Oliver v Roberts

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

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

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 offered. But he did qualify to enter the industrial design faculty at the University of Canberra (UC).

He took a year off studies in 2009, and worked for his father on his Bungendore farm.

In September 2009 he also began working as a part time labourer at Monaro Timber, in Queanbeyan.

In 2010 he enrolled at UC in the degree of Bachelor of Industrial Design. To assist pay his way, he continued to work in his job at Monaro Timber.

He lived in a group house in Dickson with his elder sister, and another student. In his first university semester, for the four subjects in which he was enrolled, he achieved two distinctions and two credits. He was in good health and had significant agility, being adept at a French training discipline called parkour. He had friends, and he got on well with people. He was good with his hands.

As the defendant concedes, in the accident in August 2010, the plaintiff suffered a number of physical injuries, including a TBI. By reason of the injuries he received, his studies were interrupted, and his graduation in industrial design was delayed by a year. Despite the TBI, the plaintiff ultimately graduated with honours, and continued to have a considerable social life and participate in physical activities requiring physical dexterity and fitness.

As appears below, after he graduated, he attempted work relevant to his qualifications and ambitions, but his attempt was short lived.

Since 11th January 2016 he has worked part time for Questacon, the National Science and Technology Centre, as an ‘inquiry learning facilitator’, showing school children how small experiments are done. There his earnings are modest, being, he says, significantly less than those applicable to a full time industrial designer.

He says that despite his endeavours, he is unable to obtain work of a type or quantity appropriate for someone with his qualifications.

It is the plaintiff’s case that his TBI was of such severity that his memory, fine motor, social skills, and other functions, were so affected that not only has he no short term prospects of working full time in his chosen field, but that he will have to give up working in any capacity, before normal retirement age. Further, he says that although he currently lives and travels quite independently, and participates in what some would regard as extreme sports, there will come a time when cognitive problems caused by the TBI will require him to have a degree of paid assistance.

The defendant says he made a relatively good recovery, essentially, though not entirely, because a number of psychometric tests performed on the plaintiff over the years since the accident have shown no evidence of cognitive loss. The defendant’s experts say the results of those tests demonstrate that there are no sequelae. The defendant’s counsel draw attention to significant intellectual, social and physical feats and activities since the accident, which they say add considerable support to their experts’ views.

Experts called by the plaintiff say that although the psychometric test results show normal cognition, test results are not necessarily determinative, and they may not show subtle changes.

The plaintiff’s counsel point to Magnetic Resonance Imaging (MRI) and computed tomography (CT scan), which show objectively that he suffered the TBI, and to observations by those who were close to him before and after the accident. They say it must be concluded from all of the evidence that the plaintiff suffered cognitive impairment, that the impairment continues to affect him in significant ways, and that some impairment will be permanent.

If those appearing for the plaintiff are correct, the damages to be awarded must be high. If those for the defendant are correct, the damages must be modest. The case demonstrates the potential fallibility of the once and for all system of compensating with an award of damages. As Mr Watson SC, with whom Mr Crowe appeared for the defendant, said when beginning his final address, “[t]his is one of those unusual cases where one side has got it completely wrong”.

A Summary of Topics

Below are set out:

(a)a chronology of relevant events from the time of the accident to the present, including attendances by the plaintiff on doctors for medico legal purposes, and complaints he made from time to time when questioned by those doctors;
(b)a summary of the plaintiff’s evidence, including my credit observations;
(c)a summary of the evidence of lay witnesses, including my findings on credit;
(d)a list of findings based on my observations of the lay witnesses and the plaintiff;
(e)a consideration of the expert witnesses and a resolution of the differences between them;
(f)my reasons for accepting the plaintiff’s arguments on the cognitive damage issue;
(g)my consideration of the implications of my findings on the cognitive damage issue on damages claimed, and the competing arguments;
(h)my findings on the damages to be awarded on each head of damages claimed, and my reasons for the individual awards;
(i)my consideration of an application by the defendant to set aside the appointment of a litigation guardian for the plaintiff, and my reasons for acceding to that application; and
(j)final orders.

A chronology of relevant events:

The accident

On 27th August 2010 the plaintiff was driving through the intersection of David Street and Macarthur Avenue Turner, when the defendant, driving a vehicle approaching from his left, ignored a red light, whereby the two vehicles collided. The defendant, it appears, was using her mobile phone at the time of the collision. In her amended defence she admitted she had been in breach of her duty of care to the plaintiff. There will, accordingly, be judgement for the plaintiff, for damages I shall now assess.

The impact was significant. There was major vehicular damage.

An eye witness, Mr Lata, speaking of the plaintiff’s car, said, “I observed the car careering to the right with the tail turning around and impacting straight on the side of the driver’s door. What I saw was his head kind of break through the side window and it appeared to me that his head actually had come in contact with the post as well.”

When the cars had stopped, he could see the plaintiff slumped forward in his car, with blood and saliva coming from his mouth; he was unresponsive when spoken to.

The plaintiff was cut free from his car. He was observed to have suffered head injuries. He was for a time unconscious. He was taken by ambulance to Canberra Hospital, where he was admitted, and where he remained for four days.

The course of treatment

As later appears, some expert evidence regarded as relevant the period which elapsed before the ambulance arrived at the scene. Ambulance records show the ambulance was called at 1329 and arrived at 1332. Mr Lata thought the ambulance had taken 15 minutes to arrive, but I find the ambulance probably arrived between 5 and 10 minutes after the accident. Given evidence of a number of people in the vicinity of the accident site, I consider it likely one of them would have phoned for an ambulance quite quickly.

The ambulance left the accident scene at 1418 and arrived at Canberra Hospital at 1455.

There is a neurological scale used by the medical profession to give a reliable record of consciousness, called the Glasgow Coma Score (GCS). A witness called by the defendant, consultant neurologist Professor Spira, said of the scale “[I]t evaluates level of consciousness on the basis of three modalities…the status of the eyes,… level of motor functioning…and …level of cognition”.

The top score is 15 for someone in a normal state. The bottom score is 3 for any animate object. The scale from 3 to 15 is meant to reflect level of functioning.

Professor Spira said there are some weaknesses in the scale, including some subjectivity in assessments. I took him to say that what is important is the rate of change in the scale from the time of the insult onwards. He said with a patient with head injuries such as the plaintiff had, it is important to know the GCS when the ambulance is called, when it arrives at the scene, and when it arrives at the hospital. Thus “there’s some time scale against which to gauge which direction the GCS is going…”

In the period before the ambulance came, it is probable that the plaintiff’s GCS was in the region of 6-8, according to Professor Spira, whose evidence on that issue I accept.

Professor Spira said the initial score is important, but it is the rate at which it becomes normal which is more important. (Dr Zeman, rehabilitation specialist retained by the defendant, suggested in evidence that only the scores on arrival at the hospital were important; but Professor Spira takes a different view and as he is a neurologist I prefer his view on this issue.)

When ambulance officers first examined the plaintiff, which was at 1342, they measured his GCS as 10. His scores then progressed as follows:

(a)1351:10;
(b)1404:12;
(c)1416:12;
(d)1421: 11; and
(e)1424: 12.

When he arrived at the hospital the plaintiff’s GCS was 12-13.

According to the treatment notes, on his arrival at the hospital the plaintiff was unable to give a history, and was quite confused. The notes record he had been trapped in his car for 40 minutes after a ‘major intrusion on driver’s side’. He thought the day was a Thursday (it was a Friday) and he spoke of The Fyshwick Hospital. As later appears, according to family and friends who visited him, he was confused and talking nonsense when they saw him. He had no memory of a visit by friends.

The notes also showed confusion by the hospital, the accident being noted as involving only one vehicle, and that no insurance issues arose.

His GCS later improved to 14-15.

On examination after his arrival at hospital he was seen to have multiple small lacerations/abrasions to the forehead and face. There was clotted blood on the left brow, but no bony tenderness.

Among other investigations, a CT scan was ordered. The report of the CT scan was later summarised in the discharge summary as showing “No significant trauma”. However, that report was an incorrect interpretation of the scan. Professor Spira, who recently looked at the scan, said the initial interpretation was incorrect, and that in fact the scan showed the plaintiff had suffered a TBI.

According to the hospital notes, the plaintiff’s GCS got to the normal level, 15, on the day after the accident, but dropped to 14-15.

On 29th August the plaintiff was recorded as ‘not very cooperative, but well coordinated’. That day his GCS was stable at 15.

On 30th August he was recorded as having post traumatic amnesia (PTA), but no retrograde amnesia. A note records “OT to perform PTA”. However another note, in the hand of a Dr Piscioneri, says “No need PTA (DW (i.e. discussed with) Dr Jeans.” He was discharged that day when his parents came to pick him up.

On his discharge he moved back to live with his parents at Bungendore for at least two weeks.

On the day the plaintiff was discharged, his father emailed UC, inter alia:

Andrew Oliver…is suffering from severe concussion, memory loss and dizziness.

On 31st August, Dr Jeans, under whose care he had been admitted to hospital, wrote:

Andrew Oliver was admitted to the Canberra Hospital under my care on 27/8/10 following a motor vehicle accident…His GCS was 8 at the scene but shortly after arrival at the Canberra Hospital had improved to 14 and then 15. He had CT scans of the head, neck, chest and abdomen and the only finding was a suggestion of a possible small minor laceration on the spleen. There was also a tiny pneumothorax see. He had a lot of small cuts and abrasions to the face…he had a little bit of retrograde amnesia but this all cleared up over the first day in hospital….I have not made follow up arrangements for him.

(It is to be noted that the references to the GCS are incorrect.)

Also on 31st August, the plaintiff’s father sent an email to Sonia Osborne at UC, inter alia:

Andrew has made excellent progress so far and we were able to bring him home last night. He still has short term memory, balance and other issues but hope rest will fix this. After regaining consciousness at the hospital…he was concerned about a piece of cardboard in his…car. Needed to be glued…for an assignment….he is in no condition to do anything but sleep.

On 1st September 2010 the plaintiff’s father sent an email to Sonia Osborne, inter alia:

Andrew is recovering slowly (possibly even regressed yesterday). It may take some time before he is back.

On 6th September 2010 the plaintiff’s father emailed Sonia Osborne, inter alia:

Andrew is still at home at Bungendore, still not ready to move back to his room in Canberra. My feeling is he is still a few weeks away from being ready to attend classes, though he may be able to do some catching up at home if this is possible. Lines are now starting separate (sic) when he tries reading, so that’s a start. Dropping a subject or two might be a good solution. We’ll discuss it with the doctor this week.

