Schoupp v Verryt
[2014] NSWDC 28
•14 April 2014
District Court
New South Wales
Medium Neutral Citation: Schoupp v Verryt [2014] NSWDC 28 Hearing dates: 12, 13, 14, 17, 18, 19, 21, 26 & 28/03/2014 (Last submissions 04/04/2014) Decision date: 14 April 2014 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Finding that there was contributory negligence on the part of the plaintiff;
2.The respective contributions of the negligence of the parties is apportioned to be 100 per cent on the part of the defendant and 0 per cent on the part of the plaintiff;
3.There should be a verdict and judgment for the plaintiff without discount for contributory negligence;
4.The plaintiff's interim damages arising from his injuries on 30 January 2007 are assessed in the sum of $1,954,150.47 before the addition of the appropriate amount to be added as damages for funds management charges;
5.The parties are to prepare short minutes concerning the issue of funds management and the steps required to finalise the proceedings;
6.Liberty to apply on 7 days notice if further orders are required.
Catchwords: TORTS - motor vehicle accident - plaintiff sustained a head injury following a fall onto the roadway after being towed on a skateboard by maintaining a handhold behind defendant's vehicle - breach of duty of care admitted by defendant - finding of contributory negligence on part of plaintiff - on apportionment, plaintiff's contribution assessed at 0 per cent - defendant's contribution assessed at 100 per cent; DAMAGES - assessment of claimed heads of damage - whether there should be an award for funds management charges Legislation Cited: Evidence Act 1995, s 80
Civil Liability Act 2002, s 5D, s 5E, s 5R,s 5S
Civil Procedure Act 2005, s 56 - s 58
Law Reform (Miscellaneous Provisions) Act 1965, as amended by the Law Reform (Miscellaneous Provisions) Act 2000, s 9
Motor Accidents Compensation Act 1999, s 126, s 131, s 136, s 138, s 141B
Protected Estates Act 1983Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Arnott v Choy [2010] NSWCA 259
Axiak v Ingram [2011] NSWSC 1447
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Dasreef Pty Ltd v Hawchar [2011] HCA 21
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Kallouf v Middis [2008] NSWCA 61
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
McHale v Watson [1966] HCA 13; (1966) 115 CLR 199
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Mead v Kerney [2012] NSWCA 215
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Mobbs v Kain [2009] NSWCA 301
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529
Rosniak v GIO [1997] 41 NSWLR 608
State of NSW v Gee (aka Michaels) [2002] NSWCA 326
State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442
Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485Texts Cited: Furzer Crestani Assessment Handbook, 2013 Ed Category: Principal judgment Parties: Liam Luke Schoupp (Plaintiff)
Alphonse Verryt (Defendant)Representation: Mr D Campbell SC with Mr S Longhurst (Plaintiff)
Mr D Ronzani (Defendant)
RMB Lawyers (Plaintiff)
Curwoods (Defendant)
File Number(s): 2009/339964 Wollongong Publication restriction: None
Judgment
Table of Contents
Nature of case
[1] - [2]
Factual background - Liability
[3] - [8]
Issues and summary of findings
[9] - [15]
Evidence overview
[16 - [18]
Factual accounts and credibility
[19] - [49]
Plaintiff's evidence on liability issue
[21] - [25]
Mr Mitchell Harmison
[26] - [32]
The defendant, Mr Alphonse Verryt Snr
[33] - [42]
Mr Alphonse Verryt Jnr
[43] - [50]
Contributory negligence consideration
[51] - [124]
Construction of s 138(2)(d) of MAC Act
[57] - [65]
Plaintiff's actual and imputed knowledge
[66] - [84]
"Skitching" by plaintiff
[85] - [88]
Determination of the contributory negligence issue
[89] - [124]
Apportionment and causation
[125] - [181]
Helmet - causation not proven
[132] - [153]
Defendant overwhelmingly culpable
[154] - [173]
Conclusion on apportionment
[174]
Alternatively, modest culpability of plaintiff
[175] - [181]
Facts relevant to damages issues
[182]
Initial assessments and treatment
[183] - [184]
Medical and allied assessments
[185] - [236]
Expert witnesses on damages issues
[237] - [245]
Resolution of conflicting medical & allied opinions
[246] - [264]
Plaintiff's evidence
[265] - [275]
Mrs Schoupp
[276] - [287]
Mr Schoupp
[288] - [304]
Ashleigh Schoupp
[305] - [313]
Russell Pugh
[314]
Mitigation
[315] - [316]
Assessment of damages
[317] - [468]
Plaintiff's probable life span
[318] - [320]
Non-economic loss
[321] - [329]
Future economic loss
[330] - [391]
Principles
[338] - [343]
Most likely circumstances
[344] - [348]
Loss of capacity and financial loss
[349] - [360]
Assessment factors
[361] - [391]
Future loss of superannuation
[392]
Past gratuitous domestic assistance
[393]
Future external domestic assistance
[394] - [414]
Future gratuitously provided domestic assistance
[415] - [423]
Case Manager
[424] - [439]
Future treatment expenses
[440] - [448]
Past out-of-pocket expenses
[449]
Funds management charges
[450] - [467]
Summary of damages assessment
[468]
Disposition
[469] - [470]
Costs
[471]
Orders
[472]
Nature of case
The plaintiff, Liam Schoupp, brings these proceedings in his own right claiming damages against the defendant Alphonse Verryt Snr, for personal injuries sustained as a result of a street accident that occurred in Hillcrest Avenue, Woonona, at about 7:30pm on Tuesday 30 January 2007.
The proceedings are governed by the liability and damages provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] generally, as well as the causation and onus of proof provisions of s 5D and s 5E of the Civil Liability Act 2002 ["CL Act"], and the contributory negligence provisions of s 5R and s 5S of that Act.
Factual background - Liability
On the day of the accident, the plaintiff had just hours before completed his first day at High School. He was then aged 12 years and 10 months. The accident occurred in the street where the plaintiff and the defendant both resided. The plaintiff was a friend of the defendant's son.
Just before the accident, the plaintiff and a number of other boys were in Hillcrest Avenue with their skateboards when the defendant drove past with his son, Alphonse Verryt Jnr, who was a front seat passenger in his vehicle. The defendant was apparently persuaded by his son and persons other than the plaintiff to stop the vehicle and to allow his friends, including the plaintiff, to "skitch" a ride by holding onto the rear of the vehicle whilst they remained standing on their skateboards. The defendant's son and the other two boys had "skitched" a ride with the defendant on previous occasions, but those occasions had not involved the plaintiff.
In the events leading up to the accident, with the concurrence of the defendant, the plaintiff had been standing on his skateboard whilst holding onto the rear of the defendant's vehicle. The defendant then commenced to drive the vehicle. After travelling some distance in that fashion, the plaintiff was seen to be no longer holding onto the vehicle. He then fell backwards, thereby striking his head on the bitumen surface of the roadway. He was not wearing a protective helmet at the time.
At the accident scene, Hillcrest Avenue comprises a slight uphill incline. The defendant's vehicle was travelling up that incline at the time of the accident. According to the summarised accounts of the statements obtained by the police who investigated the accident, the vehicle was being driven at a speed that was described as being equivalent to a slightly higher than normal walking pace or a slow jog.
In those events the plaintiff suffered an undisplaced midline sagittal occipital hairline fracture of his skull and consequential damaging contrecoup contusions to the frontal lobes of his brain.
Following the plaintiff's initial recovery and rehabilitation, he went on to complete his schooling to the end of Year 10, following which he commenced an apprenticeship with the aim of becoming a carpenter and joiner. He is presently pursuing TAFE studies in conjunction with that employment, and he is due to complete his apprenticeship in October 2015. The plaintiff nevertheless continues to experience problems consequent upon the brain injury he received in the accident.
Issues and summary of findings
The defendant's CTP insurer has admitted that the defendant was in breach of the duty of care he owed to the plaintiff. Causation was not in issue. The only liability issues to be determined in these proceedings are whether there was contributory negligence on the part of the plaintiff, and if so, whether that was a relevant cause of the plaintiff's injury, and if so, the just and equitable apportionment of blame between the parties for the plaintiff's injury.
The remaining issues involve resolution of the differing opinions within the medical and allied expert evidence, and the assessment of the plaintiff's entitlement to compensatory damages for his injuries.
Foremost amongst those issues are questions concerning how the plaintiff's loss of earning capacity should be quantified, the extent and cost of his need for various aspects of care and supervision, and whether his damages award should include an amount for funds management charges.
I have found that there was contributory negligence on the part of the plaintiff. My reasons for that conclusion are set out in paragraphs [89] to [124] that follow.
I have found that the respective apportionment contributions of the parties should be 100 per cent in the case of the defendant, and zero per cent in the case of the plaintiff. My reasons for that conclusion are set out in paragraphs [125] to [174] that follow.
I have assessed the plaintiff's entitlement to damages in the sum of $1,954.150.47 before the addition of any amount for funds management charges. My reasons for arriving at that sum are set out in paragraphs [317] to [468] that follow.
I have found that the plaintiff is entitled to an assessment of an additional sum, which is yet to be identified in damages in respect of funds management charges. My reasons for that conclusion are set out in paragraphs [450] to [457] that follow.
Evidence overview
In the case for the plaintiff, oral evidence was given by the plaintiff, his parents and his older sister, Mr Pugh who is the plaintiff's post-accident employer, and Dr Patricia Jungfer, a consultant neuropsychiatrist whom the plaintiff's solicitor engaged to provide medico-legal opinions. On the contributory negligence issue the plaintiff also relied upon the reports and opinions of Associate Professor Carolyn Quadrio, a consultant child and adolescent psychiatrist.
In the case for the defendant, on the contributory negligence issue, oral evidence was given by the defendant, as well as by his son, and Mitchell Harmison. The defendant also called evidence from Dr Virginia Pascall, a consultant occupational physician, and from Dr Jeffrey Bogan, a clinical psychologist. The evidence of these two witnesses was the subject of significant challenge.
Both parties also relied upon medical and allied reports relevant to the various aspects of quantum. Consideration will be given to those reports in the context in which they were relied upon by the respective parties on specific damages issues.
