Meldrum v Vassallo
[2020] WADC 71
•4 JUNE 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: MELDRUM -v- VASSALLO [2020] WADC 71
CORAM: BURROWS DCJ
HEARD: 9-13 JUNE 2019
DELIVERED : 4 JUNE 2020
FILE NO/S: CIV 2000 of 2015
BETWEEN: PADEN ROBERT MELDRUM
Plaintiff
AND
BRIAN VASSALLO
Defendant
Catchwords:
Torts - Negligence - Motor vehicle accident - Negligence admitted - Causation - Assessment of damages - Turns on own facts
Legislation:
Civil Liability Act 2002 (WA)
Evidence Act 1906 (WA), s 79(c)
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Judgment for plaintiff
Damages assessed
Representation:
Counsel:
| Plaintiff | : | Mr D R Clyne |
| Defendant | : | Mr C C Rimmer |
Solicitors:
| Plaintiff | : | Simon Walters |
| Defendant | : | Sparke Helmore Lawyers |
Case(s) referred to in decision(s):
Cleary v The Insurance Commission of Western Australia [2019] WADC 29
Den Hoedt v Barwick [2006] WASCA 196
Husher v Husher [1999] HCA 47
Jongen v CSR Ltd (1992) Aust Torts Rep 81-192
Montemaggiori v Wilson [2011] WASCA 177
Pollock v Wellington (1996) 15 WAR 1
Purkess v Crittenden (1965) 114 CLR 164
Reece v Reece (1994) 19 MVR 103
Setton v Eves [2006] WASCA 3
Thomas v O'Shea (1989) Aust Torts Rep 80-251
Traeger by his next friend John Winston Traeger v Harris [No 4] [2011] WADC 45
Vincent v Atkinson [2017] WADC 155
Watts v Rake (1960) 108 CLR 158
Wreford v Lyle [2018] WADC 173
BURROWS DCJ:
Introduction
Mr Paden Meldrum (the plaintiff) claims damages for personal injury suffered by him in a motor vehicle collision which occurred on 1 April 2014. The plaintiff was a front seat passenger in a vehicle driven by Ashlee Amanda Fruet. At the intersection of Beach Road and Blackmore Avenue, Balga another vehicle being driven by Brian Vassallo (the defendant) collided with the passenger side of Ms Fruet's vehicle at speed (the collision). Liability for negligence has been admitted by Mr Vassallo. Ms Fruet was joined as the first defendant to the proceedings. The trial proceeded before me for an assessment of damages without liability being admitted by Ms Fruet. After the conclusion of the trial, by consent order dated 13 December 2019, the plaintiff's action was dismissed against Ms Fruet.
Issues
The plaintiff asserts that as a result of the collision he sustained injuries, the most serious being a traumatic brain injury. He had previously sustained a brain injury when he rode his bicycle into a tree on 29 March 2010. He also had pre‑existing left shoulder and right knee issues.
The plaintiff's claim is that but for the collision he would have commenced an apprenticeship as a ceiling fixer and would now be earning in the order of $1,500 net per week and would have continued to do so until the age of 67. It is accepted that the plaintiff has a retained earning capacity in the order of $200 net per week.
In respect of the 2010 brain injury the plaintiff's case is that he had substantially recovered from this before the collision and it was not impacting on his ability to work as a ceiling fixer. He says the pre‑existing shoulder injury was substantially exacerbated by the collision. The right knee injury was not. It is not causally related to the collision.
The defendant pleads the plaintiff's alleged injuries and symptoms are caused or materially contributed to by these pre‑existing and unrelated health issues. In closing submissions the defendant contends that the plaintiff has a mild to moderate residual cognitive impairment attributable to the collision together with a mild residual physical impairment of his left arm and left leg, which do not preclude him from working full‑time.[1]
[1] Defendant's closing submissions, dated 24 June 2019, par 101.
The onus is on the plaintiff to establish his claim on the balance of probabilities. Where the defendant alleges that the plaintiff's loss is not causally related to the event caused by the negligence of the defendant it is the defendant who bears an evidentiary burden of showing another cause.[2]
[2] Watts v Rake (1960) 108 CLR 158; Purkess v Crittenden (1965) 114 CLR 164.
The following issues arise for determination:
1.What injuries did the plaintiff sustain in the collision and what treatment did he undergo?
2.What was the plaintiff's pre‑collision medical condition?
3.To what extent does the plaintiff's pre‑collision medical condition impact on the assessment of damages?
4.What is the appropriate assessment for past economic loss, loss of earning capacity, future medical expenses and non‑pecuniary loss?
The plaintiff gave evidence at trial. He also called four lay witnesses:
1.Cheryl Brown, his current employer;
2.Christine Merritt, an employee of the Nannup Hotel where the plaintiff was employed for two periods in 2013 and 2017 ‑ 2018;
3.Peter Yaksich, the former defacto partner of the plaintiff's mother; and
4.Justin William Yaksich, the son of Peter Yaksich, and the plaintiff's intermittent employer as a ceiling fixer.
The plaintiff called the following expert witnesses:
1.Mr Kerry Jones, occupational therapist;
2.Dr Ross Goodheart, consultant neurologist;
3.Dr Andrew Harper, occupational and public health physician;
4.Dr Nick De Felice, consultant psychiatrist; and
5.Dr Mandy Vidovich, clinical neuropsychologist.
The defendant called Dr Joel Silbert, occupational physician.
The reports of Dr Du Plessis, consultant neurologist and rehabilitation physician, Dr Eileen Tay, consultant psychiatrist and Professor Mastaglia, consultant neurologist were tendered by consent.
The parties also tendered a number of additional medical reports, hospital progress notes and various financial records pursuant to s 79C of the Evidence Act 1906 (WA).
What injuries did the plaintiff sustain in the collision and what treatment did he undergo?
The collision
On 1 April 2014 the plaintiff was in Perth. He met with old friends from primary school. Ms Fruet drove the plaintiff to a nearby bottle shop to purchase alcohol. Getting into the car is the last thing the plaintiff remembers.[3]
[3] ts 16.
After the collision the plaintiff was taken by ambulance to Royal Perth Hospital. The admission reason is recorded as '27‑year‑old restrained male passenger in a T‑bone MVA at 100 km/h'.[4] Neither party has submitted this is not an accurate description of the collision. I accept that it is. Upon admission the plaintiff had a Glasgow Coma Scale of 8/15. He was admitted to intensive care and suffered post‑traumatic amnesia for 51 days.
[4] Exhibit 8.3 - Royal Perth Hospital inpatient discharge letter.
The plaintiff's injuries were recorded as:
1.Traumatic brain injury - diffuse axonal injury and midbrain haemorrhages. This was the principal diagnosis;
2.Left occipital condyle fracture;
3.Splenic laceration;
4.Stable pelvis fractures - left sacral alae superior and inferior pubic rami fractures;
5.Left hemothorax and pneumomediastinum; and
6.Ruptured bladder dome with hemoperitoneum.[5]
[5] Exhibit 8.7, report of Dr Kalyani Abeysekera dated 18 September 2014, Rehabilitation Medicine and Psychology Department, Royal Perth Hospital, Shenton Park Campus.
In addition to these injuries soft tissue injuries to the head, neck, chest, left shoulder, abdomen and pelvis and nerve injury associated with the pelvic fractures are pleaded at par 4 of the statement of claim.
I am satisfied that the force of the impact was such that the plaintiff sustained serious injuries, the traumatic brain injury being the most significant.
The plaintiff alleges that the injuries pleaded in par 4 of the statement of claim produced the following:
1.Memory loss;
2.Speech impairment. This was not pursued at trial;
3.Impaired balance;
4.Nocturia;
5.Numbness to the left leg;
6.Recurrent dislocation to the left shoulder;
7.Pain, stiffness and tenderness of the head, neck, left shoulder and left leg;
8.Limitation of movement of the head, neck, left shoulder, chest and left leg. The limitation of the movement of the head, neck and chest were of a short duration and are no longer an ongoing issue for the plaintiff;[6]
9.Nervous shock. This is to be construed as depression and anxiety; and[7]
10.Headaches and discomfort together with sleep disturbance. Headaches are no longer an issue for the plaintiff.[8]
[6] Plaintiff's closing submissions, par 2.
[7] Plaintiff's closing submissions, par 2.
[8] Plaintiff's closing submissions, par 2.
The defendant does not accept the recurrent dislocation to the left shoulder, pain, stiffness and tenderness of the neck or nervous shock were caused as a result of the accident.
Damage to the plaintiff's teeth was not pleaded and was not pursued at trial. However, a clicking and discomfort to the plaintiff's jaw upon yawning and swallowing, whilst not pleaded, was pursued.
The plaintiff pleads that he has suffered a diminished parameter of employment and is prejudiced when competing in the open labour market in that he is no longer able to engage in activities which involve:
1.repetitive bending and lifting;
2.prolonged sitting or standing;
3.working with his arms raised above shoulder height;
4.multi‑tasking;
5.activities where a reduction in balance is a safety hazard;
6.ladder work;
7.activities on an elevated platform;
8.overhead work;
9.all forceful work with the left shoulder;
10.driving; and
11.activities requiring an efficient memory.[9]
[9] Plaintiff's statement of claim, par (9)(e).
The defendant contends that the evidence does not support a finding that the plaintiff is unable to engage in activities involving repetitive bending and lifting, prolonged sitting or standing, working with his arms above shoulder height and driving.
Treatment
The plaintiff was an inpatient at Royal Perth Hospital from 1 April 2014 until 30 April 2014 initially under the care of Dr Rao and the trauma team. He was then transferred to the Acute Brain Injury Rehabilitation Medicine Clinic at Shenton Park campus under the care of Dr Abeyesekera. In the early period of his admission the plaintiff was agitated and confused and required some chemical physical restraint and companions. Left shoulder pain subsequently developed. An ultrasound of the shoulder revealed some biceps tendon sheath effusion suggesting decompression of intra‑articular fluid. The pelvic fractures were treated conservatively. The plaintiff required bed rest for a period of two weeks and non‑weight bearing on the left leg for six weeks. He was placed in a neck brace for eight weeks. He underwent physiotherapy, speech therapy and occupational therapy at Shenton Park.
The plaintiff was discharged from Shenton Park on 3 June 2014 to the care of his family. He was not to drive, swim unattended, operate power tools, play contact sport, climb ladders or drink alcohol until medical review. Follow‑up treatment of occupational therapy, speech pathology, physiotherapy, orthopaedic review and ultrasound of the abdomen and pelvis was required.
The plaintiff was initially assessed by the State Head Injury Unit (SHIU) on 7 July 2014.[10] The issues documented in the medical notes were at that time were:
1.Mild cognitive impairment;
2.Left lower leg reduced sensation;
3.Mild speech clarity issues;
4.Mild dysphonia;
5.Mild impairments for delayed memory recall and auditory memory sequencing; and
6.Dental soreness.
[10] Exhibit 8.5.
The physical problems perceived by the plaintiff subsequent to the collision were recorded as:
1.A mild left side weakness;
2.Longstanding left shoulder issues with pinching during some movement patterns which he felt he compensated well for;
3.Neck cramps particularly if he yawned;
4.Generally deconditioned;
5.Multiple teeth wobbling which resulted in him choosing to eat only softer foods; and
6.The left lateral aspect of the entire leg from the buttocks had a cold sensation which was only remedied with bicycle riding or a very hot bath. There was also itchiness at times.
In terms of his cognition he was concerned about his memory, describing his memory recall as poor. He reported undiagnosed Attention Deficit Disorder (ADD) since childhood and not being 'book smart' but felt his cognitive function was below that which it had been before the collision. Investigations confirmed significant delayed memory recall issues. The plaintiff struggled to return to a task if he had to turn his attention to another task temporarily.
Behaviourally he did not feel there was any change. In terms of communication he reported doing limited reading and writing which he had difficulties with since childhood.
