Surjan & Ors v Denton

[1997] QSC 230

IN THE SUPREME COURT

OF QUEENSLAND

No. 8666 of 1996

Brisbane

Before Mr Justice Ambrose

[Surjan & ors v Denton & ors]

BETWEEN:

KATE SURJAN

First Plaintiff
AND:

SEYEN SURJAN

Second Plaintiff
AND:

SONYA SURJAN

Third Plaintiff
AND:

PETER SURJAN

Fourth Plaintiff
AND:

JEAN LILLIAN DENTON

First Defendant
AND:

GERHARD MAGER

Second Defendant
AND:

ANTON SURJAN

Third Defendant

CATCHWORDS:     PERSONAL INJURY - Quantum - assessment of economic loss and future care - head injury when 4th plaintiff was 10 years old

Counsel:Mr W. Campbell for the fourth plaintiff

Mr M. O'Sullivan for the defendants

Solicitors:  Ebsworth & Ebsworth for the fourth plaintiff

Pender & Whitehouse for the defendants

Hearing date:               5 - 13 November 1997

REASONS FOR JUDGMENT - B W  AMBROSE J

Judgment delivered 11 December 1997

On 11 June 1984 the fourth plaintiff suffered severe injury to the head in a motor vehicle collision resulting from the negligence of one or more defendants.

His action has been contested only on the issue of quantum.

The plaintiff was born on 13 February 1974 in Sydney, New South Wales. At the time of his injury therefore he was a little over 10 years of age.

He received his primary education in a school in Sydney but early in 1984 shifted with his family to Noosaville in the State of Queensland, where he enrolled as a student at one of the local schools. He had only been residing with his family at Noosaville for a short time when he was involved in the collision in which he suffered his injuries. He suffered injuries to the face and head, the most serious of which was a depressed fracture of the skull which led to scarring and destruction of part of the brain tissue in the left frontal lobe of the brain. Dr Corbett, whose evidence I accept generally, described this permanent condition as encephala macia. The indication from his examination and from records taken at the time is that the contusion of the brain at time of injury resulted in some intra cranial bleeding. I prefer his evidence and that of Dr Field and Dr Grant to that of Dr Lawrence and Dr Lynagh.

CAT-scans and MRI scans do not indicate any other damage done to the brain, apart from the scarring and tissue destruction at the left frontal lobe. It was the view however of Dr Corbett that injuries of this kind may cause a degree of dysfunction in other parts of the brain connected with the damaged area although such dysfunction of those different parts may not be detectable upon CAT-scans or MRI scans.

Dr Corbett said that a brain injury of the sort suffered by the plaintiff had certain “classic” features. Persons suffering the condition often seemed “quite normal” but when put to the appropriate tests and observations prove not to be normal because they suffer from an unusual apathy, lack of judgment, lack of planning, lack of foresight, difficulty in abstraction and conceptualization. He said that people with such brain injury “have a habit of becoming drifters”. While they appear to be physically strong when given a job to do they lack the application to complete it. If taught something they tend not to retain what has been shown to them and they lack application and drive. They develop a lethargy and tend to fatigue easily. He said that they simply lack the organisation of personality that goes with application, persistence and success. He said that organic head injuries of the sort suffered by the plaintiff affect short term memory. They tend not to affect long term memory so that motor skills are normally well retained.

As the result of his injury, the plaintiff lost a couple of months schooling. He returned to school and eventually completed his secondary school education.

It is unnecessary for me to analyse in detail all the school records and reports etc that were tendered and upon which teachers of the plaintiff in his last few years at school were extensively examined. Looking at them generally it is my view that they display an incapacity to successfully handle academic subjects. There was some capacity to obtain some proficiency in manual art subjects and artistic pursuits; however the time spent on them seems to have been much less than that spent on more intellectual pursuits in which he was unsuccessful. The plaintiff seems to have been able to achieve little more than a pass mark in the non-intellectual disciplines.

One of the problems of course is to determine whether this poor academic showing resulted from his brain injury or whether he would quite apart from that injury have failed to apply himself and attain what might be regarded as a more normal or average level of  achievement in these fields.

On the whole of the material I am persuaded that more probably than not brain injury prevented the plaintiff from achieving a standard of education which he would otherwise have achieved.

He had as a child prior to his injury expressed the wish to become a pilot or a member of the armed forces. When at the Coolum High School defence force people interviewed students to encourage them to enlist in the military forces. The plaintiff and three of his contemporary friends did so. The plaintiff's friends were enlisted however the plaintiff was not. The probability is that he was not enlisted because of his brain injury about which of course he had to inform the recruiting officer.