His family then took him to see their local general practitioner, Dr Yates, of Bungendore.

He first saw her on 8th September. Then he saw her again on 20th September.

Within weeks of the accident he had returned to live in his group house.

On 11th October 2010 Dr Yates certified having seen him on 8th and 20th September after a head injury, said he was unfit for a full time university load, and that she had advised he drop ¾ of his load.

Consistently with that advice, he deferred three units. He was successful in the one unit he remained enrolled in Design Studio 1.2, achieving a credit mark.

On 1st November 2010 Dr Yates referred the plaintiff to Dr Craig McColl. (I was not told his specialty but in any event it appears the plaintiff saw someone else, a rehabilitation consultant, Dr Katsogiannis.)

Dr Yates’ letter of referral said the plaintiff had been “slow to recover, ongoing reduced concentration and occasional memory lapses” (a footnote to the referral says the history had come from his father and the discharge notes, and that the plaintiff could not remember the accident).

The plaintiff ceased working at Monaro Timber once the accident had occurred. Indeed, it was quite some time after the accident before he returned to any form of paid work.

Fortunately, the plaintiff had improved sufficiently to be able to travel, upon completion of the 2010 academic year.

In early 2011 he visited Fiji, Vanuatu, New Caledonia, and New Zealand. He travelled alone. He was away from Canberra for about three weeks. He returned via Melbourne, where he attended a musical event called The Big Day Out. As Mr Watson observed in his address, the tickets for this event were bought in late September 2010.

On 1st February 2011, the plaintiff saw Dr Katsogiannis at Canberra Hospital. His father accompanied him.

Dr Katsogiannis was told the plaintiff had had to defer some subjects at university and pursue only one subject “which he struggled to complete because of ongoing short-term memory loss, poor concentration and coordination.” However, the plaintiff had by then returned to driving, and had recently bought a new car.

After that consultation the plaintiff returned to a full academic load. Thereafter he continued with a full load until completing his degree, ultimately at honours level.

However, he continued to have problems. He saw Dr Katsogiannis on 3rd May 2011. On that day Dr Tshibindi, registrar for Dr Katsogiannis, wrote to Dr Yates:

We have reviewed Andrew Oliver in the rehabilitation outpatients clinic on 3rd May 2011. He stated he is doing well but there has not been much improvement with his co-ordination, memory and concentration deficits. He is still continuing with his study and looking forward to some part time holiday work.
He has missed his appointment with the community rehabilitation team which has been rescheduled for a future day. We also understand he is on a waiting list for a neuropsychology assessment as well as speech pathology assessment. His MRI has not yet been processed.
We recommend follow up to the community rehabilitation team for neuropsychology assessment and also other therapy assessments. We also see no need for MRI at this point as it will not change his management. We plan to review Andrew in six months time.

At the same time Mr Oliver’s father emailed Sonia Osborne saying, inter alia:

Andrew is recovering ok, but still has memory issues. He seems fine and normal but then something comes up and we are amazed to realise he can’t remember something. Although his coordination and balance are now 98% back… his memory is still a worry. His concentration might be an issue too.

The first neuropsychometric test

On 19th, 25th and 30th May 2011 the plaintiff underwent neuropsychological testing. At the time, he complained of difficulties with memory, although retention of written material had improved, as had free hand drawing in his course. But he said he felt less emotionally connected with his surroundings.

The plaintiff’s father told the psychologist his son appeared less motivated and less interested in life, possibly also less confident. He had had difficulty catching a tennis ball, and had been repeating questions.

On 6th June 2011 the plaintiff’s father emailed Sonia Osborne, inter alia:

Andrew has had several sessions with a neuropsychologist over the past few weeks, doing all sorts of tests. The doctor asked for a family member to be present for some sessions so he could get another perspective on Andrew- so I sat in on the second session.
…
I think Andrew was shaken at missing the deadline for an online exam, he just couldn’t quite believe it. Thankfully the uni…gave him an extension. It’s now dawned on “bullet-proof” Andrew he isn’t the same as before and I suppose the neuropsychologist is trying to help here.

The neuropsychologist, Mr James Kirkcaldie, reported on 16th June 2011 that he had assessed the plaintiff’s premorbid level of cognitive function as towards the high end of the average range for his grouping, possibly higher for non-verbal skills.

In a report prepared for the plaintiff, he advised:

[A] range of your cognitive skills were functioning very well…with excellent performances on tasks designed to examine verbal attention span…visuospatial abilities, conceptual thinking, as well as visual and verbal memory. Very good visual planning was also displayed, along with good flexible thinking when switching between sets of data and when generating visual designs.
More modest, average test scores, were recorded for some speed of processing tasks, as well as tests examining selective and divided attention (though your fast completion speed for the latter may have effected (sic) your accuracy and overall score). A lower score for a sustained attention task was also recorded, as were occasional lapses in attention during your tasks…
Overall though, these tests results suggest the continuation of your Industrial design degree is definitely possible, with the vast majority of your results ranging from sound to excellent levels.

Noting the plaintiff had had a few mildly depressive symptoms, he said they were not clinically significant. He recommended strategies to help with awareness of time and concentration, noting he had shown a tendency to sacrifice accuracy for speed.

On 2nd August 2011 the plaintiff saw Dr Katsogiannis again. By that time the plaintiff had undergone an MRI. In his report of 4th August the doctor noted

His current issues are mostly around his affect and mood. Although he does not appear depressed he certainly has blunted affect. His father Greg was present and he felt that this was a fairly accurate description of his current mood and affective state. …Neuropsychometric testing recently indicated no significant visuospatial problems, and mainly minor problems in areas of concentration and attention. His MRI showed petechial haemorrhages in the frontal lobes and could account for his current cognitive state….
I will highlight to you the risk of depression in summer on affective state and recent traumatic brain injury. I have counselled him to refrain from drinking alcohol and I will be reviewing him again in six months time…

On 11th January 2012 the plaintiff was involved in another accident and taken to the emergency department at Canberra Hospital. The history given included no loss of consciousness and no amnesia. He had a laceration to the right part of the scalp. He was discharged and advised to take analgesia. (It was not suggested in these proceedings that this or any accident other than that caused by the defendant, was responsible for what the plaintiff says was caused by the subject accident.)

On 21st February 2012 the plaintiff was again reviewed by Dr Katsogiannis, who reported:

He has no problems with concentration. He is completing his assignments. His father who was present also suggested there were no problems with behaviour or challenges in his mood….
At this point I feel there is no further need for him to be reviewed by us. He has been discharged from rehab medicine.

That visit was, effectively, the end of the plaintiff’s treatment for the TBI. There is no record of his seeing Dr Katsogiannis again. Nor is there evidence he saw anyone else for treatment for the TBI.

On 24th October 2013 the plaintiff fell off his bicycle and was again seen at the emergency department of Canberra Hospital. He was observed to have abrasions and swelling to the forehead, nose and chin. The diagnosis was ‘superficial injury of the nose, abrasion’.

The fact that the plaintiff deferred three subjects in the second half of 2010 meant that he graduated later than originally scheduled.

Fortunately, his university results did not appear to have suffered from any accident caused sequelae. In the first semester of 2011 he achieved two passes and a high distinction, and in the second semester of 2011, two high distinctions, a distinction and a credit.

In 2012 he achieved for the first semester a high distinction, a distinction and a credit, and in the second, a high distinction and a distinction. For the second semester results he was awarded the Dean’s Excellence Award.

Throughout most of 2012 he worked part time for Woolworths at Dickson, stacking shelves.

In the middle of 2012 he holidayed in Thailand.

In the second part of 2012 he applied to study abroad for a semester. His application was supported by Associate Professor Montana, who was required to give the plaintiff an assessment. Mr Watson submitted his written assessment was a significant document. I agree.

In that assessment Professor Montana said, inter alia, that the plaintiff’s motivation and seriousness of purpose were outstanding, as were his reliability, self-confidence, and honesty. He said the plaintiff was “not only talented and very dedicated, but he also has good people skills. He is an active and enthusiastic class member. Academically, his design projects have been mostly above average, and in some cases outstanding.”

That assessment, as will later appear, is apparently inconsistent with assessments by his family and friends.

On its face, too, the fact that the plaintiff did so well on resuming his studies, seems at odds with his ongoing histories to doctors.

The documents submitted with his application to study abroad were relied on, with some justification, by counsel for the defendant, when submitting that the plaintiff had made a good recovery, with no ongoing cognitive impairment.

The plaintiff prepared his own submission in support of his application to study in Ireland. In it, he said, inter alia:

I hope to…better understand international relations and different cultures, [and] meet like minded people from around the world…Outside of study life, I am a very independent person, who likes to travel as often as possible, both by myself and with friends. I enjoy fast moving and athletic sports such as mountain bike riding and parkour.

That description of himself was, it was pointed out by Mr Watson, at odds with descriptions others gave of him. By the time that document was prepared, two years had gone by since the accident.

Studies in Ireland

The plaintiff was successful in his quest to study abroad. In the first part of 2013 he travelled by himself to Ireland and undertook a semester at the Dublin Institute of Technology. He passed his assignment satisfactorily. In mid-2013 he returned to Canberra for semester 2, achieving two distinctions.

He took advantage of his time away. The plaintiff told me that when he was in Ireland he went travelling, joining a group travelling to southern parts of Ireland, visiting Belfast with parkour friends, visiting Scotland with school friends, and visiting Barcelona and Milan with friends.

While in Ireland, he continued to participate in parkour activities. A photograph in evidence shows him at that time walking on a hand rail consisting of round metal piping of about 5 cm in diameter.

I conclude that whatever physical problems were caused by the accident, he had by mid‑2013, returned to a high degree of fitness. I do understand him to say he was not as fit for parkour as before the accident. I consider that the photograph does not contradict him on that issue. But it shows, to my untrained eye, a degree of fitness and a high degree of balance.

In the second half of 2013 he worked for approximately two weeks at UC in the industrial design work shop. As will later appear, his supervisor in that position saw no sign of the problems of which the plaintiff complains.

Late in 2013 the plaintiff retained his current solicitor to make a claim for damages on his behalf.

Dr Jungfer: psychiatrist: a medicolegal report for the plaintiff

In December 2013 the plaintiff’s solicitors sent him to see a consultant psychiatrist, Dr Patricia Jungfer, for a medicolegal report. She saw him in Sydney on 6th December 2013.

