abnormal, in other words, not into a toilet bowel but rather into underpants or elsewhere. It is clear that the plaintiff's problem was not encopresis in that sense.
Counsel for the plaintiff urged upon me that the reference by Dr Wall to the possibility that the motor vehicle accident may in some way have "triggered" the constipation should lead me to the conclusion that the motor vehicle accident was, therefore, a material cause of it. In arriving at a conclusion on the question of causation I prefer the evidence and opinions of Dr Hill and Dr Wall to those of Dr Watson and Profession Lipton not only because the problem fell within the area of their speciality but also because their involvement with the plaintiff was much closer to the matters about which they were giving evidence.
The proposition is that I should be satisfied on the balance of probabilities, having regard to the evidence, that the trauma experienced by the plaintiff in a motor vehicle accident when he was four years old caused a bowel condition which was diagnosed just over a year later, a condition said to be relatively common and not, in the eyes of those most expert in the area of the diagnosis, generally resultant upon trauma. I am not satisfied on the balance of probabilities that that was so.
Counsel for the plaintiff referred me to the case of Tubemakers of Australia Ltd v Fernandez (1976) 10 ALR 303. In that case Mason J observed that it was open to the jury to infer that on the probabilities the injury suffered by the respondent caused or materially contributed to the occurrence of a condition known as "dupuytren's contracture". His Honour said that in drawing such an inference the jury were entitled to have regard to certain circumstances they being, firstly, that before the accident the respondent had suffered no disability in his right hand, secondly, that the condition made its appearance shortly after the accident and, thirdly, that no alternative cause was established or suggested in the evidence. His Honour said that the combination of those circumstances taken together with a doctor's evidence provided a sufficient basis from which the jury could draw an inference favourable to the respondent. He then went on to say that reaching that conclusion involved no departure from the ordinary onus of proof which rested upon a plaintiff to establish on the probabilities that a medical condition or disability from which he or she suffered was "caused or materially contributed to" by the defendant's wrongful conduct. He went on to say that, consequently, the plaintiff would fail if all he could show was that his disability might have been so caused.
I was also referred to and have had regard to the decision in the High Court in the case of March v E & MH Stramare Pty Ltd & Anor (1991) 171 CLR 506. In that case Mason CJ said that the common law tradition is that what was the cause of a particular occurrence is a question of fact which must be determined by applying common sense to the facts of each particular case. In the case before me I am not satisfied that the temporal connection between the motor vehicle accident and the onset of the bowel problem, to the extent that there is such a connection, should lead me to infer that the former caused the latter. It is the case that the onset of the problem was contemporaneous with the plaintiff being at pre‑school and thereafter making the transition from pre‑school to the first year of primary school. The history of the problem confirms that it is more likely to be associated with other factors such as diet and, as the problem continued, the failure to maintain appropriate dietary and treatment management regimes.
The problem of soiling or seepage continues to the present time. When asked by his counsel as to the frequency of soiling he said: "Maybe once or twice a month now." When counsel for the plaintiff asked Linda Macri as to the current frequency of soiling she said: "Probably once or twice a week; very, very regularly its once a week."
By letter of 24 April 1990 Dr Wall reported to P A Brindal & Co that the plaintiff appeared to be making good progress with regard to his bowel motions and that repeat x‑rays were "quite clear". He went on to say:
"Mother felt that socially Angelo was much better at school, which indicated to me that this was either an adjustment problem or possibly that his demeanour could have been related to the constipation."
He was then to be reviewed in five weeks time. That review did not occur. He was eventually reviewed by Dr Wall on 5 December 1990. It was apparent that his constipation problems had relapsed due to the fact that the plaintiff was not on any medication for the previous two or three months. He was again soiling. The treatment was re‑started. Again Dr Wall expressed the view that the problem did not appear to be related to the motor vehicle accident. The treatment resolved the problem. By 20 December 1990 Dr Wall reported to Dr Ho that the plaintiff was having regular motions and that a repeat abdominal x‑ray was "quite clear".
On 24 September 1991 Dr Wall reported to P A Brindal & Co that there had been a slight relapse in August and that the problem had been rectified. On 10 April 1992 Dr Wall reported to P A Brindal & Co that there had been a relapse of the bowel problems and the treatment would be recommenced. By letter of 3 August 1993 Dr Wall reported to Dr Pong that the plaintiff's bowels continued to be "okay" and that he had been off medication for a considerable time. A repeat x‑ray was clear. The plaintiff had been discharged from follow‑up so far as that problem was concerned. By letter of 12 July 1994 Dr Wall reported to Dr Pong that the plaintiff was soiling again. By letter of 21 February 1995 Dr Wall reported to Dr Pong that the plaintiff was again soiling.