Factual accounts and credibility
Although the defendant has admitted he had breached the duty of care he owed to the plaintiff, thereby only leaving the need to resolve the issue of contributory negligence, it is still necessary to review the salient features of the liability evidence.
There was no attack made upon the credibility of any of the factual witnesses who were called to give evidence in the proceedings. Accordingly, the reliability of the testimony of those witnesses stands to be evaluated according to the content of their evidence when assessed from the respective vantage points from which they gave their factual accounts. Those respective factual accounts are summarised in the paragraphs that follow and can be taken to be the facts unless otherwise stated.
Plaintiff's evidence on liability issues
The plaintiff gave evidence on background matters and post-accident events. He was unable to provide any useful evidence concerning the events surrounding the accident. His evidence as to his understanding of road safety issues will be taken up in connection with the consideration of the issue of contributory negligence. His recollection of matters occurring before and after the accident was affected by amnesia that was marked as having commenced some hours before the accident and continued until some 6 days after the accident. There was no attack on the credibility or the reliability of the testimony of the plaintiff.
The plaintiff gave his evidence in a laconic unanimated manner that seemed to be consistent with the flat affect which some of the experts identified when reporting on their examinations of him. These are matters to which I will return when dealing with the damages issues.
In the meantime, it is sufficient to say that there was no suggestion that the plaintiff gave anything other than honest testimony to the best of his understanding and recollection, save for his tendency to exhibit an attitude of denial of his accident-related problems, an attitude which, if taken at face value, in the absence of other explanatory evidence from family members and experts, could give a misleading and incorrect impression that there was little wrong with him in the way of accident-related disabilities.
The plaintiff said that he had received the skateboard in question as a Christmas present in the weeks before the accident. It was his first skateboard, which his mother said was a longboard for cruising, not for tricks. He said he knew Mitchell Harmison, Patrick Waddington and Alphonse Verryt Jnr, as older boys in the neighbourhood whom he looked up to. He also said he knew the defendant, but not by name. He had been to his house on a handful of occasions, and the defendant's son, Alphonse Verryt Jnr, had also been to the plaintiff's home before the accident.
The plaintiff recalled being at school until lunch time on the day of the accident, and then being picked up by his mother. He recalls the journey home by car. His next memory is of him being in the Sydney Children's Hospital.
Mr Mitchell Harmison
Mr Mitchell Harmison had been a friend of the plaintiff since their primary school days, although they have not had much contact with each other since the accident. He was also present at the accident scene and was one of the 3 boys who were "skitching" at that time. He was called to give evidence in the case for the defendant, concerning his recollections of the events leading up to, and following the accident.
At the hearing Mr Harmison was aged 21 years. He was a year ahead of the plaintiff in their school years and he was also a year older than the plaintiff. He lived a short distance from the plaintiff's home at the time of the accident.
On the day of he accident, he was in Hillcrest Avenue in company with the plaintiff and another boy, Patrick Waddington, who was also older than the plaintiff. They had been skating on their skateboards in that street for an hour or so before the accident occurred.
Mr Harmison said the plaintiff had learned how to ride a skateboard by watching these boys and he then copied them and skated around with them. He said the plaintiff had also learned how to "skitch" by copying what they did: T179.22.
The other person at the scene, Patrick Waddington, was overseas at the time of the hearing, and no adverse inferences arise from the fact that he was not called to give evidence.
Mr Harmison described the events of the accident and thereafter as follows:
(1) When the defendant drove past the boys in the street, someone, it was not clear to him as to who, had asked the defendant if they could hold onto the back of his vehicle for what was known as "skitching". This conversation occurred whilst the vehicle was stationary;
(2) Mr Harmison could not recall where the defendant's son Alphonse Verryt Jnr was located at that time, although there is no dispute that he was in the vehicle. Neither could he recall any of the precise details of the conversation that had taken place with the defendant before the "skitching" commenced;
(3) Mr Harmison then recalled the three boys, including himself, holding onto the rear of the defendant's vehicle whilst they were on their skateboards, facing to the front from the rear of the vehicle, with himself on the left, Mr Waddington on the right, and the plaintiff in the middle and on his immediate right. The position of the plaintiff was described differently in the evidence of Mr Verryt Jnr, but nothing turns on that difference;
(4) Although he and Mr Waddington had been "skitching" on at least one previous occasion, he did not think the plaintiff had done so;
(5) He recalled that in the events on the day, the vehicle travelled for what he described as being about half the length of the street, or about 50m in his estimation, with all three boys holding onto the rear of the vehicle when, at the 50m point, he noticed the plaintiff had fallen backwards off his skateboard after it had wobbled and his legs had gone out from under him;
(6) After the plaintiff fell, he and Mr Waddington just let go of their respective holds on the vehicle, and they then each slowed down by using a foot on the road to retard the movement of their skateboards;
(7) In those events, Mr Harmison had not observed whether or not the plaintiff had beforehand performed the same manoeuvre with his foot;
(8) Mr Harmison was ahead of the plaintiff at the time when the plaintiff must have fallen onto the road;
(9) The next observation Mr Harmison made of the plaintiff was seeing him sitting in the middle of the roadway, and initially not speaking, following which he then appeared to come to his senses, and went home;
(10) When he was asked about why he had not worn a protective helmet at the time, he replied: "Because we were young and stupid": T175.39.
Mr Harmison's account as outlined above seems plausible, although it would appear from the other testimony that the evidence summarised at paragraph [31(9)] above may have been conflated. In my view, nothing of relevance turns on those post-accident observations. There was no attack on the credibility or the reliability of the testimony of Mr Harmison.
The defendant, Mr Alphonse Verryt Snr
Mr Alphonse Verryt Snr, the defendant, gave evidence concerning his recollections of the events leading up to and following the accident. The defendant gave the impression of being awkward, contrite and embarrassed when relating the details of the events in question. At times this was to the point of self-deprecation: T119.36. He also appeared to have some difficulties with his memory. However, I am satisfied that he did his best to be candid about the pre-accident events and the events of the accident itself: T121.33. In submissions on liability this was accepted to be so by senior counsel for the plaintiff: T121.35 .
The defendant stated that when he was driving up the incline of Hillcrest Avenue towards his home he saw the three boys sitting by the side of the road with their skateboards. He stopped his vehicle when he was waved down. His son Alphonse Verryt Jnr was in the front passenger seat of his vehicle. He could not recall who had asked him to give them a lift up the hill whilst holding onto the back of his vehicle, but he doubted it was the plaintiff: T107.10 - T107.50.
After the plaintiff and the two other boys had taken a handhold at the rear of his vehicle, the defendant then drove off up the hill after first checking to ensure there was no traffic: T198.27. He had obliged a similar request along the same lines once before (T107.30) but did not think the plaintiff was involved on that occasion. His account of the ensuing events was a little disjointed when he related it, as appears at T108.27 - T109.15, as follows:
"Q. Well you're driving, did your son stay in the front passenger seat?
A. Yes.
Q. What did you see Liam do?
A. Well, we drove as I said we might have drove a couple of hundred metres up the road, and then my son I was looking in the rear vision but I was watching what was going my son was watching and he said that all of a sudden he said Liam's he let go, and was not he was still upright on his skate and I looked and yeah, yeah, so I
Q. When you looked, you looked what, in the rear vision mirror or the side mirror?
A. Rear vision no, the rear vision mirror.
Q. What did you see Liam's position to be at that time?
A. He was standing up on the board, yep.
Q. Was he still holding onto your vehicle?
A. No, no, he was not supposed to let go, that was the agreement the boys had made, but he let go for whatever reason, he might have felt he was in
Q. Let's not guess. You saw him free from holding onto your vehicle?
A. Yes.
Q. But you saw him on the skateboard?
A. Yes.
Q. Standing upright?
A. Yes.
Q. Did you notice what happened to Liam after that point?
A. Well
Q. Did you see what happened to Liam after that point?
A. That's a I'm not 100% certain because my son was kind of like said that's when I looked up when Liam let go, because my son was giving a commentary on what was going on. And then I looked up the road again, and then Alphonse said, "Oh, Liam's fallen" so I looked in the so I'm not 100% but I looked as he was falling not when he fell."
The defendant considered that he had driven a distance of a few hundred metres with the boys holding onto the vehicle before the accident occurred: T109.21. That distance was considerably longer than the estimate given by Mr Harmison. On this point, as the defendant was a licensed driver, I consider he was likely to be in a better position to more accurately estimate that distance, but the distance is not all that important.
The defendant stated that when he stopped his vehicle after the plaintiff had fallen, the other two boys were still holding onto his vehicle: T110.3. That account was different to the recollection of Mr Harmison, who said that both he and Mr Waddington had let go of the vehicle when the plaintiff fell. In that regard, I accept the evidence of Mr Harmison, as he was in a better position to give a more reliable account of that particular fact.
The defendant was uncertain about the speed of his vehicle at the time the plaintiff fell. However, he felt he had been driving his vehicle at between 15kph and 20kph, but he also agreed that he would not dispute a range of speeds of between 10kph and 15kph: T113.24.
When the defendant was questioned on the extent of his recollection of the position of the plaintiff at the rear of the vehicle before the accident, he said he did not know which of the boys was in the middle position. When pressed on this issue, he said he might have dementia: T115.14. It was left unclear as to whether or not he actually had some dementia, or whether that comment was a light-hearted or self-deprecating remark made under the tension of cross-examination. It was plain that the defendant was under pressure at that point of the cross-examination.
The defendant agreed with the following propositions put to him in cross-examination:
(1) The speed of the vehicle at the relevant time could have been a little faster than walking pace: T113.28;
(2) He had complete control over the speed of travel of the vehicle: T113.32;
(3) The incline on the road was gradual: T113.44;
(4) He initially said that his first awareness that the plaintiff had separated from the vehicle was when his son had told him that had occurred: T113.49. He later said when that fact was drawn to his attention by his son, he looked in the rear view mirror and saw the plaintiff upright on his board, but he was wobbling, giving the impression that he was having balance problems: T115.19 - T115.40;
(5) There was a very short interval of time between the defendant having been made aware that the plaintiff had become separated from the vehicle, him seeing the plaintiff wobbling, and of him becoming aware the plaintiff had fallen: T116.20;
(6) He agreed that the interpersonal dynamics within the cohort of the boys was that the plaintiff was the youngest, that he was a good and quiet boy, and that he was by nature a follower of others: T117;
(7) He agreed that in the past, when he had seen children in the neighbourhood on skateboards, he did not see them riding with helmets, although as parents "we've all tried to get them to wear helmets ...". In that regard, his own son followed the lead of others and apparently never wore a helmet when using his skateboard: T118.46 - T119.19.