He told her of his recollection of the accident. He had no recollection of being in the ambulance or his initial time in hospital. He did not recall his discharge from hospital. He had very limited recollection of the first few weeks after his discharge from hospital, recalling that he had slept most of the time.

He reported he was still having ongoing concentration and memory problems, and problems with coordination. He had problems recognising people and tended to forget things. He would forget where he had put things. He said he was finding he was more likely to injure himself when doing parkour.

He was less able to think in three dimensions, a skill he had before the accident, one which was useful for an industrial designer. His fine motor skills, such as for drawing and sketching, were impaired. He was fumbling with some words, and found he was slower to read.

His mother, who accompanied him for the consultation, told Dr Jungfer his personality had changed, that he was less driven and less engaged, less tolerant of social and interpersonal communications. She saw his main problems as with memory and concentration. Speaking of his discharge from hospital she said she had queried with staff the wisdom of a discharge when to her he was disorientated, but that staff had seemed unconcerned. (Dr Jungfer reported that considering his cognition problems when in hospital after the accident, the decision not to give him a PTA assessment had been “highly questionable”.)

In her report, Dr Jungfer said that what had been described was consistent with a neurocognitive disorder following TBI. She said his GCS readings suggested he had had a significant head injury. The changes in his personality and behaviour, she considered, were suggestive of frontal lobe impairment.

But the fact that he had by then completed his degree, showed, she said, that he had some work capacity.

She suggested further investigations, such as neuropsychometric testing, and an MRI scan. She thought assessment and treatment by a brain injury rehabilitation service for adaptive strategies would help him in the longer term.

She considered he had reached his maximum medical recovery and needed no psychiatric care or treatment. In her view he did not have any psychiatric disability.

Under the heading “Mental State” she said this:

Interestingly enough, when his mother came into the interview and he had to focus on more things, that is his mother as well as myself, when he left the interview he left behind his diary and was completely distracted, suggesting that his cognitive skills deteriorate in a distracting environment.

Professor Mattick, psychologist: a medicolegal report for the defendant

The defendant had the plaintiff seen by a psychologist, Professor Mattick, on 4th December 2013. Professor Mattick is employed within the medical faculty of the University of New South Wales. He has high qualifications.

The plaintiff when interviewed by him said he was doing parkour twice weekly, and cycling an hour each day.

But he complained of problems with planning, memory, and fine motor coordination, and that he was fumbling with words. He thought his memory and concentration had been worse since the accident, but that there had been improvement. He also complained that fast physical movements had been affected, as he had become less coordinated.

A second neuropsychometric test

Professor Mattick performed neuropsychometric testing. He assessed pre-injury cognitive functioning of above average intellect. When he reported on 4^th December 2013 he said the testing had found no impairment in verbal comprehension, perceptual reasoning or working memory.

Unlike Dr Jungfer, he saw less significance in the reported changes, observing:

There is no cognitive dysfunction in my opinion. I note that he and his parents refer to some problems with memory, but I think they may be understandably focusing on minor and non impairing forgetfulness, which may occur in any individual of any age.

Dr Buckley, rehabilitation consultant: a medicolegal report for the plaintiff

The plaintiff’s solicitors sent the plaintiff to a rehabilitation specialist, Dr Stephen Buckley, who saw him in Sydney on 10th February 2014. He was accompanied there by his mother.

The plaintiff told Dr Buckley his worst problem was impaired physical co-ordination, and a ‘close second’ was impaired memory. His third was impaired spatial awareness.

In his report of 18th March 2014 Dr Buckley said, inter alia:

He said that, for example, he now needs to turn a model around in order to tell exactly what it looks like, and he can no longer simply reach out for a tool which he has laid beside himself, without turning and looking for it. All of these activities he could previously do easily before. He is unable to place in space, the position of, for example, hand-holds, safety holds, and so forth, which are essential in his pursuit of the Parkour activity.

The plaintiff also complained to him of poor memory, giving an example of taking a shopping list with him, but still coming home with an incorrect item. He said he would forget to pass on messages, and would forget where he had parked his car. He had recently needed help from his sister to find his way home.

He was able to cook, but had had some accidents, such as burning boiled eggs, and setting off the fire alarm. He described himself as a bit of a hermit, saying he could not be bothered going out.

He was able to clean, and wash his clothes.

Dr Buckley diagnosed a TBI in at least the “severe” range… and possibly in the “very severe” range…”

He said by reason of his TBI the plaintiff had significant cognitive impairment and mild emotional and behavioural impairment. He said he had observed evidence of clumsiness on clinical examination.

He concluded “any brain injury deficits are permanent.”

In early 2014 the plaintiff submitted a research thesis for his honours degree. It concerned the design of a cargo bicycle for use in Canberra. He was awarded division two, second class honours.

The defendant’s counsel, understandably, submitted that I would see the award of an honours degree as inconsistent with views of the kind expressed by Dr Jungfer and Dr Buckley, and much more in line with the views of Professor Mattick.

Dr Zeman, rehabilitation consultant: a medicolegal report for the defendant

On 27th May 2014, at the defendant’s request, the plaintiff saw Dr Brian Zeman, a consultant in rehabilitation medicine. It was his view the plaintiff had totally recovered.

Consistently with his earlier complaints, the plaintiff told Dr Zeman he was having memory problems.

Dr Zeman noted:

[T]he severity of a traumatic brain injury generally correlates with the initial Glasgow Coma Score (GCS), the length of post-traumatic amnesia (PTA) and the presence of structural brain injury such as with focal neurological signs or on imaging (CT scan or MRI scan).

He diagnosed “a head injury with possible mild brain injury- not significant and since resolved. Small apical right pheumothorax- now resolved. Possible splenic contusion-now resolved.”

He considered the plaintiff fit for normal duties with no reduced vocational opportunities, and with no need for any attendant care or any treatment.

The magnetic resonance imaging

On 16th July 2014 the plaintiff had a brain MRI. The report of the imaging concluded:

There are multiple microhaemorrhages which are only seen on the susceptibility weighted sequence but with a characteristic distribution and morphology of haemorrhage axonal shearing injuries in the setting of head trauma.
There is some prominence of the ventricles and suici suggesting that there may be a degree of underlying volume loss.

Psychometric testing by psychologist Dr Langeluddecke, for the plaintiff

Also on 16th July 2014, the plaintiff saw clinical psychologist Dr Pauline Langeluddecke, for psychometric testing. This was at his solicitors’ request.

Dr Langeluddecke obtained a history of concentration and memory difficulties, inability to multitask, problems with balance and communication, mental fatigue, and cognitive slowing.

She reported after testing him that the only weakness shown on testing was processing on selective paper and pencil tasks. The results, she said, suggested a good cognitive recovery. She saw no employment problems for him.

She concluded:

Mr Oliver reported significant difficulties in a range of cognitive domains on questionnaires, including attention/concentration, recent/prospective memory and executive functions. Formal testing indicated Mr Oliver’s cognitive abilities to be well preserved at a high average level across the board after correcting for practice effects.

When Dr Langluddecke gave her report she had not seen Dr Jungfer’s report of 6^th December 2013, nor had she seen the report of the MRI. After they were given to her by the plaintiff’s solicitors she reported again.

In that report, dated 5th August 2014, she revised her earlier opinion, saying, inter alia:

The post-traumatic brain damage evident on the recent cerebral MRI provides a neurological basis for the cognitive, behavioural, personality and physical impairments/changes reported by Mr Oliver and his parents…[M]y opinion of a good recovery post-brain injury on the basis of the results of the cognitive testing…warrants revision.

She concluded:

I am of the opinion that it is highly likely that Mr Oliver’s TBI has resulted in cognitive, behavioural, physical coordination and personality changes as described by himself and his parents who were familiar with his functioning premorbidly and have had the opportunity of observing his functioning in his normal environment since his accident.

Another report from Dr Jungfer

The plaintiff’s solicitor gave Dr Jungfer some more information, including the results of his MRI and the neuropsychological testing.

In a supplementary report of 1st September 2014, Dr Jungfer explained why, although psychometric testing to that date had shown no significant cognisant abnormality, she remained of the view he had a neurocognitive disorder which was affecting his life and employability.

She said:

Psychometric testing will not determine abnormalities of initiative, motivation and changes in personality. Psychometric testing is a goal directed task that is done in sequence rather than an activity that requires parallel processing, psychometric testing is also conducted in optimal environments and therefore does not necessarily always reflect capacity to perform in the real world. At the time I saw Mr Oliver and consistent with the history provided by Dr Buckley the impairments and abnormalities that Mr Oliver reported were ones of quality rather than quantity, that is while he could still perform the activities it took significantly more effort and was associated with greater cognitive fatigue…Based on the history provided by Mr Oliver I do believe that he has ongoing residual subtle cognitive impairments that on the majority off occasions he is capable of compensating for but at the cost of cognitive fatigue. These difficulties are…not demonstrable in testing…The fact that Mr Oliver has continued with his academic studies and has been able to continue to succeed demonstrates his high level of academic motivation. The residual impairments that he reports are consistent with the known effects of traumatic brain injury.

She drew attention to literature concerning TBI suggesting depressive disorders may occur at any stage and that overall TBI patients are at greater risk of depression.

A further report from Dr Jungfer

Dr Jungfer reported about the plaintiff again (although without seeing him again) on 7th June 2016. Based on a number of assumptions put to her by the plaintiff’s solicitors, she predicted he would progressively become more alienated from his social groups, and would risk unemployment.

She said (as she had said before), that he would be at increased risk of depressive illness.

She said such a person would need to see a psychiatrist for a number of visits and take medication. If unemployed longer term he might need a support worker to act as a ‘buddy’ to help maintain social contact. He would in time also need attendant care services in the morning and in the night, she considered.

Assessment by occupational therapist Ms Alcock, for his solicitors

On 4th September 2014 the plaintiff was assessed by occupational therapist, Ms Karen Alcock at the request of his solicitors.

He told her that he was taking six Ibuprofen each fortnight for back pain. (His mother was with him for the meeting but Ms Alcock’s report identifies what each of them told her.)

He told Ms Alcock he was having word finding difficulties, had poor time orientation, was easily distracted, had poor memory for names and faces, poor planning, a tendency to be overloaded leading to anxiety, problems staying asleep, increased back pain, less coordination, breakdown in interpersonal relationships, heightened fatigue, a need for prompting with health management and social interactions, and a diminished capacity to study and engage in leisure and social activities as effectively. His handwriting had also become worse.