Mrs Macri took her son to see Dr Richard Hill on 23 November 1995. He had previously seen the plaintiff in July 1993 at the request of a general practitioner, Dr Pearne‑Rowe. The consultation in November 1995 was at the Gastroenterology Outpatient Clinic at Princess Margaret Hospital. Dr Hill concluded from his physical examination and the history that the plaintiff had suffered from chronic constipation and acquired megacolon with overflow incontinence. He recommended an appropriate diet and treatment. He noted that the family failed to attend for follow‑up on 11 January 1996. At that stage the plaintiff was 20 kilos overweight and suffered from "a quite disordered diet and lack of self‑control as far as eating is concerned." In a report of 7 March 1996 Dr Hill said:
"A dietary review indicates a quite inappropriate diet with far too much 'junk food' and insufficient fibre intake, but in spite of this, his toileting has improved dramatically. He no longer has physical evidence of colonic loading, nor rectal distension or soiling and clinically, I feel his acquired megacolon has resolved."
Dr Hill observed that any further medical treatment required by the plaintiff would relate to an appropriate diet as recommended by Australian dietary guidelines plus minor stool softeners and stimulants as required to control constipation should it recur. He said:
"The prognosis of secondary constipation without any underlying physical or surgical abnormality relates to the patient and parents' compliance with toileting recommendations and adherence to diet and intermittent treatment as required."
At the time of the situation described by Dr Hill the plaintiff was in his final years at primary school. The plaintiff said that he still had the bowel problems but not so often at high school. He said that his mother still had to come to high school on a couple of occasions to collect him.
The rather comprehensive report of Professor George Lipton of 8 February 2004 was based on interviews with the plaintiff and his mother on 3 and 4 February 2004, respectively. In relation to the problem of soiling Professor Lipton said:
"The soiling continued almost all the time until he left school at age about 15. He had a very hard time at school because he was teased a lot and got into many fights. The bullying he experienced had to do with his soiling and he was very embarrassed about it. He didn't like talking about it now and admitted that he used to hide his underpants."
As to the present time Professor Lipton said:
"He is very proud of himself for having overcome his difficulties without medication. He has learnt to control himself and no longer loses his temper as he used to. He occasionally gets headaches. He doesn't tell anybody and just waits for them to go away which takes about an hour. He also has some difficulty with his back and has some sort of curvature of his spine. In certain positions it becomes very sore and stiff for a while. He does not take any treatment for this."
It would appear that although his mother complained to Professor Lipton that soiling was a then current problem the plaintiff did not. In answer to the question whether the plaintiff would need to take medication in the future Professor Lipton replied:
"I did not see any indication for medication currently for the issues I was asked to examine."
There was no indication by him of a need for further treatment. One would have thought that if the problem of soiling was ongoing there would have been some reference to it and the need to deal with it. That seems to be in line with the conclusion drawn by Dr Watson in his report of 1 February 2002 who said:
"I have not recommended any treatment and can see no need to recommend consumption of medication for any of these problems."
As mentioned earlier, I am not satisfied on the balance of probabilities that the problem of seepage or soiling was caused by the motor vehicle accident. Having regard to the foregoing I have my doubts as to whether it currently still persists. If it does it has persisted on and off for about 15 years. Its recurrence, I find, is related to persistent failure to maintain appropriate dietary and treatment regimes.
So far as other childhood problems suffered by the plaintiff are concerned it appears that Dr Wall noted during a review on 21 September 1992 that the plaintiff had been seen by another consultant paediatrician, Dr Michael Slattery, who had diagnosed attention deficit hyperactivity disorder ("ADHD"). It appears that Dr Wall spoke with Dr Slattery and, he said, he then took over the plaintiff's care both with respect to ADHD and constipation. It appears that, prior to doing so, Dr Wall was not aware that another consultant paediatrician was involved in the plaintiff's care. It appears that Dr Slattery had prescribed dexamphetamines. That medication was continued by Dr Wall.
Dr Wall was asked in cross‑examination by the plaintiff's counsel whether he had ever done any testing of Angelo's functioning or his processing ability. Dr Wall replied that those tests had already been done by Dr Slattery. Dr Slattery was not called to give evidence by the plaintiff. The results of those tests were not available.
In cross‑examination Dr Wall admitted that in about August of 1993 his focus in terms of the treatment of the plaintiff's problems shifted from the bowel to ADHD and his educational problems. In some ways it is clear that maintenance of the ADHD problem mirrored maintenance of the bowel problem. Dr Wall explained:
"Attention deficit disorder is a similar problem in that respect your Honour, your Honour. If they're managed and they're allowed to progress with the aid of that medication for an early enough time until they reach the age of maturity, they then have sufficient mechanisms to by‑pass and any remaining problems and they can normally function quite well."
