Olive v State of New South Wales

[2003] NSWSC 356

CITATION:

OLIVE v STATE OF NEW SOUTH WALES [2003] NSWSC 356

HEARING DATE(S):

13 - 15 May 2002

JUDGMENT DATE:

6 February 2003

JUDGMENT OF:

Levine J

DECISION:

1(a) General damages assessed at $166,500.00.; (b) Future medical expenses: $111,372.00.; (c) Past loss of earnings: $11,500.00.; (d) Future loss in respect of earning capacity: $198,730.00.; (e) Past care: $159,000.00.; (f) Future care: $171,110.00.; (g) Legal costs in criminal matters: $22,000.00.; 2. I direct the parties to bring in short minutes of orders relating to outstanding components of the heads of damages, as referred to in these reasons, the entry of judgment, the disposition of the judgment sum and any matter that may affect costs.; 3. Those short minutes may be brought in by arrangement with my Associate on 24 hours notice.

CATCHWORDS:

Personal injury claim at common law

LEGISLATION CITED:

Motor Accidents Act

CASES CITED:

Habib v The Nominal Defendant, NSWCA, unreported, 26 September 1995
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
SRA of NSW v Wiegold (1991) 25 NSWLR 500
Van Gervan v Fenton (1992) 175 CLR 327

PARTIES :

EUGENE OLIVE BY HIS NEXT FRIEND YVONNE MARGARET OLIVE
(Plaintiff)

v

STATE OF NEW SOUTH WALES
(Defendant)

FILE NUMBER(S):

SC 10349 OF 2000

COUNSEL:

R McIlwaine SC / F Stevens
(Plaintiff)

T Barrett
(Defendant)

SOLICITORS:

La Fontaine Solicitors
(Plaintiff)

IV Knight
(Defendant)

[2003] NSWSC 356

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE DAVID LEVINE

THURSDAY 6 FEBRUARY 2003

13049 OF 2000

EUGENE OLIVE
By his next friend
YVONNE MARGARET OLIVE
(Plaintiff)

v

STATE OF NEW SOUTH WALES
(Defendant)
JUDGMENT

1 The plaintiff, born on 9 April 1982, sues the defendant for damages at common law for injuries sustained by him on Monday 23 September 1991 when he was a student enrolled at Warilla North Public School. The proceedings were commenced in this court by the filing of a Statement of Claim on 6 December 1993.

2 The issue of liability was not litigated (nor was the issue of contributory negligence). Notwithstanding that the issues were not litigated, the defendant, despite its apparent unity, was not in a position to make admissions. I shall formally deal with this aspect of the case at the conclusion of these reasons.

3 Oral evidence was called from the plaintiff (eleven years after the event), the plaintiff’s mother and father, and a schoolteacher, Mrs Moorhead: the evidence of the last witness especially can be characterised as relevant to the “before and after” state of the plaintiff.

4 Otherwise, the Court received, in accordance with usual practice as I understand it, medical reports and statements and cognate material from each side one measurement of which is fifteen centimetres in thickness.

5 That the plaintiff fell from the balcony shown in the photographs in exhibit A is not disputed. The distance which the plaintiff fell I take it to have been established to have been about three metres; the constitution of that upon which the plaintiff fell was concrete.

6 The plaintiff has persuaded me that he was sent out from his classroom by his teacher. The plaintiff in his oral testimony asserted that the teacher directed him to go further than what is described as the “hat room” which permitted observation and thus supervision, on to the walkway from which the plaintiff fell. The plaintiff asserted in his evidence in chief that he remembered this and he was cross-examined on it. That this particular aspect is in issue is evidenced by the statement of the schoolteacher, Mr Welsh (exhibit 4). I find the defendant to have been in breach of its duty of properly supervising the plaintiff by sending him out of the classroom to a place in proximity to the attraction to an active nine-year-old boy of the bars on the balcony.

7 The real issue between the parties is the nature and extent of the disabilities said to flow from the injuries received in the fall.

