Reynolds v The State of Western Australia [No 2]
[2013] WADC 176
•22 NOVEMBER 2013
[
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: REYNOLDS -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2013] WADC 176
CORAM: HERRON DCJ
HEARD: 5-22 AUGUST 2013
DELIVERED : 22 NOVEMBER 2013
FILE NO/S: CIV 1482 of 2009
BETWEEN: STEVEN NOEL REYNOLDS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
First DefendantBECTON PROPERTIES LTD
Second DefendantKONE ELEVATORS PTY LTD
Fourth Defendant
Catchwords:
Damages - Personal injury- Stroke - Psychiatric injury - Assessment - Loss of earning capacity - Need for domestic assistance and care and support - Cost of fund management - No legal incapacity - GST
Legislation:
Workers' Compensation and Injury Management Act 1981 s 92
Result:
Damages awarded to the plaintiff in the sum of $2,037,292.94
Representation:
Counsel:
Plaintiff: Mr G Droppert
First Defendant : Mr M Tedeschi
Second Defendant : Mr M Tedeschi
Fourth Defendant : Mr M Tedeschi
Solicitors:
Plaintiff: Shine Lawyers
First Defendant : Bowen Buchbinder Vilensky
Second Defendant : Bowen Buchbinder Vilensky
Fourth Defendant : Bowen Buchbinder Vilensky
Case(s) referred to in judgment(s):
A v City of Swan (No 5) [2010] WASC 204
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Bowen v Tutte (1990) Aust Torts Rep 81‑043
Gagner Pty Ltd t/as Indochine Café v Canturi Corp Pty Ltd [2009] NSWCA 413
Jongen v CSR Ltd (1992) Aust Tort Reps 81-192
March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
Masterman‑Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511
Mortimer v Burgess (1997) 25 MVR 463
Nicholson v Nicholson (1994) 21 MVR 125
Nominal Defendant v Gardikiotis (1996) 186 CLR 49
Nominal defendant v Martin (1997) 26 MVR 474
Villasevil v Pickering (2001) 24 WAR 167
White v Fell (Unreported, EWCACiv, 12 November 1987)
Willett v Futcher (2005) 221 CLR 627
HERRON DCJ:
Introduction
In May 2003 the plaintiff (Mr Reynolds) was employed in the Western Australian public service as a policy coordination officer at the Department of Planning and Infrastructure (DPI). The DPI's offices were at 441 Murray Street, Perth.
At about 7.10 pm on 22 May 2003 as he was leaving work, Mr Reynolds caught a lift travelling to the basement of the premises. When the lift reached the basement and the doors opened the lift stopped short of the level of the basement floor. As Mr Reynolds stepped from the lift to the basement, being unaware the lift had not fully reached the floor level, he stumbled and fell jarring his neck and back.
On 6 June 2003 Mr Reynolds suffered a cerebrovascular injury or stroke (the stroke). Mr Reynolds alleges, and the defendants admit, that as a result of the incident on 22 May 2003 when Mr Reynolds stepped out of the lift and fell, Mr Reynolds suffered a traumatic dissection of his left carotid artery, which in turn, led to the stroke. The stroke caused damage to the left insular cortex.
Mr Reynolds continued working after the incident on 22 May 2003. When Mr Reynolds suffered the stroke on 6 June 2003 he was at his home by himself. He called an ambulance and was taken to Royal Perth Hospital emergency department. He remained hospitalised at Royal Perth Hospital (RPH) until 15 June 2003. Following his discharge from RPH, Mr Reynolds underwent rehabilitation from the effects of the stroke including occupational therapy and attendances upon various doctors during which he was incapacitated for work.
In September 2003 Mr Reynolds commenced a graduated return to work (at DPI) with the assistance of a vocational rehabilitation service and by about January 2004 was working six hours per day. When he suffered the stroke, Mr Reynolds was employed on a full‑time basis in a level 5 position in the State public service with DPI.
In October 2007 Mr Reynolds commenced employment with the Department of Industrial Relations (DOIR). By mid‑2009 he was employed in the Department of Mines and Petroleum (DMP) in a full‑time capacity as manager of strategic coordination in a level 7 position.
On 6 July 2009, at the request of Risk Cover, the worker's compensation insurer for the first defendant, Mr Reynolds was reviewed by a consultant neurosurgeon Professor Reilly. Professor Reilly concluded Mr Reynolds was unable to fulfil the requirements of his level 7 position. Professor Reilly was provided with a copy of a report of Mr Reynolds' general practitioner Dr Moussa of 22 February 2009. In that report Dr Moussa concluded, inter alia, Mr Reynolds suffered various restrictions at work and was not fit for his pre‑accident employment. Dr Moussa thought Mr Reynolds:
Would best be suited to work in a supernumerary capacity where there is not severe work pressures, time restrictions, and constraints that would be straining his mental function and capacity.
Professor Reilly agreed with the limitations set out by Dr Moussa in his report.
Following receipt of the reports of Professor Reilly and Dr Moussa Ms Woodley, in a memorandum dated 22 July 2009 to Mr Sellers, the director general of DMP, advised 'DMP is unable to accommodate the restrictions on his medical reports in his current role' and recommended that Mr Reynolds be directed to remain home until it was established that suitable duties could be arranged. That recommendation was apparently accepted by Mr Sellers on 27 July 2009.
By letter dated 28 July 2009 DMP advised Mr Reynolds that two medical reports it had obtained 'raised serious concerns about your ability to undertake your duties at work' and advised Mr Reynolds:
DMP has considered the information provided and regret to inform you that we are unable to identify a suitable role for you. Therefore you are being directed to remain at home from today (28 July 2009) until a return to work programme has been facilitated …
No return to work programme was ever 'facilitated' for Mr Reynolds. Mr Reynolds has never returned to work since 28 July 2009.
The second defendant had control over and was responsible for the day‑to‑day management and maintenance of the premises at which the incident on 22 May 2003 occurred. The second defendant also appointed Kone Elevators Pty Ltd, the fourth defendant, to service and maintain the lift from which Mr Reynolds stepped and fell.
Liability is not in issue having been agreed between the parties on the basis the first, second and fourth defendants admit liability, there being an apportionment of contributory negligence against Mr Reynolds of 10% and the action against the third defendant be dismissed. The first, second and fourth defendants have between them, agreed their respective apportionment and, accordingly, I am not required to determine any apportionment between the defendants.
When the trial commenced on 5 August 2013 it remained in issue whether the incident on 22 May 2003 caused the stroke suffered by Mr Reynolds on 6 June 2003. However, on 8 August 2013 counsel for the defendants formally admitted the stroke suffered by Mr Reynolds was caused by the jarring‑type injury suffered by him to his neck and back in the incident on 22 May 2003 as pleaded at par 18 of the statement of claim which reads as follows:
At or about 1910 hours on the material date:
a)Mr Reynolds was a passenger in the lift travelling to the basement of the premises;
b)The lift reached the basement, stopped and opened its doors;
c)The lift had not reached ground level, being approximately 30 to 50 cm above ground level;
d)Mr Reynolds was carrying objects in his arms in front of him;
e)Mr Reynolds disembarked from the lift, being unaware that the lift had not reached the ground level when its doors opened;
f)Mr Reynolds fell when disembarking from the lift, having extended his right leg to the ground, causing him to jar his leg, back and neck, sustained the injuries referred to in paragraph 30 herein ('the incident').
Counsel for the defendants also admitted Mr Reynolds suffered the injuries pleaded at pars 30(a) to (c) of the statement of claim which reads as follows:
a)Cerebrovascular accident;
b)Traumatic dissection of the left carotid artery;
c)Left insular cortex infarction;
Counsel also admitted that as a result of the injuries Mr Reynolds has suffered loss of vision in the left eye as pleaded at par 32(d) of the statement of claim.