There is a degree to which there was a failure to maintain medication by continuing to take dexamphatemines as prescribed. The plaintiff himself said in evidence‑in‑chief that he hated taking medication. His failure to do so may well be related to the attitude of his father who, in cross‑examination, claimed that his son never had a disorder at all and that his son did not need the medication prescribed for him. When asked: "But were you aware he was taking that medication for a problem that is described as attention deficit hyperactivity disorder?" Mr Macri Snr replied "That's what I couldn't understand, that – the simple reason they put him on in the first place." When asked about the prescription of dexamphetamine he replied: "That's right, but dexamphetamine – its only when your child is naughty. Right? When he's over‑acted in this – and when he's like that, but my son wasn't over‑acted, wasn't naughty, wasn't doing any sort of things like that." He said that he didn't agree with his son being prescribed dexamphetamines and that he did not want his son to be on that sort of medication and he "put him off it". He told his wife that he did not want his son to take any of that medication. He said that his son was teased at school and did not want to go to school. That reflected the plaintiff's evidence to the effect that he was always getting teased at school because, as he said, "I was pretty fat and my sweating problem".

Bridget Boultwood, a clinical psychologist, saw the plaintiff with his mother on 10 November 1995. The plaintiff had been referred to her by a general practitioner, Dr De Souza, via Dr Susan Priest, a clinical psychologist. The referral indicated that the plaintiff had previously received assistance in respect of soiling from a psychiatrist, Dr Roger Cole at Hillview Clinic. At the time of the first interview with Ms Boultwood the plaintiff was a few days short of his eleventh birthday. In her report of 5 July 1996 she said:
"With regard to school it appeared as though Angelo was managing well. He had had some difficulties for which he received remediation when he was in year 3, but was generally doing well. There had been some concern though about the impact of Angelo's soiling problem on his peer relationships, in particular in relation to activities after school. This continued to be of concern throughout the treatment and was worked on with Angelo."
Ms Boultwood was called by the plaintiff. She was not aware that the plaintiff had been under the care of the consultant paediatricians Dr Wall and Dr Slattery. It appears also that she had not been made aware that the plaintiff had been diagnosed with ADHD and prescribed medication for it. Ms Boultwood concluded that the plaintiff may have suffered post‑traumatic stress disorder as a result of the motor vehicle accident. She thought that, as a result of that disorder, the plaintiff had regressed to an earlier developmental stage in which he lost the skills he previously had mastered in relation to toileting. That assumption runs contrary to the diagnoses of Drs Hill and Wall. It is clear that the plaintiff did not regress to an earlier developmental stage and did not lose the skills that he had learnt in toilet training. It is of note that Ms Boultwood reported that the initial focus of her treatment was to discuss with the plaintiff the meaning of the impact he perceived the motor vehicle accident had had on his life and his mother's life. She said:
"For Angelo, the memory of this accident was still foremost in his mind and he had attributed his difficulties with soiling to this incident."
I have no doubt that both the plaintiff and his mother and probably every other member of his family closely associated with him have attributed the soiling problem to the motor vehicle accident. The real difficulty, when faced with the manifestation of the soiling problem and behavioural difficulties was a reluctance to maintain treatment and dietary regimes and, certainly on the part of the plaintiff's father, to accept that there was anything wrong with his son or any need for medication at all.
Dr David Watson saw the plaintiff on 24 January 2002. He noted that the plaintiff had been under the care of a speech pathologist and a consultant psychiatrist, Dr Robert Finlay‑Jones. Apparently the latter had diagnosed post‑traumatic stress disorder. Reference was made to Dr Finlay‑Jones' report of 18 December 1995. As mentioned, he was not called by the plaintiff. His report was not in evidence before me.
Dr Watson reported on 1 February 2002 that the plaintiff experienced low back pain in his work and discomfort in knees and ankles when lifting, climbing onto vehicles and working in awkward positions. These symptoms, he said, had meant that the plaintiff had had to give up a number of sports such as boxing. Thomas Arthur Greenwood gave evidence for the plaintiff. He ran a business called "Boxing for Fitness" in Victoria Park. In about 1998 he became acquainted with the plaintiff's father. At that stage Mr Greenwood was working at the Maddington Police and Citizens Youth Club where he taught boxing. The plaintiff's father asked if the plaintiff might join in. The plaintiff attended but never actually got involved in competition boxing. Mr Greenwood explained:
"No, because he would come and endeavour to do the physical training. See, the physical training comes before the boxing part of it and if you can't cope with that, obviously you're not fit enough to do the boxing part of it."