(8) He was unable to say whether the plaintiff had in fact actively let go of his hold on the vehicle, or had lost his grip at the relevant time: T114.6;
(9) The location of the point where the boys were holding onto the vehicle with their 6 hands was a horizontal latch structure on the boot door of the defendant's station wagon, and it was variously described as being about 40cm or about 2 feet wide: T114;
(10) The defendant considered there were no surface problems on the road at the relevant time: T119.33.
The defendant said that after the accident he went to attend to the plaintiff whom he thought was laying in the middle of the road: T110.17. He said he picked up the plaintiff and laid him on the nearby grass. The plaintiff was groaning and grunting at that time: T110. This was a slightly different account to that given by Mr Verryt Jnr, who said it was he who had first picked up the plaintiff out of concern for possible traffic arriving on the scene. In my view, nothing of significance turns on those differences. The defendant said he later assisted the plaintiff into his vehicle and drove him home, where the plaintiff then walked into his house and went to bed: T111.25; T120.30. He said that after he had a short conversation with the plaintiff's mother, she called for an ambulance to attend to the plaintiff: T111.
There was no attack on the credibility of the testimony of Mr Verryt Snr. The reliability of his evidence on some matters of detail was in doubt because of his admittedly apparent poor memory of some aspects of the events. It is not necessary to determine whether this was due to either the effluxion of time, or his memory capacity generally, or his embarrassment over the incident having occurred in circumstances where he was the responsible adult involved, or whether it was a combination of these factors.
Mr Alphonse Verryt Jnr
Mr Alphonse Verryt Jnr, the son of the defendant, gave evidence concerning his recollections of the events leading up to and following the accident.
He was aged 22 years at the time he gave his evidence. He was aged 14 years and 10 months at the time of the accident. He was a front seat passenger in his father's vehicle at the time. He was unclear of the details of what was said and by whom in the lead-up to his father having ultimately agreed against his better judgment, to allow the other boys to hold onto the back of the defendant's vehicle to "skitch" a ride: T123.
Mr Verryt Jnr described his observations of the occurrence of the accident as follows:
"Q. What did you see happen to Liam?
A. I saw him let go, he's sort of wobbling a bit on his - on the wheels because he had a longer board and then I saw him come over the front of the board and he landed on his back I think.
HIS HONOUR
Q. Let me just understand that correctly. What did you see first, did you see him wobble first and then let go or let go and then wobble?
A. He let go, went - rode for maybe five, ten more metres and then started wobbling and fell off in the dirt.
RONZANI
Q. During the five to 10 metres you saw him riding his longer skateboard were you watching him?
A. Yeah.
Q. How was he riding his skateboard during that 5 to 10 metre stretch?
A. He was just standing on it normally but on the longer boards they've got looser fittings like the trucks and he got the death wobbles and then he was sort of shaking a bit and then came off.
Q. From the moment you saw the death wobbles to the moment he came off are you able to say whether that's a particular period of time or length of travel?
A. Two, three seconds.
Q. That's in addition to the time you saw him travelling normally?
A. Yeah, all up it wouldn't have been over 10 seconds.
HIS HONOUR
Q. You gave a reference to trucks a moment ago, can you just clarify what you were talking about there?
A. You get the death wobbles, it's just when it just keeps the skateboard wobbles really fast, it's when you've got really loose trucks on your skateboard and yeah, he came off after that.
Q. What are the trucks?
A. It's the metal it's got the wooden skateboard and then underneath it's got the metal bars and then on the side of that its got the four wheels and yeah, when they're not tightened fully, which they aren't normally on a long board. It can happy pretty easy."
Mr Verryt Jnr agreed with the following propositions:
(1) He was watching (the boys at the rear of the vehicle from inside) whilst they were holding on to the rear of his father's vehicle whilst it was being driven up the street; T123.42;
(2) He was unsure whether the plaintiff was on the right at the back of the vehicle: T123.46;
(3) From his position in the front passenger seat he maintained his watch of the boys at the rear of the vehicle for what he described as being between 5 and 10 seconds before he saw the plaintiff fall: T124.9 - T125.2. I did not get the impression that he was seeking to convey accuracy in providing that estimate of time;
(4) Mr Verryt Jnr confirmed that at the time he had been given his own skateboard, some time earlier he had also been given a helmet. He said he used to wear it: T126.35;
(5) He also claimed that there had been previous occasions when the plaintiff had "skitched" a ride behind other vehicles, but this was the first time he had done so behind his father's vehicle: T126.42; T127.8;
(6) He said that after the plaintiff's fall, his father had stopped the vehicle, and went to the plaintiff's assistance, picked him up and brought him to the side of the road: T125.15. He went on to say that after about 10 minutes the plaintiff sat up and he was driven home: T125.40. This was after he said he had taken off his own shirt, wet it under a tap, and with the assistance of his father and others present, had placed it on the plaintiff's head: T125.29 - T125.37.
In answers to questions put in cross-examination, Mr Verryt Jnr agreed that:
(1) Of the group of boys, Patrick Waddington was the oldest and the plaintiff was the youngest: T127.25-T127.31;
(2) He and Mr Waddington had seen the practice of "skitching" on television and from participating in a computer game, and they commonly engaged in copying the activity in the neighbourhood for fun in late 2006 and early 2007, with the younger members of the group copying that activity as well: T127.33 -T128.8;
(3) He used to wear his helmet in designated skate parks but not on the street: T128.12;
(4) When he looked at the road surface a week or two after the accident there were small loose rocks on the road surface and he fell off his skateboard when a wheel on his board was jarred after coming into contact with a rock: T130.5.
I consider this latter observation should be given very little weight because, in the light of the evidence of the defendant to the effect that there were no problems with the road surface, it would be unsafe to assume the rocks seen by Mr Verryt Jnr a week or two after the accident, were present at the time of the accident.
On the question of whether there were stones on the road at the time of the accident, it is difficult to undertake a definitive comparison between that evidence and the content of the police report on the subject of the presence of stones on the road as the police report was a summary rather than a statement, and it was dated some significant time after the accident: Exhibit "A", p 22.
There was no attack made on the credibility of the testimony of Mr Verryt Jnr. The reliability of his evidence is a matter that requires assessment in light of the evidence as a whole.
Consideration of contributory negligence
During the course of the hearing of the proceedings on circuit in Wollongong, and in the interests of the efficient and expedient use of court time in the context of a long circuit list of 61 matters, the parties agreed to call the liability evidence in this case first, and to then proceed to give their final addresses on the issue of contributory negligence to enable a consideration of that issue to take place before then proceeding to call evidence on the damages issues: s 56 - s 58 of the Civil Procedure Act 2005.
That was on the understanding that after consideration, an indicative view would be given on the issue of contributory negligence, with the reasons for that view to follow in this judgment: Day 4, T244; Day 5, T273.
My reasons are now provided, as follows.
The defendant argued that the facts of this case require that there should be a finding of contributory negligence against the plaintiff to the extent of 30 per cent. In that regard, the defendant relied upon the following particulars of contributory negligence:
(a) Riding a skateboard holding onto the defendant's vehicle while it was moving;
(b) Voluntarily engaging in an activity that was inherently dangerous;
(c) Failure to take adequate precaution for his own safety;
(d) Failure to wear a protective helmet;
(e) Riding a skateboard at an excessive speed.
On behalf of the plaintiff, the contributory negligence defence was resisted in favour of an argument for a finding of no causation on the issue of contributory negligence in respect of the failure of the plaintiff to wear a protective helmet, or alternatively, in the event findings of contributory negligence are made, a zero apportionment against the plaintiff. Failing those arguments, the plaintiff argued there should be an apportionment of either 5 or 10 per cent against the plaintiff, depending upon the factual findings concerning the protective helmet issue.
The statutory framework governing the question of contributory negligence is provided by s 138 of the MAC Act, s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965, as amended by the Law Reform (Miscellaneous Provisions) Act 2000, and s 5R of the CL Act: Mobbs v Kain [2009] NSWCA 301.
Construction of s 138(2)(d) of the MAC Act
A key aspect of the statutory framework for considering a defence of contributory negligence in this case is s 138(2) of the MAC Act which provides for a number of circumstances where a finding of contributory negligence becomes mandatory.
The defendant specifically relied on the provisions of s 138(2)(d) of the MAC Act which provides for a mandatory finding of contributory negligence where the injured person was not wearing a protective helmet when required by law to do so. [Emphasis added]
It is not disputed that the plaintiff was not wearing a protective helmet at the time he received his injury.
The preliminary question arises as to whether the mandatory considerations of s 138(2)(d) of the MAC Act applies to the facts of this case. It is therefore convenient to consider that preliminary question first, namely, whether the phrase "required by law" appearing in s 138(2)(d) should be read as being a reference to a requirement of statute law or regulation, or whether it should be considered to be a reference to the common law.
Significantly, the defendant has been unable to identify any statutory or regulatory legal requirement that a skateboard rider must wear a protective helmet.
In construing s 138(2)(d), it is relevant to consider the objects of the MAC Act, which impose limitations on the rights of persons injured in motor accidents to claim for damages. In that context, a purposive and beneficial interpretation of s 138(2)(d) requires that statutory provisions restricting the right of an injured person to obtain damages should not to be read to apply more widely than the legislature intended when it enacted the words of the section. In that regard, I consider that caution is therefore required when interpreting the words of s 138(2)(d) "required by law" in their application to this case.
In my view, the words in question should be construed as referring to specific statutory or regulatory legal requirements, and not to an implied requirement according to the common law.