He told her he was able to perform most design tasks needed for his degree course, but found this hard, and stressful, and said he was not satisfied with the quality of the results.

In the course of the interview Ms Alcock observed the plaintiff did indeed have word finding difficulties.

She concluded, inter alia, that he was independent in his living arrangements but would need a considerable degree of assistance in the future.

A vocational assessment

On 10th September 2014 he was assessed by Craig Martin, a vocational assessor, at the request of his solicitor.

He told Mr Martin, inter alia, of reduced co-ordination and agility, introversion, memory and concentration problems, and reduced empathy.

Andrew Oliver Design

According to the plaintiff, after he finished his honours degree, he initiated an enterprise called Andrew Oliver Design. He hoped this would help him sell services and products from the enterprise’s website but he had no relevant inquiries from the website.

The plaintiff’s website appears to me to have been professionally created. The plaintiff told me he used it to try to attract work, such as making motorised skate boards. But according to his evidence on this issue (which, as with all of his evidence, I accept), he sold only five boards, earning a gross sum of $900-$1000. He also told me he gave away a number of the boards he made in an effort at promotion.

The Innovation Project: Vacant Space

In mid-2014 the plaintiff applied for selection to take part in an ‘innovation’ project.

He described the ‘innovation’ project on his website, as follows:

Working with Innovation ACT Local Government and Private investors my colleagues and I created a not for profit social enterprise aimed at revitalising Canberra’s CBD area through activating the vacant spaces to increase value and improve social life in the area. Through a series of innovation and entrepreneurial workshops we created and refined our enterprise, eventually pitching to stakeholders and receiving funding in November 2014.

He was selected from a number of applicants. His selection qualified him to join a team of people to participate in a ten week program “structured to guide Teams through the development and validation of a business model.” He had his fellow team members, who were all graduates in similar disciplines, and were expected to come up with (or “pitch”) an innovation project. Some teams (including his) were selected as team finalists, and received a grant to assist them with projects considered by the judges as likely to be successful. The plaintiff received $2,000 from his team’s grant. He told me he used part of this money to set up his website.

A further report from Dr Buckley

In late 2014, Dr Buckley was given a number of reports he had not had before. They included those of psychometric testing, the MRI report, and the first report from Dr Jungfer.

He did not see the plaintiff again at that stage, but having read the new material, he reported back on 25th November 2014.

He noted again that the plaintiff had been caring for himself reasonably competently. But he said that in his experience brain damaged people tend to be reclusive, and lack attention “in the long run to their domestic hygiene and personal hygiene and nutrition.” He concluded the plaintiff had a need for assistance and supervision to maintain his home and personal care. He suggested an hour per day of housekeeper care to ensure he rises, showers, and prepares himself appropriately, and that his home is clean.

He also said he needs a case manager, who would be a health care worker, to oversee his maintenance program, make sure he keeps active, and liaises with others such as doctors, to maximise his quality of life and independence. He suggested eight hours per month for six months when there is a major issue such as moving home, say every five years, and four hours per month otherwise.

He said he should see his general practitioner twice yearly, join a gym to keep fit, and employ a personal trainer for two hours per week. (I infer he did not have a detailed knowledge of the physical activities such as parkour, in which from time to time the plaintiff was engaged.)

He considered he would need a funds manager to help manage the proceeds of this case.

He thought he had been of superior intelligence before the accident and was now only of high average intelligence.

He considered he was probably employable in his chosen design field.

A consultation for back pain

On 6th April 2015 the plaintiff saw a general practitioner at Dickson, complaining of chronic lower back pain. He was referred for an x-ray of the lumbar spine. He was also advised to have physiotherapy.

On 8th April 2015 he had a spinal x-ray, the report showing wide curvature scoliosis associated with early spondylosis at L4-5, but no other abnormality.

I was not told, and the documentary evidence does not disclose, whether he had the recommended physiotherapy. There is no reference to physiotherapy in the schedule of out of pocket expenses. I infer he did not have any physiotherapy.

An orthopaedic assessment by Dr Coyle

On 25th June 2015 the plaintiff saw orthopaedic surgeon, Dr William Coyle. (Dr Coyle was not required for cross examination.)

The plaintiff told Dr Coyle he had been performing industrial design contracts, but was looking for work. He was having difficulty with work duties, he said, due to fine motor skill and memory impairments.

He also said he had impaired concentration.

He said he had chipped some teeth in the accident and his only orthopaedic injury was to his lower back. He was having back pain once or twice weekly, and when severe it would interfere with his work. The parkour helped with this, he told Dr Coyle. He was taking Brufen, having massages, and doing some stretches.

In his report of 1st July 2015, Dr Coyle said:

Mr Oliver admits to no disability as far as personal and domestic duties are concerned.

He considered the scoliosis on the xray may have been due to muscle spasm associated with back pain present when he had the xray.

He diagnosed a soft tissue sprain of the lumbar spine due to the accident. He predicted there would be gradual improvement over the years. He thought no back treatment was needed, and that he should continue with the physical exercise he had been doing.

He did not think any limits should be placed on work duties arising from the back problem. Nor did he consider the plaintiff would need any care, domestic assistance, or handyman or gardening assistance in the future by reason of his back problem.

Assessment by Ms Moore, occupational therapist, for the defendant

On 31st July 2015 the plaintiff was assessed, at the request of the defendant, by Ms Kate Moore, consultant occupational therapist.

In her report of 26th August 2015 she described the plaintiff’s presentation as “vague and laidback”.

He told her he was doing parkour, though “perhaps at a less competitive speed”. His main problems, he told her, were cognitive, with memory, hand eye coordination, and follow through of complex tasks being troublesome.

Her assessment was that he could perform his daily living tasks without the need for external help.

But in view of his cognition complaints she thought it reasonable he have some further education and training in memory and cognitive strategies to enhance his performance with work tasks. Provision of a gas detector alarm for his kitchen, she thought, was “supported”.

She thought:

[B]ased on medical reports reviewed and my assessment …he should be able to manage independently into the future in his current work role, although I agree with Dr Jungfer (1 September 2014) that he may not be capable of pursuing more complex work options that demand higher cognitive demands.

At the time she spoke to him, consistently with what he had told Dr Coyle, he said he was working as an industrial designer on contract work, but not working as much as he wanted, and getting less work than his peers. He was having problems because of “lack of motivation to seek new contracts, distractibility mid task and short term memory difficulties (for example he may forget to paint or sand something before the next task component) Overall he feels less productive in his work and is very reliant on his iPhone and calendar and post-it-notes to prompt and remind him of tasks and dates.”

A further assessment by Professor Mattick

On 12th August 2015 Professor Mattick saw the plaintiff again for the defendant, and conducted a further set of psychometric tests.

The plaintiff told him he was still having memory problems, problems with coordination, with fine motor coordination, and with concentration. He was having back pain twice weekly, requiring non-steroidal anti-inflammatory drugs; he was less interested or motivated, he had a reduced spatial awareness and sense of direction, and he was fumbling with words.

Professor Mattick however saw no signs of anxiety or depression or evidence of the things the plaintiff complained of.

In his report he concluded, inter alia:

[W]hile I accept he has some subjective sense of changed ability at times especially if in pain when his concentration may be affected by distraction, I think Mr Oliver is without any behavioural disturbance or cognitive impairment…
If there is any impairment it is indeed subtle and on that basis I do not believe significant.

The plaintiff starts work at Fink and Co

On 17th August 2015 the plaintiff began working for Fink and Co, a design firm in Queanbeyan. The then owner was the late Robert Foster, who was well known in the design industry. The plaintiff was confident that working with him would help his career. He told me he was interested in the work and when working there he had tried his hardest. He worked there until early 2016, when the firm ceased asking him to come to work.

While he was there he was spoken to on a number of occasions, he told me, about errors he was making.

That was confirmed in a conversation on 3rd July 2016 between Mr Roberts and the plaintiff’s solicitor, Ms Moloney, just before Mr Foster’s death. According to a note Ms Moloney took of the conversation, the plaintiff was prone to making mistakes, despite reminders. Mr Foster said the plaintiff would insist when reminded that he could do the job properly, but would then repeat his earlier errors. He felt the plaintiff did not realise he was making the same mistakes.

He would not have employed him again. Apart from forgetting instructions, he lacked the focus needed for the detailed work.

Assessment by consultant neurologist Professor Spira, for the defendant

On 19th August 2015 the plaintiff saw specialist neurologist Professor Spira, at the defendant’s request. This was the first of three consultations he had with Professor Spira. As Mr Watson put to me in his address, and as I agree, the three reports Professor Spira later prepared for this case, were important ones.

Professor Spira is a highly qualified neurologist.

On 19th August 2015 the plaintiff told Professor Spira he was still having cognitive and coordination problems and that his back pain had continued since the accident. The back pain would last from several hours to a number of days.

His main complaint was of memory impairment. He was also having navigation trouble. He would also have trouble finding a word. He felt his level of concentration had fallen, and that his fine motor skills had worsened, affecting his ability to sketch, and to assemble small items in the course of industrial design work.

He had had trouble doing parkour, due to impaired co-ordination.

He would take Ibuprofen for the back pain. He thought the back pain had plateaued and had noted little change in symptoms over the last one or two years.

He had started working with Fink and Co only two days before this consultation.

Professor Spira found no evidence of neurological disorder. He agreed with Dr Langeluddecke that the plaintiff had cognitive, behavioural, physical coordination and personality changes.

But he concluded, inter alia, that there were no significant restrictions on social or leisure activities, or work capacity, and that cognitive abilities were above average range, though they were perhaps diminished from pre-accident levels, concluding: “This may perhaps impact on his overall level of achievement but, nonetheless, he is capable of participating at a high level in his chosen field.”

He thought no treatment was needed, nor any form of assistance.

Some months later, Professor Spira was given additional primary medical treatment documentation, and the results of psychometric testing. He took the opportunity to look at the CT scan which had been taken at Canberra Hospital on the day of the accident. He said the original CT scan report that there had been no abnormality was incorrect, and that the CT scan in fact had shown:

[S]igns of tiny petechial haemorrhages which are in fact in sites which subsequently showed magnetic susceptibility in the MR scans obtained in May 2011. This indicates that the MR scan changes were acquired in the subject accident and traumatic brain injury clearly occurred…[However]…structural changes do not necessarily correlate with cognitive dysfunction and we know from other conditions where multiple cerebral lesions are present that cognition can remain remarkably preserved as long as the lesions are small and in relatively cognitively unimportant regions. Mr Oliver’s psychometric results in fact demonstrate this very point….[I]t is not the result of the MR scan but rather the psychometric evaluations which provide the critical information necessary to determine Mr Oliver’s level of current and future functioning…

Referring to the plaintiff’s complaints he said:

[T]he cognitive difficulties reported by Mr Oliver and members of his family are inconsistent with either the objective results of psychometric evaluation or with his scholastic performance since the accident….I have in effect changed my view in that I had previously stated that although there was no objective evidence of cognitive decline, some may have occurred in relation to the lesions reported in the MR scans. Having seen the size, number and location of those changes and taking into account the results of the four psychometric evaluations, I feel that the case cannot be made for there being cognitive impairment as a matter of course merely because the MR scans showed some abnormalities.

