Meas (by his litigation guardian Adcock) v Tipping
[2023] ACTSC 187
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Meas (by his litigation guardian Adcock) v Tipping |
Citation: | [2023] ACTSC 187 |
Hearing Dates: | 21 – 25 November, 28 November – 2 December, 13 December 2022, 26 – 27 April 2023 |
DecisionDate: | 19 July 2023 |
Before: | Kennett J |
Decision: | See [159]–[160] |
Catchwords: | DAMAGES – PERSONAL INJURY – Where defendant conceded liability for damages arising from motor vehicle accident – where plaintiff was an infant at time of accident – where plaintiff suffered serious bodily injuries and brain injury – assessment of non-economic loss under s 99 of Civil Law (Wrongs) Act 2002 (ACT) – assessment of future loss of earnings – assessment of future out of pocket expenses – assessment of past and future attendant care costs – whether need for financial management services caused by accident |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT) s 99 |
Cases Cited: | Allianz Australia Insurance v Cervantes [2012] NSWCA 244 Allianz Australia Insurance v Kerr [2012] NSWCA 13; 83 NSWLR 302 Willett v Futcher [2005] HCA 47; 221 CLR 627 |
Parties: | Daniel Veasna Meas by his litigation guardian Christine Anne Adcock ( Plaintiff) Michael John Tipping ( Defendant) |
Representation: | Counsel D Campbell SC with I Bradfield ( Plaintiff) R Mcllwaine SC with D Crowe ( Defendant) |
| Solicitors Elringtons Lawyers ( Plaintiff) Carroll & O’Dea Lawyers ( Defendant) | |
File Number: | SC 260 of 2015 |
KENNETT J
INTRODUCTION
The plaintiff was born in 2002 and is now 21 years old.
On 10 February 2003, when the plaintiff was 10 months old, the car in which he was travelling with his parents was stationary at traffic lights on Canberra Avenue. It was struck from behind by another vehicle, driven by the defendant, that was travelling at some speed.
It is not in issue that the defendant breached the duty of care that he owed to the plaintiff and is thus liable in negligence. The only live issues in the proceeding concerned the quantum of damages.
I will refer to the plaintiff as “Daniel” when discussing the effects of the accident on him and his plans for the future. When I discuss the submissions advanced by counsel instructed by his litigation guardian I will refer to them as submissions of the plaintiff. Without intending any disrespect, I will refer to members of Daniel’s family and others close to him by their first names or familiar names.
Daniel’s mother, who was eight months pregnant at the time, was killed in the accident. Her baby daughter was delivered afterwards but only lived for a few days. Daniel’s father Veasna (usually referred to as “Wah”) was rendered unconscious and suffered injuries.
Daniel was ejected from his baby capsule by the force of the impact. He suffered serious bodily injuries including fractures to his left tibia and fibula and his mandible. The last of these injuries has led him to require significant ongoing dental treatment including surgery. He continues to experience clicking in his jaw and discomfort while eating. None of this is controversial.
It is also not controversial that Daniel suffered a brain injury in, or as a result of, the accident. It is clear that there was a significant impact to his head and there is a wealth of expert medical evidence (discussed below) suggesting frontal lobe damage. There was some disagreement as to whether his brain suffered a further insult, in the form of hypoxia, when he went into cardiac arrest at Canberra Hospital around three hours after the accident. However it was common ground that, if that did occur, it was a direct consequence of the accident and of the defendant’s breach of his duty of care.
The delay of nearly 20 years in bringing this case to trial is explained by the fact that the ongoing effects of a brain injury suffered in infancy are difficult, if not impossible, to assess until the injured person reaches adulthood.
Although Daniel is now an adult, he brings this proceeding through his litigation guardian Mrs Christine Adcock (Christine). Christine is a family friend who has acted as Daniel’s guardian since his family returned to Cambodia in 2014. Daniel has lived with Christine and her husband Stephen during this time.
PHYSICAL INJURIES
There was no real dispute about the nature of the injuries that Daniel suffered. The past medical and out-of-pocket expenses are agreed, although different approaches were taken to the assessment for future dental, orthodontic and prosthodontic treatment arising out of the injury to Daniel’s jaw. It is not submitted that this injury or the fractures that he suffered have affected or will affect his earning capacity.
There is evidence that Daniel suffers ongoing discomfort from his jaw. This is likely to continue through his life, combined with the inconvenience of needing further treatment from time to time. Clearly, also, in the months following the accident his physical injuries must have caused Daniel significant pain which, as an infant, he would not have been well equipped to understand or manage. These are matters to be taken into account in the assessment of general damages.
BRAIN INJURY
Daniel’s early life and evidence
Evidence was led concerning Daniel’s early life and progress at school. This can be summarised fairly briefly, as background to the more recent lay observations of Daniel and the medical evidence.
After being discharged from hospital, Daniel and Wah lived for a time in Canberra with Christine and her husband, their daughter Megan and her partner (now husband) Phekday Sin (known as “Pak”). They later moved to other premises with Megan and Pak.
Late in 2006 Daniel and Wah went to live in Wah’s home country, Cambodia. They returned to Australia several times and remained in contact with Christine, Megan and Pak, who themselves visited Cambodia. They therefore saw Daniel from time to time. In 2008 Wah remarried. His wife, Daniel’s stepmother, is known as Nimmol. She and Wah have two children who were born in 2009 and 2011.
During his time in Cambodia, Daniel went to the British International School of Phnom Penh. Many but not all of his school reports from this period were in evidence. They record him struggling with school work even at primary level, needing significant supervision and encouragement and even then producing poor results. One report noted that he was often late for school. He repeated Grade 4. Evidence of lay witnesses in the proceeding who saw Daniel during this period recall him being withdrawn, not smiling or interacting with people and only giving very short answers when asked questions.
Around the end of 2013 or the start of 2014 Wah, Nimmol, Daniel and the other children moved to Canberra. The decision to move was prompted by an understanding that special classes was available in Australia and the move would be beneficial for Daniel’s schooling and treatment. From the beginning of the 2014 school year, Daniel was enrolled at the Harrison School.
Later that year Wah, Nimmol and the other children returned to Cambodia. Wah went first, with the rest of the family following later. They considered it to be in Daniel’s interests for him to remain in Australia. Christine agreed to become his guardian and thenceforth he resided with her. (The evidence is not precise about when this occurred, which has implications for one aspect of the damages assessment discussed below.) During this period Christine observed that Daniel did not interact with people who came to the house unless prompted to say hello; he did not play with other children or engage in discussions with others, and would sit playing on his iPad. Megan, who sees Daniel when she visits her mother’s home, observed similar behaviour up to the time she gave her evidence.
Daniel attended the Harrison School up to the end of Year 10 and then Gungahlin College, where he finished Year 12 in 2021.
In 2015 Daniel repeated Year 6. In 2016, while he was in Year 7, the school’s Engagement Officer noted that Daniel required certain “adjustments”:
Daniel requires significant processing time and benefits from additional explanation and one on one instruction.
In classes Daniel requires the following adjustments:
·Breaking down instructions into smaller steps – giving one instruction at a time
·Pre-teaching of vocabulary and concepts
·Adjustment to the pace of information given
·Additional time to work on tasks
·Additional time to process learning
·Additional time to do tests and rest breaks e.g. NAPLAN
·Collaborative opportunities to provide verbal consolidations of concepts
·One on one explanation of writing tasks
·Scaffolds to support writing such as writing frames
·Think time before answering questions
·Reduction in work load where necessary.
In 2019, when Daniel was in Year 10, the school’s records indicate that he was late on many occasions. That is consistent with Christine’s evidence that he had trouble getting going in the mornings and sometimes needed to be driven to school (when not running late he was able to use public transport). In English and Humanities and Social Sciences he was provided with personalised learning programmes that did not align exactly with the normal curriculum. At the end of that year he was awarded a Year 10 Certificate with grades ranging from B to D.
At the end of 2019 an officer in the Department of Education and Training sent Christine a copy of an “adjustment matrix” that he had provided to Gungahlin College, outlining measures considered to be necessary for Daniel. These included being given “scaffolds” for longer pieces of work, “more time on allocated tasks” and a reduced workload.
Daniel struggled at Gungahlin College. Additional “adjustments” were agreed upon for him at a meeting with Christine in June 2020. Although she endeavoured to supervise his homework and enlisted help from her daughter-in-law (who was a teacher), she observed that tasks were often not completed and sometimes not even started. His progress reports for most subjects noted that he was experiencing difficulty. These problems increased in 2021 during the period when school attendances were disrupted by measures relating to COVID-19. One of his teachers, who gave evidence, observed that Daniel “basically just dropped off the radar” during lockdowns. Family members observed that Daniel had trouble with organisation and motivation so that, outside lockdown periods, he often struggled to get to school on time.
At the end of 2021 Daniel was awarded a Year 12 Certificate (with grades ranging from B to E) and a Certificate 1 and Certificate 2 in Hospitality. This was achieved with the adjustments referred to above and with, in some cases, significant assistance from teaching staff.
Daniel played no sport during his later school years, did not participate in extra-curricular activities and never socialised outside school. Christine gave evidence that she went with him to the presentation of Year 12 Certificates in 2021 but could not persuade him to go to the end-of-year function.
Three of Daniel’s former teachers gave evidence about particular aspects of his time at Gungahlin College. This is discussed in the next section where I endeavour to summarise the lay evidence concerning how Daniel presents as a young adult. Also to be discussed in that section is his daily routine since finishing school.
At some stage in the last two or three years, Nimmol and her two children have moved to Australia and live in a house in Canberra which the family owns. Wah remains in Cambodia most of the time. Daniel continues to live with Christine and Stephen. There has been some discussion of him moving in with Nimmol and the children. Daniel has never formed a close bond with Nimmol or his half siblings, although he appears to have some affection for his half sister Emma.
Daniel at present
Christine, Wah, Pak and Megan are people who have known Daniel for all or most of his life and spent significant amounts of time with him. Each gave evidence at the trial about their observations of Daniel’s behaviour and capabilities. There was also evidence of a more specific kind from three of Daniel’s former teachers and the proprietor of a business at which he did work experience. This was all broadly consistent with the histories on which the medical expert witnesses had based their reports; and the experts were made aware of relevant aspects of the lay evidence about Daniel before they were cross-examined.
Daniel himself also gave evidence. Although my own assessment of his presentation and demeanour obviously cannot be a substitute for properly informed expert opinion, I was able to observe that the way he presented in the witness box was consistent with the descriptions given by other witnesses. His answers to questions were coherent but were as brief as possible and delivered in a quiet voice with little animation. He only rarely made eye contact with the questioner. As to the substance of Daniel’s evidence, the following points are worth noting at this point.
(a)His account of how he spent his time was consistent with that given by Christine.
(b)Daniel professed himself to be interested in having a job but was unsure about what field he might work in. More than a year after finishing his studies, he had not taken any steps to find employment or identified positions that he was interested in.