8 The tendered evidence clearly supports the following general descriptions: injury to the head and fractured skull, fractured left arm, bruising around the left eye, right frontal brain contusions with haemorrhage and oedema, haemorrhage to the left frontal area, injury to the face, general bruising, shock, pain and trauma (see exhibit D).

9 From what I will describe as the “physical” injuries the plaintiff has made a complete recovery. This is not in dispute. It is the consequence of what is described as the “brain damage” which is the matter seriously in issue.

10 For the plaintiff it is contended that so grave was the injury received that the ultimate outcome in terms of general damages at common law, and other heads of damage, would be to towards the upper end of the range. For the defendant, whilst in the end, as I understood its position, it could not gainsay the suffering of brain damage, the effects were by no means proved by the plaintiff to the extent to which the plaintiff contends.

11 Prior to the accident I am satisfied more probably then not, that the only thing remarkable about the plaintiff as a primary school student was disciplinary problems, especially in the playground (exhibit L). The last of that bundle of “school reports” clearly can apply only to the plaintiff’s conduct in the year up until the time of the accident. He was otherwise an active, healthy boy of exceptional sports skills.

12 As to the accident itself there is no evidence that the plaintiff was rendered unconscious as a result of the fall. The “lay” observations of the plaintiff’s father as to the plaintiff appearing “semi-conscious” cannot, and do not, bear appropriate weight. The absence of any evidence as to unconsciousness is relied upon by the defendant as pointing to a lesser degree of significance of any brain damage. Further, there is no evidence of unconsciousness or indeed level of consciousness in the hospital records from the time that the plaintiff was removed by the ambulance officers. Indeed, when the plaintiff did arrive at hospital, attention to the “head injury” was delayed for a couple of days until the physical injuries, particularly the orthopaedic injuries, were treated.

13 As against this, the submission is made for the plaintiff that an important indicator as to the degree of severity of head injury is post-traumatic amnesia. Even in the defendant’s tendered evidence (Dr W G J Reid, 10 April 2002, part of exhibit 5) the comment is made to the effect that the plaintiff “appears to have been in post-traumatic amnesia for at least 24 hours and that duration is consistent with him having sustained a moderate severity head injury”. Dr Reid, Clinical Neuropsychologist, makes that comment but qualifies it by reference to the correctness of information given to him by the plaintiff as to the last memory before his fall being of looking at some rubbish flying through the air and his next memory was of waking up in hospital “possibly the afternoon of his accident or the next day”. The apparent joinder of issues between the parties as to the severity of the head injury by reference to unconsciousness on the one hand and post-traumatic amnesia on the other was not resolved by further evidence and appears to have been made important by way of submission only. I am in no position to make a finding as to the severity of the brain injury based upon counter-submissions.

14 At this point I interpolate that in relation to Mrs Olive’s testimony as to the plaintiff having suffered a “semi-detached retina”, there is no evidence at all in support of such an assertion and nothing in the ophthalmologist’s report sustains it: see Dr Dethlef’s report (4 May 2002, part of exhibit 5).

15 Turning to exhibit G, the report of the cerebral CT scan is in the following terms:

“Scans were carried out without the use of contrast medium using both normal settings and bony settings.
It was noted that there are fractures through the right frontal bone and there are also comminuted fractures through the roof of the anterior cranial fossa on the right side. It is noted that the right ethmoid group of sinuses appears to be quite opaque and is probably full of contained blood. A marked degree of soft tissue swelling is also seen in the region of the right orbit. It would seem that there could be considerable damage to the globe of the right eye.
It is also noted that an extensive brain contusion has occurred to the right frontal area. Some haemorrhage is noted here along with some oedema. There is also some haemorrhage on the left side as visualised on scan 6. There is not much displacement of the ventricles. No other lesion is seen”.