The plaintiff was known to the SHIU due to a previous acquired brain injury suffered in March 2010 which he was described as having made a 'full recovery' from.[11] He was keen to return to driving and commence working. Practical based therapy was considered most appropriate due to his longstanding difficulties with academic tasks.
[11] Exhibit 8.5, page 5, par 1.
In terms of his pre‑collision leisure activities these were described as indoor rock climbing, cycling up to 100 km per week, cliff jumping, gardening and bonsai, working on a project car and swimming. Post‑collision he had returned to cycling short distances up to 10 km, bonsai and some work on his car.
A plan was put in place to increase the plaintiff's physical strength and endurance and cognitive functioning. He was referred to a physiotherapist to develop an exercise programme. Cognitive rehabilitation followed by support to return to work was arranged. The case co‑ordinator was to liaise with a rehabilitation medicine physician regarding clearance to return to driving; referral for dental services for the loose teeth; referral for assessment for the altered leg sensation and medical clearance to return to work. This process included clearance for working at heights doing ceiling work.
When seen at the Royal Perth Hospital outpatient clinic on 22 July 2014 the plaintiff was complaining of reduced memory which was being addressed with occupational therapy. He also complained of altered sensation on the lateral side of his left thigh which was confirmed on examination. The plaintiff also complained of pain in his neck when yawning. Dr Abeysekera thought this could be due to the weakness of neck muscles from being in a cervical collar for eight weeks and it was hoped the pain would improve with strengthening of the muscles by neck exercises.[12]
[12] Exhibit 8.7.
The plaintiff was first reviewed by Dr Fletcher in the Rehabilitation Outpatient Clinic of Fiona Stanley Hospital on 13 October 2014.[13] At this time he was experiencing memory issues and had ongoing sensory problems in the left leg with persisting numbness and cold feeling. He attended for rehabilitation and review by the medical team on 15 occasions, the last review taking place on 27 February 2017.
[13] Exhibit 8.14.
Neuropsychological assessment was carried out over four consultations in May and June 2015 at Fiona Stanley Hospital.[14] The plaintiff's test results revealed his performance was within the below‑average or average ranges on tests covering a range of cognitive abilities. His performance was well below average on a test of visual recognition memory (5th percentile) and impaired (<2nd percentile) on tests of immediate and delayed recall and retention of meaningful verbal information. Dr Hargate, the senior clinical neuropsychologist at Fiona Stanley Hospital, considered the plaintiff's amnestic deficits would not necessarily impact on his capacity to return to driving but they were likely to impact on work performance and some jobs and therefore limit the kinds of formal employment open to the plaintiff. At that stage the plaintiff's goals were to return to driving and work such as labouring, scaffolding and rigging. His overall verbal learning was very poor (< 1st percentile), which Dr Hargate thought may limit his success if the plaintiff sought training and a new career that required a great deal of academic learning. It was recommended that he continue to carry around a notebook as a memory aid.
[14] Exhibit 8.12.
The plaintiff was also placed under the care of a psychologist, Dr Rodrigo. I take this to be a reference to Dr Rodrigo Becerra, who he saw on a fortnightly basis after being discharged from hospital. He tried antidepressant medications but stopped using them after about a week because they did not agree with him.[15] The plaintiff gave evidence of using meditation techniques taught to him by Dr Rodrigo in preference to taking medication.
[15] Exhibit 8.12.
Following discharge the plaintiff had an occupational therapist, Christine Bulgalt, visit at home twice a week. This continued for a year and a half before decreasing to once a fortnight. He saw the occupational therapist until December 2015. She provided assistance with paperwork, shopping and tested his cognitive ability.
On 8 December 2015 the plaintiff underwent an occupational therapy driving assessment and was considered fit to hold a C class driver's licence and to resume driving a private motor vehicle.[16]
[16] Exhibit 8.13.
The plaintiff had surgery to his right knee and left shoulder. On 11 November 2016 he underwent repair of his anterior cruciate ligament. Three months earlier he had undergone a bone graft of the right knee with the donor site being the right hip.[17] He underwent repair of his left shoulder for re‑current dislocation on 24 February 2016.[18] He was not able to return to push bike riding for six months following his right knee operation.
[17] Exhibit 12.2.
[18] Exhibit 23.
The plaintiff's background
The plaintiff was born on 10 December 1986. The plaintiff was 27 years old at the time of the collision and 32 years old at the time of trial. His parents separated when he was 14 months old. He lived with his mother throughout primary school, then with his father throughout high school.
The plaintiff completed Year 11 at Margaret River High School. He did TEE maths which he described as his best subject at school. He gave evidence that English was his weakest subject, that he was not that good at reading or spelling, and preferred working with his hands. He left school in 2002 at the age of 16 in the first term of Year 12. He went to work at Blue Bells Herb Farm.[19]
[19] ts 10.
The plaintiff's grandmother was a horticulturalist. From the age of 4 years, he worked with her at various nurseries at which she worked. He described a passion for gardening which has persisted. He gave evidence of growing bonsai trees and establishing and maintaining a vegetable garden at the rural property at which he currently lives in a tin shed.[20]
[20] ts 23.
After working in the nursery the plaintiff gave evidence that he worked for a demolition company, JAG Demolition, in a salvage yard for about a year. During this time he obtained tickets in safe methods of demolition and asbestos cement sheet removal.[21] When living in the Margaret River area with his father at the age of 18 he attained his dogman and riggers tickets. Prior to 2010 he describes working for Cook Industrial Minerals driving machinery including front‑end loaders and dump trucks.[22] He described himself as usually having a job, often labouring as a brickie's or carpenter's labourer. He moved between the south west and Perth.[23]
[21] ts 12.
[22] ts 12.
[23] ts 13.
The plaintiff worked for periods for Justin Yaksich as a ceiling fixer. He was to have commenced work for Mr Yaksich on a three month trial with the view to starting a four year apprenticeship in the week after the collision. Mr Yaksich confirmed this arrangement in evidence. He said that the plaintiff had been:[24]
Asking for a job for a while because he wanted a trade so he had somewhere to go in life, I think, instead of just working at the pubs and that. So yeah we organised an apprenticeship and he was meant to start for us and then I got the phone call about his next car accident.
[24] ts 200 – ts 201.
The fact the plaintiff was to commence a three month trial as a ceiling fixer followed by an apprenticeship if his work was satisfactory is not in issue. The defendant argues that because of the sporadic work history of the plaintiff, his pre‑existing brain injury, shoulder and knee issues together with his learning difficulties and undiagnosed ADD he was unlikely to complete the apprenticeship. I do not accept that submission.
Mr Yaksich explained ceiling fixing involved lifting 6 m x 1200 sheets to the ceiling and screwing them on, flushing joins and installing wall cornices or wall angles. Scaffolding, trestles and scissor lifts were used depending on the height they were working from.[25]
[25] ts 199.
In 2009 the plaintiff worked as a labourer at a tattoo store in Rockingham for Mr Yaksich. After 2010, the plaintiff worked for Mr Yaksich on a set of units in Armadale for two or three weeks and on some units in Yanchep for two months. In 2012 he worked at a job in Geraldton for about six weeks. The plaintiff was paid $30 per hour gross working 12 hours per day, six days a week by Mr Yaksich. He had his own Australian Business Number.[26]
[26] ts 204 - ts 205.
Nannup Hotel
In 2013 the plaintiff was employed as a yardie by the Nannup Hotel. His role involved emptying bins in the bar, stocking cool rooms, replacing kegs, chopping wood for the fires, keeping the beer garden tidy, mowing the grass and maintaining the garden.[27] He returned to this employment 3 years and 8 months after the collision on 19 December 2017. He had not worked in any other capacity since the collision.
[27] ts 19.
The plaintiff gave evidence that he struggled with remembering the tasks he was required to perform. He said when he recommenced at the hotel, Christine Merritt the hotel manager, made up a 'to do list' which was laminated and the plaintiff was given a whiteboard marker to tick off tasks on the list each morning and rub it out at the end of the day.[28] In addition to this list, a book was kept in the bar area in which additional tasks to be done by the plaintiff each day were recorded. The plaintiff worked at the hotel on average two and four hours a day, 12 days a fortnight. When music festivals were held he worked longer hours. The plaintiff said, and I accept his evidence, that when he first returned to the Nannup Hotel things were good but after 10 months it got hard for him because he could not perform his duties without the checklist. He became depressed saying:[29]
I used to come home not satisfied and almost in a mood because you know, like, I felt like a 4 year old kid that couldn't do something without a checklist after doing it for that long. So I ended up calling it off and asking Chris to advertise the job for someone else and moved on.
[28] Exhibit 1.
[29] ts 21.
Ms Merritt gave evidence that the plaintiff was already working at the Nannup Hotel when she commenced working in the kitchen towards the end of 2013. She described the plaintiff as great bloke to work with, very fit, good fun and good to have around. She did not notice anything unusual about him.[30] I am satisfied based on Ms Merritt's evidence that in 2013 the plaintiff's 2010 brain injury was not causing him any issues working at the hotel and performing the duties of a yardie without a checklist.
[30] ts 145 – ts 146.
Ms Merritt next saw the plaintiff on his birthday on 10 December 2017. He had ridden his pushbike over from Cowaramup. She asked him if he would be interested in a job, which he accepted and commenced employment on 19 December 2017. Prior to starting work at the hotel the plaintiff explained to Ms Merritt that his short‑term memory was not good and they discussed having a notebook and a list of tasks that the plaintiff could tick off each day. This procedure was implemented. Ms Merritt said that the plaintiff would forget to pick up the checklist from time to time and she would take it out to him. She said that when he recommenced the job he was 'great' but then his anger took over.[31] She could not say whether it was from frustration or embarrassment or whether he was just generally angry but he would snap for no reason whatsoever. She said the plaintiff could not cope when there was a festival, when up to 700 people would be in the hotel. At these times Ms Merritt found him another job to do so he was not dealing with the public and did not have to go near the crowds. She noticed a difference with his memory about two or three weeks after he started. She realised verbal reminders were not sufficient and she had to write things down for him.[32] She said the plaintiff resigned from his job after becoming frustrated when he was unable to mow the lawn area where sheets were hanging on the clothes line.
[31] ts 147.
[32] ts 148.
It is relevant to note that the only two medical practitioners who saw the plaintiff after he resigned from his employment at the Nannup Hotel are Dr Ross Goodheart and Dr Andrew Harper. The plaintiff told Dr Goodheart that he had to start afresh each day having to learn his duties and that had made him depressed to the extent he had to resign.[33] He told Dr Harper that he was experiencing frustration at needing to relearn the job after short breaks of a few days away from the job. He needed instruction and to ask questions about the work despite having his standard list of tasks. He found this demoralising and frustrating.[34]
[33] ts 123.
[34] Exhibit 12.6, page 1.
Ms Merritt described the plaintiff as friendly, fit, hardworking, punctual with a high work ethic and a systematic approach to solving problems who she would re-employ at the hotel. I accept her evidence in that regard and am satisfied that the plaintiff would not have resigned from his employment had his short-term memory issues not overwhelmed him to the extent they did, causing the frustration that he expressed to Dr Harper and Dr Goodheart. I am satisfied that the reason he resigned from his employment was directly related to his cognition and his inability to remember tasks after a period of time without a written reminder, despite having done those tasks on a daily basis for many months. I reach these conclusions based on the evidence of Ms Merritt, the plaintiff, Dr Harper and Dr Goodheart which I accept.
Nannup Skip Bins
After leaving the Nannup Hotel the plaintiff obtained work on a part‑time casual basis with Nannup Skip Bins where he is currently employed. He also undertakes some limited farm work for his employers, Mr and Mrs Brown. The plaintiff is paid an hourly rate of $27.50. His duties involve driving a ute to pick up skip bins from clients and then taking them to the tip. He then returns the bins to the client or to the Browns' property.[35] The work is performed on a casual basis dictated by when the bins are full.
[35] ts 287.