It remains in issue whether and, if so, to what extent Mr Reynolds has suffered and continues to suffer the residual disabilities and symptoms pleaded at pars 32 and 33 of the statement of claim and if he does suffer those residual disabilities, whether they are caused by the injuries the defendants admit Mr Reynolds suffered as a result of the incident on 22 May 2003.
The insular cortex
Dr Stephen Buckley, a rehabilitation physician called on behalf of Mr Reynolds, explained the role of the insular cortex in the functioning of the brain as being a kind of a relay connecting the frontal, temporal and parietal lobes of the brain together. The insular cortex is at the base of the three lobes of the brain and connects the information from each of the three lobes. The frontal lobe is the seat of personality, the temporal lobe is where memories are housed and the parietal lobe is where perception of surroundings or environment is processed. Therefore damage to the insular cortex can cause a disconnection between the three different functions of the lobes of the brain causing a disconnection between memory, personality and perception (ts 474 – 475).
Dr Marjorie Collins, a clinical psychologist, was called on behalf of Mr Reynolds. She holds qualifications in and has experience in cognitive neuropsychology. She is qualified to conduct neuropsychological testing. Dr Collins described one of the primary functions of the insular cortex was to help make sense of social and emotional issues and integrate them with your own responses and then respond to another person (ts 563). In cross‑examination Dr Collins said (ts 570):
… The insular cortex, because of its extensive interconnections between higher and lower brain centres, if you have damage to the insular cortex, you're going to get a much greater range of problems. Even with relatively small damage, you'll get a greater range of problems because the messages are not getting up clearly or getting down clearly from the higher brain centres, to help the person to function.
… The extent of damage to the brain is small, but the extent of impact on function is large because of the nature of the damage.
A psychiatrist, Dr Oleh Kay, was also called on behalf of Mr Reynolds. Dr Kay was asked by Mr Reynolds' solicitors to review Mr Reynolds. In a report dated 1 March 2011 Dr Kay concluded his diagnosis was that Mr Reynolds suffers from organic brain syndrome primarily affecting the left insular cortex and its connections to the frontal lobe and other anatomically related parts of the left brain. In his evidence (ts 610 – 612) he explained that when he originally wrote the report he did not know much about the insular cortex and has since learned more about it. He described the insular cortex as quite an important part of the brain which acts as an interconnection or a switching house between various critical parts of the brain, in particular the frontal lobe, but also integrates information from the parietal and the temporal lobes on an unconscious level. He said that a whole variety of seemingly unconnected symptoms are caused by impairment of the insular cortex. When he asked Mr Reynolds to write down the symptoms which were causing him the most concern, Dr Kay realised they were symptoms of insular cortex dysfunction.
Dr Kay explained the frontal lobe is where the executive functioning sits which includes the capacity to plan strategies and to inhibit impulsive behaviour. It is critical for the capacity to read maps, for the understanding of humour and for the understanding of motives of other people. He described it as 'The part of the brain that really makes us human. It's where our personality sits'.
Dr Kay also explained that difficulties with initiating and completing tasks were a classic frontal lobe syndrome which is also described as insular cortex dysfunction. He said there was no organic damage to the frontal lobe but there was damage to the insular cortex which was functionally connected to the frontal lobe. The insular cortex is a very important and critical part of the brain which is the area which has been impaired or damaged following the stroke.
Dr Kay compared the insular cortex to a modem and said that if there was damage to the modem it caused interference in messages getting to the computer comparing it to the frontal lobe. Damage to the insular cortex interfered with communication back and forth to and from the frontal lobe.
Dr Kay explained the temporal lobe primarily houses memory and said:
The insular cortex abuts up against a structure called the hippocampus, which is really critical for consolidating memory. If you haven't got a hippocampus then you can't lay down new memories.
Dr Kay described Mr Reynolds' situation, where the insular cortex alone is affected, although there was also evidence of other impairment in the corona radiata, as 'really quite unusual'.
Mr Reynolds' treating psychiatrist Dr Lance Risbey, who has treated Mr Reynolds since May 2009, explained that the understanding of the role of the insular cortex as an organic basis of psychiatric symptoms is fairly recent in being appreciated. He explained that over time he came to realise that the symptoms suffered by Mr Reynolds were not just simply frontal lobe disinhibition:
… But are more to do with how all these different parts of the brain are regulated and coordinated, and I think coordination of parts of the brain by the insular is probably where he's running into problems.
Okay. And what is it about the – what's the coordinating role of the – of the insular cortex? – Well, it – it's actually commensurate with its position. It's – it's tucked in between the frontal lobe, parietal lobe and the temporal lobe, and it – it's very close to some other very important areas, like the limbic system, with the hippocampus and the amygdala, which – the amygdala mediates aggression and fear responses. The hippocampus regulates emotions and ties them in with memories. The insular is close to all of these and receives fibres into and out of this area, so it's a crucial area which deserves a lot more research and study. (ts 634)
The issues
As I noted above [17], it remains in issue whether any residual disabilities suffered by Mr Reynolds are caused by the injuries the defendants admit Mr Reynolds suffered as a result of the incident on 22 May 2003 and the subsequent stroke. In Mr Reynolds' submission he has suffered damage to the insular cortex and associated structures of his brain. He has also suffered permanent loss of vision in his left eye. Mr Reynolds submits:
The evidence is overwhelming that the Plaintiff sustained a primary injury in the accident of 22 May 2003 with the consequential cerebrovascular stroke … that there was damage to the insular cortex and associated structures of brain including the neuronal pathways (see Dr Terace ts 1185) and permanent loss of vision in his left eye. The injury is organic brain injury which operates both as a primary cause of his cognitive impairments and has given rise to secondary psychiatric conditions. It is the Plaintiff's case that whether the emphasis is made in respect of organic brain damage or the psychiatric conditions, the difference is one of emphasis rather than effect … the compromise of the Plaintiff's capacity to engage in employment, attend to all of his personal needs and to have enjoyment from life or work, has been severely and irreparably damaged.
The defendants on the other hand submit Mr Reynolds has only:
… Suffered a small area of organic brain damage to the left insular cortex, but has made a very good recovery and is left with some residual problems but not of such severity as to explain the nature and extent of disabilities he has claimed to suffer from since his employment ended.
His main problem is psychiatric. There is evidence to find his psychiatric conditions were caused or contributed to by the stroke rather than the organic brain injury by itself. There are other non compensable causes of his psychiatric condition. There is ample evidence of unusual bizarre and unrelated complaints since he was hospitalized in July 2003 which he has continued to refer to. These clearly indicate an exaggeration of his psychiatric condition.
In his oral closing submissions, counsel for the defendants submitted that to the extent Mr Reynolds suffers any residual disabilities the major cause is a psychiatric condition rather than an organic brain injury. Further, the defendants submit Mr Reynolds' psychiatric condition is contributed to by pre‑existing matters.
The defendants submit that I am therefore required, notwithstanding their admission that Mr Reynolds suffered the injuries pleaded at pars 30(a) to (c) of the statement of claim, to make a finding whether the primary cause of any ongoing residual disabilities suffered by Mr Reynolds is an organic brain injury or a psychiatric injury. I shall address and determine this issue later in these reasons.
22 May 2003 – 6 June 2003
In May 2003 Mr Reynolds was employed as a policy coordination officer at the Department of Planning. He was a designated level 5.4 State government employee but acting at a higher level.
Mr Reynolds often rode a mountain bike to and from work. He estimates he rode around 150 km a week on the mountain bike. On 22 May 2003 Mr Reynolds, after he had finished work for the day, caught the lift intending to change into clothes suitable for riding his bike. Mr Reynolds was unclear as to exactly what happened but recalled he fell. He thought he may have hit his head but was uncertain. He said there were gaps in his memory.