16 The only reports of the procedures carried out on the plaintiff in relation to this “injury” are constituted by four communications from Dr Laing to the plaintiff’s general practitioner, Dr Sundar, for the period 25 October 1991 to 4 May 1992 (part of exhibit 5). There is no need to rehearse their content: what the doctor says is unremarkable. As at 4 May 1992 he released the plaintiff by reason of it being Eugene’s main concern to play football in that year’s winter season. The doctor did so with some reluctance and made the proviso that appropriate headgear be worn. At that stage the plaintiff’s treatment was complete in the area with which Dr Laing with Dr Bosanquet (oral and maxillo-facial surgeon: report dated 11 October 1994, part of exhibit 5) came to an end. I add that there is no question that the plaintiff must be found to have always had a “dream”, consistent with his athletic prowess and keenness of becoming a first grade professional rugby league player.

17 The hospital notes (part of exhibit 5) indicate that the plaintiff was attended to by relevant specialists, a speech pathologist and a social worker. For example, the speech pathologist’s notation of 5 October 1991 refers to a review and the plaintiff’s alertness and cooperation; “minimal memory difficulties. However some difficulties planning and sequencing for verbal description/explanation”.

18 For the defendant it is submitted that an overview of certainly the hospitalisation of the plaintiff following his fall does not speak (“scream out”) of significant brain damage.

19 The plaintiff was discharged from the Wollongong Hospital on 16 October 1991.

20 Until May of 1992 it is tolerably clear that the plaintiff was not receiving further treatment from a speech pathologist or a neuropsychologist or an occupational therapist. In either May or June of 1992, however, the plaintiff’s mother completed a form (exhibit B) for the purpose of the plaintiff coming under the care provided by an institution known as “Kid’s Cottage”. Much was sought to be made by the defendant of Mrs Olive’s completing only the category “other” as reasons for referral of her son without specific reference to available categories expressly set out in the document, for example, “behaviour at home”, “behaviour at school”. There is reference in exhibit B to the fall, the fact of surgery and in paragraphs 35 and 36 to a need for assessment as to the behavioural problems referred to in the document arising from the accident, the plaintiff in his mother’s eyes having become “not the same child”. The defendant was critical of the plaintiff’s mother by reason of the way it appears she went about filling out the form. There are two bases of criticism, namely, the generalised part was completed by Mrs Olive rather than the specific questionnaire, and the proposition that people simply do not fill out forms like that. I am not persuaded by that submission. Certainly Mrs Olive gave evidence as to problems with the plaintiff after his discharge from hospital (bearing in mind that he did not return to school until the following year, and then again that was a different school). One of the problems was “balance”, which on my view of the evidence was satisfactorily resolved.

21 The material in exhibit 5 constituted by the records of “Kid’s Cottage” discloses that the plaintiff was reviewed by various specialists and in particular by the speech pathologist Mr Colin Slattery whose report is dated 24 September 1992 (part of exhibit 5). In relation to this, the point the defendant seeks to make is that Mr Slattery concludes in a way that indicates there are “subtle emanations” consistent with some form of brain damage which will affect the finding of the degree of brain damage as a result of the fall. An equivalent submission is made in relation to occupational therapy, as I understand it, based upon the report of Ms Sloan dated 2 November 1992. As at that date the plaintiff was shown, so it was submitted, and I agree, based upon that report, to be a fit young person. Nothing of significance was revealed. He was within normal limits for his gross, fine and visual motor skills. Further, it seems to me that from material in exhibit 5 (being school reports post-return to school) that there still seemed to be behavioural problems especially in the playground.

22 Otherwise, it was urged upon me by the defendant, that at the end of 1992 as far as the health professionals were concerned, there was not a great deal wrong with the plaintiff at all.

23 As I mentioned above, Ms Moorhead, a qualified schoolteacher was called in the plaintiff’s case. Her statement is exhibit H. Ms Moorhead was an impressive witness as indeed the defendant acknowledges. Her evidence is clearly available for a comparative analysis of the plaintiff before and after the accident but only vis-à-vis the plaintiff alone. I agree with the submission for the defendant that I cannot use her testimony overall to compare the plaintiff to an external source of measure such as the mainstream classes. Ms Moorhead acknowledged in her evidence that her emotional reaction to what she perceived to be the fairly stark change in the plaintiff was limited to the year 1992 when the plaintiff had recommenced school and recommenced attending the homework centre. In 1993 and 1994 I accept on the probabilities that in the homework centre environment the plaintiff had returned to the group situation rather than to any one-to-one relationship with Ms Moorhead.