Mrs Brown gave evidence that the plaintiff works two to three days per week, generally working half days. Mrs Brown and her husband are careful to ensure he is not placed in stressful situations. They avoid giving him jobs where a customer is perceived to be difficult. She said the plaintiff becomes anxious if things do not go the way they should. His current work involves dealing with customers only 50% of the time. Part of the skip bin collection work is done for the Department of Parks and Wildlife which involves picking up bins from campsites and therefore involves no direct dealing with customers.[36]
[36] ts 291.
Mrs Brown described the plaintiff as a good worker. Her husband meets with him each morning. They use a diary system to record the jobs for the day and her husband also texts Mr Meldrum to make sure he knows where he needs to go and what he needs to do.
Mrs Brown gave evidence that the plaintiff's employment commenced on 14 September 2018. She said there have been two periods when the plaintiff has been unable to work, in November/December 2018 for a period of five to six weeks and in February 2019 for five weeks because the plaintiff became stressed. This is reflected in payslips. The plaintiff received $100 for working during the period 14 September 2018 to 2 October 2018. Thereafter he was paid for the period 12 January 2019 to 8 February 2019 and then from 14 March 2019 to 31 May 2019.[37] I am satisfied that the plaintiff will be able to continue to work in this capacity with occasional breaks in times of stress.
[37] Exhibit 21.
Financial documents
The plaintiff had difficulty at trial recalling with precision who he worked for and for what periods of time because of issues with his memory.[38] The financial information tendered at trial is limited to exhibits 2, 4 and 21, being various tax returns, Australian Taxation Office (ATO) assessments for 2005, 2013, 2014 and 2017, payment summaries and payslips for the period 2008 to May 2019. These documents do not form a complete record. The plaintiff gave evidence that he had not filed tax returns for a long time because he was moving around, never got paperwork in the mail and never worried about it. It was only at the behest of his solicitor that he filed eight years of tax returns at the one time. This is reflected in the ATO assessments which are all issued on 20 November 2017.
[38] ts 13, ts 34.
The earnings of the plaintiff as reflected in exhibit 2, exhibit 4 and exhibit 21 and are summarised as follows:
Year Source Income Transcript page 2008 Unknown $13,343 ts 28 – ts 30 2009 Unknown - no records Unknown 2010 Unknown Unknown 2011 Centrelink
1/7/2010 - 17/8/2010
Rapid Erect Constructions Pty Ltd
10/1/2011 - 23/3/2011
$1,736
$8,239
ts 35 – ts37
ts 62
ts 66
2012 Centrelink Newstart
3/10/11 - 1/3/2012
1/7/2011 - 30/6/2012
$3,790
$6,250
ts 37 – ts 39
ts 38 – ts 39
ts 62
2013 Income as garden labourer including Nannup Hotel $4,583 ts 39 – ts 41
2013 Centrelink
1/7/2012 - 30/6/2013
$10,117 ts 62
ts 39
2014 Nannup Hotel
1/7/2013 - 18/11/2013
Centrelink
1/6/2013 - 30/6/2014
$11,330
$6,575
ts 41 – ts 44
ts 39
2015 Centrelink
1/7/2014 - 30/6/2015
$13,395
ts 44
2016 Centrelink
1/7/2015 - 30/6/2016
$13,607
ts 44 – ts 45
2017 Centrelink
1/7/2016 - 30/6/2017
Super fund withdrawal
15/6/2017
$14,046
$9,845
ts 45 – ts 46 2018 Nannup Hotel
19/12/2017 - 30/6/2018
$14,966
ts 48 2019
(to 31/5)
Nannup Hotel
1/7/2018 - 14/11/2018
GC & CA Brown
14/9/19 - 2/10/18 ($100) and
12/1/2019 - 31/5/2019
$7,845
$3,766
ts 287 - 290
There is no reference in the documents to the plaintiff's employment at Cook Industrial Minerals where he said he earned approximately $32,000.[39] Nor is there any reference to the plaintiff's work with Mr Yaksich, or as a trolley boy. The records do not reflect in any way the complete employment history of the plaintiff since leaving school.
[39] ts 30.
I am satisfied that in the eight years after leaving school and before the collision the plaintiff was employed on an intermittent basis as a labourer in a variety of occupations. He had the qualifications and experience to undertake work in the building industry and as a dogman/rigger in the construction and mining industries. He had the experience necessary to operate heavy machinery including front‑end loaders and dump trucks. There were significant periods when he was unemployed and in receipt of Centrelink benefits.
Since the collision his employment has been limited to the Nannup Hotel and working for the Browns. He has been in receipt of a disability support pension since November 2018.
The plaintiff's current living arrangements
The plaintiff is single and lives on his own in a shed in a rural property in Nannup. The property is rented. He has established a vegetable garden at the property. When he is not working for the skip bin business he tends to his garden, collects firewood and rides his bike.[40] He is not taking any medication, but relies on the meditation techniques taught to him by Dr Rodrigo Becerra. He gets up at least three times a night to urinate.[41] He continues to use diaries, notebooks and alarms on his phone to remind him of appointments and tasks that he is required to undertake.[42]
[40] ts 27.
[41] ts 24.
[42] ts 23 - ts 24.
The plaintiff gave evidence that he tries to live 'as normal life as [he] can and not think about things that make [him] down'.[43] I accept the plaintiff's evidence in that regard. He presented as a young man who is honest and who has attempted to rehabilitate himself as best he can. The defendant does not submit that the plaintiff has failed to mitigate his loss. Nor does he submit that the plaintiff was not a credible witness. It is asserted that that there were matters in respect of which the plaintiff was evasive and that he underplayed his evidence. These matters are his past marijuana consumption and the effect of his left shoulder injury and frequency with which it dislocated prior to the accident. It is also contended that the plaintiff lacks insight into the ongoing consequences of the 2010 brain injury.
[43] ts 24.
On the issue of marijuana use the plaintiff gave evidence in cross‑examination that he had not smoked 'pretty much' since high school. He described losing a job on a Barrow Island project after failing a drug test because he had eaten a marijuana cookie. He said consuming the marijuana had made him feel sick. He had no recollection of telling Dr Hargate in 2015 that he had started using marijuana again and then stopped three to six months before his consultation with Dr Hargate. Despite having no recollection of this conversation he readily conceded that he might have smoked 'a little bit at the time because of all the hardship I was going through'.[44] The plaintiff told DrDeFelice in September 2017 that he was avoiding friends who used marijuana. The plaintiff was not cross‑examined in relation to what he said to Dr De Felice, he therefore was not given the opportunity to explain why he said this.
[44] ts 74 - ts 75.
I do not accept the defendant's submission that the plaintiff was evasive in his answers in relation to his marijuana consumption or that by avoiding friends who smoked it could be inferred that the plaintiffs own use had continued for longer than he gave evidence of. I accept the plaintiff's evidence he used marijuana in his teenage years. That he may have used it in 2014 /2015 has no impact on my assessment of the plaintiff's credibility. I found him to be an honest and forthright witness. He was candid when he gave evidence at trial, readily accepting matters put to him in cross examination, including matters such as the consumption of marijuana which may have impacted adversely upon him.
I am fortified in my conclusions by the evidence of those medical practitioners who found the plaintiff's current symptoms were consistent with the clinical findings on examination suggesting no embellishment on the part of the plaintiff.
Dr Du Plessis considered the plaintiff to be minimising his difficulties if anything.[45] This was the impression I gained from the plaintiff. The plaintiff presents as a young man who has tried his best to get on with his life, to work as much as he can within his limitations and who actively keeps himself fit.
[45] Exhibit 20.2, report of Dr Du Plessis dated 28 March 2018, page 16.
I will deal with the submissions in relation to the shoulder symptoms and the plaintiff's insight into his memory issues when considering his pre-collision condition.
What was the plaintiff's pre-collision medical condition?
At the time of the collision the plaintiff had:
1.issues with his left shoulder;
2.undergone a right knee construction in January 2010; and
3.suffered an acquired brain injury from a bike collision on 29 March 2010.
Left shoulder
In 2007 when the plaintiff was 21 he injured his left shoulder when he was skateboarding. He collided with a bike at a skate park, causing him to fall on his arm and 'stretch' his shoulder.[46] His shoulder would 'pop out and pop back' for periods of about five seconds. He described it as a 'clicking in the joint'.[47] He described his left shoulder as being 'at least twice as worse' following the 2014 collision, to the extent that he had difficulty pulling the plug from his fish tank out of the wall.[48] I accept the plaintiff's evidence in this regard that the issues with his shoulder became worse after the collision. I do not accept that he was minimising the extent to which it was an issue prior to the collision.
[46] ts 15.
[47] ts 51.
[48] ts 76.
In a job capacity assessment done on 4 November 2009 for Centrelink the plaintiff described his left shoulder as often dislocating causing him some functional restrictions including difficulty reaching overhead and reduced range of movement. As the plaintiff had been able to work in a range of occupations of a physical nature despite the injury the author of the assessment report did not consider the issue with the left shoulder would significantly impact his capacity to work at that time. What was impacting on his ability to work was his injured right knee. The plaintiff was certified unfit to work for three months from 4 November 2009 until 4 February 2010 while he awaited an appointment with a specialist and review for surgery on the right knee.[49] The job capacity assessment is consistent with the plaintiff's evidence that his right shoulder was not impacting on his ability to work.
[49] Exhibit 3.
The plaintiff argues that the 2014 collision aggravated a mild and inconvenient clicking of the shoulder such that it became a major problem post‑collision eventually requiring surgery. He points to the fact that he was able to engage in a variety of physically demanding occupations including a brickie's labourer, a labourer with a demolition company,[50] and a ceiling fixer and a scaffolder[51] without difficulty.[52] After the collision his shoulder was significantly worse.[53] The plaintiff argues that even if the left shoulder was a problem prior to the collision it was capable of repair such that he would have been able to become a ceiling fixer.
[50] ts 14.
[51] ts 66.
[52] ts 13.
[53] ts 54 - ts 55.
The plaintiff argues that there should be no reduction in economic loss for the period during which he was unable to work due to treatment, including surgery for the shoulder.
The defendant points to Dr Silbert's evidence that the plaintiff was not fit to undertake the duties of a qualified ceiling fixer before 2014.[54] This opinion was based on the history the plaintiff provided regarding his left shoulder. In Dr Silbert's opinion a left shoulder trauma and residual joint instability is incompatible with the inherent requirements of a ceiling fixer. However, Dr Silbert did not ask the plaintiff whether he was able to perform the duties of a ceiling fixer before 2014. He agreed his observation was therefore 'in the abstract'.[55]
[54] ts 238.
[55] ts 239.
Mr Kerry Jones conducted an evaluation of the plaintiff on 3 November 2016. The plaintiff told him of his practice to manage the shoulder complaint of using his head to hold sheets up before fixing them prior to the collision. This technique was not denied by the plaintiff in evidence who said he had to use his head when installing sheets to support the plaster and prevent it from breaking whilst he used his hands for screwing.[56] He denied in cross‑examination having an increased reliance on his dominant right arm.
[56] ts 56.
The plaintiff underwent left shoulder surgery in February 2016.[57]
[57] Exhibit 23.
I am satisfied the plaintiff's left shoulder was causing him some functional restrictions including difficulty reaching overhead prior to the collision, however these issues did not prevent him working as a ceiling fixer. I am fortified in this view by the fact that he worked for Mr Yaksich in this position without difficulty in 2009, 2010 and 2012.
I am satisfied that the plaintiff was capable of undertaking the role of a ceiling fixer prior to the collision but that his shoulder injury was made significantly worse by it. I am however unable to specify the extent to which the injury was exacerbated. I find that the plaintiff would have required shoulder surgery at some point regardless of the collision and accordingly deduct a period of three months from his past economic loss to allow for surgery and recovery therefrom. This period is based on Dr Silbert's estimate of the recovery time post‑surgery of 6 ‑ 12 weeks.[58] I have not taken into account when assessing past economic loss the three month trial period the plaintiff was to undergo as a ceiling fixer before commencing his apprenticeship to allow for the shoulder surgery and recovery.