(c)Daniel agreed that he spent a large part of each day playing online games, but disclaimed any particular prowess. He was aware that most such games record different levels of skill or achievement but was vague about the levels he himself had attained, except to say that they were not high. He tended not to play competitively as he found it very difficult, “emotionally taxing and not as fun”.
(d)Daniel reported that his other activity was reading books. He said that he had started many books but not finished any, as he loses interest half way through. He described the books that he reads as “sci fi and fantasy novels”.
(e)Daniel described himself as an “average” student, which is at odds with the adjustments that were provided for him at school, the grades that he achieved even with those adjustments, and the evidence of teachers concerning his performance. This answer supported an observation by one of the expert witnesses, Dr Lahz, that he had limited insight into his condition.
Family witnesses
The evidence of Christine, Megan, Wah and Pak is consistent and it is not contradicted by other evidence. The defendant expressly agreed that Christine’s evidence was reliable and did not criticise the other family witnesses in any way. It is not necessary to summarise the evidence of each witness in detail. Their evidence can be taken as a whole and its essential aspects set out relatively briefly.
Daniel is capable of keeping his room relatively clean and attending to his own needs in terms of hygiene, although he needs reminders. His standards of personal cleanliness have slipped since he stopped going to school each day, so that he fairly frequently needs to be reminded to clean his teeth or wash his hair. He is able to contribute to the management of the house by doing chores like cleaning his bathroom and vacuuming, but needs to be asked or reminded to do these things. He does not need help with things like getting dressed, but often stays in his dressing gown all day unless he needs to go out or is told to get dressed. He also does not need help with eating, but does not cook. Christine gave evidence that, if she and her husband go out for dinner, she prepares something for Daniel and leaves it for him to reheat. If she does not do that, he will search in the freezer for something like chicken nuggets or pizza that can be simply heated and eaten.
Daniel has stayed with Pak and Megan fairly regularly when Christine is away. Pak observed that, during these stays, tasks that he left for Daniel to do while he was at work would often not be done. This happened even if he left Daniel a list of the things he needed to do, and even if the necessity of the task was obvious (such as letting the dog out to relieve itself).
Christine regularly hosts Sunday dinner for members of her extended family. These are substantial gatherings with significant effort put into cooking. She has occasionally asked Daniel to help with preparing meals but has found that he works very slowly in the kitchen and needs close supervision because he can only handle one simple task at a time. Daniel tends not to come to meals unless specifically asked. He interacts minimally with other people, usually only speaking if asked a direct question and then giving very short – sometimes monosyllabic – answers. He avoids group discussions where possible, leaves the table as soon as he can and goes back to his room.
Daniel’s social interactions are extremely limited and he rarely leaves the house. Since finishing Year 12 he has been out once with former schoolmates (an outing initiated by the schoolmates). He resists attempts by family members to take him out, for example to see sporting events. He occasionally goes to a restaurant with family members. On these occasions, consistently with his normal behaviour, he sits quietly and does not participate in conversation. If asked what he would like to eat, he will usually reply that he does not know and somebody will order for him.
After being unable to go to Cambodia for more than two years due to COVID-19 restrictions, Daniel went there in December 2021 and stayed with Wah until February 2022. Wah gave evidence that he arranged all of Daniel’s activities during this trip. If Wah did not organise things for Daniel to do, he would stay at home playing games. He never made a suggestion about going out. Wah also said that, if not prompted, Daniel would omit to shower, clean his teeth or wash his face.
Since finishing Year 12 at the end of 2021 Daniel has not done anything directed towards finding employment or engaging in further study. Without the daily routine provided by school, he spends most of each day alone in his room playing computer games. He used to enjoy walking Christine’s dog, but the dog is now too old and no substitute activity has been found.
In the second half of 2022 Pak started to take Daniel to the gym, in order to encourage him to be more physically active and interact with people outside the home. This did not continue for very long, as Pak caught COVID-19 and then his work arrangements changed. Without having Pak to take him there, Daniel ceased going to the gym. Pak described these expeditions.
(a)He would ring Daniel and tell him to get ready, as he was coming to pick him up. Almost always, when Pak arrived Daniel was in his pyjamas and had to get dressed before leaving.
(b)He introduced Daniel to the manager of the gym (Mr Frank Zazour) before commencing a workout. Daniel did not interact with Mr Zazour or any of the gym staff.
(c)Pak tried to keep their routine the same so that Daniel could remember it. Despite this, Daniel relied on Pak to move to the next exercise. Without constant reminders, “he’ll just sit there and wait for the next”.
Around March 2020, Wah bought a new car so that Daniel could learn to drive. He obtained a learner licence at that time but has so far logged only 34 hours of driving experience. Family members gave evidence that he shows no interest in learning to drive, and at the time of hearing he had not had any instruction for around six months. In the witness box Daniel could not identify any specific reason why this was the case. Evidently, Daniel is capable of performing the physical acts involved in driving a car. However, Christine gave evidence that she found being driven by Daniel to be a “scary” experience.
What is it that makes it scary?---He drives too close to the car in front for a start. He doesn’t brake quick enough, and he’s so focused on what he’s doing ---
Daniel takes some, but it would appear limited, interest in matters beyond gaming and his immediate surroundings. None of the evidence suggested that he spends any time, for example, following news or current affairs. However, he has voted in at least one election. He went to the polling station with Christine and she explained why they were there and what he would need to do. He told her that he was going to vote for the Greens because he was concerned about the environment.
Since returning to live in Australia, Daniel has travelled to Cambodia several times to spend summer holidays with Wah (most recently in 2021–2022 as noted above). At least once, he has made the journey alone and successfully caught his connecting flight at Singapore. This involved finding his way through a large airport terminal to the correct departure gate, using a map and observing the gate numbers.
According to the evidence he has been on two other overseas trips with his father and step-sisters during his teenage years: one to Japan, where they went snowboarding, and one to Thailand.
This should not be taken to suggest any particular interest on Daniel’s part in outdoor activities, or that he maintains even an average level of physical fitness. The evidence showed only these two trips, which were apparently organised by Wah. Apart from these trips, and visits to the gym with Pak, the evidence shows his lifestyle to be markedly inactive. Christine has taken him to a doctor who advised that he had very low vitamin D levels as a result of a sedentary lifestyle. This advice has had no effect on his level of activity.
Christine described Daniel’s usual daily routine since returning from Cambodia early in 2022.
(a)He would wake at around 10:00 am. (If there was a need to get up earlier, she would need to wake him.)
(b)He would then have a shower, put his pyjamas back on and eat breakfast.
(c)He would return to his room and play games.
(d)He would not come out except to eat, despite attempts to extricate him (which were usually met with a “blank” response).
(e)He would usually come to the dinner table to eat with Christine and Stephen, but sometimes stayed in his room. He would be non-engaging in terms of conversation.
(f)After dinner he would return to his room. (There was evidence from other sources that Daniel stays up late and often does not sleep well.)
Christine said that she has tried to give Daniel things to do, in order to get him out of his room, but had little success.
Daniel has no clear plans for the future. His family have discussed him moving in with Nimmol and his step-sisters, who currently live in Canberra, for a period. He has expressed a wish eventually to live alone, although the only reason he gives for this is that he would not have people “nagging” him. The award of damages that he will receive as a result of these proceedings will probably make that financially achievable.
Other lay evidence
Mr James Riley was Daniel’s teacher in a subject called “Digital Technologies” in his final year at Gungahlin College. In the first semester of that year Daniel’s grade for the subject was E and his report said in part:
Daniel, it is unfortunate that you were unable to submit the majority of your work this semester. While you have submitted enough to receive a grade, it does not reflect your strengths in level design and the use of the Unreal Engine.
In second semester Daniel’s grade for the subject was C and his report was guardedly encouraging. It said:
Daniel, congratulations on successfully completing the Game Development course at Gungahlin College. It has been a tough semester for students, but despite the requirements to work from home for the majority of the unit, your final 3D game is a sound example of your programming skills and design capabilities. It shows that you are on a good path towards developing more complex gaming environments. You have been a wonderful student to teach and I wish you well in your future endeavours.
Mr Riley gave evidence. He said that he positioned Daniel close to him in the classroom because he knew that he needed “significant support to achieve any kind of success”. He broke down instructions for Daniel into single sentences given one at a time, and he assisted Daniel to begin tasks (as otherwise he would simply stare at his computer). In first semester, he exempted Daniel from the usual penalties for late submission of work. But for that, Daniel would have “voided” the unit. His observation was that Daniel had no motivation and no understanding of how to do the unit, describing him as “very weak in comparison to both the other students and also the standards of the unit”.
Asked about the relatively encouraging report that he gave Daniel at the end of the year, Mr Riley said that he thought it was unlikely that Daniel would continue in game development and he had decided to be generous and give some encouragement. He said:
His capabilities … weren’t very good [and] certainly weren’t up to standard in comparison with the rest of the course and the rest of the unit but I’m very reluctant to be incredibly critical of students in their very last report comment of the year.
He said that Daniel was the weakest student in the class, despite the support provided to him, and had completed the course at a very low level. He did not finish the course with a portfolio of work that would allow him to do further study in the IT field.
Daniel’s teacher in Hospitality in his final year was Ms Rachel Pascoe. His first semester report was not in evidence. In the second semester he received a C grade and a comment that he had achieved a “satisfactory result”. Ms Pascoe gave evidence that Daniel did not have the ability to multi-task, was always the last to finish, and needed constant reminders to complete tasks and submit work. She and Mr Riley were among the teachers at Gungahlin who corresponded by email with Christine about Daniel’s repeated failures to submit work on time and what could be done.
Ms Sue Birkett had been Daniel’s teacher in Hospitality in Year 11. She was also the manager of the Careers and Transition section of the College at relevant times and managed vocational education and training. On first meeting Daniel in early 2020 she observed that there was “something different” about him and he was unable to understand concepts that she was trying to explain. In practical lessons he would start a task and then “just stop and he wouldn’t know what to do”. He would not seek help and when spoken to would respond monosyllabically. Ms Birkett made inquiries and discovered that Daniel had had an Individual Learning Plan at Harrison School. She took this up with his house coordinator in order to have some supports put in place for Daniel at Gungahlin.
Ms Birkett recalled Daniel needing a “structured environment” and not being able to get work done at home. She arranged for him to sit with her in the careers office and work for several days in order to complete the work he needed to do in Year 11.
Around October 2021, Ms Birkett arranged with the proprietors of a local café for Daniel to do five days of work experience there. She approached this particular business because she was aware that it had previously taken on a disabled student, and she discussed Daniel with the proprietors.
The proprietors of the business were Mr Aaron Warner and his sister Rebecca Primrose. Mr Warner gave evidence upon which he was not cross-examined. Mr Warner worked mainly in the kitchen, while his sister managed the front of house. The business had one permanent employee (a barista) and employed several casual workers during busy periods. He confirmed that before Daniel’s arrival he had spoken about Daniel’s needs with Ms Birkett and Christine. He was aware of Daniel’s disability and wanted to give opportunities to people in Daniel’s position.