Clearly, the plaintiff was not able to keep up with the training. The principal reason for that was because he was overweight. Mr Greenwood was asked:
"So if there hadn't been an initial weight problem or if that had been overcome, then he might have been keeping up on the other fronts?"
Mr Greenwood replied: "Without a doubt, Yes."
Dr Watson examined the plaintiff and found that he had flat feet. He then expressed the view that:
"Mr Macri almost certainly had some soft tissue injuries of his cervico‑dorsal and lumbo‑sacral spine areas, the two most mobile parts of his vertebral column. This almost certainly related to him being flung forward onto the floor of the vehicle at the time of the collision. The other injuries that he suffered in the collision appear to be specifically psychiatric. Mr Macri had fallen arches which I believe are independent of the collision and unrelated. I am sure the fallen arches contribute to some of the discomfort he experiences in his ankles and possibly his knees and they may relate to the subtle genu valgus in his left knee. I would not see these as being relates (sic) to the collision in any way."
Dr Watson saw the plaintiff again on 23 January 2003 and noted in a report of 28 January 2003 that the plaintiff was then working, was doing some duties on the family property at Southern River and was doing a lot of snorkelling. His flat feet were causing him pain when walking.
It appears to me that Dr Watson's report of 1 February 2002, some 13 years after the motor vehicle accident, is the first diagnosis of soft tissue injury following the motor vehicle accident. It is apparent in the intervening period that the plaintiff was the subject of care or review or both by a variety of medical practitioners including several paediatricians and several general practitioners. A number of the medical practitioners referred to in the course of the evidence were not called by the plaintiff. I infer, in the circumstances of this case that their evidence, had they been called, would not have assisted the plaintiff's case. (Jones v Dunkel (1959) 101 CLR 298).
The plaintiff was asked by his counsel: "When did you first notice any of that back of neck pain?" He replied: "When I was about seven". He was then asked "Can you remember that?" and he replied "Not really". He was asked whether he told his mum about neck and back pain and he replied "Not really. Just pretty much kept it to myself." When asked whether, when he was at high school, whether he went to see anyone about his neck and back pain or headaches he replied that he went to see the school nurse, a Murray Masters when he was in Year 8 or 9. They were the years in which he turned 13 and 14, respectively.
Dr Richard Hill saw the plaintiff when he was 11 years old as a result of a request from P A Brindal & Co, Solicitors of Langford. That firm wrote to Dr Hill advising that they acted for Linda Macri in relation to the plaintiff's compensation claim arising from injuries sustained in the motor vehicle accident on 15 December 1988. Dr Hill was asked to report on his findings on physical examination and diagnosis and as to the extent of any permanent disability suffered by the plaintiff as a result of the accident. He was asked to express that in terms of percentage loss or loss of the use or efficient use of the part of the body or faculty affected by the injuries sustained in the accident. In his report of 7 March 1996 Dr Hill advised that in his opinion the plaintiff had not suffered any disability as a result of his motor vehicle accident. The physical examination and history presented to him in 1995 was consistent with chronic constipation and acquired megacolon with overflow incontinence. The plaintiff was 20 kilos overweight. Dr Hill advised that he was unable to comment on the possibility of the plaintiff's obesity in 1996 relating in any way to an accident many years previously.
The plaintiff's solicitors had enquired as to whether their client's claim could proceed to finalisation and provided Dr Hill with a copy of a medical report from Mr Finlay‑Jones dated 18 December 1995. It is poignant that Dr Hill's report makes absolutely no reference whatsoever to soft tissue injury of any sort or aches and pains complained of.
In cross‑examination Dr Watson was asked about the time interval between the motor vehicle accident and the manifestation of aches and pains. He replied:
"It is to the extent that it was unmasked by sporting activities and as he went on, in due course he had to stop most of the things he did on land, like boxing training, for example, because he couldn't keep up with the running that was required in training, but he could manage sport in water very well which again is…"
I find that the difficulties experienced by the plaintiff in that regard, attributed by him in his interview with Dr Watson to the motor vehicle accident, were the result of he being unfit and overweight. The latter in all probability related to diet. He was unable to achieve fitness because of obesity. In my view the diagnosis of soft tissue injuries is belated and thin and not supported by the evidence overall.
The plaintiff pleads that as a result of the negligence of the defendant he suffered post‑ traumatic stress disorder and head injury. The plaintiff pleads that at the material time he was the passenger in a Holden Statesman motor vehicle driven by his mother. Further, the plaintiff pleads the negligence of the defendant, particularising that negligence and that as a result of the defendant's negligence, he suffered injury.