24 Thereafter it is the defendant’s position that nothing remarkable attends the plaintiff’s progress until he is in high school. He was seen whilst in year 7 at Lake Illawarra High School by clinical-neuropsychologist Dino Cipriani at the request of the plaintiff’s solicitors of 21 October 1994. In his report (part of exhibit E) Mr Cipriani refers to the requirement for further information and notes complaints by Mrs Olive as to what are reported as personality and behaviour changes, mood changes, low self esteem, anti-social behaviour and the view that they “appeared” to be consistent with the nature of what was then understood to be the plaintiff’s head injury. By report dated 31 October 1995 Mr Cipriani again, with further information from Shellharbour and Wollongong hospitals, reported to the plaintiff’s then solicitors. As I understand it there was no interview with the plaintiff at that time or with the plaintiff’s mother. On 20 September 2000 the Illawarra Brain Injury Service (“IBIS”) provided a report to the plaintiff’s solicitors prepared from clinical notes and reports on file relating to the plaintiff’s rehabilitation management at IBIS. The plaintiff had been the subject of attention from IBIS in 1997 on the complaint of his mother in relation to behavioural problems, mood swings and memory problems. At this time there is reference to the plaintiff’s commencement of the use of drugs which is not disputed in the evidence. It seems that the principal unlawful substances were marijuana and speed. Also, reference is made in this report to sexual dysfunction about which the plaintiff gave oral evidence and in respect of which Dr Jeff Murray provided a report of 15 February 2000, noting in particular the effects of smoking marijuana. The plaintiff was referred to George Haralambous, Clinical Psychologist, by the plaintiff’s solicitors. He reported on 23 October 2000 after a neuropsychological assessment had been carried out. Reference is here made to the plaintiff’s father having informed the psychologist of Eugene remaining defiant, oppositional, moody and short-tempered at home but not experiencing any major difficulties at school until approximately 16 years of age when he became aggressive and violent. It was about that time that the plaintiff did not achieve ambitions in relation to Rugby League football that was, no doubt, of pre-eminence in his mind. In this report reference is made to the consumption of cannabis and speed. The report is particularly thorough in the recitation of the tests and results carried out by the practitioner. An emphasis is placed on the significance of “acute abnormalities” including the onset of headaches, speech and language difficulties and difficulties with balance. At the time, however, the plaintiff seems to this practitioner to have improved considerably but there was a residue of complaint as to memory, moodiness, temper outbursts and impulse control consistent with the responses on psychological testing where he demonstrated difficulties with the organisation of materials and other specific signs of frontal lobe impairment. The view was formed by this practitioner that the difficulties appear consistent with the nature of the injury sustained by the plaintiff in September 1991 and with “a disturbance of frontal lobe functioning”. The plaintiff’s clinical picture appeared to be complicated by his self-acknowledged excessive consumption of alcohol, cannabis and other substances. These were likely to exacerbate any cognitive difficulties and difficulties with impulse control. The deficits were considered by Mr Haralambous to be permanent.

25 Mr Haralambous’ report dated 23 October 2000 makes reference to a neuropsychology report by Ms Martin (undated), tendered by the defendant as part of exhibit 5, where the conclusion was reached at the time of the expiry of 6 years post-injury, that there was residual difficulty associated with it including mild to moderate cognitive problems in the visual domain and for abstract problem solving and planning. Ms Martin was of the view that this is consistent with damage to the frontal and right parietal areas of the brain and that it was not uncommon for behavioural difficulties to emerge in late adolescence even many years after a head injury. The plaintiff was at that time at an age where he would be expected to become more independent and mature in managing behaviour but he was then not achieving it at the rate of his peers. Ms Martin refers to the plaintiff’s difficulties arising from “lack of structure in the environment and behaviour monitoring being consistent with the effects of damage to the frontal lobe of the brain”.