Daniel was expected to arrive at work at 7:00 am and stay until the café closed at 3:00 pm. On some days he arrived closer to 8:00 am and on other days he did not attend at all (with no notice given). On some days he also left earlier than the scheduled 3:00 pm. Mr Warner estimated that Daniel had worked for around two and a half days out of the five days allocated. (Christine drove Daniel to and from the café on the days he worked, explaining that “he couldn’t get there any other way”.)
Mr Warner’s first impression of Daniel was that “it was very hard for him to open up and to actually get some sort of answer out of him”.
Mr Warner gave important evidence about three specific aspects of Daniel’s work at the café.
(a)One task involved preparing “smashed avocadoes”, the key element in a popular dish. This involved a fairly simple sequence of steps, which Mr Warner explained to Daniel and demonstrated: opening and de-seeding avocadoes, putting them in a bowl with salt, pepper and lemon juice; and smashing them up. Upon coming back to check Daniel’s progress, he found that only the first step (opening the avocadoes) had been completed and Daniel was “just standing blankly there”. Daniel could complete the task but only with Mr Warner instructing him on each step as it arose. This recurred on a daily basis.
(b)Another task allocated to Daniel involved preparation for making scrambled eggs. The steps were breaking eggs into a bucket, adding cream, salt and pepper and whisking it all together. When given this task Daniel would crack the eggs into the bucket and then do nothing, standing at the bench, until prompted with the next step.
(c)A third example was using the dishwasher. Mr Warner demonstrated scrubbing dishes and loading them into the machine, which ran a short cycle and beeped when finished, then unloading them. Even after being prompted by the machine’s beep, Daniel would stand idly looking at the machine until instructed to take the dishes out.
At the end of the work experience period, Mr Warner spoke to Ms Birkett and told her Daniel was not suitable for the hospitality industry.
Despite this, Mr Warner later agreed to take Daniel on as a paid employee. He considered Daniel a nice person and wanted to give him an opportunity. Mr Warner’s initial recollection was that Daniel had worked at the café for a week; however, a documentary record shown to Mr Warner in the witness box indicated that Daniel had not worked the full week. His performance in the kitchen did not change.
Medical evidence
Evidence was adduced from the following experts.
(a)Neurologists: Dr Michael Harbord’s report was relied on by the plaintiff. Associate Professor Andrew Kornberg’s report was relied on by the defendant. They gave oral evidence concurrently.
(b)Neuropsychiatrists: Dr Patricia Jungfer and Dr Fernando Roldan provided reports for the plaintiff. Associate Professor Jennifer Batchelor provided a report for the defendant which was re-served by the plaintiff. Associate Professor Batchelor and Dr Roldan gave concurrent oral evidence. Dr Jungfer was also called to give oral evidence.
(c)Rehabilitation physicians: Dr Sophia Lahz provided two reports which were relied on by the plaintiff. Dr Seamus Dalton provided a report for the defendant. They gave concurrent oral evidence.
With the exception of Dr Dalton, there were only minor differences between the opinions of the experts. They were agreed that Daniel suffers a neurocognitive disorder with executive dysfunction, consistent with frontal lobe damage as a result of the accident. There was also agreement that Daniel suffered a chronic adjustment disorder with depressed mood connected with grief arising from the loss of his mother. As to this latter point, Dr Harbord noted that “children with brain injury are less resilient, more depressed and anxious than healthy children”.
There was some degree of difference between Professor Batchelor and Dr Roldan, in that the former diagnosed Daniel’s neurocognitive disorder as “mild” while the latter described it as “moderate”. Referring to the DSM-5, Professor Batchelor described her diagnosis as “consistent with the finding of cognitive impairment which does not interfere with the capacity for independence in everyday activities (ie complex instrumental activities of daily living)”. Her conclusion was based on neuropsychological tests, which Dr Roldan criticised as involving “very specific, contrived conditions, artificial conditions”, and which Professor Batchelor accepted were less demanding than the complexity of everyday life.
To the extent that this difference needs to be resolved, I prefer the opinion of Dr Roldan. His approach paid greater regard to the reports of the other experts, records of Daniel’s education and the observations of Christine. Further, the DSM-5 description of the effect of a “mild” neurocognitive disorder, cited by Professor Batchelor, is very difficult to reconcile with the consistent body of testimony concerning Daniel’s abilities and behaviour. He is clearly capable of performing “everyday activities” such as attending to his own hygiene and basic household chores, but shows little or no “independence” in this regard (if that is meant to include the capacity to plan ahead, even in the most basic way, and initiate activities). Activities requiring planning, adaptability or mental flexibility are extremely difficult, if not impossible, for him.
To give colour to these conclusions, it is sufficient to set out some observations of Dr Jungfer and Dr Lahz. Dr Jungfer said:
Mr Meas has challenges with regards to social and verbal communication. He lacks initiative, drive, planning and cognitive flexibility. He is noted to be slow in terms of learning, activation, and activity. Mr Meas has restricted social networks and most activities are structured and directed by those around him. Mr Meas’ clinical presentation is consistent with a neurocognitive disorder following brain injury where he has a disorder or [sic] drive.
Initiative, motivation, organisation, and planning are tasks that are controlled or regulated predominantly by the frontal regions. These frontal regions are quite frequently impacted upon by structural brain injury and can be noted to be impaired from a brain injury perspective. Mr Meas, as time has progressed, has struggled from an academic perspective, and has become more isolated and different from his peers. This kind of subtle decline over time, evidence of greater impairments, is consistent with what is seen with infant or paediatric brain injury where abnormalities are noted because the child fails to achieve those cognitive, social, and behavioural developmental milestones due to underlying damage to the neural substrate. The problems with drive and initiative are not explicable based on a mood disorder as they are global across all areas and have become more substantive or more evident as the expectations of his age are that he is more independent. Mr Meas’s neurocognitive disorder arises become of the injury, either direct structural damage at the time of the accident or due to secondary hypoxaemia.
The impairments, be that the adjustment disorder related to the unresolved grief of his mother’s death and the neurocognitive disorder are solely because of the accident and other factors are not implicated.
There is no family history of psychiatric illness and no drug or alcohol related factors.
Mr Meas has progressively struggled from an academic and learning perspective and he will struggle in the work environment due to his cognitive slowing, his problems with regards to learning, his reduced social communications, and interactions. He will be severely disadvantaged in the employment market due to his awkwardness from a social/communication perspective, his slowed processing of information and the difficulties he has with regards to asking for assistance and support.
Considering the length of time since the injury, Mr Meas would be considered to have reached the period of maximal medical recovery.
…
He has reached the period of maximal recovery from the perspective of the head injury. Due to the head injury, he is at increased risk for psychiatric disorders. As a result of the problems with initiative, the communication problems he will have a reduced engagement with the community [sic], problems with employment which would increase his risk of psychiatric disorders.
In her report, Dr Lahz observed (emphasis in original):
Diagnosis
·Severe traumatic brain injury with cognitive, behavioural and emotional impairments incorporating executive dysfunction
·Fracture of the jaw
·Tibial fracture – resolved, no sequelae
Attribution
The diagnosis of traumatic brain injury with behavioural, emotional and cognitive impairments is entirely attributable to the subject 2003 motor accident.
Daniel’s developmental milestones were entirely normal prior to the accident.
Prognosis
More than 17 years have elapsed since the subject accident. Daniel’s cognitive, behavioural and emotional impairments stemming from traumatic brain injury can be considered stabilized and permanent. There will be no improvement in the abovementioned impairments.
Nature and Extent of Continuing Disabilities
Daniel’s main disability from the traumatic brain injury is executive dysfunction incorporating poor decision making, reduced drive/motivation and decreased planning/organizational abilities.
Executive dysfunction results from damage of the frontal lobes and associated neural connections present throughout the brain. The frontal lobes have multiple connections including the parietal, temporal and occipital lobes, basal ganglia, cerebellum and brainstem. This is not surprising given the complex role which the frontal regions play in higher order cognition such as decision making, judgment, inhibition of action until the time and situation are appropriate, impulse control and rational integration of events taking place within the internal milieu (the brain) and external milieu (ambient environment). Put simply, the frontal regions and their connections enable a person to start, continue and stop activities in consideration of the prevailing, environmental circumstances as well as status within the brain itself. If errors are made, the person realises and responds by changing their course of action to one more likely successful in achieving goals.
Daniel suffers from executive dysfunction as evidenced by absence of initiative i.e. apathy (he terms this “laziness”) and need for prompting (some aspects of personal care, especially hygiene.) Daniel has difficulty with starting goal-directed behaviour, response inhibition (stopping behaviour), task persistence (maintaining behaviour), organization (organising thoughts and actions), problem solving (including flexible thinking and generation of solutions to problems) and awareness (i.e. monitoring and modifying one’s own behaviour according to prevailing circumstances, being able to utilize feedback to increase the chance of success).
Executive functions underpin goal-directed behaviour. When there is executive dysfunction, the person has difficulty with goal setting and execution of necessary steps to achieve their goals. The result of executive dysfunction in Daniel’s case, put simply is that nothing gets done. The history provided by his guardian and the difficulties with academic performance at school confirm Daniel’s substantial difficulties in this area.
… The person with brain injury such as Daniel often has a “disconnection” between motivation and cognition. A dichotomy between words and actions is very common in persons with executive dysfunction. The person can express an intent although this is not necessarily followed by the required action. Daniel told me that he is waiting for a job (before he can move out of his guardian’s home) although he is not taking the necessary steps to obtain such a job. The first (major) step is of course obtaining the HSC. Sometimes, Daniel does not even express an intent for the desired activities due to impoverished communication skills.
…
Daniel will continue to require regular prompts to ensure necessary day-to-day activities (in which [he] has no or little interest) are completed.
Daniel is struggling to complete year 12 assignments on time, and it has been realised that he does better if tasks are broken down into manageable steps. Unfortunately, he has been unable to independently break down the tasks to smaller steps and his teachers as well as (guardian) family members have been helping him.
Daniel’s diet if he were not living with his guardian would be poor, consisting of pizza, noodles and other fast foods. It would simply not occur to Daniel to prepare healthy meals. Diet, exercise/activity levels and general health and wellbeing will require close attention or else Daniel will suffer adverse health consequences as he grows older. Participating in exercise or alternatively sporting activities would also not occur to Daniel unless reminded. The only exercise, which Daniel currently completes is that necessary for his school physical education subject (basketball and cricket).
…
Daniel will have difficulties with finding and maintaining employment on multiple fronts. It is improbable that he can initiate the search for suitable employment and his impoverished communication and social skills would make it improbable that he would interview successfully for any position. The latter difficulties would also severely compromise interpersonal relationships at work as well as his ability to resolve any disputes arising in the workplace. He would likely be perceived as taciturn, non-communicative, “lazy” (lacking initiative) and unhelpful due to the presence of the abovementioned neurological impairments.
…
Given Daniel’s cognitive, behavioural, emotional and social impairments, it is difficult to envisage that he will be successful in any career where he would be required to troubleshoot, consider various causes and solutions for specific problems and then take the necessary actions to resolve the difficulties. His cognitive inflexibility and inability to ask for help or else let others know of any problems also do not bode well for success in a workplace. His lack of zeal to complete the task is another major impediment to successful employment.