Assessment by consultant neurologist Dr Brew, for his solicitors

On 2nd September 2015, just sixteen days after he had started working for Fink and Co, he was seen by specialist neurologist, Dr Brew.

He told Dr Brew about his new job and that he was working only three days per week; he said he had been forgetting instructions, and had been disciplined by his employer. He had not told his employer about his cognitive difficulties.

He also told Dr Brew he had had trouble concentrating, and was finding it hard to follow complex movies and serials. His handwriting had become sloppy, and he could not multitask. He found it an effort to be with people.

His mother (who was present for the consultation) added that he would miss social cues, would talk for inappropriately long times, tell inappropriate jokes, and had less motivation.

When he examined him Dr Brew found him mentally slow and somewhat vague.

He diagnosed TBI, which he considered had led to cognitive and behavioural impairment.

Dr Brew thought the plaintiff had made the best recovery he would ever achieve, and that he was stable.

He thought in later life the plaintiff would have less cognitive reserves, so that normal aging slowing would have a greater impact.

Also, he considered he would be at increased risk of Alzheimer’s disease.

Having regard to the hospital notes, he expressed the view he had had a “severe” TBI.

He disagreed with Professor Mattick’s conclusions and those of Dr Zeman and Professor Spira’s that there was no cognitive damage.

He agreed with a view expressed by Dr Buckley that neuropsychological results can be open to interpretation, observing:

There are issues of practice effect, adequate assessment of premorbid ability and perhaps most importantly, the tools that are used as part of a neuropsychological assessment should be tailored to the issues and problems identified by the patient and family. Even then, some of the behavioural issues such as motivation can be difficult to assess. Furthermore, frontal lobe function is notoriously difficult to assess.

He thought the plaintiff had reduced earning capacity through reduced cognitive functioning involving planning and motivation.

Assessment by Dr Watson, dentist

Also on 2nd September 2015 the plaintiff saw Dr Robert Watson, a dentist, for a medico-legal report about his broken teeth.

Dr Watson concluded that he had chipped teeth 31, 32, 41 and 43 on the incisal edges, which had been repaired with direct bonded composite resin on those incisal edges.

Dr Watson observed the restorations to be worn and irregular. He considered they should be replaced in the near future, and that the cost would be $280-$300. Thereafter they would need replacing after every 4-6 years, although grinding or other factors might mean the intervals would be shorter. (Dr Watson was not required for cross‑examination.)

A further assessment by Dr Zeman

On 3rd November 2015 the plaintiff was again seen by Dr Zeman for the defendant. Dr Zeman had been given copies of the plaintiff’s medico-legal reports, and statements from the plaintiff’s parents about their observations.

When he saw Dr Zeman the plaintiff was still complaining of back pain, which he said was occurring two or three times a week and would last from one to eight hours. He also complained his short and long term memory were impaired.

Dr Zeman maintained his previous view that there had been no significant cognitive impairment. He also said he thought Ms Alcock’s recommendations for services were excessive and unreasonable.

A driving medical

On 6th November 2015 the plaintiff saw Dr Craig Smee for a driving medical examination because of his history of loss of consciousness.

Plaintiff begins working for Questacon

On 20th January 2016 the plaintiff began working in his current job at Questacon, casual employment, in which he works up to 25 hours per week.

Another report from Dr Buckley

The plaintiff’s solicitors continued to contact Dr Buckley on the plaintiff’s behalf. On 14th June 2016 Dr Buckley reported again. He was given medico-legal material which had come from the defendant and which he had not previously seen.

Having read that material, he maintained his earlier views. He said:

[I]n other than cases of extremely severe impairment, frontal lobe mediated behavioural abnormalities are difficult to test for (that is, testing does not identify subtle changes).

Referring to reports that the plaintiff had behaved inappropriately socially, had had trouble following through with plans, had lacked self awareness and initiative and had self centredness, he noted these were deficits from frontal lobe injury of relevance to the plaintiff.

He thought the plaintiff’s future employability was very much in doubt, concluding:

I no longer believe that he is employable in his chosen design field.

A report from Dr McMahon, psychologist

At about the same time, in mid-2016, the plaintiff’s solicitors sought an opinion from a psychologist, Dr John McMahon. He did not, initially, see the plaintiff. But he read a number of medico-legal reports.

He was asked to give his opinion on, inter alia, whether a brain damaged person with no cognition impairment shown on neuropsychometric testing, may yet be significantly impaired socially and at work.

On 27th June 2016 he responded, saying, inter alia:

Mr Oliver reports significant cognitive issues in the natural environment and was observed by informants as having changes in personality and behaviour consistent with executive dysfunction. That the neuropsychometric testing did not detect such difficulties is, in my opinion, due to the moderate ecological validity of these tests for these higher order executive functions in the natural environment as opposed to when the tests are administered in optimal conditions free of distractions and competing functions.
…
‘Talking a good game’ and failing to deliver is typical of the subtle changes in frontal lobe injured persons.

Dr McMahon attached an article from Neuropsychology Review, Vol 13, No 4, December 2003, called “The Ecological Validity of Neuropsychological Tests: A Review of the Literature on Everyday Cognitive Skills”, by Chaytor and Schmitter-Edgecombe.

The article explains why testing may not give a full picture.

An update by Professor Mattick

On 7th July 2016, after being supplied with reports from the plaintiff’s medicolegal advisers, Professor Mattick maintained the views he had earlier expressed, saying inter alia:

When I assessed him more than two and a half years after Mr Kirkcaldie’s assessment, I found that his full scale IQ was in the above average range, with a very good superior working memory, and above average perceptual reasoning and processing speed. ..
When I saw him some 20 months later, in 2015, his verbal comprehension had improved, suggesting that there may have been some post-accident impact which may have been related to the moderate dysphoria or to the head injury…

A further assessment by Professor Mattick

Professor Mattick assessed the plaintiff again on 5th October 2016.

The plaintiff told him of the difficulties he had had with Fink and Co, and that he had been “fired”.

He had been working for Questacon all year however and so far there had been no complaints. His intention was to stay working there.

He said he was still having trouble relating to people, and being perceptive. He was making inappropriate comments. He was forgetful.

In his report of 5th October 2016 Professor Mattick remarked that there was ‘marked overstatement’ and ‘hyperbole’ in the statements of, inter alios, Dr Buckley, and Dr Jungfer, as to his needing care.

He added:

It has been asserted that he has a personality change. This is possible, given the results of the MRI scan of the brain, although again I note Dr Spira’s view that the areas of haemorrhage are in what he terms ‘silent areas, where they go undetected and have no clinical expression’.

Again, however, he asserted the plaintiff had no cognitive impairment. Again, he said that if there were subtle disabilities, they were indeed subtle.

He expressly disagreed with Dr Jungfer and Dr Buckley as to impairment. He noted Dr Langeluddecke had changed her view, and he disagreed with her reasoning.

He was critical of Dr Jungfer and Dr Buckley, asserting they had not taken a full history of the plaintiff’s activities since the accident. In any event he did not agree with them.

As to observed problems he said “The list of assumptions are ‘assumptions’ and his parents may report some or all of these difficulties, but I do not see them”. (His reference to assumptions, I took to be to documents prepared by the plaintiff’s parents showing their observations of changes in the plaintiff’s behaviour.)

He saw no place for any care.

A further assessment by Professor Spira

On 6th October 2016 Professor Spira saw the plaintiff again.

The plaintiff told him he was having back pains approximately weekly, not necessarily related to any particular activities.

Again he said he had cognitive, concentration and memory problems, and was forgetting shifts at work, arriving at the wrong time, lacking as much physical coordination for parkour as he had had; he had ceased parkour for this reason. He had social interaction problems such as a lack of tact, saying the wrong thing at the wrong time. Overall he felt his position had plateaued.

But Professor Spira concluded, inter alia:

Overall one has to use the most accurate measure of any modality and I do not believe that that is self-reported difficulty but rather formal psychometry which has revealed normal to above normal cognition.
…Mr Oliver has managed to find a job on an open job market and is working at a level requiring above average cognitive functioning. He is also clearly able to live independently.
In summary it is my view that although Mr Oliver has clearly sustained traumatic brain injury…the cognitive consequences appear to be negligible to objective testing. I therefore suspect that his cognitive and behavioural complaints are psychogenic sequelae to the accident.

An assessment by Dr McMahon

Dr McMahon saw the plaintiff on 16th November 2016. The plaintiff told him:

(a)he was having back pain of varying intensity from 1 to 6 out of 10, suffering a short temper;
(b)his emotional reactions were subdued;
(c)he was not comprehending interpersonal situations as well, and lacked empathy;
(d)he had offended his best friend with a comment, and been oblivious to her reaction;
(e)his concentration and memory were bad;
(f)his sense of direction was poor;
(g)in his job at Questacon he had difficulty learning to engage with children;
(h)he had forgotten his shift on a number of occasions and had forgotten his computer login password;
(i)although he would like to work as an industrial designer he ‘could not get near anything complex’;
(j)he had trouble coming up with design aesthetics fitting the mechanical outcomes;
(k)he had difficulty coming up with three dimensional constructs; and
(l)he found romantic relationships too much effort.

On 30th November 2016 Dr McMahon reported, inter alia:

Mr Oliver reports a constellation of neurobehavioural changes consistent with the frontal lobe dysfunction that typifies Personality Change Due to General Medical Condition…That there is no cognitive dysfunction as measured on psychometric testing does not mean that there are no changes that affect his efficacy in general life, nor that there are not significant changes in his functioning.

He disagreed with Professor Mattick’s view that there was no psychological disorder.

On 4th November 2016 the plaintiff saw Dr Craig Smee again for a driving medical, due to the period of loss of consciousness.