26 The plaintiff was referred to Dr McClure, psychiatrist, in October 2000. The plaintiff and his mother were interviewed and Dr McClure refers to the material provided to him including Ms Martin’s report, letters from Dr Jeff Murray and the social worker of IBIS, Ms Gilchrist. The defendant points to what it says are flaws in the history provided to Dr McClure, in particular to what appears to be his acceptance of the notion that the plaintiff’s “retina definitely reattached around July 1992”. There is no independent evidence in support of such proposition. The defendant also relies upon the admission made by Mrs Olive to this doctor that the plaintiff was “spoilt” after the accident and before the accident was average with no disruptive behaviour. Dr McClure refers to the report of Dr Murray of 27 July 2000 in which reference is made to the plaintiff developing noticeable problems that year with a depressed mood which Mrs Olive dated to about March. Inter alia, Dr McClure concluded that the plaintiff’s brain injury, combined with the psychological and biological stressors of puberty and ongoing development appear to have predisposed him to anger outbursts, oppositional behaviour and anti-social behaviour including substance abuse and one assault charge.

27 Reference is made by Dr McClure to matters touched upon by the plaintiff in his evidence as to paranoid episodes associated with referential and persecutory thinking, visual hallucinations and subsequent sustained, pervasive depression of mood requiring prescription of antidepressants. Dr McClure was not optimistic as to the plaintiff’s future.

28 The defendant qualified Dr F Roldan, a clinical psychologist, coincidentally a partner of Mr Cipriani. Dr Roldan provided a thorough report dated 20 March 2002.

29 I interpolate in this context a submission for the defendant based upon statements made by Haydon JA in Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 at 711 commencing at paragraph [59] in particular (p729) as to the desiderata for experts’ reports. The report provided by Dr Roldan is in my view with respect to that submission as thorough as those provided by Mr Haralambous.

30 I desire however to quote two paragraphs from Dr Roldan’s report:

“9.9 As far as personality/behavioural functioning is concerned, it is my opinion that it is likely that Mr Olive had some fluctuating behavioural difficulties prior to the accident in question and that these difficulties may have become more pronounced with age and him entering the less structured environment of high school post-accident. However, it is also possible that the head injury in question may have contributed to the exacerbation of pre-existing behavioural difficulties. Once again, such hypothesised accident-related deterioration in behaviour may have become apparent some years post-accident due to the less restrictive environment in high school. Thus, it seems possible that a combination of pre-existing and accident-related (brain trauma mediated) factors may explain Mr Olive’s alleged current difficulties with depression, anger, oppositional behaviour and anti-social behaviour.
9.10 As far as intellectual/cognitive functioning is concerned, I reiterate that I can find no evidence for a generalised post-accident deterioration in intellectual ability or cognitive functioning. As noted above and in my previous report, it is my opinion that post-accident IQ estimates have been generally consistent with estimates of pre-accident ability. Also, while there have been some allegedly impaired scores in some areas of cognitive functioning, almost invariably such scores have been preceded by unimpaired scores in the same or similar tests. Thus, there is evidence that the allegedly impaired scores do not provide evidence of “true” cognitive deficits and that Mr Olive is capable of unimpaired (non practice inflated) performance in those tests. In my opinion, it is likely that inconsistencies in tests scores across assessments may manifest inconsistent effort, something which seems to have pre-dated the accident in question. It is my opinion that when Mr Olive’s best (non practice inflated) psychometric test performances are taken into account, there is no objective evidence that such performance is significantly discrepant from estimates of pre-accident ability”.

31 In the end the defendant’s submission is that a sequence of events commencing at high school was to the effect: drugs, discipline problems, football dreams unrealised, erectile problems and paranoia. The defendant propounds the proposition that given flaws of the kind that attend particularly Dr McClure’s first report above, the plaintiff’s position appears to indicate that his practitioners have overlooked obvious issues such as the capacity of drug use and the extent of drug use to be the sole foundation of the plaintiff’s subsequent problems.