The plaintiff gave evidence that he was in the passenger seat of a vehicle being driven by his mother. He gave no evidence of what happened to him at the time of the impact when the defendant's vehicle struck the vehicle in which he was travelling. He said that he recalled seeing his mother unconscious with blood all over her head and on the dashboard of the car and windows. He pleaded that immediately after the accident he experienced pain in his abdominal area. He gave no evidence to that effect.
Linda Macri, the plaintiff's mother, said that her son was in the front passenger seat, that he was definitely wearing a seat belt and that he had a child booster seat. She said that she remembered no noise at the time of impact. The point of impact was her door, that is, the driver's side front door. She said the vehicle jumped up a kerb and landed in a big dirt patch where a new house was being built. The plaintiff said that the vehicle in which he was travelling hit a wall. His mother gave no such evidence. She said that she was momentarily knocked out in the accident and that, immediately following the accident, she noticed that Angelo was on the front floor underneath the glove box.
The plaintiff called Ms L W Coxon, a clinical psychologist, to give evidence. She first saw the plaintiff on 29 August 2002. She was told that the plaintiff was "flung from the front passenger seat to the floor." Ms Coxon administered a battery of tests when the plaintiff was 18 years old. She reported: "Mr Macri's current intellectual function can be seen to fall in the average range and is equivalent to his estimated pre‑accident functioning." When asked by counsel for the plaintiff how she estimated the plaintiff's pre‑accident functioning she replied:
"What we routinely do is administer what's called a NART test – National Adult Reading Test – and depending upon how well people tackle the words that are presented to them, then you'll calculate a rough estimate of their IQ. There's also another method of doing that and that is to look at the verbal comprehension index and that often gives you a good indication of what – but he was only four when his accident occurred and there's no way of very accurately determining of what a person's IQ is. Even tests for four year olds are not that accurate.'
I do not know why there is a reference to the National Adult Reading Test given the age of the plaintiff at the time of the motor vehicle accident. When asked in cross‑examination whether she was led to understand that the plaintiff had suffered an injury in the motor vehicle accident she said that she was led to believe that there could be a cognitive dysfunction because Dr David Watson said that there was a possibility of it having occurred. Dr Watson, in his report of 1 February 2002 said that he did not believe that attention deficit disorder would have arisen as a result either of a direct injury to Mr Macri's brain "which he appears not to have suffered" or as a result of the psychological consequences of the collision. He went on to say:
"I am unable to satisfy myself as to whether Mr Macri has any specific cognitive or learning deficiency. His history would suggest that to be so notwithstanding comments in Dr Finlay‑Jones' report with respect to Mr Macri's progress in school at 1995. It would be my recommendation that this matter should be clarified with appropriate psychometric testing."
In answer to a letter written by the plaintiff's solicitors to him about psychometric testing Dr Watson recommended Ms Coxon and Mr Michael Hunt as being appropriate persons to undertake that task. It does seem that Dr Watson did not suggest that there was a possibility of cognitive dysfunction. When challenged about her conclusion that the plaintiff had been "flung" to the floor of the car as a result of the impact she said, in cross‑examination, that she had never enquired as to whether the plaintiff had been wearing a seat belt and was not aware that, at the time, he was. In that regard, I note that the plaintiff's older sister, Caterina Macri, was, with her aunt, first to arrive at the vehicle after the accident. When asked by counsel for the plaintiff where the plaintiff was when she arrived she replied: "On the seat or the floor, I can't remember clearly."
In any event, Ms Coxon diagnosed post‑traumatic stress disorder and minor cognitive deficits. She concluded in her report of 9 October 2002:
"As the impairments in his processing speed and visual perceptions are relatively mild, I would not foresee Mr Macri having any particular difficulty with clerical, business or administrative duties, although it may take him comparatively longer to fully complete tasks. I see no impediment to him taking over his father's interest in the business, if that is the career path Mr Macri wishes to take. Mr Macri's prognosis for the short and long term future is generally favourable. His minor cognitive deficits are not likely to significantly impact his employability or his general enjoyment with life. However, his post‑traumatic stress disorder is likely to continue to negatively impact on many areas of his life if he is not given the appropriate psychological intervention."
She said that appropriate psychological intervention involving 12 sessions over a period of a year with a skilled clinical psychologist would ameliorate the problem of the post‑traumatic stress disorder.
It appears that as a result of the recommendations by Dr Watson the plaintiff was referred to both Ms Coxon and Mr Hunt. It appears that Mr Hunt produced a report. The plaintiff did not call Mr Hunt. The defendant did so. There was an objection to the whole of his evidence based on a claim of legal professional privilege. I upheld that claim insofar as it related to the report and any other documents which might fall into the category of communications passing between he and the plaintiff, his mother and their solicitors for the purpose of the litigation. I ruled, however, that his independent opinion as a result of his expert assessment of the plaintiff, was admissible.