Right knee injury 2010
[58] ts 238.
The plaintiff suffered a right knee injury in 2009 as a result of a collision when bike riding. He underwent an anterior cruciate ligament (ACL) reconstruction in January 2010.[59]
[59] ts 30 ‑ ts 32; Exhibit 3.
It was his evidence that that knee injury did not stop him from doing scaffolding work or plastering.[60]
[60] ts 16.
After the 2014 collision he again injured the knee. The injury occurred when he was mountain bike riding.[61] He gave evidence that his shoulder surgery was deferred when he sustained the second knee injury as he could not be on crutches and have his shoulder in a sling at the same time.[62]
[61] ts 48.
[62] ts 48.
The plaintiff told Dr De Felice that in 2015 he came off his bike at Bells Rapids and tore the ligaments in his right knee. He told Dr De Felice that he had a couple of operations for this over six months the last one being in November 2016. At the time of seeing Dr De Felice on 14 September 2017, the plaintiff said his knee had not completely recovered. He did not trust it to be stable if he jumped from a significant height.[63] This account accords with the history obtained by Dr Harper on 17 January 2017 that the plaintiff was looking forward to resuming cycling on 11 April 2017 which would be six months post‑surgery.[64]
[63] Exhibit 14.2, page 1.
[64] Exhibit 12.2, page 10.
The evidence of Dr Silbert is that the plaintiff would have been unfit to work post‑surgery for his right knee and left shoulder surgery for a period of 6 ‑ 12 weeks (or longer).[65]
[65] Exhibit 18.1, page 32.
The plaintiff concedes that the appropriate allowance for a period away from employment due to this non-collision related injury is a period of six months which encompasses the time for the surgery and recovery.
The defendant argues the plaintiff was incapacitated for work by reason of the left shoulder and right knee injuries for a period of 12 ‑ 15 months and an appropriate discount to past economic loss should be made. I have already dealt with the deduction for the left shoulder injury.
Based on the evidence of Dr Silbert I am satisfied that the appropriate deduction for the knee surgery from past economic loss is an incapacity to work for a period of six months. I do not consider that the plaintiff's knee injury post‑surgery would have prevented him from engaging in employment as a ceiling fixer.
The total deduction to past economic loss for the shoulder and knee injuries will be nine months.
2010 collision - previous acquired brain injury
On 29 March 2010 the plaintiff rode his bike into a tree. He was not wearing a helmet. He was admitted to Sir Charles Gairdner Hospital.[66] A CT scan showed a 2.6 cm x 5 cm extradural haematoma in the right temporal region which required a right craniotomy and an evacuation of the haemorrhage. This was followed by intensive care unit admission and intracranial pressure monitoring.
[66] Exhibit 8.9.
A right Codman's catheter which had been inserted was removed on 12 April 2010. The plaintiff received rehabilitation in the form of occupational and speech therapy and was discharged from hospital on 26 May 2010. Some short‑term memory deficits were still present at the time of discharge. The plaintiff was described as lacking insight into his memory deficits and required ongoing memory retraining on discharge. He was reviewed by the Royal Perth Hospital Shenton Park campus doctors and referred for outpatient rehabilitation. He continued to be seen at the neurosurgical outpatient clinic until 15 June 2010.
The plaintiff's involvement with SHIU spanned from 27 May 2010 until 14 September 2010 with assistance provided for return to driving and monitoring regarding return to work. He successfully completed an occupational therapy driving assessment on 21 July 2010. At the time of his discharge from SHIU he reported no ongoing deficits and felt he was back to his pre‑injury level of functioning both physically and cognitively. In the medical report prepared by Dr Wee,[67] the plaintiff is described as having 'recovered very well from what was a very serious head injury'. Dr Wee was not called to give evidence at trial. Her opinion as to the plaintiff's recovery from the 2010 injury as expressed in the medical report was not challenged at trial and I accept it.
[67] Exhibit 8.9.
In the SHIU discharge report the plaintiff was reported as having commenced full‑time work five to six days per week as a trolley collector in July 2010 and then commenced work as a ceiling fixer with his 'brother' in Geraldton. This is a reference to Mr Justin Yaksich. He reported no difficulties cognitively or physically with either position.[68]
[68] State Head Injury discharge report dated 17 September 2010, exhibit 8.1.
The plaintiff's case is that he had almost fully recovered from the 2010 brain injury prior to the collision.
The defendant argues that the plaintiff had not made a complete recovery from the 2010 head injury and not all of his residual cognitive disabilities can be attributed to the 2014 collision.
The integrated progress notes from the SHIU were tendered in evidence.[69] They reveal that the plaintiff's file was closed on 17 September 2010. The plaintiff re‑presented on 3 October 2011.
[69] Exhibit 5.
That entry reads:
Re-Assessment with Paden - 03.10.2011
CC met with Paden this pm to discuss reasons for re‑contacting SHIU. Issues raised:
• Cognitive - Paden reports memory difficulties - difficulties following conversations and remembering day to day tasks. Is currently using reminders and keeping all important documents together.
• Financial - Paden is not currently receiving a consistent income. He occasionally works for his brother doing ceiling fixing. He has done some subcontracting in the past 6 - 12 mths (has an ABN) however is owed ~ $4000 from work completed. He is not receiving any Centrelink payments. His bank account has been frozen due to a CSA debt. Due to no income, Paden is not able to finance transport, therefore rides to appointments.
• License - Paden has not renewed his license (due end Sept) as believes he needs medical clearance again to do this. CC advised that he was provided with full clearance for an unconditional license by both Driver OT and Neurosurgery so to just renew license and contact CC if any issues.
• Work - Paden would like to start his own landscaping business and was querying if Centrelink is able to assist with this - ie: supporting a small business course.
• Social - Paden reports that his outstanding CSA debt is from 2007. He reports that he is unsure if he is the father of the child (now aged 6) and that the child (a boy) has been removed from the mother and is in custody of his aunt. Paden reports that he has been denied access to the child throughout the past 6 yrs and was not consulted re: custody arrangements. Paden would like assistance to explore his custody entitlements, particularly if the child is his.
When cross-examined at trial on that entry the plaintiff had no recollection of such a conversation.[70] His firm belief was that he had recovered from the 2010 brain injury and was functioning fully at work and able to drive after four months. He could not recall using a diary. His memory was the diary had been provided after the collision.[71]
[70] ts 58.
[71] ts 61.
I find that, contrary to the plaintiff's assertion in this regard, he was using reminders in October 2011, some 18 months after sustaining the 2010 injury to assist him in remembering day to day tasks. However I am satisfied his 2010 brain injury was not preventing him from carrying out work as a ceiling fixer, as is evident from exhibit 5. Further, there is no evidence to suggest that the SHIU had any concerns with the plaintiff engaging in ceiling fixing or contracting work. The plaintiff reported to a case worker in a phone call on 14 September 2010, six months after the 2010 collision, that he had been working for Mr Yaksich in Geraldton as a ceiling fixer in Geraldton.[72] In a further entry dated 16 January 2012, it was reported to his case co‑ordinator that the plaintiff had started work as a dogman/rigger the previous week. At that time potential cognitive screening was discussed with a Ms Bell of 'CRS' if difficulties became evident at work because of the plaintiff's presentation in October 2011. There is no suggestion such difficulties ever manifested or that any cognitive screening was carried out.
[72] Exhibit 5.1, page 492.
I am satisfied the plaintiff was able to engage in various employments including trolley work, ceiling fixing and labouring as previously outlined.[73]
[73] ts 13 - ts 15.
Three witnesses gave evidence at trial who had seen the plaintiff after both the 2010 and 2014 collisions, Christine Merritt, Peter Yaksich and Justin Yaksich.
Peter Yaksich, the former de facto partner of the plaintiff's mother, saw the plaintiff in hospital after the 2010 bike collision. After his release from hospital Peter Yaksich saw him two or three times a month on average. He said that when the plaintiff was initially released from hospital he was 'a bit funny for a couple of weeks because his memory wasn't clear' but then he seemed to be 'all right' after that.[74]
[74] ts 196.
After the 2014 collision Peter Yaksich said the plaintiff was difficult to have a conversation with as he changed topic mid conversation, was short tempered and would fly off the handle easily. He said if the plaintiff experienced the slightest problem doing mechanical work he would get angry and would start throwing tools around. This was not something the plaintiff had done before the collision.[75] Peter Yaksich was not challenged on this evidence. He was not cross‑examined.
[75] ts 197.
Justin Yaksich gave evidence that he has known the plaintiff all his life. They consider themselves half-brothers because of the former relationship between their parents. He said that prior to the 2010 collision when the plaintiff was living between Augusta, Margaret River and Perth, he worked for him occasionally as a ceiling fixer.
After the 2010 collision Justin Yaksich visited the plaintiff and described him as 'all right' when he came out of hospital. However, the plaintiff would tell him things that he had already said 10 or 15 minutes earlier. After a few weeks the plaintiff started picking up that he was repeating himself and after two months he was 'just about back to the way he was before'.[76] The plaintiff would ride his bike to Justin Yaksich's house and they would work on cars together.[77]
[76] ts 199.
[77] ts 200.
The plaintiff worked for Justin Yaksich after the 2010 collision. Justin Yaksich secured a ceiling fixing contract in Geraldton and the plaintiff worked for him for a six week period. He described the plaintiff as a fine worker who had no issues physically and probably the fittest person he had ever employed. He said the plaintiff could do all the physical aspects of the job including working with both hands raised above his head.[78]
[78] ts 200.
Justin Yaksich saw the plaintiff once or twice a week after the 2014 collision. He described the plaintiff's recovery as different from his recovery from the 2010 collision. He said the plaintiff no longer remembers when he has said things and repeats the same things over and over.[79]
[79] ts 203.
He said the plaintiff now suffers from mood swings and is 'unable to accomplish much'. He still attempts to help Justin Yaksich work on his race car and bikes 'but if he can't get it, he just has a meltdown and just walks off. He won't wait for someone to help, he wouldn't ask for help. He just can't deal with it and just walks off down the driveway'.[80]
[80] ts 204.
I accept the evidence of Peter Yaksich and Justin Yaksich as to their observations of the plaintiff's behaviour after the 2010 and 2014 collisions. I also accept that the plaintiff's conduct, particularly the frustration and anger witnessed by Peter Yaksich and Justin Yaksich to be consistent with the evidence Mrs Brown and Christine Merritt. Both gave evidence of the frustration demonstrated by the plaintiff in the course of his employment at the Nannup Hotel and when delivering skip bins after the 2014 collision. This evidence is supported by the medical opinion of Dr Wee that the plaintiff had recovered well from the effects of the 2010 injury.
I am satisfied that the effects of the 2014 collision were more significant and ongoing in terms of the plaintiff being able to converse, remain even tempered and to perform mechanical tasks without becoming frustrated.
Expert evidence
Mr Jones concluded based on the medical reports, particularly those of the SHIU, that the plaintiff had made a full recovery from the 2010 head injury. He agreed in cross‑examination when presented with exhibit 5 that someone who has suffered a significant head injury can perceive they have fully recovered and lack insight into ongoing problems with a head injury.[81] He did not agree that working on ladders, or on planks for ceiling fixing was ill‑advised after the 2010 collision given the previous head injury because SHIU had endorsed returning to ceiling fixing work after the 2010 collision.[82] I have already addressed the relevant entries in the SHIU progress notes.
[81] ts 91.
[82] ts 104.
Mr Jones pointed out that the plaintiff had been cleared by SHIU to resume rock climbing after the 2010 collision, indicating SHIU had no real concern around his physical ability to operate at heights.[83] I agree with the conclusions reached by Mr Jones in this regard based on the SHIU records.
[83] ts 105.
When shown exhibit 5 Mr Jones agreed that the plaintiff's short‑term memory problems were continuing at 3 October 2011.