32 I can indicate now that I think the better view and the one by which I am persuaded on the balance of probabilities is that set out in Dr Roldan’s report above.

33 The plaintiff shortly before the hearing of his action had become the father of a baby daughter, the mother being a person with whom he had been in a relationship, as I understand it, for some time and that relationship itself being a matter of contention between the girl’s father (at least) and the plaintiff’s family.

34 The plaintiff had also been involved in prosecutions by the police to which I will return.

35 The plaintiff’s work history, however, is to say the least, poor. The family of the plaintiff is large, he being one of eight siblings and at the relevant time the second youngest. The plaintiff’s siblings who were in employment were in employment of a fundamental rather than a complex kind. That, the defendant, and in my view rightly, asserts to be the context or backdrop against which the expectations of the plaintiff can objectively be judged in determination of his capacity for employment.

36 For example, having commenced year 11 at high school he took employment for work experience with a furniture manufacturer and simply left after two or three weeks because he did not like it. From time to time he worked as a tradesman’s assistant in the plastering field. In 1999 the plaintiff went to Shellharbour TAFE to do a course in “nursing” but again failed to complete it because of lack of interest. He got a job with the Department of Sports and Recreation as a trainee sports development officer and lasted for a short time of a few months whilst studying at TAFE for a sports administration qualification. He became for a short time a supervisor on a gas construction pipeline in the context of the protection of indigenous people’s interests, and became a security operative with the State Rail Authority, leaving after two to three weeks because he did not like the shift work and the geographical inconvenience involved.

37 I have found the resolution of this case difficult not the least because of the inevitability of the lapse of time between the original injury to a nine-year-old schoolboy and the hearing of his case 11 years later. The plaintiff presented well in the giving of his testimony before me, and as I believe his counsel himself remarked, that looking at him and hearing him, one would come to the view that there was absolutely nothing wrong. The reality, so it is submitted for the plaintiff, is that there has been and will continue to be residual disabilities in both behavioural and cognitive senses that will adversely affect him. For the defendant, on the other hand, it was sought to be argued either that the residual problems in terms of behaviour are fundamentally drug related, and otherwise consistent with a pre-accident personality trait or that such behavioural matters would minimally affect the plaintiff in areas of his life including employment.

38 In the end I am satisfied that more probably than not the plaintiff did suffer frontal lobe injury. The predominant consequence is in the behavioural context, but not to the exclusion of cognitive deficit to some extent as encompassed by what Dr Roldan said above, that is, overall it is minimal.

39 There was agreement between the parties in matters fundamental to the approach to the calculation of various heads of damages, though not, from the point of view of the defendant, as to entitlement. At the time of the hearing the plaintiff was 20 years of age; life expectancy is 57 years; three percent multiplier - 1437.9; remaining work life 45 years; three percent multiplier 1298.5. The average weekly earnings in New South Wales for males between 1999 and 2001 were gross $930.00 and net $720.00. In respect of care, the rates provided by the Motor Accidents Act litigation would apply.

40 In regard to this heading the case mounted by the plaintiff in relation to care was substantially unchallenged, certainly in relation to the immediate post-accident period, bearing in mind the child’s age, and I find it appropriate to make an allowance for past care as claimed and will return to the detail later.

41 In relation to general damages at common law, taking into account the nature of the physical injuries, such pain and suffering as the plaintiff appears to have undergone therefrom (which does not appear to be great), the frontal lobe brain damage and what I find to be the principal continuing disability in the behavioural aspect, I am of the view that $150,000.00 is appropriate, half of which is to be apportioned as to the past. This apportionment is based upon the physical injuries being resolved in the past and the brain damage component being of particular effect on the plaintiff as a child and adolescent. Accordingly the award for general damages is made up of $150,000.00 plus 2 per cent of $75,000.00 for 11 years, namely, $16,500.00, total $166,500. I have not been persuaded that any failure in the realisation of the plaintiff’s dream in respect of professional rugby league can be included in the computation of general damages.