Therefore, in this case, absent any specific requirement within a statute or an applicable regulation providing for skateboard riders to wear protective helmets on public streets, I find that on a proper construction of s 138(2)(d) of the MAC Act, there is no scope in this case for a mandatory finding of contributory negligence based on a failure of the plaintiff to wear a protective helmet at the time of the accident.
Consequent upon the finding that s 138(2)(d) of the MAC Act does not apply to the facts of this case, a common law consideration of the contributory negligence issue is required, and this must proceed in accordance with the provisions of s 5R of the CL Act: s 138(6) of the MAC Act.
Plaintiff's actual and imputed knowledge
The standard of care by which contributory negligence is to be determined is that of a reasonable person in the position of the person against whom contributory negligence is alleged: s 5R(2)(a) of the CL Act. That matter is to be determined according to what the person the subject of the allegation of contributory negligence knew or ought to have known at the relevant time: s 5R(2)(a) of the CL Act.
In the present case, the plaintiff was aged 12 years and 10 months when he was injured. Applying s 5R to the plaintiff's situation, this must be a reference to the standard of care that is to be judged objectively according to the standard expected of a child of the same age and experience, also following the decision in McHale v Watson [1966] HCA 13; (1966) 115 CLR 199.
That evaluation does not proceed in a vacuum. It must also be undertaken according to the circumstances in which the events in question occurred, and according to the dictates of commonsense.
The onus of proof of an allegation of contributory negligence is borne by the defendant: s 5E of the CL Act. The evaluation of whether allegations of contributory negligence are applicable to the circumstances under present consideration must be undertaken prospectively, unaffected by hindsight considerations: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442.
That evaluation is guided by the provisions of s 5R of the CL Act and the principle identified and re-stated in McHale v Watson, at [7], to which reference has already been made.
In those circumstances, it is therefore appropriate to examine what the plaintiff knew and what he should be taken to have known at the time of the accident.
The plaintiff had received some basic road safety instruction from his primary school involving undefined content. He had also received some parental instruction specifically with regard to the wearing of a protective helmet, and he had also been given such a helmet.
In the present circumstances, I consider that the following propositions are irresistible in the case of a reasonable and unimpaired boy aged 12 years and 10 months in the position of the plaintiff, who in January 2007, must be taken to have known of the following general propositions:
(1) use of a skateboard on a hard surface, including on a bitumen road surface carried with it a foreseeable risk of bodily injury;
(2) that risk of bodily injury may have been reduced if not avoided by the use of readily available protective devices, such as knee, elbow and wrist guards, as well as protective helmets;
(3) the availability of a protective helmet indicated the advisability of using it in the hope of minimising the risk of injury whilst skateboarding;
(4) it was customary and advisable to take safety instructions from adults in positions of apparent responsibility or supervision, especially if that adult was known to them and there was no basis for doubting the authority of that adult;
(5) road safety considerations required the taking of particular care when around moving motor vehicles travelling at any speed because coming into contact with moving motor vehicles or attempting to avoid a moving motor vehicle could lead to injury;
(6) engaging in the activity of "skitching", namely maintaining a handhold at the rear of a moving vehicle travelling at any speed, whilst standing on a skateboard, carried with it the inherent danger of loss of handhold for whatever reason, falling and sustaining possible injury.
Against those background considerations, it is also necessary to examine further aspects of the plaintiff's knowledge at the time, as well as the evidence of the surrounding circumstances as described by other persons who were also present at the scene.
The plaintiff said that he had previously "skitched" in the same street without problems, with "the same fellow": T78.11. It is not clear as to whether that evidence was a reference to having "skitched" behind the defendant's vehicle, or whether it was a reference to a skateboarding companion. On that occasion the "skitching" activity was apparently uneventful.
The plaintiff agreed, in hindsight, that he should have been wearing a helmet: T78.20 - T78.47. It seems to me that hindsight concession is extraneous to a prospective evaluation of the issue of contributory negligence: Vairy.
The plaintiff described how he had been holding onto the vehicle, near the number plate area of the boot of the vehicle, with both of his hands and with his palms gripping the structure of the vehicle whilst they were facing in the upward position: T79 - T80.
The plaintiff gave some evidence that indicated he had a brief recollection of the events of the accident when he agreed the "skitching" he had engaged in was a dangerous thing to do. That evidence was: "I didn't really think about it at the time. No because everyone else was doing it": T81.15 - T81.20.
Whether the preceding concessions were matters he actually recollected as part of the "coming and going" of his memory around the time he was in hospital (T20.40), or whether they were based on what he had been told or had assumed, or whether he simply acquiesced to the terms of the question, remains unclear. I consider that these matters are also hindsight concessions, in view of the medical evidence of the plaintiff's amnesia for the events surrounding the accident.
The plaintiff agreed he was in possession of a bicycle helmet on the day in question, and that he could have worn it, but that he had not done so T83.15 - T83.33. That is a relevant fact that is available for consideration in this context.
Mrs Schoupp said she had seen the plaintiff with his helmet when she saw him sitting outside with his friends some time before the accident: T201.41. She also stated that she believed that he knew how to wear it: T199.26. In addition, Mr Schoupp said the plaintiff had always been told to wear a helmet: T313.50. The plaintiff also agreed that whilst at primary school, he had learned about road safety: T75.50. The nature, detail and extent of that road safety tuition was not explored. It cannot be reasonably inferred that it necessarily also covered the activity of "skitching".
I am satisfied that at the time when the plaintiff decided to hold onto the rear of the defendant's vehicle before it moved off, and whilst he continued to maintain that hold during the forward journey of the vehicle, he should be taken to have known that he was being exposed to a significant possibility of incurring bodily injury. In those circumstances, at the very least, whatever may be thought about the safety of such activity, if he was determined to engage in or persist with that activity, it was both prudent and advisable for him to have worn a protective helmet, which was available to him at the time.
Having identified what the plaintiff knew and ought to have known at the relevant time, it is also necessary to examine the other evidence of the circumstances. That evidence comes from Mr Verryt Snr, Mr Verryt Jnr, and Mr Harmison.
Mr Verryt Snr knew that it was advisable for helmets to be worn when skateboarding. There is no evidence to suggest that he had insisted on the plaintiff or any of the other boys wearing one at the time. The indications are to the contrary, as it appears that the defendant had become resigned to the fact that protective helmets were not worn in those circumstances. In my view, that attitude was an abnegation of the defendant's responsibility as the adult who was supposed to be in control of the situation at the time.
"Skitching" by plaintiff
Mr Verryt Snr knew that the plaintiff was likely to be a follower of others rather than being an instigator of the activity of "skitching". He also must have known that the other boys were older than the plaintiff. There is no evidence of the precise details of the interchanges as to what was said and by whom, in the course of the negotiations with Mr Verryt Snr, before he agreed to the "skitching", and before the vehicle moved off with the three boys in tow.
There was some suggestion by Mr Verryt Snr that there had been an agreement with the plaintiff before the "skitching" had commenced: T108.45. The defendant suggested there was some prior agreement with the boys that they would not let go of the vehicle. An agreement to that effect would be difficult to understand, and in any event flawed, as it did not provide for the possibility that one or more of the boys wanted to cease "skitching". The suggested agreement was not the subject of other evidence, and its purported terms were not further explored. I do not accept the defendant's evidence at T108.45 where he suggests there was an agreement on the part of the plaintiff not to let go of the vehicle. I consider that the defendant is mistaken in his evidence on this point as his view was not reflected in the evidence of the others present, as would be expected in the circumstances.
The precise position of the plaintiff in amongst the three boys at the back of the vehicle when it started to move is immaterial.
It is not known as to what actually caused the plaintiff to cease his grip on the vehicle just before he fell, and it is not clear as to what caused him to fall from his skateboard. However, it is clear that when the plaintiff fell, he injured the back of his head.
Determination of contributory negligence issue
In the paragraphs that follow, I set out my findings on the defendant's allegations of contributory negligence.
Failure to wear protective helmet - particular (d)
Having considered the above factual circumstances, in accordance with the evaluative exercise required, I conclude that as a reasonable male child aged 12 years and 10 months, the plaintiff must be taken to have failed to take care for his own safety by his failure to wear an available protective helmet.
It is no answer to that proposition to argue that the plaintiff was emulating his friends in that regard because they were not wearing protective helmets either. He had his own helmet nearby, and in my view, he was old enough and sufficiently instructed and experienced in its use to realise that he should have been wearing it when skateboarding in any manner.
It therefore follows that the defendant has established contributory negligence on the part of the plaintiff with respect to wearing a protective helmet: contributory negligence particular (d).
My consideration of the consequences of that finding in relation to a causation and apportionment analysis appears later in the reasons.
In my view, the consideration of the remaining contributory negligence particulars (a), (b), (c) and (e) can be conveniently grouped together as they each relate to the point in time when the plaintiff had already joined his friends in the enterprise at the back of the defendant's vehicle.
Before evaluating those individual particulars, as a relevant background, it is convenient to first consider the guidance value of the expert opinions of Associate Professor Quadrio on the issue of the manner in which the plaintiff's behaviour should be seen, in terms of what would have been expected of a normal or average boy in the position of the plaintiff aged 12 years and 10 months at the time: s 5R of the CL Act; McHale v Watson.
Opinions of Associate Professor Quadrio
Associate Professor Quadrio, a consultant child and adolescent psychiatrist of unquestioned qualification, was asked by the solicitor for the plaintiff to provide two reports. The first report was dated 21 December 2012: Exhibit "C", pages 72 - 81. The second report, which was dated 10 October 2013 will not be analysed here as it goes only to a damages analysis: Exhibit "C", pages 83 - 88.