He said in relation to brain injuries after a period of two years post‑collision you tend to see significant improvements then the improvements plateau.[84] In the plaintiff's case the October 2011 meeting was 18 months after the 2010 collision. No further complaints were documented after this time in the SHIU notes.
[84] ts 109.
Dr Goodheart saw the plaintiff on three occasions on 1 June 2017, 20 February 2018 and 1 May 2019. At the time of the last consultation the plaintiff continued to experience a neurological deficit including short‑term memory and concentration.
Dr Goodheart assumed that the plaintiff had made a full recovery from his 2010 collision. That assumption was based upon what the plaintiff told him, what Dr Goodheart observed, and his review of the medical notes available at that time.
Dr Harper agreed in cross‑examination that a person who has some short‑term memory loss may perceive that they have fully recovered from the injury that causes the memory problem because they lack insight into that problem. He said it was theoretically possible that the plaintiff had not fully recovered from the 2010 collision because a head injury can cause a lack of insight.[85] He agreed the 3 October 2011 entry in the SHIU notes suggested the plaintiff was still having problems with his memory despite the plaintiff's belief he had fully recovered after four months.
[85] ts 176.
Dr Du Plessis said that it was difficult to disentangle the impact of the 2010 and 2014 collisions on the plaintiff's cognitive difficulties:[86]
Mr Meldrum's case remains complex inasmuch as he had previously had a significantly severe brain injury and the latest scan still shows evidence of residual pathology related to those areas in the brain that were injured in 2010. Looking at the extent of those injuries there is no doubt that The Plaintiff would have experienced certain limitations and some problems throughout the rest of his life. It is however also clear that he sustained a significantly severe brain injury in the collision of 1 April 2014. He was noted to have features compatible with diffuse axonal injury (DAI) and these same features are still noted in the latest brain scan. The result will be that he will always be restricted with regards certain aspects of his life.
[86] Exhibit 20.2, page 15.
Dr Mandy Vidovich was called by the plaintiff at trial. She undertook a neuropsychological assessment of the plaintiff at the request of the defendant's solicitors. This took place on the 6 October, 7 October and 15 October 2016. Dr Vidovich's report dated 10 November 2016[87] contains a comprehensive summary of the plaintiff's treatment for the brain injuries sustained in the 2010 and 2014 collisions based on a thorough review of the medical records and reports. She did not consider the plaintiff to be embellishing his symptomology.[88]
[87] Exhibit 19.
[88] ts 251.
Dr Vidovich explained that the diagnosis of the 2010 brain injury as a 'traumatic right extradural haematoma with a contracoup in the left temporal intraparenchymal haematoma' was different to the type of injury suffered by the plaintiff in 2014. There was more trauma to the inside of the brain sustained in the latter injury.[89] She said that trauma inside the brain tends have more significant cognitive effects than pressure effects caused by haematomas. The 2014 injury was a diffuse axonal injury that was more like a shearing sort of injury on the inside of the brain which can have more significant effects from a cognitive perspective than a bruising or a bleed on the outside of the brain.[90]
[89] ts 265.
[90] ts 265
Dr Vidovich tested the plaintiff's cognitive capacity using the Wechsler Adult Intelligence Scale. Because of the plaintiff's previous head injury and history of learning difficulties estimating the plaintiff's level of cognition or intellectual functioning prior to the collision was more difficult. It was necessary to look at the pattern of his overall test performances to see if there were areas of cognition which deviated significantly away from performance in other areas. The plaintiff's overall score placed him in the 'low-average range'. The plaintiff's score in individual components varied from 'borderline' to 'average'. A borderline score placed his performance in the 2nd to 8th percentile from the bottom of the range. Ninety‑five percent of the population would perform better. Low average is defined as between the 9th and 24th percentile. She assessed the plaintiff as having borderline performance at processing speed, word reading, spelling, verbal generativity and verbal memory. He had a borderline to low average score for verbal fluency and visual memory. He had a low average score in auditory immediate attention, working memory and ability to manipulate perceptual material. The plaintiff had average scores for visual immediate attention, routine over-learnt mental operations, verbal abstract reasoning and non-verbal problem solving.
She said the plaintiff became irritated during some of the auditory memory testing out of frustration at his inability to perform well.[91] The plaintiff is aware that he has a problematic working memory. When given information, for example a list of tasks or a number to remember, he cannot hold that information in his mind long enough to be able to use the information.[92]
[91] ts 251.
[92] ts 256.
The plaintiff's neuropsychological profile showed a range of performance, most in the low to average range. Testing confirmed longstanding issues with literacy and limited written mathematical abilities. There were constant indications of compromised attentional capacity and difficulty maintaining concentration.[93] Dr Vidovich gave evidence that in the domestic context this might consist of frequently putting things down and not remembering where they are or difficulty watching a television program from start to end whilst sustaining concentration and absorbing information. She said this can have implications for driving and learning new information.[94] There was also a deficit in the speed with which the plaintiff was able to absorb new information.[95]
[93] ts 257.
[94] ts 258.
[95] ts 258.
The plaintiff's verbal memory deficits were described as a clear and distinct area of impairment since the collision.
The plaintiff was tested with the DASS questionnaire, a subjective questionnaire that screens for depression, anxiety and stress.[96] His self‑reported symptoms indicated a mild level of stress but severe symptom experiences of depression and anxiety.[97] Dr Vidovich described the plaintiff as quite lonely.[98]
[96] ts 256.
[97] ts 256.
[98] ts 257.
When describing why the plaintiff was likely to be susceptible to low mood, she said the difference between the plaintiff's recovery from the 2010 and his recovery from the collision was significantly undermining aspects of his mood. She said this was also certainly feeding into his anxiety due to his expectation of recovery not being met, even after a period of time.
In relation to future treatment needs Dr Vidovich considered funding for clinical psychology support of 12 sessions to be appropriate. In her clinical experience, people in the plaintiff's position would often have peaks and troughs with their emotional recovery.[99] This could be as a result of difficulties at times with the brain being able to regulate emotion as well as a consequence of other external issues.[100]
[99] ts 261.
[100] ts 261.
In terms of severity of the 2014 brain injury Dr Vidovich said the period of post‑traumatic amnesia and the Glasgow Coma Scale rating together are often used to measure the severity of a brain injury. A period of post‑traumatic amnesia over a week is considered a severe brain injury. In the plaintiff's case, post‑traumatic amnesia of 51 days indicated a severe brain injury.[101] The verbal memory deficits were in her opinion of a moderate severity with mild deficiencies also observed in visual memory performances.[102] The plaintiff's cognitive impairment was likely to be permanent and persistent.[103]
[101] ts 250.
[102] ts 260.
[103] ts 261.
She said the plaintiff faces issues in his ability to 'take on board information'.[104] He has 'sound' recall once he has learned information, but the significant impairment to his verbal memory and attention span makes it difficult for him to learn information in the first instance.[105] Despite rehabilitation, verbal memory deficits persist and are likely to continue.[106]
[104] ts 258.
[105] ts 274.
[106] ts 260, ts 261.
In Dr Vidovich's opinion whilst the 2010 injury had had some impact on the plaintiff's cognitive capability, there was at least a moderate deficit that she would attribute to the collision.[107] She described the plaintiff as 'much more functional post the 2010 event than the 2014 one'.[108]
[107] ts 277.
[108] ts 278.
She said the plaintiff is likely to have an increased susceptibility to mood and psychological symptoms.[109] The more fatigued he becomes due to factors like work load, the more likely he is to be vulnerable to cognitive issues.[110]
[109] ts 264.
[110] ts 276.
I accept Dr Vidovich's opinion that the collision has resulted in the plaintiff suffering permanent and persistent changes to his cognition. I also accept her opinion that there are clear deficits, particularly in verbal memory which are a direct result of his 2014 brain injury. These memory deficits are of a moderate severity with mild deficiencies in visual memory performances.
The plaintiff's learning and behavioural issues have been influential in his academic attainment. I accept Dr Vidovich's evidence that the plaintiff's 2010 brain injury may have further exposed his vulnerability to persistent deficits at the time of the collision.
I accept that the plaintiff had some ongoing issues with his cognition and memory after the 2010 brain injury. The precise extent to which those issues had resolved by the time of the collision is not possible for me to determine in this case.
I am satisfied however, that any residual issues from the 2010 collision did not impact on the plaintiff's ability to work as a ceiling fixer on a full‑time basis at the time of the collision.
The plaintiff's residual symptoms
The plaintiff's principal residual symptom is his cognitive impairment which manifests in his short-term memory loss as outlined by Dr Vidovich.
In addition to the neurological assessment the plaintiff was reviewed by two psychiatrists.
Dr De Felice saw the plaintiff on two occasions on the 18 May 2015 and 14 September 2017. He concluded that the plaintiff continued to experience symptoms of an adjustment disorder with depressed mood at the time of the latter consultation. An adjustment disorder is defined as where a person has emotional or behavioural symptoms in response to an identifiable stressor. The plaintiff still had a low and fluctuating mood on a daily basis which he endeavoured to remedy by positive self‑talk and going for bike rides. His depressed mood was less prominent in 2017 than when seen in 2015.
Dr De Felice concluded that the plaintiff had mild residual symptoms of an adjustment disorder in response to the stressor of his limitations and disabilities related to the collision. He concluded that the adjustment disorder lead to a mild restriction of the plaintiff's competitiveness predominantly from his lack of confidence in himself to be able to go and get a job and compete for a job in the open labour market. The plaintiff was considered fit to manage his own financial affairs. He assessed the plaintiff as having residual psychiatric disability in the order of 5% which did not take into account any disability associated with his cognitive problems or his ongoing physical injuries. I accept that assessment.
The report of Dr Tay, consultant psychiatrist[111] was tendered by consent. She saw the plaintiff on one occasion on 1 February 2017 at the request of the defendant's solicitors. Dr Tay agreed with the opinions of Dr Vidovich and Dr Hargate, the neuropsychologists, that the plaintiff's threshold for becoming more stressed with depressive cognitions and anxiety symptoms had been lowered as a result of his traumatic brain injury.[112]
[111] Exhibit 22.
[112] Exhibit 22, page 12.
She is of the view that in the future the plaintiff is more likely than not to develop symptoms consistent with the diagnosis of an adjustment disorder that he attracted in 2014/2015. She said he fulfils the criteria for mild neurocognitive disorder.
Dr Tay's opinion is that the collision would have definitely aggravated and exacerbated a pre‑existing learning difficulty or attentional disorder such as ADD. The impact on a previous learning difficulty being due to its impact on memory functioning. She also found that the collision temporarily aggravated his inability to cope with pre‑existing life stressors, particularly in relation to his family functioning but that those stressors seemed to have been resolved. Dr Tay concluded that the plaintiff did not require psychiatric treatment but would more likely than not require further psychological treatment particularly by way of support for his future regarding future employability. I accept Dr Tay's opinion in that regard, which is supported by that of Dr Vidovich, and have included an allowance for further psychological treatment in future medical expenses.
Physically the plaintiff continues to suffer with a degree of impairment of his left upper and lower limb function. Dr Goodheart said there was evidence of Ataxia in the left limbs.[113] The plaintiff described his left leg as remaining weak and subject to feeling numb and cold. He said he could veer to the left when walking and he stumbled on occasions. He experienced minor co‑ordination difficulties with the left hand. Dr Goodheart said the Ataxia impacts on the plaintiff's ability to walk in a straight line and on the plaintiff's ability to climb ladders where he might be very unsteady. He is more inclined if walking along a street to trip and fall than the next person.[114]
[113] Exhibit 9.4, report of Dr Goodheart dated 1 May 2019.
[114] ts 135.