Daniel requires physical employment that is routine, mundane and self-paced with no requirements for novel problem solving. Daniel is incapable of working in a role requiring him to deal with members of the public due to executive dysfunction and poor communication/social skills, Daniel himself acknowledges that he would struggle to deal with customers in a service role. The current work trial at the café “back of house” (which he does not particularly enjoy) is appropriate employment for Daniel given the neurological disabilities described above.
…
Daniel will not be competitive on the open labour market given his [Traumatic Brain Injury]-related difficulties. Open employment will be difficult to obtain due to lack of drive and poor organisation/planning/time management skills.
Supported employment will probably be Daniel’s only option. Supported employment can occur at different levels depending on assessment of his work abilities, behaviour, supervision requirements etc. Varying levels of supervision, support and types of work are available. As mentioned above, an employment service accustomed to assisting people with disabilities would be necessary to facilitate Daniel’s employment.
Dr Dalton provided a written report dated 1 November 2021 which acknowledged that Daniel had suffered a head injury and “may have” suffered a traumatic brain injury, but suggested that the problems Daniel was suffering might have arisen for other reasons. He maintained this position in a supplementary report dated 5 May 2022. His position was at odds with that of the other experts and, in the end, did little more than raise questions as to whether there were other explanations for Daniel’s presentation. No convincing alternative hypothesis was advanced. I am comfortably satisfied that Daniel suffers from the conditions outlined above and that these are attributable to the accident.
The defendant did not appear to place any reliance on Dr Dalton in his closing submissions and, in my view, his evidence can be put to one side.
ASSESSMENT OF DAMAGES
The areas of dispute between the parties were limited, but far-reaching in terms of the heads of damage that they affected. It is therefore necessary to say something about almost all of the heads of damage sought by the plaintiff.
Past out of pocket expenses
The defendant did not cavil with the plaintiff’s figure of $51,348.54 for past out-of-pocket expenses.
Interest of $41,785.62 was sought on that sum (reflecting an interest rate of four percent). The defendant submitted that the interest rate should be halved on the basis that these expenses were incurred over time. I agree. The orders that I make will require the parties to provide updated calculations of interest for inclusion in the final orders.
Non-economic loss (s 99 of the Civil Law (Wrongs) Act 2002 (ACT))
There was a large measure of agreement on this topic. The defendant submitted that an appropriate award of general damages was in the range of $400,000–$450,000. The plaintiff in his oral submissions sought $450,000.
Section 99 envisages damages being awarded for “non-economic loss”, which includes “pain and suffering”, “loss of amenities of life” and “loss of expectation of life”. It thus captures what would under the common law be referred to as general damages or damages for non-pecuniary loss. It does not impose any cap on such damages or provide any guidance, except to say that reference may be made to earlier decisions of this and other courts.
General damages are necessarily impressionistic. The purpose, as described in cases such as Teubner v Humble (1963) 108 CLR 491, 505-507 (Windeyer J), is to provide comfort so far as money can do so and afford fair compensation for the non-economic effects of an injury. General damages compensate a plaintiff for the change to their subjective feelings rather than the fact of an injury: Skelton v Collins (1966) 115 CLR 94, 130 (Windeyer J). In the same case Taylor J said (at 113):
The expression “loss of the amenities of life” is a loose expression but as a head of damages in personal injury cases it is intended to denote a loss of the capacity of the injured person consciously to enjoy life to the full as, apart from his injury, he might have done. It may be said, of course, that a person who is completely incapacitated as a result of his injuries suffers such a loss whether or not his injuries are of such a character to render him insensible to his loss. But, in my view, a proper assessment can be made only upon a comparison of the condition which has been substituted for the victim's previously existing capacity to enjoy life and where the mind is, as it were, willing and the body incapable there is, in my view, a much higher degree of loss than where the victim is completely insensible to his lost capacity.
(Emphasis in original)
In Haines v Bendall (1991) 172 CLR 60 McHugh J (dissenting in the result) quoted that passage and went on to observe that a 60 year old worker who suffered an injury of which they were unaware (because of brain damage) would receive little by way of common law general damages compared to a 16 year old worker who suffered the same injury and was conscious of their loss (at 82).
This discussion directs attention to two important issues in the present case: the age at which Daniel was injured and the extent to which he is conscious of, and thus subjectively suffers from, his injuries.
As to the first point, Daniel was injured while still a baby. On one view, he has therefore never known any existence other than one in which his enjoyment of life is compromised by the effects of the accident. However, to adopt that view would ignore the scope for Daniel to experience the physical pain and inconvenience flowing from his physical injuries, and the scope for him to observe the lives of people around him and reflect on what he is missing. The preferable way to understand the effect of Daniel having suffered injury very early in life is that, to the extent that he experiences pain and suffering and loss of enjoyment or amenity of life, that has been his experience (in various ways) for nearly 20 years and it will continue for the rest of his life (a further 62 or 63 years according to ABS Life Expectancy Tables).
As to the second point, the following things should be noted:
(a)Daniel suffered serious physical injuries which were no doubt painful. He suffered a broken leg. He also suffered a broken jaw which has required him to endure multiple surgeries and many dental and orthodontic treatments. He has ongoing physical effects. He has frequent headaches which sometimes require him to lie down. His jaw clicks throughout the day and hurts when he chews. These effects can be expected to continue. There is no doubt that he is conscious of these things.
(b)There is evidence that Daniel suffers ongoing grief associated with the loss of his mother. He is sad when reminded of this loss and sometimes becomes emotional.
(c)Dr Lahz noted that Daniel “does not identify himself as having any particular cognitive difficulties”, but that he did think that his memory was unreliable and that “it is harder for him to get work done and that he sometimes finds it hard to communicate”. Along with Dr Jungfer, Dr Roldan and Professor Batchelor, she considered “depressed mood” to be part of the appropriate diagnostic formulation, stemming from frontal lobe damage. She later observed that “[on] a positive note, reduced insight has most likely shielded Daniel from developing depression”.
(d)This last point accords with my earlier observation that Daniel has limited insight into his own condition. He tends to describe himself as lazy and probably to regard this as the main cause of his lack of academic and vocational achievement. However, he is conscious that he is different from other people and that he lacks some of the things (such as a social life) that other people of his age enjoy.
(e)Apart from the extent to which Daniel understands his position, there is the fact that his life does not produce much in the way of enjoyment. He is effectively a recluse. He lacks (and has lacked since early childhood) the joyful experiences that come from conversation with others, shared experiences and intimacy. He is unlikely to form an intimate relationship, let alone find a life partner or have children.
(f)Additionally, because Daniel needs regular prompting in order to accomplish many activities of daily living, he feels pestered. He has expressed a wish to live alone in order to avoid this. However, if he lives alone he will need at least some level of attendant care to make sure that he looks after his dwelling and himself. He is destined to endure a life of being reminded to do things.
It is unprofitable to enter upon what Elkaim J described as a “macabre comparison of injuries” in Lee v McGrath [2018] ACTSC 173 at [106] (Lee). However, it is useful to note some recent cases involving brain injuries as they give some indication of an appropriate range.
(a)In Lee, the plaintiff had been catastrophically injured at the age of 15 and was 25 at the time of trial. He was confined to a wheelchair with his legs bound to the chair, incontinent and significantly cognitively impaired. He apparently retained a sense of humour, which Elkaim J described as the only element of a “normal existence” that could be identified (at [109]). His Honour assessed general damages (on a contingent basis) at $500,000.
(b)Elkaim J referred to the earlier case of Hulanicki v Walton [2014] ACTSC 17 (Hulanicki), where $375,000 was awarded to a young woman (aged 20 at the time of injury) who had suffered a brain injury in a motor accident with executive dysfunction as an issue. The plaintiff in that case had retained the ability to walk and was also able to work, although at a lower level than she would otherwise have enjoyed. She was able to socialise and had been in a long term relationship after her injury.
(c)The plaintiff also drew attention to Oliver v Roberts [2017] ACTSC 360 (Oliver), where the plaintiff was 19 at the time of the accident. The brain injury that he suffered interrupted his university studies but did not prevent him graduating or obtaining employment. He also suffered some physical injuries. $300,000 was awarded by way of general damages. This aspect of the judgment was not challenged on appeal ([2018] ACTCA 35).
The effects of the accident in the present case on Daniel appear to me to be more significant than those in Hulanicki or Oliver but considerably less significant than those considered in Lee. Daniel’s limited insight moderates his suffering and loss of enjoyment of life somewhat, in accordance with the observation of Taylor J set out above. It also needs to be borne in mind that those cases were decided in 2014, 2017 and 2018 respectively and inflation since those times should be taken into account. Using the Consumer Price Index, the $375,000 awarded in Hulanicki is equivalent to more than $450,000 today. However, in oral submissions, senior counsel for the plaintiff limited his claim to $450,000 and I will award that amount.
Interest was sought on the portion of general damages referable to the past. The defendant submitted that that portion should be regarded as comprising 25 percent of the total, given Daniel has lived around one quarter of his life expectancy. The plaintiff submitted (without elaborating) that interest should be awarded on half the amount. I think a figure of 35 percent is appropriate, because the pain caused to Daniel by his physical injuries has been concentrated into his early years. Interest is therefore to be calculated on $157,500.
As to the appropriate interest rate, the plaintiff submitted (referring to Monie v Commonwealth [2007] NSWCA 230) that the usual approach is to apply a rate of four percent per annum but that, where damage is spread evenly over a period, that is properly recognised by halving the rate. The defendant did not disagree. The orders that I make will require the parties to provide updated calculations of interest for inclusion in the final orders.
Future loss of earnings
Loss of future earning capacity is compensable on the basis that it leads to financial loss: Graham v Baker (1961) 106 CLR 340, 347. That can be taken to be the case here. No alternative source of income has been pointed to which would mean that Daniel’s loss of earning capacity is not productive of overall financial loss.
Because of the very early age at which Daniel was injured, nothing is known as to what his earning capacity would be if he had not suffered the brain injury discussed above. The Court must do the best it can on the material available (see, eg, New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [87] (Heydon JA (Mason P and Handley JA agreeing))). Daniel’s father runs a security business in Cambodia, and he has grown up in a stable family surrounded by positive role models; so that there is no reason to think that, absent the injury, he would not currently be either in the work force or undertaking tertiary study. It is also appropriate to assume that he would work until retirement age. Average male full time earnings is an appropriate benchmark against which to compare his likely future earnings in order to assess his loss of earning capacity (cf, eg, Diamond v Simpson (No 1) [2003] NSWCA 67 at [37]–[48]).
As noted earlier, apart from a short time working in a café, Daniel has not been employed.
As at the close of evidence, Christine had made contact with Koomarri on Daniel’s behalf and there had been some discussion and correspondence about finding him a place in one of its programs leading to volunteer work. Nothing concrete had come of this at the close of evidence. Koomarri is a long-established and respected charitable organisation that seeks to provide disabled people with opportunities to do meaningful work. There was no detailed evidence concerning its operations, or of where participation in its programs would lead.