In her first report, Associate Professor Quadrio was asked to consider the general factual circumstances of the accident, as well as the plaintiff's school reports, some factual material in the form of statements from the plaintiff's family, which she summarised in her report. She then addressed a number of questions posed by the solicitor for the plaintiff for her to consider and to express her comments and opinions upon. She did so as follows:
(1) She stated that her commentary was based upon the assumed facts provided, without an examination of, or consultations with, the plaintiff, and it was informed by her considerable experience in the clinical assessment of children and adolescents, in assessing the psychiatric sequelae of trauma, and a familiarity with the relevant body of knowledge and research;
(2) In her view, it was an entirely normal activity and common past time for boys aged 12 to 13 years in Australia to engage in skateboard riding;
(3) She considered that a boy of the age of the plaintiff at the time of the accident would be likely to trust the judgment of an adult who was familiar to him and in that position, the plaintiff would be highly likely to go along with what others were doing, especially since they were known to him and older than him;
(4) In her view, there was nothing that suggested that the plaintiff was anything other than a reasonably normal 13 year old boy. Her review of salient features of his background revealed he was well behaved and did not display any disruptive or reckless behaviour either at home or at school. She considered the plaintiff should not be considered particularly reckless as a child. In her opinion the plaintiff did not understand that in undertaking the activity in question, he was undertaking something highly dangerous or reckless. She further stated that it was likely the plaintiff would have felt some confidence in what he was doing since the driver of the vehicle was agreeable to being involved in the activity, and the older boys in whose company he was, were also prepared to engage in the activity in question.
Those views must be analysed in conjunction with the entirety of the liability evidence and through the perspective of a commonsense analysis.
The defendant gave critical attention to the opinions of Associate Professor Quadrio to the effect that the propensity of a boy aged 12 years and 10 months in the position of the plaintiff, would likely to be trusting of the judgment of the adult present and who was familiar to him, and her further view that a boy of the plaintiff's age would also be likely to go along with what the other boys with him were doing, in circumstances where those boys were older than him, and where they were known to him.
The defendant's criticisms were that those opinions involved only general considerations because she had not interviewed the plaintiff, nor had she had a consultation with him, and that her opinions asserting the plaintiff's lack of understanding of the dangerous nature of the undertaking that led to his injury because of his confidence in the adult decision of the defendant and the participation of the older boys, should be rejected as speculation.
I do not accept those criticisms or submissions for the following reasons.
First, it was not necessary for Associate Professor Quadrio to have interviewed the plaintiff in order to prepare her opinions. This is because her opinions were directed at providing some evidence, based on her expertise, of the objective standard of the likely behaviour of someone in the position of the plaintiff, and the factors that would have been likely to have influenced that behaviour: s 5R of the CL Act; McHale v Watson. Her opinions on that ultimate issue are admissible, subject to questions of analysis and weight: s 80 of the Evidence Act 1995.
Secondly, as was stated in Associate Professor Quadrio's first report, her opinions were informed by her unchallenged and extensive experience in the assessment of children and adolescents: Exhibit "B", p 78.
Thirdly, Associate Professor Quadrio's views on what the plaintiff was likely to have understood at the relevant time, are not received so much as fact, but they are received as useful material for background that serves to guide the evaluation of the evidence of the circumstances that surrounded the accident. To the extent that her stated views accord with a commonsense analysis, they provide relevant guidance for the court for the fact-finding process. In that context, to the extent that those views may be thought not to accord with commonsense, they may be rejected.
In my view, Associate Professor Quadrio has been shown on the evidence to be sufficiently well qualified to express the views that are criticised by the defendant. The question of the weight to be given to aspects of her opinions is a matter to be determined in the usual way, by recognising the absence of challenge to those opinions through cross-examination, the absence of contradictory opinions from someone of like expertise, assessing the content of her opinions for relevance, cogency and applicability, and the application of commonsense.
In undertaking that consideration, I see no sound reason to reject the opinions of Associate Professor Quadrio as to her views on the propensity of a boy aged 12 years and 10 months in the described circumstances. Nor do I see any sound reason to assign diminished weight to those views. She is indisputably qualified to express views on the likely behaviour of a normal reasonable child in the given circumstances. That aspect of her opinion is relevant to an essential issue in the case, namely the manner in which the alleged contributory negligence of the plaintiff should be viewed, as is required by statute, and by applicable authority: s 5R(2)(a) and (b) of the CL Act; McHale v Watson. In my view, Associate Professor Quadrio's views are entirely relevant to these considerations.
Of particular relevance is the opinion that the propensity of a boy of 12 years 10 months in the position of the plaintiff would likely to have been trusting of the judgment of Mr Verryt Snr, in the circumstances of his acquiescence for "skitching" to occur behind his vehicle, because Mr Verryt Snr was familiar to him, and because he was also the father of one of his longstanding neighbourhood friends. This suggests a position of authority and mature judgment that would implicitly exercise reasonable care.
Also of relevance is the opinion of Associate Professor Quadrio that it was highly likely the plaintiff, being the youngest of the participants, would have most likely gone along with what the two older boys were doing.
I accept that view as accurately describing the probable circumstance that prevailed at the time the events in question occurred.
This is also relevant to the issue of apportionment, to which I shall shortly refer.
It is relevant to note that the portion of the opinion of Associate Professor Quadrio which the defendant criticises as speculative, namely, the plaintiff's assumed lack of understanding of the danger of the activity he was undertaking, was not a matter that was put to the plaintiff in cross-examination as to how he related to the defendant and to the other two boys.
In my view that was a general matter that was unaffected by the plaintiff's amnesia. It could therefore have been the subject of legitimate questions on the plaintiff's state of knowledge at the relevant time. It also relates to a possible inference that is available on the evidence, namely that the plaintiff was obviously comfortable with what the defendant had agreed to when the "skitching" was negotiated. Otherwise, it would have been unlikely that he would have "skitched" at that time.
In the circumstances described, I draw that inference.
I accept the cited opinions of Associate Professor Quadrio as providing objective and rational explanatory expert evidence of the likely behaviour of the plaintiff in comparison to an average boy aged 12 years 10 months in the circumstances in question. I consider that such evidence provides a reasonable perspective for viewing the actions of the plaintiff in a contributory negligence analysis, to which I now return, in order to consider the remaining allegations of contributory negligence, namely particulars (a), (b), (c) and (e).
Remaining contributory negligence allegations: (a), (b), (c) and (e)
I consider that in the circumstances, it was plainly unwise of the plaintiff and the other boys to together ride their skateboards whilst holding onto the rear of the defendant's moving vehicle. When viewed prospectively, this must be seen as being a dangerous thing to do, and this supports a finding of contributory negligence founded upon contributory negligence particulars (a) and (b). I therefore make findings to that effect.
The activity of "skitching" behind a motor vehicle whilst it was being driven at any speed should be objectively recognised as a source of danger to the person "skitching". This is because, at the very least, the person doing the "skitching" retains no control of the speed of travel, and therefore courts danger when the only means of stopping whilst on a skateboard is to let go and change the dynamics of balance on the skateboard, therefore giving up the steadying handhold on the vehicle, making it no longer available at that point. It is that potential loss of balance that was observed in this case when the plaintiff was seen to "wobble" on his board just before his injury.
The only way the plaintiff would have been able to stop with relative safety in those circumstances, would have been to use his foot as a braking force on the road surface as Messrs Harmison and Verryt Jnr did. There is no evidence that the plaintiff was sufficiently skilled or practised to achieve this. In any event, there is no allegation made against him concerning a lack of skill in the use of his skateboard.
In light of the foregoing reasons, I consider that the allegations of contributory negligence (a), (b) and (c) have been made out.
On the question of alleged excessive speed of riding the skateboard, the analysis gives rise to a difficulty for the defendant. The speed of the vehicle was something over which the plaintiff had no control. Therefore, unless he was able to safely let go of his hold on the vehicle and either stop or slow down by allowing the momentum of the uphill travel to take its course, or at least let the process of ordinary skating take over from "skitching", he was not in control of his speed in the same sense as was the defendant.
This was a matter that was left unclear on the evidence because it is not known as to how the plaintiff was handling the ride up to the point where he was seen to cease his hold on the vehicle. It may have been the case that he let go of his handhold because he may have felt the vehicle was travelling too fast for his liking in the circumstances. Therefore, as the evidence on this point is unclear, I do not consider that contributory negligence particular (e) can be sustained.
In my view, nothing of significance turns on the general allegation made by contributory negligence particular (c) because the allegation of failing to take care for one's own safety is non-specific, and in effect, it is just a ritual recitation of what is already covered by the other particulars, and matters, inherent in a general consideration of whether there was adherence to or departure from the expected standard of care and conduct.
I find that it was inherently negligent of the plaintiff to make a conscious decision to ride a skateboard whilst holding onto the defendant's vehicle that was moving at any speed, particularly where he had no control over the speed, direction of travel, or the terrain over which the vehicle would be driven, and whilst he was not wearing an available protective helmet: Particulars (a), (b), (c) and (d).
I am therefore satisfied that there was contributory negligence on the part of the plaintiff in the events in which he was injured in the subject accident.
Those findings therefore require an evaluation be undertaken of the extent of the causative potency of the plaintiff's contributory negligence insofar as the non-wearing of a protective helmet is concerned, and the other relevant factors, when weighed against the primary negligence of the defendant.
Apportionment and causation findings
Consequent upon the finding of contributory negligence on the plaintiff's part, it becomes necessary to weigh, balance and apportion the respective culpabilities of the parties for the plaintiff's damages according to what is just and equitable in the circumstances.
The discretionary exercise of arriving at a just and equitable apportionment between the parties involves a comparative evaluation that weighs the proportion, balance and relative emphasis of the different operative considerations that led to the plaintiff's injury: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529, at [8]; [10].
The defendant submitted that the plaintiff's culpability should be apportioned against him at 30 per cent. In contrast, the primary submission on behalf of the plaintiff was that there should be a zero apportionment against the plaintiff. The plaintiff's zero apportionment submission was founded on two alternative propositions.
The first proposition was that according to the requirements of establishing legal causation, the defendant has not shown that the brain injury suffered by the plaintiff was relevantly caused by his own contributory negligence, having regard to the requirements of s 5D and s 5E of the CL Act.
The second proposition was that the negligence of the defendant was so overwhelming in this case that he should be required to bear 100 per cent of the responsibility for the plaintiff's injuries.
In the alternative to the plaintiff's primary submissions, it was further submitted that in the event that either of those primary submissions failed, then any culpability of the plaintiff should be measured in a modest degree, at either 5 per cent, or no greater than 10 per cent, the latter percentage being contingent on a finding that there was a causative contributory negligence comprising a failure of the plaintiff to have worn a protective helmet.
In the paragraphs that follow, I set out the required evaluation of those submissions.