Mr Reynolds described the fall as very painful but without explaining where he felt pain.
He recalled speaking to a security guard and a building manager and telling them about the problem with the lift. He does not remember much about riding home that afternoon or what he did that night but recalled having pain all through his body and going to bed, in his words, 'feeling absolutely terrible'. He felt pain in his right ankle, right knee, hip, small of his back, his neck and particularly the left side of his head, from the left side of his forehead around to the back of his head to the bottom of his skull.
In the following days the pain in his ankle, knee and hip resolved but he continued to suffer from pain in his back which he likened to being kicked in the back, although the pain was getting better.
He also continued to suffer pain in his head especially on the left side which for a time lessened and then worsened.
The pain in his head continued to worsen until he woke up on the morning of 6 June 2003 and realised he was partly paralysed. When he awoke he recalled the room was swaying and he could not focus on the wall. As he went to get out of bed he could not move his right arm. He was confused and felt nauseous. The pain on the left side of his head and neck was getting worse. He attempted to get out of bed but his right leg buckled and he was unable to support his weight.
He managed to get to his phone intending to ring an ambulance but could not initially recall the telephone number for the ambulance. Eventually he was able to dial for an ambulance and spoke to an operator and asked for an ambulance. He recalled his speech was slurred.
At the time, Mr Reynolds was living by himself at 21 Armadale Road, Rivervale. Mr Reynolds married his wife in January 2003 in the United States of America where he stayed until the end of March before returning to Australia. Mrs Reynolds was unable to accompany him back to Australia at that time because her immigration documentation was still being finalised.
Mr Reynolds was taken by ambulance to the emergency department at RPH. By the time he arrived at the hospital he was less confused. He knew his name and his address. He could explain what had happened. He was still experiencing pain in his head and neck which he described as getting excruciatingly worse and he started screaming before lapsing into unconsciousness.
He next recalled waking up in the hospital and he could not move, see or hear but soon recovered his hearing but only partial sight in his left eye. He could not see out of his left eye. He recalled trying to speak to a nurse but could not. He felt trapped.
He said ever since then he has suffered from panic attacks and nightmares.
Hospitalisation – 6 June 2003 – 15 June 2003
Mr Reynolds was hospitalised at RPH until 15 June 2003 when he was discharged home. While hospitalised he underwent various testing, therapy assessments, including review of his impaired vision, and was prescribed medications.
From a report of Dr Mason of RPH dated 11 July 2003 it was reported that Mr Reynolds was admitted on 6 June 2003 with difficulty talking, mild arm weakness and visual field defect in his left eye. Mr Reynolds also had some cognitive problems including slow information processing, slow problem solving and slow planning. Mr Reynolds' right arm weakness and speech problems resolved during his admission but he continued to have difficulty with information processing on discharge. He also remained with the left visual field defect.
It was also reported that Mr Reynolds had an MRI scan on 6 June 2003 which showed that his symptoms were due to a stroke affecting his left insular cortex. It also showed that this was secondary to a left internal carotid artery dissection and thrombus arising just distal to the bifurcation and extending into the cavernous portion of the internal carotid artery.
The report also noted that Mr Reynolds had a history of type‑2 diabetes, hypertension and hypercholesterolaemia. I will later refer to these conditions in more detail when considering issues raised by the defendants.
The report recorded Mr Reynolds had physiotherapy and occupational therapy as well as an ophthalmology review while in hospital. He was to have further occupational therapy as an outpatient.
In a report dated 21 August 2003 Professor Constable said the left carotid occlusion involved the ophthalmic artery and wiped out most of the useful function in the left eye leaving a dense black field defect in the superior half which was unlikely to recover. He also noted Mr Reynolds was suffering from coordination problems between his eyes from which he thought Mr Reynolds would gradually recover.
June – December 2003
Mr Reynolds said he did not feel right when he was discharged. He had difficulty locating the train station and then buying a ticket. Once home, he felt unable to cope. He described getting to the front door and not remembering whether he locked the back door and then checking the back door only to forget whether he had checked the back door by the time he returned to the front door. He described going back and forth between the back and front doors before being able to leave the house. He later started leaving himself notes at the front and back doors saying the back door had been locked.
He said he then re‑admitted himself to hospital for another day or two.
However, he appears to be mistaken about that. I have read through the RPH records which were tendered into evidence (exhibit 38) and there is no record of Mr Reynolds being re‑admitted to hospital. There is though a handwritten note of Dr Bala, the neuropsychiatry registrar, of 15 June 2003 which includes the following comment:
Went back to his house for [approximately?] two hours yesterday by himself and was able to tolerate this with some anxiety. Now feels that he has overcome/mastered this as well and feels quite relaxed. His periods of anxiety building up during the day which he recognises and controls by breathing.
Dr Bala's note goes on to record that Mr Reynolds was discharged that day, that is, 15 June, and was to be reviewed in the neuropsychiatry clinic in two weeks' time.
There is a subsequent handwritten entry in the notes by someone else dated 18 June 2003 which records the occupational therapist (OT) was unable to review Mr Reynolds on 16 June 2003 as planned as he was discharged to home on 15 June.
Mr Reynolds said he then rang a friend in Busselton seeking her assistance and stayed with her for two weeks. He said he was unable to properly function or look after himself. During that two‑week period his friend provided all his needs and cooked for him.
He then returned to his house in Perth. His wife Pamela Reynolds arrived in Perth shortly afterwards on 8 July 2003.
Medical history June – December 2003
Mr Reynolds was reviewed by Dr Bala in the outpatient clinic of the Department of Neurology at RPH on 30 June 2003. In a report of the same date Dr Bala recorded that when he first reviewed Mr Reynolds after he was admitted to RPH Mr Reynolds presented with features of an acute disorder with feelings of helplessness and terror when he had the stroke, dissociative symptoms (de‑personalisation, numbing) and avoidance (not wanting to go home because of the trauma associated with it). Anxiety management strategies were commenced and Mr Reynolds improved and was able to return home where Dr Bala said he had been coping reasonably well. On review Dr Bala noted:
There is still an underlying propensity towards anxiety, driven by some of the cognitive deficits (memory, spatial orientation, visual field defects) since the stroke, but he is able to regain control over his symptoms with breathing techniques and cognitive refraining.
Mr Reynolds told Dr Bala he wished to continue with psychological therapy but did not feel medication was warranted with which course Dr Bala was supportive and referred Mr Reynolds to the psychological services. Dr Bala felt Mr Reynolds' anxiety was settling and the prognosis was positive from that point of view, however, adjusting to the cognitive deficits would be a challenge and would perpetuate periods of anxiety.
Mr Reynolds was reviewed in the Department of Neurology on 11 July 2003 by Dr Lam, a neurology registrar. In a report of the same date Dr Lam recorded that over the previous week Mr Reynolds had experienced progressive left limb weakness most marked in the left hand and left lower leg. It was also recorded Mr Reynolds had been attending a neuropsychiatric clinic with Dr Bala and that Mr Reynolds believed his anxiety had much improved. Dr Lam discussed Mr Reynolds' case with a Professor Dimmitt and in order to rule out organic causes of Mr Reynolds' symptoms recommended an MRI of the cervical region and repeat MRA of the intra and extracranial vessels to exclude any further sites of dissection be performed. Dr Lam also reported he informed Mr Reynolds there was a possibility that the symptoms may be psychosomatic and relate to an adjustment disorder following a significant injury.
