Oliver v Roberts

[2017] ACTSC 360

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Oliver v Roberts

Citation:

[2017] ACTSC 360

Hearing Dates:

22 - 25, 29 - 31 May, 1 June, 13 - 17 November 2017

DecisionDate:

12 December 2017

Before:

Walmsley AJ

Decision:

See [696] below.

Catchwords:

CIVIL LAW – PERSONAL INJURY – Motor-vehicle accident – assessment of damages – extent of cognitive impairment from traumatic brain injury – damages awarded.

MENTAL HEALTH – Application to set aside litigation guardian – application based on medical evidence – no mental disability – litigation guardian set aside.

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 50, 275

Evidence Act 2011 (ACT), s 63

Civil Liability Act 2002 (NSW)

Cases Cited:

Adelaide Stevedoring Co Ltd v Forst (1940) 64 CLR 538

Griffiths v Kerkemeyer (1977) 139 CLR 161
Hull v Thompson [2001] NSWCA 359
Schneider v Hoechst Schering Agremo Pty Ltd [2001] FCA 102; 50 IPR 555
Taupou v HVAC Constructions (Queensland) Pty Limited and Ors [2012] NSWCA 293
Verryt v Schoup [2015] NSWCA 128; 70 MVR 484

Young v Rothin [2009] ACTSC 71

Texts Cited:   

N Chaytor and M Schmitter-Edgecombe, ‘The Ecological Validity of Neuropsychological Tests: A Review of the Literature on Everyday Cognitive Skills’ (2003) 13(4) Neuropsychology Review 181

V Rao et al, ‘Neuropsychiatric disturbances associated with traumatic brain injury: a practical approach to evaluation and management’ (2015) 35(1) Seminars in Neurology 64

D Manchester et al, ‘The assessment of executive functions: coming out of the office’ (2004) 18(11) Brain Injury 1067

Parties:

Andrew Robert Oliver (Plaintiff)

Caroline Roberts (Defendant)

Representation:

Counsel

Mr D Campbell SC with Mr I Bradfield (Plaintiff)

Mr G Watson SC with Mr D Crowe (Defendant)

Solicitors

MTM Legal (Plaintiff)

Moray Agnew Lawyers (Defendant)

File Number:

SC 439 of 2013

Walmsley AJ:

Main issue

1. This is an assessment of damages arising from a motor vehicle accident in Canberra on 27th August 2010. The defendant admitted she had been in breach of duty. The main issue in the case was the extent, if any, to which the plaintiff had suffered cognitive impairment from a traumatic brain injury (TBI) he received in the accident. The defendant conceded he had suffered a TBI but argued the long term effects from it had not been as significant as asserted, and that the plaintiff has no significant ongoing cognitive sequelae from the accident. The plaintiff argued he had significant ongoing sequelae whose effects were permanent and would worsen in time.

Plaintiff’s background

1. The plaintiff, currently aged 27, was born in Malawi in November 1990, where his father was working as a veterinarian. His family later moved to live near Canberra, where he had most of his school education.  He completed his schooling at Narrabundah College. In 2008, his last year of school, he achieved a universities admission index score of 66.35.  That was just above the average mark of 65. As he had not passed French he did not qualify to pass the International Baccalaureate, which his school…