42 Past medical and hospital expenses: these are unknown and were unascertainable as at the conclusion of the hearing and will be the subject of orders to be made in due course.

43 Future medical expenses: in relation to medication I will allow $32.00 per month, which at $8.00 per week multiplied by 1437.9, equals $11, 503.20. I will allow psychiatric future expenses at two visits at $125.00 per month: $62.50 times 1437.9 equals $89,868.75. I will also allow on what is described as the Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 (at 463) basis a sum of $10,000.00 for the chance of the requirement for future counselling. Thus, the total for future medical expenses is $111,372.00 (rounded up).

44 As to past loss of earnings, I am prepared to allow, on an overview of the whole of the history of this matter, from the termination of schooling in effect in year 11 to the hearing of 2.5 years, 130 weeks times $720.00, namely $15,600.00, less amount earned, $5,339.00 balance $10,261.00. On that amount of $10,261.00 I will allow interest at 5 per cent for 2.5 years namely $1,282.00 and thus the award for past lost earnings is (rounded) $11,550.00.

45 As to the capital value of diminished earning capacity, I am not persuaded that it is 100 per cent of the net average weekly earnings, namely $720.00. The capital value in my overview of the evidence is properly represented as one quarter of $720.00 namely $180.00 net per week. That sum, to which the multiplier of 1298.5 is applied, becomes $233,730.00 from which I will deduct 15 per cent for vicissitudes, namely $35,000.00 (rounded down), allowing therefore $198,730.00 for future loss.

46 The short minutes of order which I will direct be handed up should include any lost compulsory employer superannuation based upon the figure arrived at by diminishing the capital value of earning capacity to the extent of 25 per cent.

47 As to care, applying the Motor Accidents Act rates, the defendant did not really challenge the plaintiff’s mother in this regard. The only basis upon which I understood the defendant to be questioning it in what I would call “the high school years” and perhaps going into the future, was the basis of the plaintiff being “spoilt”. My finding in relation to that is probably the plaintiff was to some extent “spoilt”, certainly by Mrs Olive. That is not, however, to the derogation of some requirement for care, which in my view, over the ten-year period can only and reasonably and rationally be to a diminishing extent conformably with such level of maturity the plaintiff gained through puberty until the time he left high school. What is claimed, for example, in the last 5 years was 3 hours per day and in the antecedent years, 6 hours per day as founding a computation that would lead to a sum in the vicinity of $300,00.00. When so-called “need for care”, now, is doing no more than reminding the plaintiff to take medication, I am not persuaded that that plus anything else, for example, the ordering or structuring of Eugene’s, to some extent, daily self management, could conceivably amount, in the last ten years, to an average of 4.5 hours per day.

48 I am certainly prepared to allow past care for the period 1991-1992 in the sum of $45,864.00 as claimed. As to the remaining 10 years, doing the best I can, having rejected what I have considered to be an unreasonable basis for the hourly claims, given the component of “spoiling” to which I have referred, the best I can do is to allow two hours per day at $15.50 per hour, taking into account a diminishing need, totalling $113,150.00. Thus the total for care in the past is $159,000.00 (rounded down).

49 The subject of compensation for future care is quite vexing. That at some level this plaintiff will require future care in the continuing sense cannot be gainsaid in the light of the weight of the medical evidence. It is to be borne in mind that as a matter of principle it is the need for care that is amenable to be compensated by an award (Van Gervan v Fenton (1992) 175 CLR 327). Again doing the best I can, I will allow 7 hours per week at $17.00 per hour resulting in an allowance for future care in the sum of $171,110.00.