In a report dated 14 July 2003 Ms Karren Spagnolo, a senior occupational therapist at the neurosciences unit at RPH, recorded Mr Reynolds was referred to outpatient occupational therapy on 18 June 2003 for assessment of executive function in relation to his ability to return to work and driving. It was recorded that Mr Reynolds reported he had returned to driving. Ms Spagnolo told Mr Reynolds he should inform the Department of Planning and Infrastructure about his stroke prior to returning to driving.
In her report Ms Spagnolo also noted that a test of everyday attention was conducted on 10 July 2003. The test indicated mild to moderate selective visual attention deficits and moderate dual attention deficits. Processing visual information was slow and attention and residual left visual field deficits, it was thought, might make Mr Reynolds inappropriate for driving or operating power tools or heavy machinery.
Ms Spagnolo also discussed with Mr Reynolds the nature of his pre‑stroke work duties and his ability to return to work. She concluded:
Dual attention deficits may affect his ability to monitor two things at once, e.g. look at computer schedule while talking on the telephone; driving.
She referred Mr Reynolds to the State Head Injury Unit for facilitation of a gradual return to work programme.
She also recorded that Mr Reynolds reported feelings of anxiety but that Mr Reynolds had declined the offer of clinical psychology services through RPH.
Amongst the RPH records is a short report dated 19 July 2003 noting Mr Reynolds reported to the emergency department on 19 July presenting with symptoms of increasing confusion, nausea, altered hearing and altered sensation on the left side of his body. The diagnosis was 'Psychiatric - Anxiety'.
Mr Reynolds was referred by his general practitioner Dr Moussa for an MRI scan of his brain and cervical spine on 24 July 2003. In a report of 24 July 2003 Dr Davis of SKG Radiology noted there was an occlusion of the left internal carotid artery secondary to dissection. Previously demonstrated infarction involving the left insular cortex was again identified. Additionally he noted there was a region of acute or subacute infarction within the left corona radiata which had developed since the previous MRI scan of 8 June 2003.
Mr Reynolds was reviewed by a consultant neurologist, Dr David Rosen, in the Department of Neurology at RPH on 29 July 2003. In a report of 11 August 2003 Dr Rosen recorded that Mr Reynolds attended the stroke prevention clinic with Mrs Reynolds. It was also recorded Mr Reynolds had presented on several occasions since the carotid dissection. Mr Reynolds continued to report left‑sided sensory symptoms, which had previously been labelled as an anxiety although not clearly diagnosed, which Dr Rosen found difficulty in reconciling. The report records that the left‑sided symptoms had gradually progressed over the previous two weeks causing Mr Reynolds to become quite stressed and anxious. Mr Reynolds had presented several times to the emergency room with anxiety and symptoms consisting of altered sensation down his left side. Although Dr Rosen noted that Mr Reynolds was clearly quite stressed by the symptoms, he remained unable to reconcile them and said they were not typical for a stroke. He said it was necessary to review the results of the MRI and MRA but the scans were then unavailable.
Mr Reynolds was reviewed by Dr Klijn, the stroke registrar to Dr Rosen, on 12 August 2003. In a report of 18 August 2003 Dr Klijn reported the MRI of 24 July 2003 of the brain and the MRA
still showed occlusion of the left internal carotid artery secondary to dissection. ... In addition to the previously demonstrated infarction involving the left insular cortex, there was a region of acute or subacute infarction within the left corona radiata which has developed since previous MRI of 8 June 2003. No abnormalities were seen in the right internal carotid artery.
Based on the results of the MRI/MRA Dr Klijn ruled out any organic cause for the left‑sided symptoms and felt that the cause was most likely related to Mr Reynolds' anxiety. It was recorded since 21 July Mr Reynolds had experienced three episodes of anxiety attacks and that because of the attacks he had established contact with a psychologist at the State Head Injury Unit.
Dr Klijn also stated:
With respect to the new ischaemic lesion in the left corona radiata, which was identified on the MRI, we do have to conclude that it most likely was another embolus, of the left ICA occlusion. Fortunately Mr Reynolds has not experienced any clinical symptoms from this event.
Dr Moussa referred Mr Reynolds to a neurologist, Dr Keith Grainger, on 27 August 2003 and Dr Grainger provided a report of the same date. Mr Reynolds described to Dr Grainger an onset of an increase in numbness down his left side, feelings of nausea and hyperventilating with palpitations. Mr Reynolds also reported feeling confused and not knowing his wife's name and having gory images of seeing blood. There were also reports of daily headaches coming on in the late afternoon and early evening.
Dr Grainger concluded his report by saying that the degree of symptom aetiology after the stroke with relatively good resolution as being outside his experience and that it was difficult to escape the conclusion that the episodes reported by Mr Reynolds were psychosomatic in nature.
Dr Rosen reviewed Mr Reynolds on 14 October 2003 and provided a report of the same date. Mr Reynolds still reported suffering from ongoing trouble with paraesthesia on the left side and some minor word finding difficulties. Dr Rosen noted that by then Mr Reynolds had been back at work for four weeks doing three eight‑hour shifts at DPI. Dr Rosen also recorded that Mr Reynolds had some impairment of concentration and speed of processing but otherwise was coping well. Dr Rosen still recommended that Mr Reynolds be reviewed with the results of the MRI/MRA which apparently had still not been provided to him.
A neurologist, Dr Carroll, reviewed Mr Reynolds on 28 October 2003. In his report dated 26 March 2004, Dr Carroll identified the damage to the insular cortex and resulting language dysfunction, right hemi‑motor dysfunction and left monocular visual impairment. Dr Carroll described the MRI scan of 24 July 2003 as showing 'additional involvement of the adjacent white matter extending through from the insular cortex to the ipsilateral lateral ventricle.'
Dr Carroll concluded:
Neurologically he has minimal residual signs of his left subcortical white matter ischaemic event. These are manifesting as subtle right-sided hyperreflexia in the limbs, over and above the mild distal sensory neuropathy. I found no evidence for significant language dysfunction at the present time, although this may be impaired when he is fatigued. There were no signs of right hemisphere involved, nor of brainstem affection to account for the left-sided sensory symptoms.
Dr Carroll thought nausea and dizziness and loss of balance reported by Mr Reynolds was due to an anxiety state and loss of confidence. Dr Carroll could not detect any memory impairment for short-term events but attributed any impairment to anxiety. He thought Mr Reynolds had suffered permanent subtle language dysfunction, right hemi‑motor dysfunction confined to subtle loss of fine motor control when fatigued and left eye visual impairment.
Arrival of Mrs Reynolds in Perth
As I have earlier noted Mrs Reynolds arrived in Perth on 8 July 2003.
After Mr Reynolds returned to Australia, he and his wife Pamela Reynolds were in regular telephone contact. They spoke with each other on the telephone on 5 June 2003, the day before he suffered the stroke. Mr Reynolds was complaining of a severe headache. He had been complaining about a headache for some time. They discussed him going to a doctor and he said he was planning to go a doctor the next day.
The next Mrs Reynolds heard was when she received a call from Mr Reynolds' former wife advising her he was in hospital.
Mrs Reynolds lived with Mr Reynolds at his Rivervale house.
Mrs Reynolds described Mr Reynolds as totally different from the man she had last seen three months earlier. In the first conversation they had together, Mr Reynolds told her that he thought he was dying and she should be prepared for that. Over time she noticed that because of the impaired sight in his left eye he would not be able to find things, particularly if he had dropped something, and he would become agitated and call out to her for help. He complained about the poor quality of light and they had to change the light bulbs in the house to increase the lighting. She observed Mr Reynolds being unable to read for long because of an inability to concentrate and because he suffered from headaches. When trying to read newspapers he would become frustrated and stop reading. She said this was different to her observations of Mr Reynolds in the short time they had been together in America. He used to enjoy reading and had 'tonnes of books' at his home.