The plaintiff submitted that Daniel’s prospects of obtaining employment in the open market were negligible; his weekly earning capacity in supported employment was around $98.00 (based on the report of Mr Craig Martin, a vocational assessor); but he would spend at least that amount in the course of earning it. Average weekly full time male earnings were $1,551.00 net at the time of final submissions. The claim finally advanced was for $1500.00 per week. Using the appropriate multiplier, this led to a figure of $1,987,950.00. The plaintiff accepted that it was appropriate to discount this figure by approximately 15 percent to allow for possible vicissitudes. This produces a final figure of $1,690,000.
The defendant resisted this assessment of Daniel’s earning prospects. He submitted that there was a significant level of uncertainty concerning the impact of Daniel’s injury on his earning capacity, and that the best approach was therefore to award damages by way of a “buffer”, citing Penrith City Council v Parks [2004] NSWCA 201 at [5] (Giles JA). The assessment of an appropriate buffer is “impressionistic or evaluative”: Allianz Australia Insurance v Cervantes [2012] NSWCA 244 at [46] (Basten JA); Allianz Australia Insurance v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [6]–[7] (McColl JA), [24] (Basten JA), [66]–[67] (Macfarlan JA). A “buffer” of $500,000 was suggested.
There were two limbs to the defendant’s argument. Neither was persuasive.
Work capacity and opportunities
It was submitted that Daniel has the capacity to work and there are opportunities for him to do so in Canberra. Daniel’s fundamental problem was framed as apathy or lack of interest, and it was said that he could function normally when motivated. It was also suggested that Daniel has some level of skill or employability arising from his familiarity with computers and the time that he spends gaming. Next, some reliance was placed on expert evidence purporting to suggest that there were jobs in the Canberra region for which Daniel could compete. Finally, reliance was placed on a proposition that the Australian Public Service (APS) is based in Canberra and that it has programs aimed at providing employment for people with disabilities.
The first proposition misunderstands the medical evidence. Although some of the witnesses observed that Daniel scored in the normal range on general intelligence tests, they also agreed that “executive dysfunction” significantly compromises his ability to initiate tasks, manage complexity and adapt his thinking. This can be described in a general way as apathy or lack of motivation, but it is a form of apathy that is both organic and general: organic, in that it is a symptom of his injury (he does not choose to be lazy); and general, in that there is nothing he is enthusiastic about or energetic in pursuing. Thus, for example, one cannot attribute Daniel’s performance in the “smashed avocado” episode to laziness in any ordinary sense. Mr Warner’s description of the incident indicates that Daniel willingly performed the first step in the process, and either had no idea what to do after that or could not initiate the action.
Describing Daniel’s issue as a lack of motivation also tends to mask other aspects of the executive dysfunction that he suffers as a result of the accident. He struggles not only to initiate activities but to put together a sequence of steps so as to accomplish a task. Medical witnesses also highlighted rigid thinking and a lack of flexibility as aspects of executive dysfunction. It is also evident that Daniel cannot sustain a conversation even with people he knows well. He has been described in reports as blunt, brutally honest and unable to inhibit inappropriate responses. He would obviously not be suited to any role involving interaction with clients or members of the public. He would not do well in a job interview. He is unlikely to be able to interact successfully with workmates.
The second proposition flies in the face of the evidence. As to computers and software generally, Daniel does not code or develop solutions; he plays games. He confirmed in cross-examination that he had used PowerPoint in school assignments. He was unsure whether he had used Microsoft Word and thought he might have used Google Docs to write assignments. These widely used applications (one of which is being used to draft these reasons) are, in effect, working tools which very large numbers of people use every day without considering it to be a special skill. A level of familiarity with them is probably a sine qua non of employment in many office environments, but it is only a starting point; the aspiring employee must also have the capacity to do the actual work that the tool is to be used for. There was no evidence that Daniel has any deeper understanding of these or other applications.
Daniel’s grades in computing subjects ranged from middling to very poor. As described above, his teacher, Mr Riley, thought Daniel a very weak student, and gave him a final C grading on the understanding that there was little or no danger of him going to work in IT.
As to gaming, Dr Lahz commented that she did not regard success in computer games as a “surefire predictor that a person can capably and effectively manage their own life with respect to intimate relationships, social relationships, employment, hobbies, healthy lifestyle and household maintenance”. In any event, the evidence before me does not show that Daniel is particularly adept at any of the games he plays. Pak (who was not challenged in his claim to have some familiarity with the subject) observed that Daniel performs relatively poorly. Daniel himself knew that many games had numerous “levels” of performance, but said that he did not play competitively and did not suggest that he was particularly proficient. In the absence of actual evidence that Daniel is adept at games involving quick decision-making, strategising and cooperative action, the appropriate inference (based on the strong consensus in the expert evidence discussed above) is that he is not.
The defendant relied on evidence of Professor Bright, who describes himself as a vocational psychologist. This evidence was unsatisfactory and I have no hesitation in rejecting it.
(a)Professor Bright interviewed Daniel (and apparently administered various psychometric tests) once, using an audio visual link. He did not obtain any information from Christine or others familiar with Daniel’s history or routine, as the medical experts had done. For reasons which are not clear, the history that he recorded in his report was significantly more encouraging than what was recorded by the other expert witnesses and what has emerged from the evidence: for example, Professor Bright recorded that Daniel could drive for up to two hours; he did not note that Daniel had repeated some years at school or go into any detail about his results at Gungahlin College; he recorded that Daniel had worked “nine hours every week” as a kitchenhand at the café for several months, ceasing when the business was sold (none of which was correct); that he “uses game development software”; that through gaming he had two friends locally and “a community of friends online”; that he was an “achieving and bright child” in his early school years; and that he “goes to the gym approximately every week or fortnight where he will spend an hour doing a combination of weights and cardio”. Professor Bright was unconcerned that Daniel attended the interview in his dressing gown.
(b)Professor Bright focused on Daniel’s scores in tests of general reasoning ability. (As has already been the subject of brief discussion at [63] above, neuropsychological tests seem not to properly capture Daniel’s difficulties with real world tasks.) He inferred from the fact that Daniel spent a lot of time playing computer games (and apparently assuming that he was therefore skilled in such games) that he was capable of cooperation and fast-paced decision-making. He understood Daniel’s performance to be limited by “motivational issues”.
(c)He concluded that “as a minimum” Daniel could consider the roles of kitchenhand, mail clerk, meter reader or data entry officer; that there were more complex roles he could perform with “relatively minimal training”; and that if his “motivational issues” were dealt with he could train up to diploma level.
(d)In cross-examination, Professor Bright was largely undaunted by the evidence concerning Daniel’s work at the café. He opined that this was to be regarded as the product of a lack of interest on Daniel’s part; otherwise, it could not be reconciled with his (assumed) success in computer games requiring fast-paced decision-making and his ability to undertake household chores such as cleaning his room.
(e)The problems with this approach include that there is no evidence of such success at gaming, and that it does not engage with the medical evidence concerning the causes of Daniel’s lack of motivation.
Ms Liz Atteyah, a labour market analyst, provided two reports. She works for the same organisation as Professor Bright and took his conclusions as the starting point for her first report. She stressed in that report that she was expressing no view of her own as to Daniel’s suitability for the positions identified. She searched local labour markets for positions in the four occupations identified by Professor Bright: kitchenhand, mail clerk, meter reader and data entry officer.
(a)A large number of kitchenhand vacancies were found. Ms Atteyah’s contact with employers in the field indicted that highly desirable attributes included “strong communication skills and the ability to work independently as a key team member as well as a Certificate III or IV in Commercial Cookery”. Daniel does not have these attributes. The direct evidence of his performance in a small commercial kitchen provides no basis for optimism about his prospects in this form of employment.
(b)No vacancies were identified in the occupation “mail clerk”. Contact with an employer indicated that, to be competitive, applicants “must be team players, pro-active, hard-working, able to prioritise, possess good verbal and written communication skills, be flexible and easy-going”. Another description included “exceptional time management and organisational skills as well as the ability to work flexible work rosters”. Daniel does not have these attributes.
(c)One vacancy for a meter reader was found. Contact with employers indicated that it was necessary for candidates to be self-motivated and able to work autonomously and to have an unrestricted driver licence. Daniel does not meet these requirements.
(d)Five “data entry officer” positions were found. Contact with employers indicated a need for “high speed and accurate data entry”; “attention to detail”; “the ability to collaborate with various stake holders”; “experience in data entry or data management”; being “technically savvy” with an “ability to work across different systems”; “advanced MS Office skills”; “excellent written and verbal communication skills”; “a proactive attitude and strong work ethic”; and “well-developed time management skills with the ability to meet deadlines”. These phrases plainly do not describe Daniel.
Ms Atteyah provided a further report in which she was asked to consider roles in Canberra in the Australian Public Service (APS) and in the ACT Public Service. She was specifically asked to assume that Daniel “did well in Digital Technologies last year in Year 12”. Even taking his final Year 12 report at face value, this overstated his achievement. In fact, as the evidence showed, Daniel was a weak student in this subject. The information that she obtained concerning computer programming and web design positions, and “Digital Apprenticeships”, showed a need for tertiary qualifications or a high level of accomplishment and was, with respect, manifestly irrelevant to Daniel’s circumstances. Some of other the government roles that she identified were in effect no more than temporary employment registers where people could register their interest in such roles as became available. Others were completely unrealistic, requiring advanced communication skills, flexibility and attention to detail.
Finally, it was suggested to several witnesses that the APS is headquartered in Canberra and that it has programmes designed to encourage the recruitment of people with disabilities. Various witnesses accepted that these general propositions were true. No detail was provided except in a supplementary report by Ms Atteyah. She reported that the APS has a service-wide target of seven percent of its positions to be held by people with disabilities and therefore a need to recruit such people. It has therefore created a scheme known as “RecruitAbility”. Her report described the scheme as follows:
Jobseekers who have a disability are encouraged to opt into the RecruitAbility scheme such that, subject to meeting the minimum requirements of the position, these jobseekers are taken to an advanced stage in the hiring process and reasonable adjustments facilitated. It is noted that the Australian Government has affirmed that it provides reasonable adjustments or flexibilities during the hiring process for all vacancies, whether an applicant with a disability opts into RecruitAbility or not, or whether it is an Affirmative measures job or not. Such adjustments include access, training, supervision, equipment or other practical help.
The principal problem lies in finding APS positions for which Daniel meets the “minimum requirements”. In the searches that she made in connection with this report, Ms Atteyah did not find any available positions at APS1 or APS2 level and she accepted that Daniel was not qualified for higher level roles. Even at more junior levels, the particular nature of Daniel’s disability means that he is unlikely to meet “minimum requirements”. If he did, there would be the further hurdle of devising “reasonable adjustments”: another employee being paid to shadow him constantly, reminding him what to do, might not be thought reasonable. Daniel would also need to be organised and motivated enough to get to work on time each day.