Mr Hunt said that he was a senior clinical neuro‑psychologist at Royal Perth Hospital and in private practice. He said that he saw the plaintiff on 14 June 2002. The plaintiff's mother had telephoned his rooms seeking an appointment. It was the plaintiff's mother who provided a history of the motor vehicle accident and subsequent events. He said he undertook a clinical neuropsychological assessment of the plaintiff. It appears that he employed the Wechsler Adult Intelligence Scale (3^rd ed) to determine intellectual functioning. That test was used by Ms Coxon. Mr Hunt outlined that and other tests used by him which, he said, were tests designed to give the examiner an understanding of the individual's function across a range of cognitive abilities controlled by the brain. He found no cognitive dysfunction nor any form of brain disruption. He disagreed with Ms Coxon's findings. He considered that she had not adequately taken into account the impact of ADHD and said, having read her four reports, that they did not make "neuro‑psychological sense". He had taken into account that the plaintiff had witnessed his father shoot two men and that he had been told by the plaintiff that he had been knocked unconscious in a football match. It was clear from his cross‑examination that Mr Hunt disagreed with Ms Coxon's assessment that the plaintiff had suffered brain injury. Mr Hunt did not find any impairment in processing speed, visual perception or in relation to any part of the tests administered to the plaintiff. He said there was no evidence of cognitive impairment. He made no comment about the diagnosis of post‑traumatic stress disorder.
On 11 March 2002 Dr Watson, in a letter to the plaintiff's solicitors, recommended both Ms Coxon and Mr Hunt. The plaintiff was taken to see Mr Hunt first. It is apparent that, at the consultation with Mr Hunt on 14 July 2002 the plaintiff was accompanied by his mother. Ms Coxon saw the plaintiff for the first time on 29 August 2002. He was accompanied by his mother. It is not clear whether Ms Coxon new that the plaintiff had been taken previously to Mr Hunt for psychometric testing and that he had already completed at least one of the tests, or part thereof, administered by her. I infer that the plaintiff or his mother or both were not satisfied with the results of the consultation with Mr Hunt and, as a consequence, an appointment was made with Ms Coxon. At the trial the latter was called by the plaintiff and the former called by the defendant.
In addition to Mr Hunt the defendant called Ms Mandy Vidovich, a neuro‑psychologist. She had seen the plaintiff on 12 May 2003 and produced a report dated 15 May 2003. She criticised Ms Coxon's estimate of the plaintiff's pre‑accident intellectual functioning using the National Adult Reading Test suggesting that it was inappropriate to do so. I accept that to be the case. She took the view, in her report, that there was no suggestion that the plaintiff had sustained any form of brain trauma at the time of the motor vehicle accident. She suggested also that Ms Coxon had based her conclusion of impairment in his processing speed on one low average result in the face of three other average to high average performances on similar measures. She made other criticisms of Ms Coxon's reports and conclusions.
The plaintiff told Ms Vidovich that his mother had been "raced to hospital" and that he had been forgotten about, being later found in the vehicle. He stated that he had a "curve" in his spine. He also reported bilaterally pain in his knees, feet and ankles. That pain, he told Ms Vidovich, had started approximately two years after he began suffering from back pain. The plaintiff, in reporting to Ms Vidovich, attributed his physical pain, memory problems and mood swings to the motor vehicle accident. He said that he used to remember everything before the accident. In summary, Ms Vidovich concluded that the plaintiff's neuro‑psychological profile was somewhat variable with his results ranging from the borderline to high average across various cognitive domains. Some of her conclusions were based upon the proposition that he had not sustained any brain trauma in the motor vehicle accident and had sustained no head injury. She admitted that the diagnosis of post‑traumatic stress disorder was outside her area of expertise but noted from Dr Finlay‑Jones' report that Angelo Macri had reported having witnessed his father shoot two men after they had entered his workshop demanding money. His father was subsequently imprisoned as a result. Ms Vidovich concluded that one might expect that this was a somewhat traumatic experience for the plaintiff and a possible precursor for the development of post‑traumatic stress disorder symptomatology.

As to the incident referred to by Ms Vidovich the plaintiff's father, Gerolamo Macri gave some evidence about an incident which led to him being gaoled. The plaintiff, in cross‑examination, was asked about that incident. He said it was in 1990, the year of his sixth birthday. When asked to describe what happed he said "three guys went to rob him and they had guns, and he took the guns off one of the guys and shot two of them". When asked whether he was there the plaintiff said that he wasn't. He acknowledged that it was reported in the newspapers and television at the time and that his father was gaoled as a result. The plaintiff denied that the event had any effect on him at all. Professor Lipton referred to the incident in his report of 8 February 2004. He says that Gerolamo Macri was:
"taken to trial for shooting two men who had been trying to get 'protection money' from him. He apparently grabbed the gun of one of them and shot him as well as the other wounding both. He served a little over 12 months in gaol for unlawful wounding and mother feels that Angelo was upset about this."