Initially they slept together in the same bed. However, Mr Reynolds was intolerant to any movement in the bed and would often scream out in pain. She also observed Mr Reynolds frequently suffered from nightmares. Eventually she moved into another bedroom.
Mrs Reynolds said Mr Reynolds spoke differently. She described him as previously the utmost gentleman who did not swear. However, when they lived together in Perth he used a lot of foul language and verbally abused her which she found extremely painful and hurtful.
She noticed that he would become very fatigued by mid‑afternoon. When they were out they would have to stop what they were doing and go home so Mr Reynolds could rest.
Their intimacy also suffered, mainly because Mr Reynolds complained of headaches which often lasted for days.
Mrs Reynolds was not employed for the first eight months following her arrival in Perth. When they were together in the United States they had discussed that Mrs Reynolds would take about three months after her arrival in Perth to acclimatise herself before seeking employment. However, because of Mr Reynolds condition she was preoccupied with caring for him. She said Mr Reynolds was reluctant to go anywhere without her. She accompanied him to all his appointments. She managed his medications. She went shopping with him. She did all the cooking, the cleaning and the general housekeeping. She paid all of the household bills.
She said that when they were together in the United States she was not always good about paying her bills on time and he used to get onto her about her domestic financial management and was very particular about making sure all bills were paid on time. He explained to her how much money she was wasting from late fees. However, in Australia she observed he was not focused on his financial affairs and was not ensuring bills were paid on time.
They decided they would sell the Rivervale property and buy another property. It was necessary to undertake a considerable amount of gardening to prepare the property for sale but because Mr Reynolds tired easily, Mrs Reynolds undertook the greater amount of the gardening. However, in the end it became too much for her and they ended up deciding to sell the house without finishing the gardening.
She also observed Mr Reynolds suffered from panic attacks which occasionally necessitated having to take him to hospital. At such times, Mr Reynolds was unable to verbalise what he wanted and at other times he would descend into verbal abuse.
On many days, Mr Reynolds did not get out of bed until early afternoon.
In September 2003, when Mr Reynolds returned to part-time work on a rehabilitation programme, he rode his bike to work but she would accompany him on her own bike and then in the afternoons she would meet him back at his office and accompany him on the ride home. She said she did this because he was afraid to ride by himself. She was also afraid he might fall off his bike because after he had returned to bike riding following the stroke he had occasionally lost his balance and fallen off his bike.
2004 - 2013
Eventually Mrs Reynolds obtained and commenced her own employment in March 2004. She was employed on a full‑time basis. However, she continued to ride to work with Mr Reynolds. She would ride to his work and leave her bike at his building, change into her work clothes and go to her own place of employment. At the end of the day she would meet Mr Reynolds back at his place of employment and they would ride home together.
Mrs Reynolds said that when they were both working he would often ring her during the day disrupting her work. She continued to undertake all of the domestic duties at home.
In November 2005 she gained a position with the WA Department of State Development. By this time Mr and Mrs Reynolds had moved into a house at 27A Mort Street, Rivervale. They moved into that house in August 2005.
Mrs Reynolds described thereafter, while they continued to ride to and from work together frequently, it was not all of the time. She said that by the time Mr Reynolds arrived home he was exhausted and would go into his bedroom without talking to her and have to rest for several hours before he could eat dinner. Occasionally Mr Reynolds would arrive home before Mrs Reynolds and she would normally find him resting in the bedroom. On numerous occasions she asked him to help with the dinner but he was unable to. That was to be contrasted to the short period of time when they lived together in the United States when they cooked dinners together often for guests.
After Mr Reynolds returned to work, he prepared resumes for the purpose of applying for other positions within the public service. Mrs Reynolds reviewed the résumés he had prepared. She described the résumés as containing mistakes and as being very wordy. She corrected the mistakes and made the résumés more concise.
Mrs Reynolds said that in March/April 2005 they took a holiday together to Hawaii to visit her son who was then living in Hawaii. Mr Reynolds insisted on organising the trip but it took him much longer than she would have expected and the plans were so disorganised it took them many more flights than it should have to travel to where they had to. She contrasted that with how Mr Reynolds had attended to the necessary arrangements for her to move to Australia.
Mrs Reynolds described Mr Reynolds' sleeping patterns as abnormal and disrupted. He roamed the house at night. After she moved into another bedroom and Mr Reynolds had returned to work he would often wake her up at 1.00 or 2.00 o'clock in the morning telling her that he needed to find something for work and would be agitated, insisting whatever it was be found straightaway. Often when she did get up and look for whatever it was Mr Reynolds could not find, she found it very easily.
When they were together in the United States, Mr Reynolds enjoyed Mrs Reynolds' cooking. However, after she moved to Perth in July 2003 he no longer enjoyed the things she cooked, especially flavoured or spicy food.
She described how friendships Mr Reynolds had when she first came to Perth dropped away. People who used to visit, stopped visiting. Mr Reynolds is no longer comfortable in group situations. If they did go to events with a number of people he would not want to stay for very long and would start becoming stressed.
In social conversation, Mr Reynolds talks too much and will not let anyone else talk. She would often touch him on the arm or give him some indication so that he understood he was saying too much.
She said there were three occasions when they had dinner parties after she moved to Perth. Although Mrs Reynolds was very experienced in arranging parties for large groups of people, Mr Reynolds felt as though he had to direct everything and got to the point where he had to write everything down including a timeline by which things had to be done by. This caused the preparations to become stressful for both her and Mr Reynolds.
Mr Reynolds then went into the bedroom before the guests arrived and refused to come out and meet anyone. They therefore stopped inviting people over for dinner. Other than on those three occasions, except for intermittent visits from Mr Reynolds' son Thomas, they did not have anyone over to visit them.
She also described an incident when an automatic gate on their driveway was damaged when Mr Reynolds accidentally backed into it. Mr Reynolds asked Mrs Reynolds to contact the people who originally fitted the gate but she was unable to because it was a weekend. He then said he would repair it himself but never did. Thereafter it remained continually opened and tied back so it would not fall over. It was not until the house was recently sold that the gate was repaired.
She described Mr Reynolds as being able to dress himself, shower and shave. However, he has a tendency to wear the same clothes over and over again.
He is able to wash his own clothes but does not like to hang them on the line or take care of them afterwards.
Since the stroke, Mr Reynolds, particularly after he had returned to work, regularly rode a bike to and from work. When a bike required repairs, even minor repairs which he should have been able to do himself, he would not be able to and ended up buying another bike so that at one point he owned seven or eight bikes. Mr Reynolds would often bring bikes home which he found on the tip or from bins on the verge. He would try and repair his own bikes using parts off the bikes he had brought home.
Mrs Reynolds said that celebrating anniversaries such as birthdays, Christmas and wedding anniversaries is important to her and she would always make a fuss and decorate the house particularly at Christmas. However, Mr Reynolds never remembered the dates and did not seem to enjoy them or care about them so she just stopped celebrating them.
When they were together in the United States they often talked about all of the restaurants Mr Reynolds wanted to take Mrs Reynolds to when she moved to Perth. They also talked about going to movies and movie festivals together. However, most of the things they talked about doing never happened.
Mrs Reynolds said that Mr Reynolds' long‑term memory seemed okay but his short‑term memory did not. On occasions he would become upset with her when he would tell her he had told her something when he had not and when she would question him about it he would become upset. He does not remember where he puts things and he is constantly asking her to find things for him whether it be keys or books. He also forgets his appointments. It has gotten to the point that even though he will put an appointment into his smart phone he will also give it to Mrs Reynolds and ask her to make a note of the appointment and to remind him.