In Dr Goodheart's opinion the issues relating to the left limbs are caused by an issue within the cerebellum or its connections. He explained the cerebellum as being in the lower part of the brain at the back which feeds into the brain stem. This part of the brain particularly relates to co‑ordination. He thought this a more likely cause of the plaintiff's residual issues than a disruption of the lumbar sacral nerves which Professor Mastaglia had opined was the cause.[115] In this case the parties agreed the question of whether the left limb issues resulted from disruption of the lumbosacral nerves or from an irritation of fibres at brain stem level did not require determination.[116]
[115] Exhibit 10, report of Professor Mastaglia, page 4.
[116] ts 136.
Using the American Medical Association Guide for Evaluation of Permanent Impairment Dr Goodheart assessed the plaintiff has sustained a permanent 20% impairment to the whole person on the basis of his cognitive impairment which took into account the effects of the previous head injury of 29 March 2010 and a 10% loss of full efficient function of the left limbs. He classified the plaintiff's injuries as of moderate to extreme severity with no specific neurological intervention possible. Dr Goodheart concluded the plaintiff has a static and continuing deficit in relation to higher mental functions.[117]
[117] Exhibit 9.2, page 2.
The cognitive deficit was explained as impairment of the plaintiff's short‑term memory and concentration. Dr Goodheart assessed the plaintiff as having a clinical dementia rating of 1, with reference to the American Medical Association Guide for Evaluation of Permanent Impairment with 3 being the highest rating. An assessment of 1 allows a whole person impairment of between 15% - 29%. He described 1 as being a very conservative estimate. A 2 on the scale is the sort of person who might be in the home but needs supervision constantly and 3 would be someone who is almost in a vegetative state requiring full care.[118]
[118] ts 121.
Dr Goodheart also noted the plaintiff had a diminished sense of smell which he assessed as 2% of whole person impairment.[119] Dr Du Plessis did not find the olfactory abnormality as described by Dr Goodheart.[120] As Dr Du Plessis was not called, his evidence in this regard was not challenged by the plaintiff. The plaintiff gave no evidence that he had issues with his sense of smell nor is it pleaded. The matter was not pressed in closing by the plaintiff's counsel. I am not satisfied that the plaintiff has any residual disability from the accident of diminished sense of smell.
[119] Exhibit 9.2, page 2.
[120] Exhibit 20.1, page 14.
Dr Goodheart's opinion, which I accept, was that the combined cognitive and physical deficits in relation to the left limbs and co‑ordination would preclude the plaintiff from being a rigger or someone who needs balance and climbing heights and perhaps even operating machinery.[121] This would encompass the work of a ceiling fixer.
[121] ts 132 - ts 133.
Dr Goodheart had last seen the plaintiff on 1 May 2019, shortly prior to the trial. He found the plaintiff's capacity for work had diminished since his last consultation on 20 February 2018. When he had last seen the plaintiff he was working at the Nannup Hotel. The plaintiff was really enjoying his work, however the issues with the plaintiff's memory caused him each day to have to start afresh and whilst he was capable of doing the duties 'he eventually fell to the problem of requiring supervision'.[122]
[122] ts 133.
In cross-examination, Dr Goodheart disagreed with Dr Silbert's assessment that the plaintiff was fit to undertake full‑time unrestricted activities working under supervision within his cognitive capabilities.
Dr Goodheart said that because of the issues with his short‑term memory the plaintiff continues to have problems with everyday activities of showering, cleaning and cooking. For example he could leave home without wearing appropriate clothes or leave home having half cooked his breakfast but not eating it.
Dr Du Plessis prepared a report dated 22 March 2016 which was tendered by consent. He saw the plaintiff on one occasion on 2 March 2016. Dr Du Plessis also found the plaintiff to have a degree of impairment of the left upper and lower limb function from a neurophysical perspective. He found the plaintiff remained slightly clumsy in the left arm and leg.[123]
[123] Exhibit 20.1, page 14.
Dr Du Plessis considered the plaintiff to be at increased risk of epilepsy, abnormal behaviour, depression, anxiety and increased suicide risk because of his two brain injuries. He also considered the plaintiff's life expectancy to be reduced by five to seven years. I accept the unchallenged opinion of Dr Du Plessis in relation to these matters.[124]
[124] Exhibit 20.1, page 18.
I am satisfied that the plaintiff's nocturia which requires him to get up at least three times a night to urinate is a direct result of the pelvic injuries sustained in the collision and will be an ongoing issue for him.[125] Prior to the collision the plaintiff only slept for approximately four hours a night on average. His sleep patterns have not changed in that regard however that is now disrupted by frequently getting up.[126]
[125] ts 24.
[126] Exhibit 8.5, page 3.
I am also satisfied that the clicking and soreness of the jaw is directly attributable to the collision and will continue to impact upon the plaintiff when he eats and yawns.
The plaintiff gave evidence that his teeth were loose in hospital after the collision and they subsequently fell out. The plaintiff had not seen a dentist for approximately 10 years before the collision. He had a fear of dentists.[127] The plaintiff's counsel did not submit any reports from a dentist at trial. I accept that the collision and intubation of the plaintiff in hospital may have dislodged three of his teeth. However, as there is no evidence before me as to the state of the plaintiff's dentition before the collision or the cost to repair the lost teeth I make no allowance for the same.
[127] ts 72.
Mr Jones gave evidence, which I accept, that the plaintiff has an impaired ability to retain multiple commands or instructions. As soon as multiple demands are made upon him his response was slowed and in some cases he forgot what the commands were. He gave evidence that the plaintiff would be incapable of completing more complex processes, and as a result there is a need for a high level of direction supervision. When the plaintiff is placed into a situation requiring him to respond to multiple people issuing instructions he may become forgetful or confused as to who was issuing the instructions and fail to follow them. From a behavioural point of view that is likely to result in agitation and frustration which can turn into non‑co‑operative behaviour and possibly anger.[128]
[128] ts 83.
The plaintiff explained the difficulty experienced by him. He said when there are a lot of people around things became more confusing; his head becomes full. When working with other people who are offering different opinions he describes it is all becoming a blur when one person says one thing and then someone else tells him something else.[129] This description accords with Ms Merritt's evidence as to the effect of crowds upon the plaintiff and the impact of stress described by Mrs Brown. I am satisfied that the plaintiff has and will continue to have a low tolerance to both.
[129] ts 69.
In relation to the plaintiff's cognitive issues and his employment capacity, I am satisfied that the plaintiff will continue to experience difficulty in processing instructions from multiple people which in turn will cause him difficulty working in a team environment. Busy work environments which involve loud machinery, vehicles and multiple people will cause the plaintiff to experience difficulties in concentrating and following instructions with the result that he becomes frustrated and angry. I am satisfied based on Mr Jones' evidence that the plaintiff will require supervision and direct instruction in any work that he undertakes. Based on Dr Vidovich's evidence I am satisfied he will be unable to establish his own business. He will continue to need memory aids in the form of lists and phone reminders to enable him to remember tasks in his daily life and in any employment. The plaintiff's cognitive impairment is in my view significant and will impact upon him throughout his life.
I turn now to the question of how the plaintiff's residual disabilities have impacted on his capacity to work since the accident.
Past economic loss
The first issue is whether the plaintiff would have completed a ceiling fixer's apprenticeship.
The plaintiff's evidence as to why at age 27, and after numerous short‑term labouring jobs since he left school, he should change his vocation and lifestyle is essentially that he wanted to get a trade and obtain some long term security.[130] Justin Yaksich confirmed this.
[130] ts 25.
The defendant contends that in light of the plaintiff's sporadic work history the prospect of the plaintiff commencing and completing an apprenticeship as a ceiling fixer was so remote as to be speculative and therefore not warrant consideration.
Relevant law
In Husher v Husher,[131] the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ the court said:[132]
7Since at least Graham and Baker [1961] HCA 48 it has been recognised that it is convenient to assess an injured plaintiff's economic loss 'by reference to the actual loss of wages which occurs up to the time of trial and which can be more or less precisely ascertained and then, having regard to the plaintiff's proved condition at the time of trial, to attempt some assessment of his future loss'. But damages for both past loss and future loss are allowed to an injured plaintiff 'because the diminution of his earning capacity is or may be productive of financial loss'. Both elements are important. It is necessary to identify both what capacity has been lost and what economic consequences will probably flow from that loss. Only then will it be possible to assess what some will put the plaintiff in the same position as he or she would have been if injury had not been sustained.
8No doubt the past may provide important evidence about the plaintiff's earning capacity and what economic consequences will probably flow from what has happened. What a worker earned in the past may provide very useful guidance about what would have been earned if that worker had not been injured. But the enquiry is an enquiry about the likely course of future events and evidence of past events does not always provide certain guidance about the future. There may be many reasons why an injured plaintiff's past work history provides no assistance in deciding what the plaintiff has lost through diminution of future earning capacity. The student who is yet to enter the workforce is an obvious case of that kind. That student may have no history of paid work. Important as evidence of past events may be, that evidence is not determinative of an issue about loss of future earning capacity.
[131] Husher v Husher [1999] HCA 47.
[132] Husher v Husher [7] – [8].
In Montemaggiori v Wilson [2011] WASCA 177 Buss and Newnes JJA said:
30The plaintiff who seeks damages has the legal onus of proving loss of earning capacity and the extent to which that loss produces, or might produce, financial loss: Todorovic v Waller [1981] HCA 72; (1981) 150 CLR 402, 412; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, 3. If it is determined that there has been a loss of earning capacity it is then necessary, having regard to the established facts of the past and the probabilities of the future, to determine the damage that will flow from the loss of that capacity: Medlin v State Government Insurance Commission (19). As the plurality pointed out in Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638, 643, when the law takes account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. Unless the chance is so low as to be speculative or so high as to be practically certain, the court will take that chance into account in assessing damages. The inquiry – the process of estimation of probabilities – is thus an imprecise and indeterminate one to be carried out within very broad parameters: State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536, 553. Accordingly, damages for financial loss likely to result from personal injury can only be an estimate often a very rough estimate, of the present value of the prospective loss: Todorovic (413).
31Whilst it is desirable for a plaintiff to call precise evidence of what he or she would have been likely to earn but for the injury, where earning capacity has unquestionably been reduced the failure to call such evidence, particularly in relation to future loss, does not mean that the plaintiff is not entitled to damages or is entitled only to nominal damages: State of New South Wales v Moss (552, 554). But where evidence out to have been available, it is hard for a plaintiff who fails to call evidence, or calls incomplete evidence, to complain of low award: State of New South Wales v Moss (552); Minchin v Public Curator of Queensland (93).
32Where an injured plaintiff has suffered a loss of earning capacity, such as a total loss of capacity to earn in an occupation in which he has previously been employed, the court should do its best to place a value on that loss, even in the absence of evidence, or where there is uncertainty in the evidence, as to the availability of employment within the plaintiff's residual capacity or that amount which could be earned in such employment. Thus, for example, in Bowen v Tutte (1990) Aust Torts Rep 81-043, it was held that in the absence of any evidence of the availability of suitable employment for an injured plaintiff, or of earnings which could be derived from such employment, a trial judge may, in an appropriate case, assess the plaintiff's residual earning capacity at a percentage of his or her pre-collision earning capacity. And in Pene v Murphy [2004] WASCA 103, it was held that the Appellant's loss of earning should be assessed as a percentage of his pre‑collision earning capacity as there were considerable uncertainties associated with his prospects of obtaining work within his residual capacity. But as the court made clear in that case, such an approach is not appropriate in every case; in the end the question is one of fairness.
There is documentary evidence, which I accept, that the plaintiff had expressed a desire to start his own business before the collision. On 3 October 2011 the plaintiff said he wanted his own landscaping business to his case co‑ordinator at the SHIU and was enquiring as to any assistance Centrelink could provide in supporting him to undertake a small business course.[133]
[133] Exhibit 5.
I am satisfied that the plaintiff had reached a stage in his life prior to the collision where he was looking to engage in employment of a more permanent and stable nature then he had previously been engaged in. The plaintiff was actively contemplating training to enable him to be a subcontractor. He had put in place arrangements with Mr Yaksich to become a qualified ceiling fixer as opposed to working for him as a labourer as he had done in the past. It was not the first time the plaintiff had expressed a desire to get a trade. He had moved to Perth to start the trial period. This was not a job he had never performed. Mr Yaksich had been happy with the plaintiff's performance in the past. There is nothing to suggest that the plaintiff would not have performed in the same way in the future and successfully completed the trial.