In the light of the lay and expert evidence concerning Daniel’s condition, I am satisfied that he is unable to undertake employment that, but for his injury, would have been available to him as a person of average intelligence. In the light of that conclusion, the defendant bore an evidential onus of adducing evidence of what work Daniel is capable of doing, what jobs are reasonably open to him and what he could earn in those positions: Mead v Kerney [2012] NSWCA 215 at [24]–[27] (Macfarlan JA (McColl JA and Sackville AJA agreeing)). It will be clear from what I have said above that I do not think that onus has been discharged. Subject to the next issue to be considered, it follows that I should assess loss of earning capacity in the manner suggested by the plaintiff.
Potential for improvement
The defendant also submitted that the appropriate approach was to use a “buffer” because there was a potential (the extent of which was unknown) that Daniel’s condition might improve. This submission was based on the following observation by Dr Jungfer:
There is the prospect of looking at some pharmacotherapy, particularly the stimulants which can be used in disorders of drive and may have some benefits for him. This would need to be initiated by a rehabilitation specialist or consultant psychiatrist.
The following points should be made about this passage.
First, the relevant statement is very cautious. It goes only so far as to suggest that it might be appropriate to look at pharmacotherapy. It is apparent that Dr Jungfer regarded that consideration as something properly done by people with different expertise to her own. She did not expand on the “benefit” that might be obtained for Daniel.
Secondly, the statement appeared in the section of Dr Jungfer’s report headed “Management”, which outlined the level of support Daniel would need. It was not part of her diagnosis; nor was it part of an analysis of Daniel’s capabilities or employment prospects.
Thirdly, this suggestion was not taken up in the evidence of any experts in the fields indicated by Dr Jungfer (other than Dr Lahz acknowledging the suggestion). The report in which Dr Jungfer made the suggestion was dated May 2021, so that there was ample time before the trial for it to be followed up; and the defendant had available to him the expertise of Dr Dalton. It was not put to any of the experts (including Dr Jungfer herself) that Daniel’s employment prospects could be improved by pharmacotherapy.
Fourthly, Dr Jungfer opined earlier in the same report that Daniel had “reached the period of maximal medical recovery”. There were other expressions of opinion, not contradicted or cross-examined upon, to the effect that Daniel’s deficits were permanent. This view was expressed by Dr Kornberg (the defendant’s witness), Dr Lahz and Professor Batchelor.
In the light of these matters, the brief suggestion by Dr Jungfer concerning future pharmacotherapy cannot be taken as establishing a real level of uncertainty as to Daniel’s capacities and employability in the future.
Conclusion
I therefore reject the submissions of the defendant on this issue and accept those of the plaintiff. I will assess damages for future loss of earnings at $1,690,000.
A consequence of Daniel’s loss of the capacity to earn will be a loss of the opportunity to make contributions to a superannuation fund and to receive the benefit of employer contributions. The plaintiff submitted that it is conventional to allow 14.54 percent on net losses to account for that lost opportunity. Other than a reference to Najdovski v Crnojlovic [2008] NSWCA 175; 72 NSWLR 728, the basis for this figure was not explained. It is at the upper end of the range of superannuation percentages awarded by this Court for future economic loss: see Maher v Russell [2022] ACTSC 297 at [335]. However the defendant did not submit that a lower percentage should be awarded. Having regard to legislated increases to the superannuation guarantee rate and the fact that superannuation is payable on a person’s gross (rather than net) salary, I consider 14.54 percent appropriate to adopt. This produces a rounded figure of $245,000 which the plaintiff claims and which should be included.
Future out of pocket expenses
The claim for future out of pocket expenses included the following elements:
(a)dental treatment ($20,070.21;
(b)orthodontic treatment ($6,696.00;
(c)prosthodontic treatment ($54,316.12;
(d)psychological treatment ($33,361.04, reduced in written submissions to a buffer of $30,000);
(e)psychiatric treatment ($43,122.83, reduced in written submissions to a buffer of $35,000);
(f)brain injury physician ($7,973.50;
(g)occupational therapist ($119,147.92, comprising $79,147.92 for a four year program of occupational therapy sessions and a buffer of $40,000. The latter claim was halved in written submissions, so the total amount sought for occupational therapy became (rounded) $100,000);
(h)case management ($335,025.64. This amount was calculated using $220 as the hourly rate for case management services, which was revised to $195 in written submissions. It is based on services being provided initially at rate of four to eight hours per month, reducing to one to two hours per month once care arrangements have stabilised. Using the rate in the written submissions, the total amount claimed (with rounding) is $295,000);
(i)driving assessment and assistance ($8,350.11, including $5,845.11 for NRMA roadside assistance; reduced in written submissions to a buffer of $5,000);
(j)equipment ($14,665.27);
(k)pet ownership ($33,923.00); and
(l)personal trainer ($256,487.84).
The defendant specifically resists the claims for occupational therapy, NRMA roadside assistance, equipment, pet ownership and personal training, but in effect takes issue with the whole of the claim. He submits that an appropriate allowance for future out-of-pocket expenses is $250,000, which would allow for the care and management regime proposed by Dr Jungfer, a level of orthodontic and prosthodontic treatment, some driver education and assistance and the Koomarri Career Discovery Programme. In oral submissions it was explained that this amount was proposed as a “buffer”, on the basis that Daniel’s future needs were uncertain. This, presumably, also rests on the suggestion that there is scope for Daniel’s condition to improve. I have rejected that argument above.
I turn, therefore, to the more specific elements of future out-of-pocket expenses.
So far as occupational therapy is concerned, the defendant submits that it is illogical for the plaintiff to claim “vocational supports” while simultaneously contending that Daniel is essentially unemployable. However, that submission goes to a separate claim for future vocational supports (put at $1,079,465.85) which the plaintiff revised down to a buffer of $400,000 in anticipation of this very point, and which is dealt with elsewhere in these reasons. Aside from the overall “buffer” argument, I did not understand the defendant ultimately to take issue with the allowance for occupational therapy ($100,000.00) as an aspect of future out of pocket expenses. This claim is for future support for Daniel in two respects. One is for encouragement and assistance in engaging in personal care and domestic tasks, leisure pursuits, development of social contacts and seeking out vocational and educational facilities. I am satisfied that Daniel has a need for this support and the burden of providing it should not continue to fall on his family. The claim also includes a small amount as a buffer in case Daniel needs specific assistance in responding to life-changing or particularly stressful events. I am satisfied that this allowance is appropriate.
It should also be noted that in calculating his proposed buffer for future attendant care services, the defendant made allowance for one hour per month of case management assistance. However, by this, I did not understand the defendant to contend that this monthly hour would satisfy the same needs as the regime described briefly at [110(h)] above but at a lower cost. Instead, it seems to contemplate the case management service provider having a more limited role with fewer services to coordinate. I am satisfied that the $295,000 sought should be included.
As to NRMA roadside assistance, Daniel presently does not drive and it is possible that he will never obtain his licence. I noted above that Christine expressed some trepidation about Daniel’s driving. The claim as formulated in the particulars included an amount for an assessment of Daniel’s ability to drive safely. One possible result of such an assessment is that he does not undertake any further lessons.
By taking issue only with the inclusion of roadside assistance, the defendant apparently accepted that Daniel has a need (caused by the accident) for assistance in obtaining a driver licence. The ability to drive is an aspect of a normal life for most Australians. If that ability is eliminated or compromised by a tortious act, it seems to me that that loss is at least prima facie compensable. Because of Daniel’s deficits, a vehicle breakdown would be even more challenging for him than it is for most people (especially if, for example, it occurred on a busy road). Some allowance for roadside assistance is therefore appropriate, if assistance in learning to drive is to be included.
In view of the possibility that these expenses may never eventuate (eg if it is determined that Daniel should not drive), the plaintiff’s reformulation of this claim into a smaller buffer ($5,000) represents an appropriate approach.
As to equipment, the submission is simply that the entitlement to the amount claimed ($14,665.27) has not been made out. The equipment was recommended by Ms Diane Prattley, an occupational therapist, and involves the following elements:
(a)an isolation system to deactivate the oven or stovetop in Daniel’s residence in the event that he forgets to turn it off (which it is said would need replacing every five years);
(b)fire detectors (smoke and carbon monoxide alarms), a fire extinguisher and fire blanket (which are said to need replacing every two years);
(c)smartphone applications to assist Daniel with organising his time and remembering when things need to be done; and
(d)voice actuated virtual assistants, for the same purpose.
I am satisfied that as a result of his brain injury Daniel has a need, should he attempt to live independently, for equipment to compensate for his executive dysfunction (ie items (a), (c) and (d) in the previous paragraph). If that equipment is installed and kept in order, the chance of a fire breaking out in his home would seem to be no greater (and possibly less) than for any other person. With advice, he will be able to avoid or mitigate other significant fire risks. I therefore do not propose to include the amount claimed for item (b) ($4,141.15) in the assessment of damages. The sum included for equipment will therefore be $10,524.12.
Pet ownership and personal training can be dealt with together as they raise similar issues. For most people, these are discretionary expenditures to be funded out of ordinary income. I have allowed a significant sum by way of damages to compensate Daniel for his loss of earning capacity and thus to stand in for such income. These claims, however, are put on the basis that Daniel has a need – arising from the accident – for the things that pet ownership and personal training provide: in the case of a pet, a need for companionship, structure and responsibility and for prompting to leave the house regularly; and in the case of personal training, for structured, regular, supervised physical exercise.
There is force in this argument. I accept that the accident has left Daniel severely hampered in his ability, without support and supervision, to find companionship and structure in his life and to achieve a healthy lifestyle. The point is not that Daniel has an accident-related “need for a pet” (as the defendant’s submissions framed it). Rather, it is that he has a need for the things mentioned in the previous paragraph, which could realistically and economically be met by pet ownership; and the cost of keeping a pet is thus an appropriate measure of compensation for that need. The same can be said of the cost of a personal trainer or gym membership.
The plaintiff led no evidence to establish that Daniel is likely to own a pet or to engage a personal trainer. There is reason to doubt that, left to himself, he would do either of those things. Of course, what Daniel does with the damages he receives is completely a matter for him. However, because of the uncertainty as to whether pet ownership or personal training will actually arise as items of expenditure for him, I propose to discount the specific allowance that is made for these things by 40 percent to $20,353.80 and $153,892.70 respectively.
In the result, I will allow each of the amounts claimed, other than the claims for pet ownership and personal training, which will be adjusted as I have indicated, and the claim for fire and carbon monoxide alarms. This results in a total of $738,826.45 for future out of pocket expenses.
Past attendant care
The plaintiff claims damages to compensate for care provided to Daniel by Christine. No claim is made in relation to care received by Daniel from other people, including in Cambodia, although it may well be compensable in principle. The basis for a claim of this kind, as explained in Van Gervan v Fenton (1992) 175 CLR 327, 333 (Mason CJ, Toohey and McHugh JJ) (Van Gervan) is the plaintiff’s accident-caused need for the identified services. The plaintiff’s loss is identified as the existence of the need; and the important point established by Griffiths v Kerkemeyer (1977) 139 CLR 161 and clarified in Van Gervan is that the defendant ought not to gain an advantage from the services having been provided gratuitously. The measure of damage is generally the market value of the services.