Mr and Mrs Reynolds decided to separate on 17 November 2007. However, they continued to live in the same house until September 2009 when Mrs Reynolds moved to another house. Mrs Reynolds said that although they had separated but still living in the same house, Mrs Reynolds continued to provide the same level of care and assistance to Mr Reynolds she had provided after she first arrived in Perth. She continued to cook for him and undertake all of the domestic chores. Mr Reynolds was still coming home from work exhausted. He still suffered from fatigue. He continued to suffer from headaches. He continued to be argumentative and abusive towards Mrs Reynolds.
They were formally divorced on 10 October 2010.
Mrs Reynolds said that after Mr Reynolds ceased working his level of exhaustion did not change even though he did not seem to do much, except make a lot of lists, during the day.
Mrs Reynolds moved to a house in Belmont not far from the house she had lived in with Mr Reynolds. Even after she lived in her own house, she continued to cook for Mr Reynolds on a regular basis, sometimes at his house and sometimes she invited him to her place. They did their grocery shopping together. She did not have a car and Mr Reynolds would drive them to the shops. She also continued to provide some help with his house cleaning and with some of the landscaping that still needed to be done at his house. She helped him with some of his paperwork.
When they went shopping together, Mrs Reynolds decided what they would buy. When she returned to Mr Reynolds' house, other than the food she bought for him, the only food he bought was snacks and biscuits, sausage rolls and other junk food.
She continued to help him pay his bills.
Eventually Mr Reynolds employed a house cleaner to clean his house.
In February and April 2010 Mrs Reynolds travelled with Mr Reynolds to Melbourne. The first time was because his father was critically ill. The second time was for his father's funeral. Mrs Reynolds accompanied Mr Reynolds because he asked her to and because she did not think he could go by himself.
Mrs Reynolds took it upon herself to help with various matters associated with his father's death including packing up and cleaning the large house of Mr Reynolds' parents and finding another place for his mother to live. She felt Mr Reynolds was unable to attend to these matters by himself, which was to be contrasted with how he helped her and her brother deal with matters in relation to her own father's death.
Between June 2010 and March 2011 Mrs Reynolds took leave and returned to the United States. Before she left she cooked and pre-prepared a number of dinners for Mr Reynolds and put them into the freezer.
They continued to have contact while Mrs Reynolds was in the United States, either by telephone or email, two or three times a month. He would often tell her he could not find things and ask her where to find them.
After she returned to Perth in March 2011, Mrs Reynolds checked in Mr Reynolds' fridge. She saw that much of the food she pre-prepared had not been eaten and the fridge contained half‑eaten junk food. There was a mouldy hamburger still in the fridge from the time when she was previously in Australia in May 2010.
After her return to Australia, although it was less frequent, she continued to cook for Mr Reynolds sometimes at his house and sometimes by inviting him to her house. She also still helped with his grocery shopping.
Although she did not help him as much as she did previously, she helped Mr Reynolds with paying his bills which she saw he was behind in paying.
They discussed the possibility of Mr Reynolds moving into a retirement village which they both thought would make things easier for him because there was a minimal need for gardening and, because the house was smaller, there was less cleaning involved. There was also a service provided and medical facilitates on site.
Although they started discussing the possibility of Mr Reynolds moving into a retirement village in 2010, it took until mid-2013 for a decision and arrangements to be made for him to move into Collier Park Retirement Village. Mrs Reynolds described Mr Reynolds as going back and forth and continually contemplating whether he would move into a retirement village. She returned to the United States between November 2012 and April 2013. During that time, Mr Reynolds often telephoned her asking her questions about what he should do.
Mrs Reynolds described Mr Reynolds' indecision as in contrast to how he was before he suffered the stroke when they lived together in the United States, when he took charge and organised her and her brother.
2013
Mr Reynolds was able to explain how much money he had in superannuation and how much money he had in the bank. As at 31 December 2012 he had $229,751 in superannuation invested. He had a term deposit in the Commonwealth Bank of $500,000.
He had recently sold his house for $585,000 and after the sales expenses were deducted, he expected to receive somewhere in the vicinity of $560,000.
It was going to cost him $400,000 to move into the Collier Park retirement village.
Mr Reynolds also said he had bought a new car. The reason he bought a new car was because his previous car needed to be replaced because he had not properly maintained it. He said he had not checked the oil on the old car for a number of years and had not put the car in for service because he kept forgetting to, or remembered to do it but was unable to do it.
The reason he decided to move to the retirement village was that although he liked living in his house, he was having difficulty coping with the normal upkeep of a house and the home maintenance. He thought moving into the retirement village where somewhere else would take care of the house maintenance would overcome those issues.
He also considered that the difficulties he had experienced with buying and eating healthy food could be addressed where there was a hostel which provided healthy food to residents.
He also thought that the senior citizens club in the retirement village would arrange social outgoings and functions for him even though he does not know whether he was up to socialising. He said he has attempted to socialise and tried to meet a few women. He went out on a few dates but even though they were nice people, he could not relate to them.
In relation to cooking for himself, he said he cannot seem to get started and cannot explain why. On one occasion when he put some ingredients in a frying pan it caught fire so he started to use the microwave. He said between the time he separated from his second wife Linda in about 1987/1988 to when he met Pam (Mrs Reynolds), he cooked for himself. He also cooked for his son. He rarely cooks for himself now.
At the time of the trial he had someone else preparing his meals (which I assume was Mrs Reynolds) but after Mrs Reynolds stopped cooking for him he only ate pre‑prepared or snack food. Although he enjoyed eating vegetables and fruit, he found it difficult to go to the supermarket and buy such food and then organise himself to cook and eat it.
Mrs Reynolds reorganised his pantry for him when she returned from the United States. She found multiple things of everything such as multiple peanut butter jars which were not placed in any order.
He said he sometimes forgets to take money with him when he goes shopping.
She helped initiate the move into the retirement village. She has been packing for him, sorting through everything, getting rid of things and selling other things.
Before Mrs Reynolds returned to the United States, she bought extra things for him and put them in the pantry. She also prepared food for him and left it in the freezer. He said because the packages were not labelled, he did not know what they were and instead, bought takeaways and pre‑prepared meals from the supermarket. He is able to heat up meals in the microwave.
He found he was unable to maintain his garden. He replaced an area of lawn with artificial lawn because it had become too burdensome for him to maintain.
He continues to suffer from headaches which come and go and vary in intensity. At their most intense he has to stay in bed without any movement or noise.
He takes Panadeine Forte for the headaches.
Mr Reynolds conceded he had not kept up with his tax affairs since 2003. He put all of his papers in boxes but was unable to sort through them. It is only within the last 12 months that he has engaged an accountant and prepared income tax returns for the last six years to 2007.
Mr Reynolds said he is not very good at managing to pay his household utility bills. He is often late with paying them, not because he has not got the money, but because he procrastinates.
He tends to put all of his correspondence and bills into plastic boxes which he put into his front room. At one stage his front room was filled with 14 different boxes of papers.
He also put a lot of his possessions and 'boxes of stuff' in his garage and for a time was not able to use his garage for his car.
At one stage he bought an air‑conditioning unit but was never able to have it installed and has ended up selling it in the process of selling his house and various possessions for the purpose of moving into Collier Park.
He said he is not very good at managing his cash and often loses his cash or accidentally throws it away.
He has, he says, greatly disturbed sleep. He has difficulty getting to sleep. He has difficulty differentiating between night and day and sets various alarms to tell him when to prepare for sleep and when to wake up in the morning. He has been prescribed medication by Dr Risbey to assist in sleeping.
While he was working he bought a gym pass, but clashed with a staff member and stopped going to the gym. He said he was not up to organising to go back to a gym and thought he needed someone to assist him to organise that.