But for the collision I am satisfied that the plaintiff was likely to have worked as a ceiling fixer with Mr Yaksich, completed his apprenticeship in that trade and gone onto work as a contractor. Past economic loss is calculated on the basis that he would have done so, with the appropriate nine month deduction for shoulder and knee surgery.
I turn now to the plaintiff's future capacity to work.
Future earning capacity
It is the plaintiff's case that his capacity for work should be viewed on the basis of the opinion of Dr Harper. Dr Harper initially he held a very optimistic opinion of the plaintiff's likely capacity for employment which was based on the plaintiff's presentation including his attitude, enthusiasm, determination and motivation.[134]
[134] ts 165.
Dr Harper has had an opportunity to see the plaintiff on six occasions for a period of 9½ hours in total over four years. He has changed his opinion as to the plaintiff's capacity to work over time. He first saw the plaintiff on 19 March 2015, 11 months after the collision and last saw him 9 April 2019. Importantly Dr Harper saw the plaintiff both when he was working at the Nannup Hotel and his current employment.
At the time of the consultation of 19 June 2018 the plaintiff had been working for six months at the Nannup Hotel working 12 days a fortnight between two to four hours each morning. He was using the checklist. He had recently been given a long and more detailed checklist and was expressing disappointment that it was taking him several days to recall his routine after two days off. The plaintiff was expecting with the repetitive nature of the work that his ability to remember the daily tasks would have improved. He continued to miss tasks and commented to Dr Harper that with less understanding and accommodating boss he could have lost his job.[135]
[135] Exhibit 12.5, page 1.
Dr Harper considered the plaintiff's work capacity in June 2018 to be reduced, but that he had capacity for full‑time restricted work. Those restrictions being that he required a degree of supervision due to his poor memory. Dr Harper considered the plaintiff should work in a place where he had an understanding employer. He said his employability was greater in a rural area such as Nannup in less competitive and pressurised workplaces than in the city.
Dr Harper assessed the plaintiff's cognitive disability as being of moderate severity. The left shoulder impairment was considered mild and the left leg impairment mild. His emotional impairment was considered to be very mild. At that point Dr Harper anticipated the plaintiff being able to maintain employment as a yardie at the Nannup Hotel.
His opinion changed after seeing the plaintiff on 9 April 2019.[136] By then the plaintiff had been on a disability support pension since December 2018. The plaintiff was undertaking his current employment of delivering and emptying the skip bins and doing some occasional gardening work which he found less demanding and frustrating as he did not have to interact with a number of people as he did at the hotel. He continued to be fully dependant on the use of list and his mobile phone which he used for all appointments and reminders.
[136] Exhibit 12.6, report of Dr Harper dated 9 April 2019.
Dr Harper concluded, and I agree, that the plaintiff's current work capacity is for piecemeal bits of work for a couple of hours at a time in terms of the work he is currently. He considered the plaintiff incapable of doing regular 'ordinary work' in the context of working 9.00 am to 4.00 pm, doing a set of particular tasks. He said the plaintiff has the capacity for small intermittent and casual jobs provided to him on a piecemeal basis. Dr Harper explained the impact of mental fatigue on the plaintiff as being common with people with head injuries. This results in an inability to take instructions and implement them and an inability to put things in order and to prioritise and to act on what you know needs to be done. This is consistent with the plaintiff's evidence of his head becoming 'full'.[137]
[137] Exhibit 12.6.
I agree with Dr Harper's assessment of the plaintiff' current capacity to work.
The defendant submits[138] that Dr Harper's change in position in his final report should be rejected as lacking a sound factual basis. It is said that this offends the principle of Pollock v Wellington.[139] He submits the evidence of Drs Silbert and Du Plessis should be preferred to that of Dr Harper. With respect, I do not agree. Dr Du Plessis had not seen the plaintiff since 23 February 2018. Dr Silbert saw the Plaintiff on one occasion on 10 April 2018. Neither had reviewed the plaintiff after the cessation of his employment at the Nannup Hotel. Dr Harper and Dr Goodheart were the only medical witnesses to have done so. There was a sound factual basis of Dr Harper to alter his opinion, namely the plaintiff's change in employment which I am satisfied occurred because he could not cope with the frustration of forgetting his tasks at the Nannup hotel.
[138] Defendant's closing submissions, par 50.
[139] Pollock v Wellington (1996) 15 WAR 1.
I am satisfied based on the evidence of Ms Merritt and Mrs Brown that the plaintiff whilst a hard‑working and an enthusiastic worker is not able to cope with stressful situations, His short‑term memory issues cause him frustration and anger as witnessed by Mr Peter Yaksich and Mr Justin Yaksich. In summary I accept the evidence of Dr Harper that the plaintiff remains incapacitated for unsupervised work, that he is able to perform specific tasks in a structural work situation on a piecemeal basis such as the work he is currently doing. I accept Dr Harper's evidence that the plaintiff has demonstrated a failure to learn and retain a routine no matter the number of repetitions as is evidenced from his experience at the Nannup Hotel. He is unable to perform jobs in which he needs to organise, structure his activities and do work that requires short‑term memory. I accept that he requires direction and monitoring.
Dr Vidovich's evidence was that as the plaintiff is likely to experience difficulty learning in novel environments, he was likely to be less competitive than peers in the job market.[140] The plaintiff's expressed desire to run his own business was likely beyond his means as the responsibilities that go with running a business are beyond what he is capable of cognitively. In her view he would not be capable of engaging in independent, unsupervised work.[141] The plaintiff's verbal memory deficits would impact on his employability.
[140] ts 262.
[141] ts 263.
She considered the plaintiff would be better suited to hands on practical types of activities[142] with a need for supervision and support for the plaintiff in his workplace,[143] whilst working in a team might look like a good way to combat this issue, the plaintiff was particularly vulnerable to being left behind.[144] The kinds of work she described as being suitable for the plaintiff were a little mundane but repetitive, routine, very set tasked activities. She gave the examples of working in a nursery shifting plants and sand or driving a forklift under direction.
[142] ts 275.
[143] ts 275.
[144] ts 276.
While Dr Vidovich stated that the plaintiff would be suited to landscaping and gardening work she expressed the opinion that he would need quite a lot of supervision as he would struggle with being sent out on a work site by himself.
I accept that the plaintiff would be able to perform gardening or labouring work on a piecemeal basis for limited hours with a sympathetic employer such as the Browns. I do not accept that he would be able to perform this work on a full‑time basis.
In reaching these conclusions I prefer Dr Harper's evidence over that of Dr Silbert and Dr Du Plessis who have given opinions that the plaintiff is capable of full‑time employment albeit on a qualified basis.
Dr Silbert in his report[145] includes a number of restrictions which would apply to the plaintiff, namely working under supervision allocation of duties within his cognitive capabilities and being unfit for cognitive or memory related demanding duties. In par 10 he also opines:
… the plaintiff is unfit to undertake the duties of a trade qualified ceiling fixer. This is due to his identified neurocognitive limitations and the requirements of the role to operate autonomously.
[145] Exhibit 18.1, page 31 of 34, [9].
Dr Du Plessis in his second report of 28 March 2018[146] proffered the view in par 11 that the plaintiff had the capacity to return to full‑time work because as he understood it he was then working full‑time. That was not the situation but rather the plaintiff was working part‑time at the Nannup Hotel.
[146] Exhibit 20.2, page 18.
Dr Du Plessis acknowledged that the plaintiff's limitations could become a factor if he had to apply for a new position in the open labour market. He made the point at page 16 in the third paragraph:
This does however not mean that if he had to lose his job that he may not have difficulties obtaining employment in the future.
Dr Silbert saw the plaintiff on 10 April 2018 at that time the plaintiff had been working for four months at the Nannup Hotel and was enthusiastic about his prospects, as indeed was Dr Harper when he saw him in April 2018. Dr Du Plessis reviewed him on 23 February 2018, again at a very early stage of the plaintiff's employment at the Nannup Hotel. I am satisfied that the initial enthusiasm of the doctors was misplaced and that the plaintiff has not been able to maintain the employment that he hoped he would be able to do and the doctors considered he would be able to do. It is unfortunate that Dr Du Plessis and Dr Silbert had not had an opportunity to review the plaintiff prior to trial or been updated as to the changes in his vocation.
The defendant argues that the plaintiff could have worked as a gardener or labourer on a full‑time basis. No evidence was led at trial as to whether such work was available nor was any labour market evidence that such jobs were or are available or the rates of pay applicable, save for the relevant award.[147]
[147] Exhibit 25.
Once the plaintiff has proved that they have lost their pre‑collision earning capacity and have been unable to find alternative employment, or that their condition has prevented them finding alternative employment, an evidentiary burden is cast on the defendant to show what alternative employment opportunities were open, including the state of the labour market and the likely earnings.[148]
[148] Thomas v O'Shea (1989) Aust Torts Rep 80-251, 68,701 – 68,702; Setton v Eves [2006] WASCA 3 [27].
In this case I am not satisfied the defendant has discharged the evidentiary burden.
In conclusion I am satisfied that the plaintiff has a retained capacity to do the type of work that he is doing for the Browns or gardening work on a piecemeal part‑time basis. His cognitive deficits prevent him from working on a full‑time basis. Loss of earning capacity is calculated on the basis that the plaintiff has been deprived of the ability to become a ceiling fixer contractor.
The plaintiff is currently in receipt of an average income of $100 net per week. Counsel for the plaintiff accepts that he may have a notionally higher retained capacity of $200 per week.[149] I accept this to be the case.
[149] Closing submissions, par 79.
Assessment of damages
Position of the plaintiff
The plaintiff's closing submissions contain the following summary of damages:
Past economic loss $245,700.00
Interest$38,698.00
Past superannuation $18,095.00
Interest$ 2,850.00
Future economic loss $993,225.00
Future medical expenses $5,000.00
General damages $250,800.00
Total$1,554.368.00
Past economic loss
The plaintiff's claim for past economic loss has been calculated on the following assumptions:
(a)The plaintiff returned to work at the Nannup Hotel on 19 December 2017. He had been out of work for 3 years and 8.5 months.
(b)Had the plaintiff obtained his apprenticeship then after a 3 month trial, he would have earned as per the Building Trade's Award, the minimum adult wage for the first 2 years of $621.10 per week gross in the third year $650 per week gross and the fourth year $759.
(c)Allowing a deduction of six months for right knee surgery the plaintiff would have been a qualified ceiling fixer by October 2018 working 60 hours per week at the rate of $35 per hour.
(d)No amount is claimed for the three months of the work trial.
(e)Superannuation on the apprentice wage at 9%.
(f)The plaintiff has 35 years to retirement; the 6% multiplier of 779 applies.
(g)Future economic loss is claimed based on the assumption the plaintiff would by now be earning something in the order of $1,700 net per week until age 67 less a notional retained earning capacity of $200 per week. The net loss claimed therefore $1,500 per week.
(h)The plaintiff accepts that contingencies should apply at the order of 15% to allow for the fact that the plaintiff might not have completed the ceiling fixers apprenticeship.
Position of the defendant
The defendant's closing submissions contain the following summary:
Non-pecuniary loss (25%) $104,500.00
Past economic loss $ 10,000.00
Future economic loss $ 75,000.00
Future medical treatment $ 2,500.00
Total$192,000.00
The defendant argues the plaintiff has a slightly diminished parameter of employment as a result of the collision. He contends that the likely trajectory of the plaintiff's future employment was for regular and sustained periods of unemployment irrespective of the collision in roles that were not highly remunerative as was the case prior to his 2014 accident.
To reflect that the accident caused a period of unfitness to work for two years following the collision the defendant contends a global allowance of $10,000 inclusive of superannuation and interest for past economic loss should be made.