Ms Boultwood in her report of 5 July 1996 said:
"The incidents that Mrs Macri reported as having affected Angelo included the death of Angelo's brother in 1992 who was born 10 weeks premature. Then a year later in August 1993 Angelo's father was sent to gaol for 14 months before being released. This had been difficult for Angelo as it had been for the other members of his family. It was also apparent from this interview that the effect of these same stressors on Mrs Macri had affected Angelo, as occurs for young children when they are emotionally dependent on their parents."
She concluded that the plaintiff had suffered post‑traumatic stress disorder as a result of the accident.
Professor Lipton, in general comment in his report of 8 February 2004 said that there had been several traumatic events in the plaintiff's life and that it was particularly difficult to assess the impact of each. He noted that there was a family history of cognitive and learning difficulties. He concluded that, in his view, the issue of brain damage as a result of the accident had not been demonstrated. He remarked that there was no evidence that the plaintiff was unconscious at any time or that any person was concerned that he had sustained physical injury. He said:
"In any case, as indicated by Ms Vidovich, a brain injury, if present, tends to be at its maximum soon after the injury and then subside over time to a stable state. This is not the history in this case."
I am not inclined, having regard to the whole of the evidence, to accept Ms Coxon's findings as to head injury and cognitive impairment. Professor Lipton noted that it was the opinion of Dr Finlay‑Jones that the plaintiff showed short‑term post‑traumatic stress disorder and that this was supported by the testing carried out by Ms Coxon. Professor Lipton thought that a low level of post‑traumatic stress disorder had persisted and continued to the present. He then went on to say:
"The place of the accident, as trauma, in this young man's life when he was then exposed to the trauma of a severely depressed and suffering mother, a number of miscarriages, the imprisonment of his father after he shot two people and then the most severe trauma of loss of mother's last pregnancy when he was eight is a difficult issue. It is my view that he did show a significant and deleterious emotional reaction to the accident and while it is very difficult to be sure it is my view that these later events traumatic in themselves might well have augmented his difficulties and contributed to their perseverance. However, the model for reaction in a traumatic situation was probably established by the accident when he was very young."
He went on to conclude that not all of the plaintiff's difficulties were accident related but that the accident played a seminal role in the plaintiff's developmental difficulties and his adult outcome. Professor Lipton concluded that the plaintiff had suffered an emotional injury leading to post‑traumatic stress disorder.
I am satisfied on the balance of probabilities that the plaintiff still suffers, to some minor degree, from the emotional consequences of the motor vehicle accident. To that extent, I am prepared to accept that he is still affected, as Professor Lipton put it:
"To a mild to moderate degree by the remnants of his post‑traumatic stress disorder."
No doubt his bowel disorder which, I find, was not related to the motor vehicle accident, has contributed to his anxieties and emotional state. Professor Lipton concluded that the plaintiff's problems at work were not the direct consequence of his post‑traumatic stress disorder but more the result of his learning disorder and his mild cognitive dysfunction. In any event, he saw the influence of those factors as being minimal. Professor Lipton thought that the plaintiff might have some difficulty in managing his father's business on his own. The cognitive and intellectual aspects of his development could not, in Professor Lipton's view, be seen as a consequence of the motor vehicle accident. As to the plaintiff's capacity for work Professor Lipton thought that the plaintiff showed considerable motivation, despite his difficulties, demonstrated by remaining at work, succeeding in his apprenticeship and planning for the future. He thought it was clear that the plaintiff was, working at his own pace, good at what he does and that he had a positive view of his own capacity for work. Professor Lipton concluded that the issues that are restrictive in the plaintiff's employment domain were not, in his view, those to do with his post‑traumatic stress disorder but rather the issues that are not the consequence of the accident. He also concluded that the plaintiff now shows an increasing capacity to socialise and has developed interests and activities in the recreational area. The plaintiff, he said, is proud of his ability to manage himself. Professor Lipton's expectation was that those areas of functioning would expand in the future. He saw no indication for medication currently.
The plaintiff has worked in his father's business for four and a half years. He has completed an apprenticeship as a panel beater. He is paid $400 per week net. It appears that the business is conducted by a family trust. When asked about his future the plaintiff said that he was going to stay working at his father's business. His sister Caterina works there also attending to the bookkeeping side of the business. He said that he had been trying to find copies of his tax returns and that he "wouldn't have a clue where they are" commenting that his sister should know.