Before his stroke he said he was very active and regularly walked. He also regularly rode. He does not exercise now. He has not ridden a bike for a long time.
In the short time he spent with Mrs Reynolds in the United States prior to the stroke, he had a very strong and loving relationship with her and had an active sexual relationship with her. Since the stroke, he has been unable to cope with any movement in the bed and their sexual relationship fell away. In the end he asked Mrs Reynolds to sleep in another bed.
He often suffered from panic attacks, which had started in the hospital, which mainly occurred in the evening or the early hours of the morning and which he found terrifying and frightening. When that happened, he would go into Mrs Reynolds' bedroom and wake her up because he needed to talk to someone.
Prior to the stroke, Mr Reynolds had planned to continue to seek promotion and advancement within the public service. He saw his employment in the public service as a secure position. He always enjoyed his work and enjoyed interaction with people through his work.
He first engaged people to assist him at home when Mrs Reynolds left on the first occasion to return to the United States. He said that after she moved out of their home she continued to assist him. He engaged various companies to assist with cleaning and maintaining the house and organising things such as his pantry, fridge and linen closet. These people re‑ordered and re‑stacked everything, putting labels on boxes in the pantry which he found helped him know where to find things and when to buy more products when they had run out.
Mr Reynolds said when he and Mrs Reynolds were living in the same house, even when they were separated, she provided continual assistance to him which he estimated at 14 or 15 hours a week. He clarified that estimation by saying Mrs Reynolds probably spent 5 ‑ 6 hours on a Saturday and a further 5 ‑ 6 hours on a Sunday providing assistance to him. She cleaned and cooked and helped him find things. He thought she spent three hours each day, Monday to Friday, providing assistance.
She regularly provided assistance with organising his papers. When she returned to the United States he regularly phoned her asking where he could find things. Sometimes when he was in distress he called her and she provided comfort.
Mrs Reynolds returned to Perth on 26 April 2013. When she left for the United States in November 2012 she was not intending to return to Perth. She resigned her position with the State government and told Mr Reynolds she would not be coming back. However, while she was away she became concerned as to how Mr Reynolds was coping and caring for himself. On one occasion he was admitted to hospital and she was concerned about his health and whether he was eating properly. She was also concerned he was not able to make a decision whether to move into the Collier Park Retirement Village, nor sort out everything which needed to be done if he did decide to move, including selling his Mort Street house.
In the two or three years they had been discussing Mr Reynolds moving into Collier Park, which would also involving having to sell the Mort Street property, Mr Reynolds had not done much in preparing the house for sale. Therefore because of her concerns about Mr Reynolds' health and how he was coping, and because she was of the view he needed assistance to attend to various matters including moving into Collier Park, she decided to return to Perth.
Since returning to Perth in April Mrs Reynolds has lived in the same house with Mr Reynolds, although separately.
Selling the Mort Street property required selling or throwing away furniture and accumulated possessions which Mr Reynolds would not be able to take with him. Mr Reynolds wanted to sell his things on Gumtree even things which were not in very good condition, but he was unable to organise it. According to Mrs Reynolds, he kept procrastinating. He lacked confidence in what needed to be done to advertise items on Gumtree. When things were advertised on Gumtree he would not take calls from anybody or allow them to come to his house unless Mrs Reynolds was with him. He would not meet anyone to take money from them unless she was there. He insisted that if someone came to the house to buy something, she had to stand with him while the transaction was being completed.
My attention was directed to the expression in [5] '… being so mentally or physically incapacitated that she is unable to manage day‑to‑day tasks …' In counsel's submission Mr Reynolds is, because of the accident‑caused injuries, so mentally or physically incapacitated that he is unable to manage day‑to‑day tasks and his disabilities prevent him from managing any monies awarded to him.
In that case the plaintiff's intellectual abilities were not impaired by the accident caused injuries and it was held the need for assistance in managing the fund constituted by the award of damages was not caused by the injuries. Rather, the need for assistance in managing the fund arose from the award of a large sum of damages. It was held that the position would be otherwise in the case of a plaintiff who is intellectually impaired as a result of the defendant's negligence.
Nominal Defendant v Gardikiotis was considered by the High Court in Willett v Futcher (2005) 221 CLR 627. Ms Willett had suffered severe brain injuries causing impaired intellectual capacity as a result of the respondent's negligence. Ms Willett's need to have others administer her financial affairs was therefore caused by the respondent's negligence. To the extent to which satisfaction of that need reasonably required the expenditure of money, the expense was a loss which the respondent's negligence caused. Because Ms Willett did not have capacity to attend to her financial affairs she sued by a litigation guardian. Ms Willett was unable to give instructions for the conduct or compromise of her claim and therefore any sum of damages awarded to her was required to be paid to and held by a trustee on her behalf.
In a unanimous decision the High Court [11] – [12] said:
11.The present case is markedly different from the circumstances considered by this court in Nominal Defendant v Gardikiotis. In that case the defendant's negligence did not affect the plaintiff’s intellectual capacity to decide how her money should be invested or spent. Rather, it affected her physical capacities. In Gardikiotis no claim was made that as a result of Ms Gardikiotis’ physical disabilities she would incur additional expense in managing her financial affairs. If such a claim had been made, there may have been some question about whether difficulties of that kind were to be regarded as compensated for by the award of general damages or should be an additional item taken into account in assessing those damages. It is not necessary to consider that question in this case.
12.Because Ms Willett does not have capacity to attend to her financial affairs, she sues by her litigation guardians.
Similar issues were considered by Murphy J in A v City of Swan (No 5) [2010] WASC 204 when he was considering the defendant's application for a declaration pursuant to O 70 r 1 of the Rules of the Supreme Court 1971 that the plaintiff was a person incapable of managing her affairs in respect of the proceedings. In the course of his reasons Murphy J referred to Masterman‑Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511, a decision of the English Court of Appeal. Murphy J noted [71] – [72] the Court of Appeal in Masterman‑Lister v Brutton & Co indorsed the approach of Boreham J in White v Fell (Unreported, EWCACiv, 12 November 1987) as follows:
In the context of O 70, the relevant 'matter or piece of business' is, of course, the proceedings before the court in which the person is involved. The requisite capacity in this context was considered by the Court of Appeal in Masterman-Lister v Brutton & Co. In that case, the court applied an 'issue-specific' approach that that focuses on the nature and complexity of the relevant transaction. The court distinguished an inquiry as to whether a person has the requisite capacity to conduct legal proceedings from an inquiry as to whether that person has the capacity to make some other legally effective decision: Kennedy LJ [27]; Chadwick LJ [62], [73].
The members of the court in Masterman-Lister v Brutton & Co endorsed the approach of Boreham J in White v Fell (Unreported, EWCACiv, 12 November 1987), which concerned an action for damages for personal injury. In that case, Boreham J said:
'The expression "incapable of managing her own affairs and property" must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided … It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice … Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately … Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive.' (emphasis added)
In this case, as was explained in White v Fell, the question is: is Mr Reynolds capable or does he have the insight and understanding he needs advice in relation to his financial affairs and management of a large award of damages, secondly, if he does have that insight and understanding is he capable of seeking advice from an appropriate adviser and instructing the adviser with sufficient clarity to enable the adviser to advise Mr Reynolds appropriately, and, finally is Mr Reynolds capable of understanding any financial advice given by the adviser and capable of making decisions based upon that advice and giving effect to it.
Therefore the question in this case is whether Mr Reynolds has suffered intellectual or mental impairment which has caused a need for investment and management advice in respect of the award of damages rather than the need arising simply from the fact of the award. Normally, such damages are only awarded when the injured person is under a legal incapacity.