Helmet - Causation not proven
The plaintiff has raised a causation argument in relation to the non-wearing of the helmet and contributory negligence based on that failure.
Notwithstanding the finding of contributory negligence on the part of the plaintiff, it still remains necessary for the defendant to satisfy the legal requirements for proof of both factual and legal causation of the plaintiff's injuries and disabilities: s 5D and s 5E of the CL Act.
There is no issue concerning factual causation. It is clear that but for the negligence of the plaintiff in maintaining his handhold on the defendant's vehicle when it moved off, and the plaintiff continuing to maintain that handhold until just before he fell, the plaintiff's head would not have been injured when it struck the roadway: s 5D(1)(a) of the CL Act.
However, factual causation of the plaintiff's injury, of itself, and without proof of legal causation, is an insufficient basis for determining that there should be a reduction of the plaintiff's damages on account of contributory negligence: s 5D(1)(b) of the CL Act.
To establish legal causation the defendant bears the onus of showing that it is appropriate for the scope of the plaintiff's liability for his own negligence to extend to the harm suffered by the plaintiff: s 5D(1)(b) and s 5E of the CL Act.
The harm referred to, in this case, must be taken to mean the consequences of the plaintiff's frontal lobe injuries, and their behavioural and cognitive consequences.
The required state of satisfaction concerning the legal justification for extending the scope of the plaintiff's liability for that harm, within the terms of s 5D(1)(b), is to be determined on the balance of probabilities through reasoned analysis of the evidence, including reasoned inferences capable of being reasonably derived from the evidence.
That analysis should not proceed upon the basis of unwarranted speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at [8], citing the decision of the High Court in Bradshaw v McEwans Pty Ltd, now reported at (1951) 217 ALR 1, where, omitting other internal references and citations, the following statement appears:
"... as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ..."
[Emphasis added]
In this case, on my assessment of the evidence, the defendant cannot point to any "reasonable and definite inference" (emphasis added) along the lines cited above, so as to properly enable a conclusion that the damage to the frontal lobes of the plaintiff's brain from contusions due to contrecoup forces were, on the balance of probabilities, caused by the plaintiff's failure to wear a protective helmet. In contested litigation, such an issue cannot be decided by impermissible conjecture and surmise.
To reach a state of satisfaction, on the balance of probabilities, as to the appropriateness of extending the scope of liability of the plaintiff as contemplated by s 5D(1)(b), such a finding must be established by evidence or soundly reasoned inferences derived from the evidence. This is an issue which would appear to require expert evidence and it cannot be established by unsupported speculation or unwarranted assumption. This is a matter upon which the defendant carries the onus of proof: s 5E of the CL Act.
The defendant did not call any expert evidence on this aspect of legal causation and cannot point to any other expert evidence tendered by the plaintiff, which is available to be called upon to discharge that onus.
The crucial point at issue in this analysis is the cause of the damage sustained by the plaintiff to the frontal lobes of his brain with the requirements of s 5D(1)(b) of the CL Act, in mind.
The unanswered question that remains hanging in the air, put neutrally, is whether or not the plaintiff's brain damage would have been sustained irrespective of whether the plaintiff had worn a protective helmet.
Unless a satisfactory answer is given to that question by acceptable evidence or reasonable inference, it cannot be reasonably assumed, without expert evidence, that had the plaintiff been wearing a protective helmet, this would have prevented the brain damage that he has incurred.
In this case, an answer to that question is pivotal because it is the injuries to the plaintiff's frontal lobes that have given rise to the claims for extensive damages, founded upon his cognitive and behavioural problems, and the accident-related needs that have arisen as a consequence.
On the evidence, and having due regard to the MAS process, the cut that the plaintiff had received to the back of his head, and the undisplaced fracture the plaintiff sustained to the occipital region of his skull, have not of themselves caused any significant or lasting problems that would ordinarily sound in damages in this case: s 131 of the MAC Act.
It appears from the evidence that when the plaintiff's head struck the road, the resulting contrecoup forces caused contusions to the frontal lobes of his brain.
It appears uncontroversial that the contrecoup injury is commonly understood to be due to the operation of transmitted forces within the skull, where the inertia of the brain located in a balanced position in cerebrospinal fluid, is disrupted and pushed away from the area when the striking force was applied to the head, in this case, to the occipital region, and towards the opposite side of the cranial cavity, in this case the frontal region, hence the occurrence of contusions to the frontal lobes in the positions described in the medical evidence tendered in this case.
The medical evidence only suggested a mechanism of contrecoup injury.
The defendant cannot point to any matters from within the evidence other than matters of impermissible conjecture and surmise, to warrant a conclusion, on the balance of probabilities, that the plaintiff's brain damage from the contrecoup mechanism was relevantly caused by his failure to wear a protective helmet: s 5D(1)(b) of the CL Act.
Accordingly, I find that the defendant has failed to establish the necessary nexus of legal causation that is essential for securing the argued reduction in the plaintiff's damages on account of the plaintiff's contributory negligence in failing to wear a protective helmet.
Notwithstanding that finding, and to allow for the possibility that finding may be found to be wrong on an appeal, in the paragraphs that follow, I will proceed to address the remaining contributory negligence arguments made by the parties.
Defendant overwhelmingly culpable
In my view, for the reasons that follow, the weighing exercise required by the authority of Podrebersek compels the conclusion that in this case the defendant must overwhelmingly bear responsibility for the plaintiff's injuries.
It was the defendant who, as a mature adult, and himself a parent of a teenage son, had the ultimate say on whether or not to move his vehicle forward knowing that at the time, the plaintiff and the other boys would be holding onto the back of his vehicle. If the defendant had acted with reasonable and prudent care at that moment, by simply refusing to drive in those circumstances, the accident would not have occurred as it did.
The defendant was the responsible adult who was known to the plaintiff for some time, the plaintiff having been to his home on a number of prior occasions. The defendant should have realised, being the adult person in authority at the scene, in a sense in loco parentis, that the boys present at the scene would look to him to determine whether the proposed activity of "skitching" should be permitted to proceed using the vehicle that was under his control. In the circumstances, those boys, including the plaintiff, were entitled to assume that the defendant would control his vehicle in a safe manner and not allow it to be used for a dangerous pursuit.
In the circumstances that prevailed at the time, the defendant knew that the plaintiff was the youngest in the group, and that he was a follower and not the instigator of the activity. In that position, the defendant should have known it was likely the plaintiff, as a follower, would be influenced to join in the activity instigated by others, and to follow the others in that pursuit. This required that the defendant consider the potential for the plaintiff to come to harm from the activity of "skitching", before the opportunity arose for such harm to occur, and to take the appropriate avoiding precautions, namely to desist from the suggested course of conduct.
In that regard, the defendant did not even insist that the boys should wear protective helmets. In my view, this also indicates a very high level of disregard for the responsibility that rested on the defendant as the responsible adult present, and in control in the circumstances.
In taking all of the above considerations into account, I find that all of the boys involved in the "skitching" activity, especially the plaintiff because he was the youngest, were entitled to think that the defendant, as the responsible adult in control of the motor vehicle, would not engage in an unsafe driving activity thereby exposing them to an avoidable risk of injury.
The boys whom the plaintiff had followed into that activity, including the plaintiff, were entitled to assume that as the defendant had previously and uneventfully allowed his vehicle to be used for "skitching", that he would also do so safely on this particular occasion, although an accident occurred on this occasion.
In my view, the plaintiff's conduct in the events leading to the accident were likely to have been in accordance with the characterisation described in the guiding opinions of Associate Professor Quadrio, as previously outlined.
In weighing those matters, in my assessment, the contributory negligence of the plaintiff was totally eclipsed and overshadowed by the overwhelming negligence of the defendant. The plaintiff joined in the group activity as an incident of youthful behaviour influenced by the group dynamic, and he followed the lead of the other youths who were older.
The exculpatory concept of the actions of youth, as opposed to the concept of accountable carelessness, were considered by Adamson J, in Axiak v Ingram [2011] NSWSC 1447, where at [65], it was found that the actions of a 14 year old girl running across the road in the circumstances described in that case was an act of carelessness, and not youth.
In the present case, the defendant pointed to the decision in Axiak to argue for a similar finding to be applied in this case, namely that the plaintiff's injury did not occur as a result of a mistake due to his youth, but instead occurred due to a mistake of avoidable carelessness that is sufficient to invoke the justification for an apportionment against the plaintiff.
The defendant's submission in that regard must be considered in light of the well settled principle that all cases of liability for negligence are to be considered from the vantage point of their own intrinsic facts and circumstances: Podrebersek, at [10], p 494, and like authorities.
In my view, in the present case, unlike the position considered by Adamson J in Axiak, this was not an instance of a child having a disregard for the road safety considerations associated in crossing a road with due care.
In the present case, I consider that the activity in which the plaintiff chose to join was an act of youth and immaturity, as explained by the evidence of Associate Professor Quadrio, and where the activity in question was under the control of a seemingly and ostensibly responsible adult who was known to the plaintiff, but was also known to be a parent of a teenage boy.
Also relevant to the conclusion that the defendant's negligence was overwhelming in the circumstances was the fact that he had been the driver for the "skitching" activity on a previous occasion, and he had not seen fit to desist on this subsequent occasion, but instead agreed to participate on this occasion, under pressure that reasonable care should have required him to resist. That of itself was an overwhelming and negligent misjudgement, where he abandoned his own judgment in favour of meeting a requirement based on the immature urgings of teenage boys.
In those circumstances, the failure of the responsible adult to observe the requirements of reasonable care in that way, should be seen to be completely overwhelming of a fleeting lapse of concentration and focus by a boy of 12 years and 10 months, acting in the enthusiasm of the moment contrary to the best interests of his personal safety, and where the events in question were under the control and supervision of the familiar adult in charge of the enterprise.
In my view, the criticisms directed at the plaintiff in those circumstances, where he emulated and followed the older boys into the activity, should be seen to have been completely overwhelmed by the negligence of the defendant, as is suggested by the already identified views of Associate Professor Quadrio.
In the circumstances outlined, I find that the negligence of the defendant was completely overwhelming of any lapse of judgment on the part of the plaintiff concerning care for his own safety.