The plaintiff’s claim is based on evidence given by Ms Prattley. She broke the history of Daniel’s care arrangements into six periods, as follows:
(i)18 February – 31 August 2003. After being discharged from hospital, Daniel and Wah lived with Christine and her family. The majority of Daniel’s care was provided by Wah with Christine’s support. Ms Prattley estimated 14 hours per week of care by Christine in this period.
(ii)1 September 2004 – 31 March 2006. Wah and Daniel lived with Megan and Pak. Wah continued to provide the majority of Daniel’s care with some support from Christine. Ms Prattley estimated six hours per week of care by Christine.
(iii)1 April 2006 – 1 February 2014. Wah and Daniel lived in Cambodia. No claim is made for this period.
(iv)2 February 2014 – 3 April 2017. Daniel lived with Christine and her husband Stephen and attended Harrison School. Daniel was having some difficulty with academic subjects and social skills. He was less able to travel independently than others of the same age and he needed prompting to get to school. He also needed prompting to maintain personal care and participate in household tasks. Ms Prattley did not include provision of transport in her estimate. She estimated nine hours per week of care by Christine.
(v)4 April 2017 – 3 April 2019. Daniel turned 15 on 4 April 2017, an age at which most adolescents are independent in personal care and presentation and when friends tend to become more important than family. Daniel was reported to be “happy in his own world” but had little social contact outside the family. He continued to need prompting as before and did not initiate any assistance in the home environment. Ms Prattley allowed 10 hours per week of care by Christine.
(vi)4 April 2019 – present. On 4 April 2019 Daniel turned 17. At this age he would be expected to be independent in all activities of daily living apart from driving. Separation from parents and participation in activities with peers normally become important. Parental supervision is often not required and not acceptable. Daniel was “independent for all personal care” and had no physical functional restrictions, but still needed prompting and supervision to “maintain an appropriate level of daily living activity”. Ms Prattley allowed 12 hours a week of care by Christine.
As particularised and based on this analysis, the claim is for 6,206 hours of care. A rate of $35 per hour was claimed for earlier periods, rising to $40 and then $45 per hour for later periods, leading to a total of $255,199.00 upon which interest was claimed.
The defendant relied on a report by Ms Dawn Piebenga. She broke Daniel’s history after discharge from hospital into 10 periods which she based largely on what she regarded as usual developmental milestones. Her view was that Daniel required additional personal care assistance in four of these periods, totalling 30 weeks and focusing on times when he was undergoing dental treatment or had his leg in a cast. Between Daniel’s 15th and 16th birthdays she observed that “prompting to complete domestic tasks is reasonable” although it is not clear how this is reflected in her final recommendation: “past gratuitous assistance for a total of 75.06 hours”.
The defendant criticised Ms Prattley’s analysis on the grounds that (a) it did not make due allowance for the level of supervision and care that Daniel would have needed as a child and teenager independently of any disability, and (b) that she did not have any particular methodology for her estimation of the time needed to prompt Daniel to do things that he was otherwise capable of doing.
As to the first criticism, there is implicit in Ms Prattley’s conclusions some form of comparison between the amount of care and attention needed by Daniel and what would be expected to be required by a child or teenager who was not afflicted by his injuries. That is evident from the fact that her estimate increases from nine to 10 and then 12 hours per week during times when Daniel’s care needs were more or less the same, but those of a “normal” teenager would have been decreasing.
The key point (as emphasised by the plaintiff’s submissions, referring to the case law) is to seek to identify the extent of the need for care created by the accident; or, to put it another way, the extent to which provision of some particular level of care was changed from a matter of choice for Daniel or his family to a matter of necessity (cf Van Gervan at 338). An attempt to estimate how much care and attention children of various ages normally receive would be a distraction from that task. It is clear that Daniel has and has had an increased level of need for care as a result of the accident, in that (for example):
(a)his ability to act independently is compromised (meaning that he has needed a lot of help with homework; he needs to be taken to appointments where other children his age could travel alone; he does not maintain an appropriate level of personal care unless reminded; and he does not contribute to household tasks unless prompted); and
(b)his capacity for social interaction is very limited (meaning that he is nearly always at home; and he needs significant input from others if he is to avoid an existence that is completely sedentary and reclusive).
Ms Piebenga’s approach does not take account of these needs, which in my view are clear. Ms Prattley’s approach does, although how her figures were arrived at is somewhat opaque. In cross-examination she was not really able to explain how she came to her estimates for periods where much of the care provided by Christine consisted of prompting. Any such estimate involves a significant degree of judgment and possibly guesswork. For example, reminding Daniel to wash his sheets might only take a few seconds; however, it was probably necessary for Christine to be present, to observe what needed to be done, to deliver the reminder and then to check whether the task was done.
With Ms Piebenga having concluded in effect that no attendant care was necessary (a view which I have rejected), there is not an informative contest of expert opinion concerning the extent of the necessary care. Because Daniel was capable of performing tasks such as washing his hair or cleaning his room, and did not need them to be done for him, I have difficulty in accepting that as a teenager he has required between nine and 12 hours per week of attention over and above what he would have needed if he had not been injured. In my view an allowance of seven hours in period four, eight hours in period five and 10 hours in period six is more appropriate.
It was also noted in submissions that the claim is for care by Christine, who was not obliged by any familial bonds to provide it. Although Christine deserves recognition for having taken on the very significant task of looking after Daniel and performed it for around nine years, I do not think that this changes the analysis of the present issue. The case law referred to above emphasises that the accident-caused need for care is the central issue and it should not matter whether that care has been paid for or provided gratuitously. By parity of reasoning, it seems to me that it also should not matter who it is that provides gratuitous care. The role of damages is to compensate the injured person, not to reward the carer (so that, for example, the Court is not concerned with whether damages will be used to reimburse the carer: Kars v Kars (1996) 187 CLR 354, 372). However, the exclusion of care provided by Wah during Daniel’s early childhood, and by him and others (including paid carers) in Cambodia, which is likely to have been significant, means that there is a degree of under-estimation in the claim for past care and assistance.
However, because no claim was made for care provided by people other than Christine, it is significant that the evidence before the Court does not establish that Daniel lived with Christine from as early as 2 February 2014 (which is the date given in Ms Prattley’s report and in the particulars). Christine’s own evidence was that, after Wah returned to Cambodia, Daniel continued to live with Nimmol for “about six months”. It is somewhat unclear when the family arrived back in Australia and when Wah returned again to Cambodia, but even if the family returned in late 2013 rather than early 2014 (there is evidence suggesting the possibility of each), and Wah stayed only for a few months, it is hard to see how Daniel could have started living with Christine before about July 2014. Therefore, although Christine may have contributed to the care of Daniel while he was living with his family in the first half of 2014, and although care provided by Nimmol would seem to be in principle compensable, it is appropriate to reduce the length of period four by approximately six months.
I will therefore assess damages for past attendant care on the basis contended for by the plaintiff (noting that the proposed hourly rates were not the subject of any argument) but with somewhat reduced allocations in the latter periods and shortening period four by around six months, as follows:
(a)period four (commencing 2 August 2014): seven hours per week at $40;
(b)period five: eight hours per week at $45; and
(c)period six: 10 hours per week at $45.
With these adjustments, the basic figure becomes $208,244.00. The services have been provided over a 20 year period. I will therefore apply an interest rate of two percent over that period. The orders that I make will require the parties to provide updated calculations of interest for inclusion in the final orders.
Future attendant care services
Each of the medical experts expressed the view that Daniel needed continuing intervention to provide structure, prompting, a healthy diet and engagement in activity. Dr Lahz put it in the following terms, which I accept:
I am not advocating a set number of care hours per day indefinitely. Admittedly, I do not know the exact number of hours per day which Daniel requires. The reality is that no one knows this as yet because Daniel’s abilities for independent living (inclusive of living alone) have not been tested. He has always lived with his guardian or else his immediate family and never been left to his own devices to take care of himself. Based on the history I obtained, Daniel will need daily input from a support worker to ensure that he is complying with the recommended daily routine, and in addition, for safety and harm minimisation.
If Daniel were living alone, unless he receives attendant care support, he will likely finish up socially isolated, unemployed, eating poorly, and not gainfully occupied, tending to spend all day in his room playing computer games.
It is possible that Daniel’s daily routine can be entrained by use of verbal prompts in conjunction with compensatory aids (mobile phone apps, alarms etc) so that attendant care hours can decrease. Given Daniel’s profound lack of motivation, he will be unable to fill his day with gainful activities unless there are provisions for his frequent/daily monitoring and supervision.
These views were expressed in Dr Lahz’s supplementary report, in direct response to the opinion of Ms Piebenga that Daniel needed no future attendant care apart from some interim vocational training. I reject that opinion.
The defendant submitted that this issue should be dealt with on the same basis as the loss of future earning capacity, on the basis that Daniel is “independent in all activities of daily living” and has scope for improvement. A figure of $300,000 was suggested (based on the cost of a domestic cleaner once per week, and an occupational therapist to provide case management assistance once per month). I have dealt above with the suggestion that there is scope for improvement in Daniel’s condition. Further, I consider Daniel to be “independent in activities of daily living” only in the sense that he is physically and intellectually capable of accomplishing those activities. He is not, by and large, capable of initiating those activities even when the need for them is obvious. Nor is he capable of initiating (let alone completing) activities that are essential for a healthy life, such as going outside or preparing a healthy meal. Some level of ongoing intervention is needed.
Ms Prattley provided estimates on the assumption that Daniel would live with his guardian in the family home until 2027 (when he turns 25) and would by 2028 thereafter live in his own unit. This assumption appears reasonable. There is a suggestion that Daniel may soon move in with Nimmol and his younger siblings, but that seems unlikely to affect significantly the level of care that he needs. If he does make that move it is also unlikely to change his longer term desire to live alone.
During the first period, Ms Prattley estimated a need for 11.81 hours of care per week (comparable with the 12 hours that she estimates has been provided by Christine), reducing to 9.81 hours per week from the end of 2023. Using an hourly rate of $65.73 (which does not appear to be disputed), the plaintiff arrives at an amount of $204,072.26 for this period.
During the second period (which constitutes the remainder of Daniel’s life), Ms Prattley estimates a need for 17.25 hours of care per week. The increase is explained by the fact that, living alone instead of with others, Daniel will have more domestic duties to perform and will correspondingly need more assistance with those duties or prompting to perform them. He will also need to go shopping, and Ms Prattley has evidently proceeded on the basis that he have to be accompanied when he does so. Using the same hourly rate and an appropriate multiplier, the plaintiff arrives at a figure of $1,630,348.54 for this period.
As with past attendant care services, I am not persuaded that all of the weekly hours of attendant care estimated by Ms Prattley are necessary. Daniel will need (for example) prompting to clean his residence rather than to have that done for him. That need will be reduced to some extent if occupational therapy (which I have made allowance for) is successful in creating structures and prompts for him to perform tasks of daily living. I therefore propose to adjust the proposed allowance for future attendant care downwards, as follows:
(a)first period: 10 hours per week until the end of 2023, then eight hours per week from then until 3 April 2028 results in a total of $168,321.38; and
(b)second period: 12 hours per week from 4 April 2028 for the remainder of Daniel’s life (57 years). The weekly cost is $788.36. Using a three percent multiplier (as proposed) the amount to be awarded is $1,133,582.84.