A further assessment by Dr Zeman

On 29th November 2016 the plaintiff was seen again by Dr Zeman for the defendant.

The plaintiff complained to him that he was still having problems with his memory, co‑ordination, and focus. He would forget things when shopping, even with a list. He had trouble recalling names. He was anxious about a presentation he was soon to do at work, in case he forgot something. He had forgotten several of his shifts at work and had needed to be reminded about them. He would do a project or activity and then forget how he had done it when expected to repeat it.

Dr Zeman expressed the view that the neuropsychological testing by Professor Mattick and Dr Langeluddecke was not consistent with these,

various claims of difficulty and in many of the assumptions…If Mr Oliver claims that his problems have worsened this is not consistent with the expectation from organic brain injury. He claims to have no memory for names all of the time, even for people he knows. No such memory deficit has been found on objective testing. The inability to remember names of people is not a recognised isolated problem without other features such as dysphasia.

He thought the plaintiff’s ability to continue to do parkour was inconsistent with a claim that he had coordination and balance problems. But he noted that his then current physical skills were much greater than for the average person. He thought the travel he had done was inconsistent with complaints of lost executive and other skills.

He observed:

Mr Oliver is involved in a lengthy court case in an adversarial system. This tends to look for problems so as not to miss out anything but then suffers from the situation that simple everyday normal errors or other minor difficulties are attributed to the injury and there is an undue focus on possible disabilities rather than abilities. Often family members and other provide support and assistance that although well meaning may entrench this behavioural reaction. Mr Oliver has demonstrated significant abilities in many areas.

In his view the position remained unchanged from when he had previously reported, and the plaintiff was fit for normal duties and had no significant reduction of vocational opportunities. It followed that he had no need for care or therapy or assistance of any kind. He was fit to instruct his lawyers, and needed no help with financial management.

An earning capacity report for the defendant

On 5th December 2016 an earning capacity assessment report was prepared for the defendant by Michelle Alber.

A reassessment by Dr Jungfer

Dr Jungfer saw the plaintiff again on 14th February 2017. He told her his main continuing problems were with memory and co-ordination. He was forgetting activities and appointments, and could not always recall his PIN. He could cook simple things. He could drive. He could do his washing. But he no longer had the speed or co-ordination with parkour. He had a reduced sense of direction, and reduced hand to eye movement. He found it harder to appreciate humour, to understand non-verbal communication or read body language (she noticed an example of the latter in the interview).

He said he was less motivated, and more easily fatigued.

She thought he struggled to provide accurate information during the interview, such as telling her his parents’ ages.

Since last seeing him she had read reports from various experts whose reports are in evidence.

She noted the dispute about the nature of his brain injury and whether changes reported about him were consistent with the injury.

She thought what had been reported about the plaintiff by him and his family suggested there had been changes in cognitive ability manifest in “unstructured environments where there are complex and competing demands.”

I took her to say that in her view, these changes in personality and functional capacity were manifestations of the injury.

She referred to the consistency of reporting of the changes in his functional behaviour in the community in non-structured environments.

She said the psychometric tests had limitations, being structured, goal-directed, and occurring in a non-distracting environment.

She concluded again that based on the history, and the MRI scan, he has a neurocognitive difficulty with the predominant manifestations being changes in personality and higher level cognitive skills.

She thought he needed a tutor for the litigation because of his difficulties with initiative, motivation, and the timely organisation of tasks. She thought him vulnerable to exploitation.

A reassessment by Dr Buckley

On 23rd February 2017 the plaintiff saw Dr Buckley again. Dr Buckley reported about the visit on 1st March 2017.

According to his report, he was told the plaintiff was rock climbing but “He has never been able to return to his Parkour activity…because his balance and concentration are insufficient to safely perform these activities”. (I infer he recorded the reference to parkour incorrectly. Other evidence suggests strongly the plaintiff returned to parkour after the accident, but eventually gave it up.)

He reviewed up to date reports from Professor Brew, Craig Martin, Professor Mattick, Dr Zeman and Professor Spira. He said:

Neuropsychological assessment has suggested that there is no cognitive impairment. This is probably correct because he has now had four neuropsychological assessments, all of which have arrived at the same result. None of the assessments suggested any impairment of effort, and in fact his capacity was more or less “superior” in each of the assessments.
Nevertheless his parents, in particular, identify concern regarding his emotional and behavioural capacity, and a wide range of complaints have been made about his impairment in this domain….[He drew attention to a work, Neuropsychology a Clinical Approach, which explained that testing does not necessarily signify preservation of effective intelligence.]…
In other words it is well recognised that the ‘emotional and behavioural’ outcomes of traumatic brain injury are not amenable to neuropsychiatric testing. The only way of identifying these problems is through the observations of those who know the person well.
Witness observation, particularly mother, father, brothers, uncles, aunts and of great importance employers or work peers, provide the evidence required to establish the kinds of behavioural impairments that might occur, particularly in frontal lobe injury, following traumatic brain injury…
In making my assessment of Mr Oliver, I do not hold the forensic skills to determine whether or not his parents are telling the truth in their explanation of his impairments, but I had no reason to doubt them…I would note that the complaints his parents make are the complaints typically made about those with frontal lobe brain injury…
[T]he impairments identified by the observers of Mr Oliver and his own slowly dawning insight into his impairments…are the principal evidence upon which I base my opinion regarding his future requirements for care.

An additional report from Professor Mattick

On 24th April 2017 Professor Mattick, having reviewed additional documents, maintained his view that there had been no cognitive impairment.

Lay evidence on observed changes in the plaintiff

The above chronology of events discloses that from a time shortly after the accident until very recently, the plaintiff has made what I find are consistent complaints. In summary they involve:

(a)Memory
(b)Concentration
(c)Co-ordination (with physical effort such as with parkour, and with fine motor movements such as with free hand drawings)
(d)Lack of emotional involvement, or empathy
(e)Reduced motivation
(f)Personality change
(g)Absence of social cues, or clumsy social skills
(h)Word finding difficulties
(i)Spatial awareness difficulties
(j)Back pain.

The plaintiff’s oral evidence

The plaintiff said he was born on 7th November 1990; so he is 27. He is a quietly spoken young man. He recalled his several schools, primary and secondary, before finishing at Narrabundah Secondary College. He recalled being physically good with his hands as a boy, making billy carts and the like. He recalled good relationships with his siblings. He had deferred university after school so he could travel. He obtained a job at Monaro Timber in August 2009, the year after he left school.

He began his university studies in 2010 at UC.

Before the accident he had started undertaking parkour, a physically demanding activity.

He had little recall of the accident on 27th August 2010 or its immediate aftermath, saying:

I remember seeing a flash and realising there was another car that wasn’t going to be able to stop. I remember fear and panic after I was hit and knowing I was out of control and spinning and turning but beyond that spinning and turning…

He had a hazy memory of being in the hospital, and of two friends being there. He did not recall going to his parents’ property after discharge from hospital.

He recalled little of when he stayed with his parents on their farm. He did remember sleeping a lot. He had no recall of signing a request for the university to let him defer some of his subjects.

He recalled having been to Fiji and Vanuatu in early 2011 but significant parts of the journey he could not recall.

He recalled seeing Dr Katsogiannis.

He had no recall of having an MRI scan on 31st May 2011 or of undertaking psychological test shortly after.

He did recall that after the accident he performed his university assignments in shorter bursts than before. He recalled being tired, and spending less time with his student groups than he had before the accident.

In early 2012 he was in another car accident. The car he was in rolled over. He was taken to hospital but released that night.

He believes he socialised less often after the 2010 accident.

He told me that at one point after the accident he had a job stacking products for Woolworths, and although he had managed the work, he had taken some time to work out the location of products in the store.

At the end of that academic year he had received the Dean’s Prize.

He told me of applying to go to Ireland as an exchange student.

Going to Ireland had led to his giving up the stacking job. While in Europe he travelled, including to Belfast, Barcelona, and Milan.

He said that after the accident he had found parkour harder, having a lot more difficulty with basic movements. For example jumping is involved, and he found he could not jump as high. He eventually gave up parkour after becoming demoralised.

He told me he found he would upset some people when in their company, and that some friends had drifted away, but others remained.

He goes to the pub from time to time, perhaps six times per year, with a friend.

His parents and his younger sister worry about him more now, he said.

He has done some design work, including designing a hair dryer.

He first met up with his solicitor in October 2013.

Late in 2013 he had a bicycle accident and his face was grazed. He went to the emergency department of a local hospital the next morning and was examined but had no relevant sequelae.

In 2014 he did the honours part of his degree and for the necessary written work had help from his father, a sister, and a friend, Elizabeth Collier. He had his thesis edited by a professor at the university.

I took him to say he was truthful when he saw Dr Jungfer, and when seeing all the other doctors. He also said that what he had heard his mother say in his presence when he saw those doctors had been true. (“I don’t remember any lies being told.”)

He told me about setting up his web site called Andrew Oliver Design, saying he used it to advertise, but had not received any work from the site.

He said he had started making some things but had then abandoned them, due to lack of motivation.

He had advertised long boards (skate boards used for commuting) and sold some to friends and given some away to help advertise his expertise. He had received sums in the region of $180-$200 per board sold. He had sold only five.

Asked about problems the plaintiff had had at work, he said the problems were conventional: everyone must get used to working in a new job.

Professor Mattick gave his evidence by telephone. But that did not seem to interfere with his flow, or the ability of counsel to examine or cross-examine him.

I am impressed by his high qualifications but I prefer the views of those called for the plaintiff for the reasons I have given.

Occupational therapists

Karen Alcock

The plaintiff tendered an occupational therapy report from Karen Alcock. Ms Alcock has a B.Sc in occupational therapy from the University of Cape Town. Her curriculum vitae shows she is highly qualified in her field.

For the purpose of preparing her report she met the plaintiff at his home in Canberra. Then she prepared her report of 17th March 2015 containing recommendations for assistance with aspects of his life.

Her report was thorough, and recommended a number of measures to help him, such as occupational therapy, home cleaning and gardening when he leaves his current environment, and provision of equipment.

In circumstances where the plaintiff is living an apparently normal life without any of the assistance she recommended, it is not surprising her opinions that he will need that assistance as a result of the accident, were challenged.

It was clear to me she had made a number of assumptions based on what she had been told when being asked for her report, and the assumptions were not necessarily well based.

She was asked about equipment needs and she said he had needed a smart phone, a tablet and a desktop computer. She said he needed all three. The desktop, for example, is appropriate for certain programs for which the other devices are not. I accept that evidence.