I find that the lapse of judgment evident in the plaintiff's conduct was a fleeting and momentary one, influenced by a desire to conform with and emulate his older companions. The significance of that lapse is reduced by the fact that an adult, the defendant, was in control of the situation. The defendant's lapse of judgment was far greater, more sustained, based on a repeated lack of insight into safety considerations required by the circumstances. In acquiescing to an immature request for "skitching" he totally abnegated his responsibility to the plaintiff by not desisting from "skitching".
In those circumstances I consider it just and equitable that the defendant bear 100 per cent of the culpability for the occurrence of the accident, and there should be a zero apportionment against the plaintiff for his own contributory negligence.
Conclusion on apportionment
I therefore apportion the responsibility for the plaintiff's damages as being 100 per cent on the part of the defendant, and zero per cent on the part of the plaintiff. As a consequence, there will be no reduction in the plaintiff's damages on account of the finding of contributory negligence on the part of the plaintiff.
Alternatively, modest culpability of plaintiff
It is still necessary to deal with the remaining alternative arguments put forward by the plaintiff, recognising that reasonable minds may differ in respect of my causation and other findings, and that in the event of an appeal from my decision, different conclusions on the apportionment question may be found to apply in this case.
To allow for those circumstances, having found there was contributory negligence on the part of the plaintiff, including in respect of his failure to use a helmet, but that such contributory negligence has been overwhelmed by the defendant's negligence, it becomes necessary to deal with that alternative argument.
In that regard, the defendant maintained the case for culpability in the plaintiff requiring that there be an apportionment of 30 per cent against the plaintiff.
In contrast, on behalf of the plaintiff, it was submitted that the plaintiff's responsibility was very small in comparison to that of the defendant, and that any apportionment against the plaintiff should be of the order of 5 per cent, or 10 per cent at best, if the issue of failure to wear a protective helmet was considered to be appropriately causative of the injury to the plaintiff, contrary to my findings concerning the application of s 5D(1)(b) of the CL Act.
I therefore assess the plaintiff's damages for future externally provided domestic assistance in the amount of $712,250.
Future gratuitously provided domestic assistance
The plaintiff makes a claim for gratuitously provided future domestic assistance of the kind presently provided by his family whilst he continues to live in the family home until the submitted age of 23 years.
This component of the plaintiff's claim is in respect of the interval of time between the trial and when the plaintiff will be likely to move into independent living, as has been foreshadowed in respect of the preceding head of damage in paragraphs [394] to [414] above.
The claim is for 10.5 hours per week for personal care and assistance, as identified by the plaintiff's expert Ms Heathcote: Exhibit "D", p 15, costed at the not to be exceeded statutory hourly rate of $27.69 per hour. It is mandatory that rate not be exceeded: s 141B of the MAC Act. This is the equivalent of $290.74 per week.
The projection of $290.74 per week at 5 per cent over 3 years (x 145.6) yields the sum of $42,331.
The opposing submissions made by the defendant on this issue were to the effect that this component of the claim was not necessary as the conceded allowance of 5 hours per week was adequate to fully compensate the plaintiff in respect of this need. The defendant's submissions also pointed out that the recommendation for this head of damage was dated October 2012, and since that time, the plaintiff has continued to live at the home of his parents, and he has been working full-time.
In my view, those matters raised by the defendant provide no answer to the case made by the plaintiff for the claimed allowance for this head of damage. The services in question are presently being provided by the plaintiff's family, primarily his mother, and it is likely that this will continue to be the case until the plaintiff leaves home, which on the previous findings made for the purposes of reasonable assessment, is estimated to be likely at the plaintiff's age of 23 years.
In those circumstances, in the interim period between the trial and the time the plaintiff is likely to leave home, this must be the subject of some provision for the value of domestic services, both along the lines of those assessed in the previous head of damage, and as a continuum of the past domestic assistance that has already been provided to the plaintiff before the trial by his family, the value of which has already been agreed at $45,000.
In oral submissions the defendant submitted that an allowance of 7 hours per week of such assistance would be reasonable until the plaintiff left home: T562.32. In my view, that arbitrary submission is not a sufficiently reasoned basis upon which to trump the considered view of the plaintiff's expert occupational therapist Ms Heathcote, especially where her view was not challenged by cross-examination.
I therefore assess the plaintiff's damages for gratuitously provided future domestic assistance in the claimed amount of $42,331.
Case Manager
On behalf of the plaintiff a claim was made for the cost of a case manager in the amount of $182,891.
That sum was derived by the projection of an amount of $178.50 per week over the plaintiff's remaining life span (x 1024.6). That weekly figure of $178.50 is extracted from the costing evidence provided by the occupational therapist retained by the plaintiff, Ms Heathcote: Exhibit "E", p14; p19.
Ms Heathcote was not required for cross-examination on her recommendation that the plaintiff be provided with case management services at the level she has recommended.
The defendant's submissions only touched lightly upon this aspect of the plaintiff's claim at paragraphs [70] - [71] of MFI "3", referring to the uncertainty of this head of damage: T521.26 and T521.24.
The defendant's expert neurologist, Dr Spira's report did not address the issue of the need for the provision of a case manager. Similarly, the defendant's expert occupational therapist, Ms Varella, did not address this specific issue either. Her consideration was focussed upon a more generalised concept of external assistance being provided to the plaintiff for organisation: Exhibit "3", Tab 3, p17; p18; p19.
Those matters have already been analysed at paragraphs [394] to [414] above in connection with the claim for externally provided domestic assistance.
This is a case where the specific evidence tendered in the case for the plaintiff on the issue of the need for case management was explained by Ms Heathcote: in Exhibit "D", p 14 and p 19.
That specific evidence has not been the subject of challenge through cross-examination or contradiction through other affirmative evidence that engages with the substance of that issue. Ms Heathcote's recommendation for the 13 items covered by her case management for the plaintiff is for the provision of 4 hours per month in respect of the following matters:
- Guidance in decision making
- Prompting to pay bills
- Prompting to complete weekly household tasks
- Assistance with organising and completing necessary maintenance tasks on property and garden.
- Provide support and encouragement
- Financial guidance
- Assistance for later travel plans
- Education regarding the impact of brain injuries and provision of support for his [future] partner
- Assistance to manage [future] childcare
- Monitoring of health status, communication with general practitioner as needed, encouragement to attend relevant services such as psychological or occupational therapy treatment
- Co-ordinate and monitor attendant care services
- Provide carer education if required
- Facilitation of access to occupational therapy, psychological counselling and family counselling when required.
Ms Varella has identified the cost of case management as provided by an occupational therapist at $150 per hour for 4 hours per month. Dr Jungfer supported the notion of case management by a person with those qualifications by saying it was a mandatory consideration in this case: T504.20.
A recommendation of 4 hours per calendar month at $150 per hour equates to a cost of $138.46 per week, excluding any element for professional occupational therapy services of 0.19 hours per week (appearing at p 19 of Exhibit "D") and which I consider is more properly addressed by incorporating that element into the claim for future treatment expenses.
At present, as Dr Jungfer has aptly observed, the plaintiff's parents are his pseudo-case managers: T503.45. That will not continue to be the position when he leaves the family home.
In my assessment, consistent with my findings concerning the provision of externally provided domestic assistance, the claim for a case manager should be costed to commence from when the plaintiff will be aged 23 years, which for assessment purposes, will coincide with when he moves into independent living and when he will no longer be able to rely upon the presence or availability of his family for the exercise of those functions.
On that assumption, the regime for case management requires costing over 62 years after allowing for a deferral of this avenue of expense for 3 years. Applying the actuarial factors to those assumptions, the projection of 4 hours of case management services per calendar month at $150 per hour excluding travelling time is the equivalent of an average cost of $138.46 per week, which, when projected at 5 per cent over 62 years (x 1017.5) yields the amount of $140,883.
That amount requires deferral for 3 years (x 0.864) to yield the sum of $121,722.
I do not consider there to be a relevant impermissible overlap of functions between a professional case manager for 4 hours per month and broken shifts of the already allowed domestic assistance for one hour, twice per day, as the functions are distinctly separate and provided by differently skilled persons. The focus and the detail of the elements of those services are different.
I therefore assess the plaintiff's damages for case management in the amount of $121,722.
Future treatment expenses
On behalf of the plaintiff a claim was made for future treatment expenses in the form of a buffer in the ranges $40,000 to $50,000. This was later reduced to a buffer amount of $35,000. On behalf of the defendant it was submitted that damages for future treatment expenses should be in the sum of $15,000.
The proposed future treatment regime as submitted on behalf of the plaintiff was premised upon the cost of a pattern of consultations with a psychologist, a psychiatrist, possible psychopharmacology, an exercise regime, and occupational therapy consultations. Some of those items were costed over the plaintiff's remaining life span, and others were categorised as being short term expenses.
At present the plaintiff is not receiving any regular medical treatment or review. He takes no medications at present. He is in good physical health and this is likely to continue to be the case. However, the functional and behavioural effects of his frontal lobe brain damage are permanent features of his life.
It therefore seems reasonable that the plaintiff should receive a measure of damages to cover the cost of occasional medical expenses in the form of reviews by his general practitioner for the purpose of monitoring his condition and determining any need and timing for more specialised attendances on account of his brain damage, and its behavioural, work and social consequences for him. The nature of the plaintiff's problems suggest that an allowance of a lifetime average of several consultations per annum with a general practitioner would meet this need, perhaps less frequently in the earlier years, and more frequently in the later years.
The immediate need to implement Dr Jungfer's initial recommendations for the treatment of the plaintiff's obsessional compulsive symptoms appears to have receded as the intensity of that problem receded. Nevertheless, the nature of the plaintiff's executive dysfunction and the potential for this to cause the plaintiff to become depressed as he ages, and possibly experiences some of the setbacks outlined by Dr Jungfer in the course of her oral evidence, indicates that some allowance should be made for the possibility that the plaintiff will need specialist treatment in the future.
The evidence does not permit a precisely formulated projection of a weekly sum to meet those potential needs. The anticipated treatment, which is likely to be in the form of psychological therapy, psychiatric consultations and prescription medications when considered necessary, is likely to be intermittent, and involves unpredictable frequency, duration and cost.