Based on Daniel’s evidence and his statements in interviews with the expert witnesses, I think there is a significant possibility that he would find the presence of a care worker for up to 17 hours per week, for the purpose of prompting him to undertake domestic tasks, unwelcome. Given the choice, he might not engage a carer to this extent or at all. However, it does not follow that provision should not be made for this care. The task is to determine what quantum of damages adequately compensates an injured plaintiff for the consequences of the defendant’s negligence, including what is necessary to live with the comfort and dignity that that plaintiff would, but for that negligence, have attained. How the plaintiff uses the amount received is a matter for them. In circumstances such as the present, some form of trustee or guardianship arrangement might need to be considered in order to ensure that available financial resources are used to improve the person’s life. That is a question for another day.
The plaintiff also claims, in lieu of a claim previously advanced for vocational supports, a buffer of $400,000 to provide for a “buddy”. The particulars envisaged this person facilitating the satisfaction of Daniel’s needs for “exercise, general wellbeing and any vocational support that might arise”.
There is some risk of double counting if substantial provision is made for vocational support in circumstances where Daniel’s loss of future earnings has been assessed on the basis that he is essentially unemployable. However, the findings that I have made concerning future employment prospects do not rule out Daniel being able to do some work in a volunteer capacity or in a supported environment; and, should he do that, the cost of the support he would require would most likely be greater than his earnings. As things stand, the effects of the accident have not only deprived Daniel of the ability to earn an income to support himself. They have also deprived him, in the absence of support, of the opportunity to experience the psychological benefits that come from participation in productive activity. Some allowance for vocational support is therefore appropriate.
Based on a rough calculation of one hour per day at $50 ($350 per week), the plaintiff arrives at a figure of $521,850 which he accepts, given the uncertainties involved, could be discounted to $400,000. As a provision to cover important features of a normal life to which Daniel presently does not have access as a result of his injuries, this does not appear to me to be excessive. I will include this amount.
The total for future attendant care is therefore $1,701,904.22.
Funds management
By reason of his disability, Daniel has brought these proceedings through Christine as his litigation guardian. He claims that, also by reason of that disability, there is a need for the funds that he recovers to be managed by a trustee. A sum of $1,238,000 is claimed under this head, based on an estimate obtained from a private finance company.
In Nominal Defendant v Gardikiotis (1996) 186 CLR 49 (Gardikiotis), the respondent had been injured in a motor accident. She did not suffer any brain damage, but the accident exacerbated a pre-existing condition which left her wheelchair bound and having difficulty writing. McHugh J set out the relevant principles as follows (at 54–55):
If a defendant's negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day-to-day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and the expense of managing those tasks. The expense is just as much a product of the defendant's negligence as is the disability. It is compensable therefore unless it is damage of a kind that a defendant could not reasonably foresee. Similarly, if a plaintiff can no longer manage her affairs with the same skill as before the accident, both the reduction in skill and any expense reasonably incurred in bringing the management of those affairs to the pre-accident level are compensable in damages. Likewise, if the defendant's negligence has aggravated a pre-existing incapacity, the plaintiff is entitled to be compensated to the extent that the aggravation has increased the incapacity and caused expense to the plaintiff.
Damages may therefore be awarded for the expense of managing a plaintiff's verdict moneys when the plaintiff's disabilities prevent him or her from managing those moneys and the disabilities are the foreseeable consequence of the defendant's negligence. Damages may also be awarded for the expense of investment advice where, as the result of the defendant's negligence, the plaintiff is no longer able to make adequate decisions concerning his or her own financial affairs. In both cases, damages are payable by the defendant because the expense is the necessary product of the defendant's negligence and is not the result of the free, informed and voluntary act of the plaintiff. The expenses have been brought about by the loss of the plaintiff's ability to do what that person was capable of doing before the occurrence of the tort which gives rise to the claim for compensation.
But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant's negligence, but for an expense arising merely from the size of an award of damages and the exercise of a choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff's injury. It is the result of the plaintiff's decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest it in a fixed asset or some other form of investment.
Gummow J (with whom the other members of the Court agreed) drew the same distinction (at 68). Because the respondent in that case was not intellectually impaired, the judgment of the New South Wales Court of Appeal (which had awarded a sum for funds management) was set aside; however, the question whether some amount should be awarded for the difficulty in managing her affairs that arose from her physical incapacity was left to be dealt with on remitter (at 62, 69).
I was also referred to Willett v Futcher [2005] HCA 47; 221 CLR 627 at [51], where a unanimous High Court said:
In a case, like the present, where a plaintiff must have an administrator appointed to manage his or her financial affairs because the plaintiff's incapacity to deal with those matters was caused by the defendant's negligence, the plaintiff is awarded a lump sum of damages which is to compensate the plaintiff for losses past, present and future. In a case, again like the present, where the plaintiff will never be able to manage his or her affairs and will never be able to work, the damages awarded will often include a significant allowance for future economic loss. The plaintiff can make no decision about the fund. An administrator must be appointed. The administrator must invest that fund and act with reasonable diligence. It follows that the administrator will incur expenses in performing those tasks. The incurring of the expenses is a direct result of the defendant's negligence. The damages to be awarded are to be calculated as the amount that will place the plaintiff, so far as possible, in the position he or she would have been in had the tort not been committed. That requires comparison with the position the plaintiff would have been in without the award of a lump sum for damages. It does not, as the distinction adopted by White J supposes, require or permit comparison with the position that the plaintiff would have been in had the disabling injuries not been sustained but the plaintiff nonetheless had a lump sum to invest. That comparison is irrelevant and inapt. In the ordinary course a person who is not injured will not have to husband a large sum of money over a long period of time in such a way as to ensure an even income stream but the complete exhaustion of the fund at the end of the period.
Although Daniel’s intelligence is in the normal range according to tests that have been done, he lacks the ability to analyse complex situations and choose between alternatives. There is also evidence that he is prone to black and white thinking and not well equipped to listen to and consider opinions other than his own. Perhaps most significantly, he is chronically amotivated. Dr Jungfer opined that Daniel is not equipped to manage his financial affairs and I agree with this assessment. This is a consequence of the accident.
The defendant submits that there is no evidence that Daniel is at risk of being taken advantage of; nor is there any evidence that Daniel is likely to fritter away the money awarded to him.
Daniel has no hobbies or interests (other than possibly computer games) and no expensive tastes. He barely socialises and therefore is not at significant risk of being taken advantage of by a plausible stranger. He has the support of Wah, who influences him greatly, and other family members. There is some evidence that, if anything, he is excessively frugal: he has said that, if awarded an amount of damages, he would probably put it in the bank.
However, Dr Jungfer, who has long experience in dealing with clients whose decision-making is impaired, sounded the following notes of caution in her oral evidence:
With all due respect, over the many years that I have cared for my patients who have acquired brain injuries and have been in a situation like [Mr] Meas and then gone on to receive a settlement, the actions and behaviours of other people following that moment cannot be predicted [from] what one sees prior to the settlement. And so with all due respect to the people that you’ve described, bitter experience in my area of work has shown me that people can act very differently, particularly when there are large sums of money involved.
…
A number of things happen; the first is that someone who has a disorder of drive who, as Daniel is described, has black and white thinking, they will not necessarily seek financial advice if it’s, you know, given to a financial adviser. If they have to enact that financial advice it’s often too complex. It’s complex for well-educated people and people of, you know, above-average and superior intelligence let alone someone who has difficulties with initiative and drive and, you know, average intelligence.
The other issue of course is that he has black and white thinking and because he has black and white thinking, if he’s provided advice by a financial manager and it doesn’t accord with his thinking and it doesn’t – he doesn’t shift his ideas, according to the information I’ve been provided then it [becomes] very much the likelihood that he actually may not act on that financial manager’s advice, if you have, you know, concerned others involved such as, you know, stepmother, his guardian … Often … young adults who’ve had acquired brain injuries start to – you know, might mix with other people, meet other people, particularly online these days, and then they make decisions and they rebel against their support people. They resent being controlled by their family members or their family members trying to, as they see, interfere. So you provide [them] with an individual who is independent, a trustee, who is able to meet with the individual but overall has the, you know, professional qualifications, understanding and experience, and you take out the family because when you add family dynamics into financial management orders there are competing demands, conflicting ideas, and in the case of this young man, the goal is to allow [him] to be as independent as possible but also protected from the effects of the brain injury and an independent financial trustee would be the safest and most prudent step in this young man’s situation.
Further, the cases to which I was referred do not draw distinctions based on whether the injured person is prone to being taken advantage of or prone to frittering away the award by inappropriate spending. Rather, the cases recognise that managing a significant sum of money so that it is used for maximum benefit, but also lasts a person for the rest of his or her life, is a significant task. If the person is “no longer able to make adequate decisions concerning his or her own financial affairs” (as it was put in Gardikiotis), and that inability arises from the tortious conduct, the cost of obtaining assistance in making such decisions is compensable. The inability to “make adequate decisions” may in some cases take the form of vulnerability to being taken advantage of or a propensity for unwise spending, but it is not limited to those circumstances. It may take the form of an inability to make investment decisions, or to make appropriate decisions concerning the acquisition of equipment or services, resulting from lack of intellectual capacity or from lack of capacity for engagement with such issues.
I am satisfied that Daniel has a need, caused by the accident, for financial management services. The claim under this head is for $1,238,000. I will allow $1,000,000 on the basis that the financial management task will become somewhat smaller if, as seems likely, part of the sum awarded is used to purchase a residence in the next few years.
Conclusion
Damages are therefore assessed as follows:
(a)Non-economic loss: $450,000, plus interest
(b)Loss of future income and superannuation: $1,935,000
(c)Past out of pocket expenses: $51,348.54, plus interest
(d)Future out of pocket (including medical) expenses: $738,826.45
(e)Past attendant care: $208,244, plus interest
(f)Future attendant care: $1,701,904.22
(g)Funds management: $1,000,000
(h)Total: $6,085,323.21, plus interest to be calculated on items (a), (c) and (e)
ORDERS
The orders of the Court are as follows:
(1) The parties are directed to provide short minutes of order to chambers within 14 days to give effect to these reasons, including the entry of judgment for the plaintiff in the sum of $6,085,323.21 plus interest.
(2) Subject to order 3 below, the defendant is to pay the plaintiff’s costs as agreed or assessed.
(3) If either party seeks a different order as to costs:
(a) That party is to file written submissions of no more than five pages in support of its position, together with any evidence upon which it relies, by 2 August 2023;
(b) The other party is to file written submissions in response of no more than five pages, together with any evidence upon which it relies, by 16 August 2023; and
(c) The issue of costs will be determined on the papers unless the Court determines that an oral hearing is necessary.
| I certify that the preceding one hundred and sixty [160] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Kennett Associate: Date: 19 July 2023 |
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