She maintained he would need help from a case manager. I took her to say this would not be an intrusive person in his life, but someone who helps him vocationally, through the more difficult times, when there are competing pressures at work, and domestically, such as when getting a divorce.

She considered if he were not in his current structured environment, he would need help with gardening, housework and the like.

I considered Ms Alcock was not experienced as a witness. At times her answers were not responsive to questions. But I thought she did her best and was honest and straight forward. I accept her evidence.

Kate Moore

The defendant called occupational therapist, Kate Moore.

Ms Moore met the plaintiff on one occasion, spending about two hours with him. She provided a report dated 26th August 2015 and a short supplementary one of 10th May 2017.

She was provided with a number of medical reports for her first one. She was also given a copy of Ms Alcock’s report.

Her view of the plaintiff’s needs was different from that of Ms Alcock. In all, she considered there was a need for 40.4 hours of past care justified. For the future, she said he needed up to six hourly sessions of memory, cognitive strategies at $170 per hour plus GST, and eight to ten hours of vocational counselling at $170 per hour plus GST, an all up cost for both types of therapy of $2,380-$2,720. She also said he needed an allowance for a gas detector alarm for his kitchen.

When cross-examined Ms Moore had a tendency not to answer questions, but instead to answer ones not asked, or to give explanations, sometimes quite long, for her views.

She was impressed by his physical agility and saw no cognitive problems.

However she agreed the plaintiff had forgotten she was coming on the day she visited him, although he had put the appointment in his personal organiser. So that as she conceded, on the one time she met him, the aid for his memory did not work.

She also agreed that in every day life he would be vulnerable to the vagaries of social interaction and would function more predictably and better in a structured environment. She said she had seen impaired capacity “[i]n the higher level tasks, more pertinent to work”.

I did take her to say that if one accepted the histories of the plaintiff and his family about his ongoing problems, then he would have needs she had not accepted he had.

Finding on cognitive damage

I find that the TBI led to permanent cognitive damage manifesting in executive functions, memory problems, lack of concentration and coordination, lack of drive, lack of empathy, and an inability to read social cues.

I find the damage has affected and will affect the plaintiff’s ability to maintain and obtain employment and social relationships.

I find he will at times suffer depression from, inter alia, the inability to work in his chosen field to the degree he would like, and rejections for jobs or dismissals from them. He will have a need for treatment for the depression. I find there is a chance he will suffer Alzheimer’s disease by reason of the damage to his cognitive functioning.

I find he will incur expense in having treatment for depression.

The injuries, I find, led to his delaying his graduation by a year.

I find he will continue indefinitely to suffer back pain, that it will not be disabling, but will involve him in some expense for medication such as Ibuprofen.

I find he will have a need to pay for one general practitioner visit per year for his life expectancy so he can maintain his driving licence, and maintain contact with a practitioner who can refer him to appropriate specialists such as psychiatrists. As he grows older, the number of visits will increase.

I find he will be permanently unable to maintain full time work in his chosen field or other work which is of equal income potential. I am satisfied he has done his best to get work since the accident. But his personality changes, loss of ability to judge social cues, inclination to say inappropriate things, loss of concentration and the like, will make him vulnerable to unemployment, and when he is employed he will more likely be in positions akin to the one he currently occupies, with not a lot of initiative needed, and not a big need to get on with other adults.

I find he is able to maintain a normal life under his current regime, but that when there are changes to it, as there must be at times throughout his life, he will need help. Such changes will include when he moves into a home of his own, or lives with someone with whom he is in a romantic relationship.

Precisely what that help must be is difficult to identify and value.

The reasons for that include that the expert witnesses for the plaintiff are not as one on what is needed or when. Dr Buckley for example sees the need for a very large amount of care. I do not consider that view is in accord with the plaintiff I have had the opportunity of watching give evidence over a day and a half.

The plaintiff, to my observation, is intelligent and resourceful. His family, to my observation, is a close, loving, and supportive one. I am satisfied his parents will offer him good counsel and make themselves available to help him to the best of their ability. They are still relatively young, but their life expectancies are obviously much less than that of the plaintiff. He has two sisters and a brother. From my observations of his sister Jess, who gave evidence, and his brother, they will also be supportive. But they have their own lives to live and it must be assumed there is a limit to what they can do to help him.

When I asked Mr Watson what I should do if I found cognitive changes had occurred and they were ongoing and subtle and so not picked up by the testing, he said, though not making concessions, I could award “something in the order of a buffer”.

I will now proceed to assess damages to be awarded.

Damages assessment

General damages

In summary, the plaintiff suffered the following injuries:

(a)pneumothorax;
(b)multiple cuts and abrasions to the face;
(c)retrograde and antegrade amnesia;
(d)hospitalised 4 days;
(e)damaged front teeth;
(f)low back injury of long lasting effect;
(g)closed head injury and TBI; and
(h)cognitive losses, both current and future.

The plaintiff’s counsel submitted an appropriate award would be $300,000, though acknowledging minds could reasonably differ on the issue.

He submitted it would be appropriate for me to look at awards in other jurisdictions. In that connection he told me without objection that the maximum sum for non-economic loss under the Civil Liability Act2002 (NSW) is currently $612,500.

In his address Mr Watson made the point that there has been no treatment since he was discharged from rehabilitation two years after the accident. That speaks volumes, I took him to say. In his schedule of proposed damages he submitted an appropriate award for general damages was $100,000.

Given the TBI, what I have found to be cognitive injury, loss of coordination for performing high performance physical activities such as parkour, the dental injuries and the long term need to return for dental capping each three to four years, and the back injury which I find has caused long term pain and will continue to do so, I assess general damages at $300,000.

Interest on general damages

It is agreed that I should allow 2% on half the general damages award. I allow 2% on $150,000 for seven years, or $21,000.

Past care

I find that the accident led to the need for others to care for the plaintiff after the accident. The defendant has calculated that as $1,616, being 40.4 hours as per calculations by Ms Moore in her report at an hourly rate of $40.

However the plaintiff has calculated it as $4,010.51 from the report of Ms Alcock of 17th March 2015. There she refers to 4 visits to hospital at 5 hours each time, and home care for two weeks at 4 hours per day. Then there were many visits to doctors, where he was accompanied by one or more parents.

It was not suggested the visits to doctors as part of the legal process was not damage of the type referred to in Griffiths v Kerkemeyer (1977) 139 CLR 161. I consider the assistance from his parents was reasonably provided. Further, it would have been reasonably necessary for the services to be provided at a cost.

So I would allow the full amount claimed, $4010.51.

Interest on Past care

I would allow interest on that sum from when the services ceased, namely seven years ago. I adopt an interest rate of 4.5% as the services have been rendered over the last seven years.

On $4,010.51, for seven years the sum of interest calculated is $1263.31.

Past economic loss

The defendant has made an allowance in her submissions, of $50,000 for past economic loss. How that sum is calculated is not disclosed. I took counsel for the defendant to have put it forward as a buffer.

However the plaintiff contends for a greater sum. In the particulars at page 18-19 of the court book there is a claim of $133,542.35; the difference between what the plaintiff says he would have earned but for the accident, and what he did in fact earn between the time of the accident and the 19th January 2016, when he began working in his current position. To that he adds $26,186.75; the accumulated difference as at 17th November 2017 between his Questacon earnings of $827.35 per week, and the sum of $1,103, which is the sum he says he would have earned if able to work as an industrial designer. The ongoing differential is $275.65. The total claimed to date is $159,729.10.

I am satisfied the plaintiff has done all he reasonably could to obtain appropriate paid employment since the accident. The evidence about availability of industrial design work however suggests it would not necessarily have been available for the whole time since the plaintiff would have been qualified for such work.

I infer there would have been times when he would have worked in other areas, some of which would have paid less than the rates at which he has claimed. I consider the appropriate sum to award for past economic loss is $145,000.

Interest on past economic loss

I would allow interest of 4.5% on $145,000 for five years, or $32,625.

Past superannuation loss

For past superannuation loss I allow 11% of $145,000, or $15,950.

Future Economic Loss

Calculation of this loss is far from amenable to precision. He may work all his life. He may receive significant promotions, or invent a highly creative device. Or he may give up work early, suffering along the way from many blows from lost opportunities for promotion.

In a supplementary report of 28th June 2016 Professor Brew considered the injury put the plaintiff at increased risk of psychiatric illness and depression, (as Dr Jungfer had said from the beginning). He thought he would have trouble keeping a job, would suffer loss of self-esteem, and have a propensity to depression as the process is repeated:

“Cumulative loss of jobs leads to further inability to gain a job because of the history of loss of jobs. This further compounds the whole process leading to an increased likelihood of depression.”

He also thought he had an increased risk of epileptic seizures and would need medication if that occurred.

Dr McMahon said he will have difficulty maintaining a job, with self-esteem being damaged by repetition of losing jobs.

Dr Jungfer said people such as he, who attempt to work at a high level, may become depressed on meeting difficulties caused by the cognitive impairments. She spoke of a failure to complete tasks as something employers will not tolerate.

I regard it as impressive that he is working now, has worked in the same job for almost two years, and seems to enjoy the work, although he regards it at times as child minding.

I am satisfied that had the accident not occurred he would not have worked exclusively in the industrial design field: the evidence does not suggest availability of large amounts of such jobs, and the income from available jobs is somewhat modest. So he would not necessarily have stayed in the industrial design field.

However I accept Mr Campbell’s submission that he will be vulnerable to losing his job by reason of his lack of social cues and social judgment. For example he told Professor Mattick of an incident when he made a sexist comment to school children, suggesting women have a smaller brain than men. That is not highly significant incident but a little worse and he could be vulnerable to being discharged or not asked to continue.

I am satisfied he has proved there is a significant chance he will have to give up work early. I would estimate the chance at 30%.

The plaintiff claims $1,122,082.55 for future economic loss. The defendant in her schedule would only allow $50,000, submitting this is an appropriate case for the award of a buffer rather than one based on precise figures.

The plaintiff divides the claim into three sectors, one to age 30, with the current differential of $275.65 and no deduction for contingencies, then age 35 to 40, then age 45 to 70. The calculations involve deferred figures and deduction of 15% for contingencies on the second sum and 20% on the third.

Underlying assumptions of that calculation include that the plaintiff at a point in his life will begin to earn less than he earns now, and then at an age when but for the accident he would still have been earning, give up work altogether.

If one adopts a simple calculation using the $275.65 differential for 30 years, to age 67, on the 3% table before deductions for contingencies, the sum derived is 1038.1 x $275.65=$286,152.27.