In supplementary submissions counsel for Mr Reynolds referred me to three cases in which an award has been made for fund management expenses where a plaintiff was not under a legal incapacity and the proceedings not conducted through a next friend.
The three cases are Nicholson v Nicholson (1994) 21 MVR 125, Mortimer v Burgess (1997) 25 MVR 463 and Nominal defendant v Martin (1997) 26 MVR 474.
Nicholson v Nicholson was decided before the High Court decision in Nominal Defendant v Gardikiotis and was mainly concerned with contributory negligence. However, the New South Wales Court of Appeal also dealt with various grounds of appeal concerning the assessment of damages by the trial judge. The plaintiff was rendered quadriplegic as a result of injuries suffered in a motor vehicle accident. He also suffered a skull fracture which appears to have caused some brain damage, although the extent of the damage is not described in the judgment. The plaintiff conducted the proceedings in his own right and at trial his award of damages included allowance for a fund management fee. The reasonableness of that aspect of the award was not considered by the Court of Appeal but Kirby P in passing commented 'the reason this head of damage is allowed is because the plaintiff is incapable (either intellectually or physically) of managing the damages which have been awarded'.
In Mortimer v Burgess the plaintiff was also of diminished (but not without) capacity. His brain injury was described as producing 'consequent diminution in cognitive function and having significant effects on (his) personality and behaviour' (page 464). The trial judge had found the plaintiff 'was not capable of handling large sums of money for investment' and having regard to his 'forgetfulness and disinhibition' needed 'assistance in the management of the verdict sum' (470). The trial judge had disallowed the commercial expenses based on Westpac Investment Management rates, allowing instead the lower costs equivalent to the protective commissioner's fees. On appeal, Beazley JA (with whom Mason P and Meagher JA agreed) found the plaintiff's 'mental and physical condition, coupled with his personal circumstances, were not such as to make it more likely than not that an order would have been made (for the appointment of) the protective commissioner'. Accordingly, it was the reasonable costs of commercial fund management which ought to have been allowed (page 470).
In Nominal defendant (NSW) v Martin the plaintiff was not so impaired as to come under the care of the protective commissioner in New South Wales (page 479). Based on the evidence at trial which 'clearly established that (his) mental injuries impaired his ability to manage funds', the trial judge's award of fund management expenses based on Westpac Investment Management Pty Ltd rates was upheld on appeal (page 479).
Although obviously each case must be decided on its own facts, in my view it would be rare for an award of damages to be made for fund management expenses where a plaintiff is not under any legal incapacity.
Mr Reynolds is not under any legal incapacity. He prosecuted his action in his own name. Clearly he has been able to provide competent instructions to his solicitors and counsel and to make decisions regarding the conduct of the action based upon legal advice provided to him. At the commencement of the trial counsel for the defendants raised a concern as to whether Mr Reynolds had legal capacity to provide competent instructions and conduct the proceedings in his own name. Although I accept Mr Reynolds was assisted by Mrs Reynolds in the conduct of his court action, I also observe that between November 2012 and May 2013 when settlement negotiations were presumably conducted and preparations for trial were at their most intense, Mrs Reynolds was in the United States. Mr Reynolds was presumably able to provide competent instructions regarding the ongoing conduct of his claim without the presence of Mrs Reynolds. Counsel for Mr Reynolds informed the court he was satisfied Mr Reynolds was competent to provide instructions, understand the proceedings and advice provided to him and make informed decisions regarding the action.
Mr Reynolds also gave evidence he has saved in the order of $600,000 and made decisions to contribute all of his pre-tax income into his superannuation fund from July 2010. He has managed to support himself on his savings since his worker's compensation payments expired in 2012.
Although I accept he has been to some extent reliant and dependent upon the assistance of Mrs Reynolds, he has been able to sell his house and buy into the Collier Park Retirement Village.
Mr Reynolds further gave evidence that in the last few months before the trial he has with the assistance of an accountant engaged by him, completed his income tax returns for the years from 30 June 2006 to 30 June 2012. The returns were all lodged at the same time in October 2012. He was, however, assisted by Mrs Reynolds in sorting through his papers which he kept in boxes in his garage.
Dr Risbey did not support the appointment of a trustee but was of the view, a trusted person should be available to assist Mr Reynolds manage any award of damages. I understood Dr Risbey's recommendation was different to the need for financial advice of a person suffering intellectual disability or impairment.
Although I have accepted that as a result of the stroke Mr Reynolds suffers from various impairments which impact upon his functioning and ability to properly cope with and organise his day-to-day affairs, in my view the disabilities from which Mr Reynolds suffers do not impair his intellectual capacity or his ability to manage any award of damages to any greater extent than anyone awarded a large sum of money who is unused to and inexperienced in the management of such a large sum. Although I accept it would be prudent for Mr Reynolds to obtain investment and ongoing management advice regarding the award of damages, in my view the need for such advice does not arise from the negligently caused injuries and residual disabilities. Rather, the need arises from the fact of the award of damages. Mr Reynolds is able and entitled to make his own decisions regarding his future financial affairs including the right to make bad decisions. In my view, providing Mr Reynolds is provided with the level of care I have found he needs, principally the support of a carer and a case manager, who ideally will establish and maintain a structure, direction and organisation that Mr Reynolds is able to understand and follow on a day-to-day basis, including making his own independent decisions as to whether he does or does not want to undertake certain activities or do certain things, Mr Reynolds will be able to manage his financial affairs and make his own independent decisions, presumably with the advice of appropriate financial advisors which any person would require.
Therefore I make no allowance for future fund management expenses.
Travel
A claim for travel expenses was made in the global sum of $15,000. The claim is not otherwise particularised or explained. I accept Mr Reynolds has incurred some travel expenses, particularly in recent times when Dr Risbey has moved to Bunbury and Mr Reynolds has travelled to Bunbury to meet Dr Risbey.
Although no proper basis for the quantification of the claim has been made out, doing the best I can I allow the sum of $2,000 assessed on a global basis.
Special damages
The parties agree the sum of $3,906.95 being a refund to Medicare.
The parties also agree the sum of $11,550 in respect of paid cleaning and domestic assistance.
Interest on the paid domestic assistance at 3% for 3.6 years is $1,247.
Summary
In summary, adopting the itemisation of Mr Reynolds' written submissions, I award damages as follows:
1.
Loss of earning capacity
Past loss of earnings
$421,460.00
Loss of annual leave entitlements
Loss of long service leave entitlements
Future loss of earning capacity
$667,713.00
2.
Loss of earning capacity
Past loss of superannuation
$46,114.00
Future loss of superannuation
$76,115.00
3.
Past treatment expenses (Medicare)
$3,906.95
Assistance
Past Gratuitous Assistance
$212,095.00
Past Paid Assistance
$11,550.00
4.
Interest
Interest on past loss (paid domestic assistance)
$1,247.00
5.
Future needs
Home Furnishings
Personal Care and domestic assistance
$453,789.00
Staff Requirements (Travel)
Home Help
Activities Co-Ordinator
Medical Expenses
$36,541.00
Aids and Appliances
Projected Therapeutic Modalities
$22,918.87
Medication
$21,609.00
Assisted Technology & Recreational Needs
Ambulance Costs
Case Management
$61,222
7.
Travel
$2,000.00
8.
General Damages
$180,000.00
Sub Total
9.
Fund Management
10.
GST
$45,378
TOTAL
$2,263,658.82
That sum must be reduced by 10% being the agreed deduction for contributory negligence [13] to $2,037,292.94.
I will hear the parties further regarding the sum of workers' compensation payments which must be deducted pursuant to s 92 of the Workers' Compensation and Injury Management Act 1981: refer [421] ‑ [422].
Finally, I will hear the parties in relation to costs.
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