The defendant submits the plaintiff's future economic loss should be assessed globally at no more than $75,000 including superannuation and any vocational rehabilitation assistance that may be required to enable him to work as a horticultural assistant. Alternatively the plaintiff be given two years to complete a Certificate II in Horticulture.
Calculation of damages
The assessment of damages for personal injuries in an action for negligence is not an exact science. The process must be governed by considerations of practical common sense in the context of the facts of the particular case. Damages for financial loss likely to result from personal injury can only be an estimate, often a very rough estimate, of the present value of the prospective loss.[150]
Loss of past earning capacity
[150] Montemaggiori v Wilson [28] – [30].
On the basis that I am satisfied the plaintiff would have been successful in obtaining and completing an apprenticeship as a ceiling fixer and gone onto work as a subcontractor, in calculating past loss I make the following findings;
(a)First, that the plaintiff would be expected to and would have worked more than 38 hours per week. Doing the best I can I calculate past economic loss based on the plaintiff working 45 hours per week to take into account low periods in work availability.
(b)Secondly, had the plaintiff completed his apprenticeship he would have been employed as a subcontractor and paid a rate higher than the award in order to account for the tool and superannuation costs that burden such contractors. I accept in this regard the plaintiff's submission that $35 per hour is a reasonable rate for a subcontractor to earn.
I make a deduction of nine months from the total possible period of past loss (being 1 April 2014 - June 13 2019) for the plaintiff's shoulder and knee surgeries. The resulting period of past loss is therefore 4 years and 23 weeks commencing on 1 January 2015.
Accordingly, past loss is to be calculated as follows.
For the first year beginning 1 January 2015 when the plaintiff would have been a first year apprentice over the age of 21 the base rate to be paid for the first 38 hours worked each week is the adult minimum wage.[151]. The 7 hours of overtime are calculated[152] at time and a half for the first two hours and at double time for any further hours:
Weekly rate = $621 + 2 x $24.50 + 5 x $32.70 = $833 gross. This equates to a net wage of $708 per week.
[151] Exhibit 13, page 4.
[152] Exhibit 13, page 5.
As the award rate for apprentices is below the adult minimum wage the same calculation applies to the second year of the plaintiff's apprenticeship beginning on 1 January 2016.
For the third year of the plaintiff's apprenticeship beginning 1 January 2017 the award rate is higher than the adult minimum wage, as such the plaintiff's lost earnings are calculated on a base pay rate of $650 per 38 hour week:
Weekly rate = $650 + 2 x $25.65 + 5 x $34.20 = $872 gross. This equates to a net wage of $734 per week.
For the fourth year of the plaintiff's apprenticeship beginning 1 January 2018 the award rate is increased, as such the plaintiff's lost earnings are calculated on a base pay rate of $759 per 38 hour week:
Weekly rate = $759 + 2 x $29.96 + 5 x $39.95 = $1018 gross. This equates to a net wage of $829 per week.
For the final period the plaintiff would have been employed as a subcontractor earning the subcontractor rate of $35 per hour for a 45 hour week. Accordingly the calculation for the 23 weeks between 1 January 2019 and 13 June 2019 is:
Weekly rate = $35 x 45 = $1575 gross. This equates to a net weekly wage of $1193.
These calculations are summarised in the following table:
Period Weeks Gross (Weekly) Tax Net Total 1/1/15-31/12/15 52 $833 $125 $708 $36,816 1/1/16-31/12/16 52 $833 $125 $708 $36,816 1/1/17- 31/12/17 52 $872 $138 $734 $38,168 1/1/18-31/12/18 52 $1018 $829 $829 $43,108 1/1/19-13/6/19 23 $1575 $382 $1193 $27,439 Total 231 $182,347
The plaintiff's net earnings at the Nannup Hotel and at Nannup Skip Bins totalled as follows:
Period
Source
Amount
28/12/17 – 30/6/18
Nannup hotel
$13,684.71
1/7/18 – 14/11/18
Nannup hotel
$7617.37
14/9/18-31/5/19
Nannup Skip Bins (the Browns)
$3766
Total
$25,068.08
Accordingly the plaintiff's loss of past earnings is to be adjusted as follows:
Amount
Loss of past earning capacity
$182,347.00
Less earnings since collision
$25,068.08
Total
$157,279
Loss of past superannuation
In addition to the wage loss suffered by the plaintiff, the plaintiff also lost superannuation entitlement. The plaintiff would only have been entitled to superannuation during the time he was an apprentice, not as a contractor and it is to be calculated on the gross wage applicable at the time. The gross wages the plaintiff would have earned during the apprenticeship are calculated as follows:
Year 1
$833 x 52
$43,316
Year 2
$833 x 52
$43,316
Year 3
$872 x 52
$45,344
Year 4
$1,018 x 52
$52,936
Total
$184,912
At all material times the superannuation guarantee rate was 9.5%, accordingly loss of past superannuation is calculated as follows:
$184,912 x 9.5% = $17,566.
I make a deduction in accordance with the principles expressed in Jongen[153] of 15% to account for fees and taxes, therefore the total loss of past superannuation is calculated as:
$17,566 x .85 = $14,931.
[153] Jongen v CSR Ltd (1992) Aust Torts Rep 81-192.
As the plaintiff made some earnings during the period of past loss and superannuation benefits were paid by his employers, loss of past superannuation is to be adjusted to take those contributions into account. The amount of superannuation paid to the plaintiff amounted to $2,610.45.[154]
[154] Exhibit 2; Exhibit 21.
The final award for superannuation is therefore calculated as follows:
$14,931 - $2,610.45 = $12,320.
Loss of future earning capacity
I am satisfied that once the plaintiff had completed his apprenticeship he would have worked as a ceiling fixer for a period of 35 years to retirement at age 67. During that time I find he would have worked 45 hours per week as a subcontractor earning a wage of $35 per hour. The appropriate multiplier on the 6% tables is 779 for the period of 35 years. I accept that the plaintiff has some retained earning capacity of $200 per week. Loss of future capacity is calculated as follows:
Weekly wage = 45 x $35 = $1575 gross. This equates to a net wage of $1193.
Loss of future earning capacity = ($1,193 - $200) x 779 = $773,547.
Deduction for contingency
The plaintiff submits and I accept that some deduction must be made for a contingency in order to account for the likelihood of the plaintiff not completing his apprenticeship and other exigencies of life. I find that a deduction of 15% is appropriate in this case and is to be calculated as follows:
$773,547 x .85 = $657,514.
The total award for loss of future earning capacity is therefore $657,514.
Interest on past losses
Interest on past loss is to be calculated at 3% per annum for the period of past loss beginning on 1 January 2015. This equates to a period of 4.44 years. Interest is payable on the adjusted awards for past loss of earning capacity and past loss of superannuation:
On wages: $157,279 x .03 x 4.44 = $20,949
On superannuation: $12,328 x .03 x 4.44 = $1,642
Past Loss Amount Interest Rate p/a Years Amount Earning Capacity $157,279 3% 4.44 $20,949 Superannuation $12,328 3% 4.44 $1642 Total $22,591
Special damages including future medical expenses
Based on the evidence of Dr Vidovich, Dr De Felice and Dr Tay I am satisfied there should be a modest requirement for future treatment consisting of future psychological treatment and for occasional general practitioner attendances. There is no requirement for future physical therapies nor medication. The plaintiff is unlikely to take medication, even if it was prescribed, preferring to use the meditation techniques he has learned from Dr Rodrigo Becerra.
Dr De Felice[155] did not advocate for antidepressant medication and thought it unlikely in any event that he would use it. He recommended provision for occasional input from a clinical psychologist particularly at times where the plaintiff gets overwhelmed with either cognitive problems or ongoing pain. He considered 6 ‑ 10 appointments over the next two to three years at a cost of $240 per appointment to be appropriate. Dr De Felice also considered further input may be required by the plaintiff's general practitioner in respect of his adjustment disorder. An allowance for four appointments per annum for the next 'couple' of years at a cost of $100 per appointment was considered appropriate.
[155] Exhibit 14.2, page 45, par 12.
Dr Tay also considered[156] that 'the plaintiff would more likely than not require future psychological treatment, particularly by way of support for his future with regard to future employability'. She estimated the cost at approximately $250 per session for a psychologist. She also suggested some input from an occupational therapist.
[156] Exhibit 22, page 16, par 7.
Dr Vidovich considered the plaintiff should have access to at least 12 sessions of future clinical psychology support, vocational support, and occupational input in any new employment situation.
The plaintiff suggests that $5,000 is an appropriate allowance for future medical treatment.
The defendant cited substantially the same reports and figures but contends that a reasonable allowance for future medical treatment is $2,500.
I am satisfied an allowance for 12 consultations with a clinical psychologist at $250 a session is appropriate. This will total $3,000.
A further allowance for consultations with a general practitioner, four times a year for the next 2 ½ years at $100 per consultation is also appropriate. The appropriate allowance for future medical expenses is $4,000.
Non-pecuniary loss
Section 3C of the Motor Vehicles (Third Party Insurance) Act 1953 (WA) defines non-pecuniary loss as pain and suffering, loss of amenities of life, loss of enjoyment of life, curtailment of expectation of life and bodily or mental harm.
I have already dealt with the injuries suffered by the plaintiff in detail. I have taken into account that he suffered a severe brain injury, underwent surgery and a lengthy period of hospitalisation and rehabilitation. The plaintiff is left with significant cognitive impairment, short‑term memory deficit, weakness of the left limbs, clicking of the jaw and nocturia.
In addition to the pain and suffering which these injuries and treatment caused the plaintiff, he has to endure the permanent loss of amenities of life and enjoyment of life. Although he is physically able to walk, run, ride a bike and drive a motor vehicle and participate in some recreational activities, he has lost the enjoyment and satisfaction derived from working in the employment of his choice, the opportunity to participate in recreational pursuits involving heights such as cliff jumping and suffers disrupted sleep from the nocturia. The plaintiff has to cope with assistance from others and electronic reminders in the course of carrying out his daily life or any employment he does engage with. I take into account the plaintiff is at risk of developing epilepsy and has a reduced life expectancy of 5 – 7 years.
It should also be taken into account that at the time of the accident the plaintiff was 27. He is 32 now and will suffer the loss of amenities and loss of enjoyment for a very long period. Age is a relevant factor in assessing general damages: Reece v Reece.[157]
[157] Reece v Reece (1994) 19 MVR 103, 105.
I have had regard to the comparative cases referred to in the closing submissions of the parties.[158] Whilst those cases have been useful none are directly comparable to the plaintiff's, each case turning on its own facts.
[158] Particularly Traeger by his next friend John Winston Traeger v Harris [No 4] [2011] WADC 45; Vincent v Atkinson [2017] WADC 155; Wreford v Lyle [2018] WADC 173 and Cleary v The Insurance Commission of Western Australia [2019] WADC 29.
Using the threshold schedule provided by the plaintiff (about which there was no dispute) for 2019 – 2020 and based on the formula under s 3C of the Motor Vehicle (Third Party Insurance) Act I would assess the plaintiff's non-pecuniary loss at 50% of a most extreme case. The maximum amount as at 1 July 2020 is $425,000. That amount may be awarded only in a most extreme case. The approach and methodology required to be taken by the court when applying s 3C of the Act is set out in Den Hoedt v Barwick.[159] The total amount to be awarded to the plaintiff for non-pecuniary damages is $212,500.
[159] Den Hoedt v Barwick [2006] WASCA 196 [53], [95] and [96].
The following table sets out a summary of the damages allocated under each head of damage and the total amount:
Head of Damage
Amount Allowed
Non-pecuniary loss
$212,500.00
Past loss of earning capacity
$157,279
Loss of past superannuation
$12,320
Loss of future earning capacity
$657,514
Future medical expenses
$4,000
Interest
$22,591
Total
$1,066,204
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows4 JUNE 2020
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