In approaching this aspect of the assessment in the above manner, I am mindful of the fact that separate allowances have been made in respect of domestic assistance and case management, which will also have a part to play in keeping a vigilant eye on how the plaintiff will be managing his life in the future when he leaves home in order to live independently of his family.
In those circumstances, this accident-related need is best met by way of an award of a lump sum buffer allowance. In light of the evidence, I consider that the suggested allowance of $15,000 as was submitted by the defendant represents a reasonable allowance for this head of damage, which would include the exercise and occupational therapy recommendations made by Ms Heathcote.
I therefore assess the plaintiff's damages for future treatment expenses in the amount of $15,000.
Past out-of-pocket expenses
The parties have agreed that the plaintiff has incurred out-of-pocket expenses totalling $19,580.47. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $19,580.47.
Funds management charges
Before the accident the plaintiff was not afflicted with any form of traumatic brain injury and he had no executive function impairments rendering him vulnerable to financial exploitation. In contrast, he is now in a position of significant vulnerability. This has given rise to a claim that he has an accident-related need for protection from such potential exploitation, and therefore needs funds management, although he has brought these proceedings in his own right, and does not need a tutor as he is capable of giving instructions regarding the litigation.
On 24 April 2012, Dr Jungfer raised the possibility of the need for the plaintiff to have assistance provided to him with respect to financial management because of his young age. In her report of that date, Dr Jungfer suggested that her opinion in that regard might alter, depending upon the results of psychometric testing of the plaintiff's cognitive capacity; Exhibit "C", p 37.
On 31 July 2012, Dr Jungfer had the opportunity of reviewing psychometric testing performed by Dr Rawling on 29 June 2012. On that occasion, Dr Rawling noted that the plaintiff's father had expressed concern over whether the plaintiff could manage his financial affairs. In his expert review of that question, Dr Rawling considered that those concerns on the part of Mr Schoupp were entirely justified: Exhibit "C", p 64.
Dr Jungfer's comments on the results of psychometric testing undertaken by Dr Rawling identified the following test result abnormalities:
(1) impairment of capacity to complete assessment tasks determined by complexity of those tasks;
(2) executive or frontal lobe functioning;
(3) struggles with higher levels of processing speed and the need to switch between responses;
(4) deficiencies in planning and organisation, with errors of distortion and omission;
(5) abnormalities of insight and associated poor error monitoring;
(6) rigidity of thinking and struggling to make conceptual shifts;
(7) difficulty with problem-solving and slowness to abandon a failing strategy;
(8) a major weakness of auditory memory;
(9) aggravation of pre-morbid difficulties with language acquisition, with exacerbation of that pre-existing weakness;
(10) marked weakness of verbal memory and learning, with a slow rate of information processing.
Dr Jungfer considered that the foregoing matters were consistent with the plaintiff having sustained a significant acquired brain injury: Exhibit "C", p 53 - p 54. Dr Jungfer went on to state:
"In terms of the previous opinions that I reported, I indicated that there were no psychiatric grounds by which he could not manage his financial affairs. I did however, indicate that I would require further psychometric testing with regards to having a firm opinion with respect to the financial management.
On the basis of the fact that the psychometric indicated that he failed to recognise the errors that he made, he had difficulties with complex problem solving and that there were significant problems with regards to verbal learning, I would have concerns with respect as to how he would be able to manage large sums of money, and that he would find it difficult to process the complex information required to make financial management decisions.
The other concern that I would have is that should he make some initial errors with regards to the management of his funds, he would be slow to change his financial management decisions as he does not learn from his errors as demonstrated in the psychometric testing. The psychometric testing also demonstrated problems with regards to problem solving, and more particularly a lack of recognition that he has these problems and difficulties.
Therefore I would agree with Mr Rawling that it would be prudent that his affairs be placed under the Protective Estates Act, but that this be revised after approximately five years for reconsideration. At this time to determine his behaviour within the community. I would only have his settlement monies placed under the Protective Estates Act, I would allow his normal daily income to be managed by himself to determine how he can actually manage those affairs. This would provide a good indication of how he manages monies on a daily basis, to determine whether or not he does have the capacity to manage other sums."
Dr Jungfer's oral evidence on this issue provided further persuasive and compelling justification for her views on the funds management issue as follows:
(1) the plaintiff was at increased risk of being unfairly prevailed upon, including in the sense of financial exploitation where he may try to compensate for his impairments when being manipulated: T499.19 - T499.35;
(2) the plaintiff's lack of insight into his impairments indicated that he really needs someone to look after his money for him: T500.15
(3) a distinction must be made between a capacity for management of day-to-day financial affairs for which he is capable, and an inability concerning planning and self-monitoring decisions of a financial nature involving large sums: T500.45;
(4) the plaintiff is vulnerable to plausible financial advice that may be aimed at exploiting him: T500.47 - T501.2;
(5) the plaintiff's vulnerability to exploitation through making poor financial decisions is extreme because the plaintiff does not have the insight, judgment capacity and oversight ability when making decisions in his best interests, thereby indicating he needs a trustee with a much better knowledge base about the plaintiff's impairments when complex decisions are required to be made: T501.5 - T501.16;
(6) the plaintiff's vulnerability in that regard is greater than the average person because of the plaintiff's accident-related impairments: T501.26.
The potential for financial exploitation is not viewed in a vacuum. On an all too frequent basis, courts of various jurisdiction are provided with unfortunate examples of how persons who are unable to look after their own best interests due to disability, are exploited, at times cleverly, by others with mal-intent.
Against the position taken on behalf of the plaintiff on the issue of financial management, the defendant relied upon the 21 December 2012 opinion of Dr Spira, who, in respect of this issue, stated:
"I believe that Mr Schoupp will have the capacity to manage his own financial affairs in the longer term."
[Exhibit "1", Tab 3, p 6].
For the reasons that follow, in my view, there are a number of difficulties that preclude any material reliance being placed on the cited opinion of Dr Spira as a basis upon which to contradict the opinions of Dr Jungfer on the funds management issue.
First, as Dr Spira did not appear to have been given a copy of the psychometric testing results of Dr Rawling that were considered by Dr Jungfer. His opinion should therefore be seen as being based on insufficient information for it to be viewed as a comparable assessment to that of Dr Jungfer. Therefore Dr Spira's cited opinion is not relevantly authoritative. The two opposing opinions proceed upon the basis of different materials. Secondly, Dr Spira expressed his opinion cited above in qualified but undefined and ambiguous terms, which suggested there may be a present shorter term incapacity for self-management followed by a future capacity for self-management of funds. Thirdly, the opinion of Dr Spira relied upon by the defendant fails to comply with the formal requirements of an expert opinion in that it does not state the supporting reasons underpinning the stated opinion: UCPR Sch 7 cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21.
Therefore, I consider that Dr Spira's views on the funds management issue do not represent a material challenge or contradiction to the expert views of Dr Jungfer on this issue. Accordingly, I prefer and accept the views of Dr Jungfer on this issue compared to the briefly and unexplained view of Dr Spira as cited in paragraph [457] above.
I find that the plaintiff's need for financial protection through the provision of funds management does not arise because of his young age and inexperience, or from the simple fact that he will require advice and assistance for appropriately investing and managing the significant damages that he will receive from the finalisation of these proceedings. Instead, I find that the plaintiff's need for financial protection arises from the cognitive and functional impairments that are due to his acquired brain injury, as explained by Dr Jungfer.
It follows that an assessment of the plaintiff's damages should include an appropriately calculated allowance for the cost of funds management.
It was submitted that the funds management regime to be costed, should be based on the costs associated with the appointment of a private trustee, for at least a period of about 5 years, in accordance with the recommendation of Dr Jungfer as cited above. I consider that to be a reasonable approach to the issue, but the 5 year period may need to be reviewed along that timeline, and some allowance will need to be made for that prospect because the plaintiff's brain damage and his resultant cognitive and executive dysfunctions will continue to affect him and there is no basis for reasonably concluding that his need for financial assistance and protection from possible exploitation will expire after 5 years.
The question of choice between a public or private trustee arrangement, and the costs involved, will have to be resolved either by consent or by evidence, preferably but not necessarily, in affidavit form.
The parties have agreed to defer making their quantum submissions on the issue of funds management charges pending the announcement of these findings on whether the plaintiff has incurred an injury-based need for future expenses for funds management.
In the foregoing reasons, I have found that the plaintiff has such a need.
In the event the parties find they are unable within a reasonable time to agree upon the appropriate course to be followed for quantification of that head of damage, application may be made on notice for directions on how to proceed to have this final damages issue determined before the entry of final judgment in the proceedings.
Summary of damages assessment
My assessment of the Plaintiff's damages is summarised as follows:
(a) Non economic loss
$300,000
(b) Future economic loss
$610,000
(c) Future loss of superannuation
$88,267
(d) Past gratuitous domestic assistance
$45,000
(e) Future externally paid domestic assistance
$712,250
(f) Future gratuitous domestic assistance
$42,331
(g) Case manager
$121,722
(h) Future treatment expenses
$15,000
(i) Past out-of-pocket expenses
$19,580.47
(j) Funds management charges
To be assessed
Interim Total
$1,954,150.47
Disposition
The plaintiff has succeeded in establishing an entitlement to an interim verdict and judgment in his favour in the amount of $1,954,150.47 without discount for alleged contributory negligence before any assessment of a sum for funds management charges.
In view of my findings on the need of the plaintiff for damages for funds management to be included in his damages award, I will defer the entry of final orders until the parties have had the opportunity to consider the implications of those findings and the scope for an agreed sum to be added to the assessment of damages on account of the funds management issue, or in the event of a dispute on that issue, the opportunity of the parties to call further evidence and to make further submissions following my findings on that issue.
Costs
It follows from my stated findings on the plaintiff's entitlement to an assessment of damages, and my findings that rejected the defence of contributory negligence, that the plaintiff is entitled to an order that provides for his costs of the proceedings to be paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other order for costs.
Orders
Final orders for judgment are deferred pending the parties having the opportunity to consider these reasons for decision.
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Decision last updated: 15 April 2014
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