50 Another component of the plaintiff’s claim is made up of a claim for reimbursement of legal costs incurred in relation to criminal matters. There is no dispute between the parties as to the reasonableness of the sum claimed, namely $22,000,00. The defendant says in this instance the costs are not recoverable. The Court was not inundated with information about the cases, however exhibit M (being the bundle of accounts rendered by the solicitors) and some evidence from the plaintiff give some indication as to the nature of the offences in which the plaintiff found himself involved: behaving in an offensive manner, malicious damage to property (a motor van) and common assault on 24 January 2000. Another matter was an application taken out by the father of Belinda, the plaintiff’s partner who gave birth to the daughter, of an apprehended violence order. In January 2001 the plaintiff was involved in an incident concerning the illegal use of a motor vehicle. The plaintiff was involved in matters in July of 2001 involving resisting a police officer in the execution of his duties, stealing and common assault. The weight of the evidence tendered, particularly the reports of Dr Jones (whose absence abroad precluded his giving oral evidence before me and his reports are exhibit C), points in the end to the outcome of the relevant proceedings being determined favourably to the plaintiff by reference to what was perceived by Dr Jones based, inter alia, as at 22 November 2001, on the reports of Mr Haralambous and Ms Martin, to demonstrate residual difficulties associated with a history of head injury. The major matter before the Wollongong Local Court was disposed of pursuant to s32 of the Mental Health (Criminal Procedure) Act 1990, that is, otherwise than by the imposition of a penalty or punishment.

51 The availability of this head of claim was not argued in detail, attention being drawn to the two principal decisions on such an area of claim in this State namely SRA of NSW v Wiegold (1991) 25 NSWLR 500 and Habib v The Nominal Defendant, NSWCA, unreported, 26 September 1995. In the former case an allowance made by the trial judge for a criminal conviction relating to the cultivation of Indian hemp pursuant to so-called impecuniosity following a work related injury was disallowed on appeal. In the latter case, the facts of which are extraordinary, the costs of the appellant’s successfully defending himself against charges of fraud relating to his action against the Nominal Defendant were allowed.

52 In the instant litigation, bearing in mind in particular what Kirby P (as his Honour then was) said in Habib at pages 18 – 22, I am persuaded to allow the sum here claimed. I do so by reason of the application of the “undemanding” test that in the instant case where essentially the trouble in which the plaintiff found himself vis-à-vis the law was in the light of the psychiatric evidence presented to the Local Court more probably than not a consequence of the frontal lobe damage caused in the fall.

53 Thus, the award of damages will include the $22,000.00 in respect of the costs for criminal matters.

54 As I mentioned at the outset of these reasons the issue of liability was not in contest. As I understand the position, by reason of the way the case was pleaded against the defendant, it was the unity of the State, as it were, that was compromised internally by the bifurcation of the claim alleging failure to take reasonable care for the plaintiff in supervision of the plaintiff (that is, within the educational context) and the provision of premises or structures that were unsafe and which gave rise to a question of the application of some Australian Building Standards which in some way involved the Department of Public Works. Exhibit J tendered for the plaintiff was a Unisearch report in relation to supervising standards and exhibit K was a report from consulting construction engineers.

55 It seems to me that the issue not having been elevated by contest otherwise than by the tender of these two documents, which in the end are not essentially material, the defendant not taking a defensive position on the issue of liability otherwise than by explaining what is really an “internal” matter for it. I formally find however the defendant to have been in breach of its duty of care in relation to the proper supervision as a nine-year-old schoolboy, as I have explained above.

56 The verdict that will be found for the plaintiff will lead to the assessment of damages which will include the following as explained above:

(a) General damages assessed at $166,500.00.

(b) Future medical expenses: $111,372.00.

(c) Past loss of earnings: $11,500.00.

(d) Future loss in respect of earning capacity: $198,730.00.

(e) Past care: $159,000.00.

(f) Future care: $171,110.00.

(g) Legal costs in criminal matters: $22,000.00.

57 I direct the parties to bring in short minutes of orders relating to outstanding components of the heads of damages, as referred to in these reasons, the entry of judgment, the disposition of the judgment sum and any matter that may affect costs.

58 Those short minutes may be brought in by arrangement with my Associate on 24 hours notice.

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Last Modified: 05/02/2003