I consider it likely he will have some protection from unemployment by having family members help him. At least while his father is fit and well, I think it probable he will support the plaintiff by providing some employment on the family farm. Although his brother has had his difficulties with him he also would do his best to see he has at least some limited form of employment in his business. I do not see these as likely to be highly productive areas. I merely mention them as matters I take account of.

When addressing me on economic loss Mr Campbell said it would be open to me to award a lump sum by way of a buffer, but guided by his calculations to evaluate it. He referred me to Young v Rothin [2009] ACTSC 71 at [267] et seq. I proposes to award a sum by way of a buffer.

Taking into account all the above matters I consider the appropriate sum for future economic loss is $200,000.

Future Superannuation

I would add 14% for superannuation, as I find that but for the accident, when working, he would probably have worked as an employee. The superannuation payment is $28,000.

Past out of pocket expenses

These were agreed at $6,726.18.

Interest on past paid out of pocket expenses

The bulk of past out of pocket expenses was for hospital fees. Only $350 had been paid. That was for dental work. I was not told what sum was paid on what date although a schedule of out of pocket expenses shows there were payments on separate dates. No claim was made for interest however, so I make no award for interest on past out of pocket expenses.

Future out of pocket expenses

I bear in mind the defendant’s submission that the plaintiff has spent only a few hundred dollars for treatment in the last seven years. I also note the defendant submits $10,000 in total should be the maximum award under this head.

There was evidence the plaintiff buys Ibuprofen for his back pain. As well, he needs to see a general practitioner annually to maintain his driving licence. There will be ongoing dental work needed. There is also the future psychiatric treatment referred to by Dr Jungfer on 7th June 2016.

The annual cost of two GP visits has been calculated by the plaintiff in his schedule of damages, at $7451.11 for his life expectancy. At the moment I see no need for GP visits except one per year for his driving licence. I infer he will need more visits as he ages. I would allow for this item, $5,000.

There is a claim for a rehabilitation specialist to conduct an annual review at a weekly cost of $10.10, totalling $14,618.74 for his life expectancy. While I am satisfied he has proved this need at least for part of his life, it will be some years before any expense for this item will be incurred. I would award $12,000

The plaintiff claims $6,000 for dental treatment. He has established a claim of $280-$300 each four years or so. With his life expectancy he would need about 14 treatments at say $290, or $4,060. I would allow $3000 for this item.

He claims for future medication. I am satisfied he needs medication for his back pain. There is no evidence as to the cost of medication. There is a significant chance he will need some medication for future psychiatric care. I would allow for future medication $5,000.

The plaintiff also claims $1,198.75 for an occupational therapist intervening for 5.5 hours then a weekly sum of $5.22 for his life expectancy, totalling $7,555.42. He claims $19,035 for vocational intervention, a total of three times in his working life. I would allow $2,500 on this claim.

Finally, a claim is made for $8,040 for treatment by a psychologist or psychiatrist. I consider it unlikely he will have more than minimal intervention of that kind and would award $2500.

Together these sums come to $30,000.

A case manager

A number of health care professionals in the plaintiff’s case have given opinions about the future need for assistance.

Mr Campbell submitted an allowance should be made for a case manager when he starts living independently. He gave evidence that that is what he would like to do, and in my view it is a reasonable ambition. He has never lived alone.

Mr Campbell submitted an arbitrary date starting from his 30th birthday for when he might start living alone. The carer would check with him to see he gets up and goes to work.

He referred me to Verryt v Schoup [2015] NSWCA 128; 70 MVR 484 as an illustration of how this head may be calculated.

He submitted the number of hours would increase as he gets older to take account of depressive illness. The nature of the assistance may change if he ceases work. As he put it, “it has that function of trying to stop you being the strange man up the street who’s socially isolated as you’re getting older.”

He submitted a case manager would also be needed “if there were these deficits”. He referred me to the report of Ms Alcock.

Mr Watson submitted the opinions of the experts who recommended this were undermined, since their recommendations were obviously currently inappropriately excessive.

Of the variety of recommendations by experts for the plaintiff, that of Professor Brew seems to me the most helpful, as it seems to me the most realistic, and in accord with my own observations of the plaintiff and his family.

Professor Brew said he will function in a predictable and structured environment, but will be vulnerable in every day life, so will need some form of assistance.

He said:

I think he requires someone in a supervisory capacity to act as his protector, if you like, to ensure that he remains in a structured environment: that he’s not vulnerable to be exploited by people who would take advantage of the fact that he has poor social interaction and poor appreciation of cues.

He said the time would be a matter for negotiation. It would be done in consultation with various professions, including his own. It would be multidisciplinary, including with occupational therapists, psychiatrists and neurologists, leading to a health plan to work from.

Dr Buckley said that in the long run people with brain injuries tend to reclusivity and pay less attention to domestic hygiene, personal hygiene and nutrition. He sees the need for a case manager for eight hours per month for the first six months of a new arrangement, such as a new dwelling, allow for this rate every five years, and four hours per month in the other years. He also saw the need for home care of seven hours per week. I took that to be in the long run, rather than straight away.

Dr Jungfer in her report of 7th June 2016 spoke of the need for “attendant care support”, being supervision, prompting and monitoring morning and night, She thought an hour in the morning and one to two in the evening was “reasonable”.

Ms Alcock says TBI patients have trouble with fatigue, planning, and the like, so need a case manager, preferably a medical professional with a special interest in working with brain damaged people. She says the case manager would help facilitate referrals to specialists, therapists and others and help implement the arrangements. She estimates 52 hours per year, 12 hours travelling time, and three hours of report writing, a total of 68 hours per year. She says $175 per hour for management and $192.50 for travel and report writing are current rates.

I am satisfied the plaintiff has proved on the balance of probabilities that while he has no current need for that type of assistance, there is a significant chance that he will have such a need. The difficulty is to say when that may occur. Mr Campbell submitted I should assume the starting age will be 30.

However he is still quite young and highly physically fit. I consider 30 is too early as a starting point. And I am not satisfied he would accept such care. It is, after all, to be negotiated. His parents are relatively young, and at the moment perform this role.

I consider a more realistic starting age to adopt is 47. The claim is for two hours per week. I am inclined to the view that while there may be times when two hours would be needed, for most of the time one hour would suffice.

The view I have reached is that there is a 30% chance that from age 47 onwards, in twenty years time, for his then life expectancy, he will need two hours per week of case management.

Assuming $1 per week from age 47 for 38.22 years (current life expectancy being 58.22) on the deferred tables, $1 being 0.554 deferred for 20 years, then at two hours per week at $175 per hour the lump sum undiscounted would be $385,364.

Thirty percent would be $115,609.20. Having in mind the many contingencies I would award for this head, $100,000.

Future commercial care

In his schedule of damages the plaintiff claims $1,029,407 for future commercial care. This is claimed based on $55.52 per hour (Alcock report) deferred for three years. The assumptions include a daily cost of $111.04, a weekly cost of $777.28 with a multiplier of 1447.4 and a deferred value of 0.915.

Based on my above findings, I consider there will be a need for some commercial care of the type referred to by, inter alia, Dr Buckley and Ms Alcock.

Thirty percent of the sum claimed is $308,822. Having in mind here too the many contingencies, I consider the appropriate sum to award under this head is $200,000.

Funds management

Although the plaintiff initially made a claim for funds management, it seems to me the plaintiff did not satisfy the relevant authorities. I took Mr Campbell to abandon this claim.

Summary of Damages Award

A summary of the damages is as follows:

(a)General damages:   $300,000
(b)Interest on general damages:            $21,000
(c)Past care:      $4010.51
(d)Interest on past care:   $1263.31
(e)Past wage loss:   $145,000
(f)Interest on past wage loss:                $32,625
(g)Past superannuation loss:                 $15,950
(h)Future economic loss:   $200,000
(i)Future superannuation loss:              $28,000
(j)Past out of pocket expense:              $6,726.18
(k)Future out of pocket expenses:         $30,000
(l)Future case manager:   $100,000
(m)Future commercial care:                   $200,000

Total $1,084,575.00

There will be judgment accordingly.

Application to set aside appointment of Susan Armstrong as litigation guardian

The defendant has applied by way of application of 27th April 2017 to set aside the appointment of the plaintiff’s mother as litigation guardian.

The grounds of the application are that she became guardian more than six years after the accident and “the defendant contends the plaintiff does not suffer from a legal disability which warrants or permits the appointment of a litigation guardian”.

In support of the application, the defendant by his application gave notice he would rely on oral evidence from the hearing and reports of Professor Mattick, Dr Zeman, Professor Spira, and Ms Moore.

The plaintiff’s mother was appointed litigation guardian for the plaintiff upon application being made.

The order sought was granted on being made.

I infer the plaintiff’s solicitor made the application based on medical evidence. There is certainly evidence from doctors consulted by the plaintiff, suggesting the plaintiff needed a guardian.

And r 275 of the Court Procedures Rules 2006 (ACT) is quite explicit, that a person with a disability may carry on a proceeding only by that person’s litigation guardian.

But r 50 relevantly defines a person with a legal disability as follows:

Person with a mental disability, for a proceeding, means a person who is not legally competent to be a party to the proceeding, and includes the person even if a guardian or manager has not been appointed…under the Guardianship and Management of property Act 1991.

Having had the benefit of observing the plaintiff giving his evidence over a considerable period, and reading the reports tendered by both plaintiff and defendant, I am quite unpersuaded the plaintiff is a person with a mental disability.

The disabilities of which he has complained since 2010 do not contradict that. They are consistent with it. He functions quite normally day to day, (and performed well when giving evidence) but suffers from the everyday problems of memory, concentration, and planning, of which he has long complained. Those problems do not make him a person with a mental disability.

The proceedings should be carried on by him in his own name, with no litigation guardian. I propose to set aside the appointment of Susan Armstrong as litigation guardian.

ORDERS

I make the following orders:

(a)Set aside the order appointing Susan Armstrong litigation guardian.
(b)Judgment in favour of the plaintiff for $1,084,575.00
(c)The defendant is to pay the plaintiff’s costs.
(d)If either party wishes to submit that I should make a different costs order, he or she must file and serve written submissions within seven days from today.
(e)The opposing party may have seven days thereafter, to reply in the same way.

I certify that the preceding six-hundred and ninety-seven [696] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Walmsley.

Associate:

Date:

[2017] ACTSC 360

12 December 2017