The plaintiff said that he didn't like school because he was always getting teased. He said that he wanted to become a marine diesel mechanic. He said that his father arranged some work experience with a friend who was a diesel mechanic. He also had some work experience with an earthmoving business. He claimed that he couldn't do the work because it was too heavy duty for him. He says that he was offered an apprenticeship in diesel mechanics but didn't accept that offer because: "I was getting a bad neck and neck and back pains." As a young boy he accompanied his father to his work in the family spray painting and panel beating business. His father, in due course, offered him a job and he accepted it. He did his apprenticeship at "Macri Spray Painters". He is currently fully qualified having completed the apprenticeship in 2003. The business employs a number of older and more experienced spray painters and panel beaters.
Grant Moyes, the proprietor of the business known as "AAA Diesel & Marine" gave evidence for the plaintiff. He had a longstanding friendship with the plaintiff's father. At the plaintiff's father's request he agreed to give the plaintiff some experience in his work as a diesel mechanic. The plaintiff, he said, was about 15 years old. He had work to do on a Rottnest ferry. He described that they arrived at the jetty and started carrying the tools to the boat and then to the engine room of the vessel. He said the plaintiff lasted about two hours and "basically went missing and I didn't know where he was." Eventually he spoke to the plaintiff and enquired as to what was wrong. The plaintiff said "I can't do the work". The plaintiff told Mr Moyes his back was sore. He also said he had been in an accident and hurt his back. The plaintiff never returned to do any form of work experience with Mr Moyes.
The plaintiff's evidence was that he did work experience with Mr Moyes on Saturdays and Sundays for about three or four months. He said that Mr Moyes offered him an apprenticeship in diesel mechanics and that he did not accept the offer because of his neck and back problems.
In cross‑examination Mr Moyes said that the plaintiff came to his place of work for a couple of weekends. He gave no evidence of having offered the plaintiff an apprenticeship as a diesel mechanic.
I conclude that as a result of the negligence of the defendant the plaintiff suffered some degree of post‑traumatic stress disorder the remnants of which may still, on the balance of probabilities, be with him. I am not satisfied that the plaintiff has suffered, as a result of the defendant's negligence, soft tissue injuries to his cervical‑dorsal and lumbo‑sacral spine or to the abdomen, psychological injuries and associated problems including those of the bowel or head injury being the injuries particularised in paras 5.1, 5.2, 5.4 and 5.5 of the plaintiff's statement of claim. There would appear to be no economic consequences of the injury suffered by the plaintiff as a result of the defendant's negligence. In fact, my assessment of the plaintiff's current situation is that he is doing what, in all probability, he would have done even if his childhood had been less eventful than it was. It may be that the plaintiff will in due course take over his father's business, perhaps in conjunction with or with the assistance of his sister who presently also works there.
I am left with the impression that there has been a good deal of manoeuvring, principally by the plaintiff's mother, over the years to link a range of difficulties and the consequences of a series of traumatic events in the plaintiff's life to the motor vehicle accident and the negligence of the defendant.
The plaintiff in consequence of my finding is entitled to an award of general damages to compensate him for his pain, suffering and loss of amenities. In that regard I award him the sum of $20,000. Ms Coxon suggested that the remaining symptoms of the plaintiff's post‑traumatic stress disorder might be ameliorated if he was given appropriate psychological intervention. She said that if he decided that he would like to undergo psychological intervention for his post traumatic stress disorder he would require up to 12 sessions over a period of a year with a skilled clinical psychologist in order to benefit from such counselling. When asked by his counsel how he felt about going to doctors "and thinks like that" he replied that he was fed up with going to doctors. When asked why he was fed up he replied: "More or less everything I'm fed up with over the years, this medication, that medication, they haven't done nothing." His counsel asked him how he felt about going to see doctors more recently and he replied: "I'm more or less fed up with it." When asked how he felt about all of his experiences he replied that he wanted to get them over and done with.
In cross‑examination he told counsel for the defendant that he couldn't recall anything that the doctors he had seen over the years had said to him. When asked why he replied "because they were all full of rubbish" and said that they never really did anything to treat him or fix him. When asked about the medication prescribed for him he replied that medication was not always the best way and that in his case it didn't work.
My impression was that the plaintiff's attitudes were very similar to those of his father particularly with regard to his rejection of the efficacy of medication. My clear impression is that the plaintiff will be very relieved when the litigation in which he has been involved both in terms of preparation for the issue of a writ and subsequent to the issue of a writ is finally behind him. Returning to Ms Coxon's suggestion that the plaintiff might like to undergo psychological intervention for his post‑traumatic stress disorder I conclude that in all probability he would not like to undergo the suggested course of counselling. There will be judgment for the plaintiff in the sum of $20,000.