I think it likely that had it not been for his brain injury the plaintiff's educational standard would have been higher and I think it more than probable that he would have been accepted in the army or air force as a recruit. He seems to have had a natural talent as a child to play rugby league football. He received many prizes and awards as a child in Sydney when he played for the St George Dragons. He continued to play football even after his injury until advised by Dr Toakley to discontinue that sport because of the risk of further brain injury or perhaps an exacerbation of the injury which he suffered in 1984.

The plaintiff at material times and indeed at the present time is a tall, strong,  good looking young man. I think his prowess on the football field and his enthusiasm to become a member of the armed forces make it probable that had it not been for his injury he would have been taken on as a recruit. The extent to which he would have succeeded of course is a matter of conjecture. However apart from the consequences of his brain injury the plaintiff seems to have  got along well with people. He was regarded as a friendly person - subject to loss of control sometimes when something not very serious went wrong in the course of his work or social activity. His lack of control and impulsive behaviour, according to the medical evidence, is a typical symptom of  damage to the temporal lobe of the brain of the sort suffered by the plaintiff.

If not recruited for the army, the plaintiff may have followed a trade of some sort as did many of his contemporary school friends, some of whom gave evidence.

It is the defendant’s contention that upon the whole of the evidence, the plaintiff has not demonstrated that any psychiatric and/or psychological deficiencies which he currently displays are attributable to his brain injury. The brain damage itself is not in issue. What is in issue is the extent to which it has impaired the capacity of the plaintiff to earn income both in the past and in the future and the extent to which he has in the past and will in the future need services provided to him because of his brain injury on a Griffith v Kerkemeyer basis.

Evidence as to the plaintiff's behaviour and needs was called from his parents and also to some extent from persons who had employed him from time to time on a casual basis.

Most of the witnesses called to support the plaintiff's case thought well of him and indeed some were friends of his. I think there may be something in the contention of counsel for the defendants that the plaintiff's parents may perhaps have overcompensated in caring for him. I am not persuaded positively that this is so but it may be so. Unfortunately although Dr Lynagh observed that rehabilitative counselling perhaps available from Commonwealth instrumentalities may have assisted the plaintiff to become more self reliant and self-disciplined and thus reduce whatever need he may have for Griffith v Kerkemeyer services in the future, this treatment never seems to have been suggested to the plaintiff. Indeed it never seems to have been suggested to the plaintiff's parents  whom I assume would have been only too anxious to encourage and assist their son to take advantage of whatever such treatment may have been available to assist him to live as normal a life as possible. The plaintiff's father, whom I accept as a relatively reliable witness, seems to have gone out of his way to do whatever he could to encourage the plaintiff to gainfully occupy his time out of the family home. Of course the plaintiff suffered his injury at a time prior to the enactment of the current legislation enabling insurers to provide such assistance to see if it may assist in rehabilitation of an injured plaintiff. Dr Lynagh could only say that it might work with the plaintiff. Sometimes it does work with persons with the plaintiff's brain injury and sometimes it does not.

Looking at the evidence given by the plaintiff's parents I find that generally speaking they did not exaggerate the plaintiff's disabilities. I accept their evidence as reliable subject of course to making allowance for a natural tendency on their part having shepherded their son with a serious brain injury producing abnormalities from age 10 to age 23 to highlight rather than play down any deficiencies that he exhibits, when giving evidence to support his claim for damages. Having said all that however I was impressed by both the father and the mother of the plaintiff, each of whom seem to have devoted a significant part of their lives since the plaintiff's injury to caring for him and encouraging and motivating him to overcome the psychological and psychiatric disabilities that his brain injury has left him with.

Similarly I accept as reliable the evidence given by the persons who have worked with and observed the plaintiff working in the labouring occupations in which he has from time to time engaged. Their observations of the plaintiff's idiosyncratic behaviour over the years when working with them or for them demonstrate a lack of persistence, defective short term memory, and inability to work out and follow systems of the most simple kind in the performance of labouring work in the manner in which he has been advised again and again. They also indicate his lack of control and impulsive behaviour when he becomes frustrated at his inability to perform tasks effectively. This evidence to my mind strongly confirms the diagnosis of Dr Corbett. For the defendants evidence was called from a Mr Pitter a probation officer who supervised the plaintiff when he was put on probation in August 1992. Much was made of the application of the plaintiff in the performance of his community service work to suggest that the evidence of people who had been employing him in labouring capacities must be unreliable. Consideration of the actual community service work the plaintiff was required to perform however leaves me unpersuaded that Mr Pitter's evidence as to the plaintiff’s performance of such work on 3 consecutive days is any real indication of  his capacity to persist with and apply himself in the performance of repetitive simple work. The whole of that time seems to have been spent doing some sort of yard/gardening work around  a house erected on a quarter acre block of land. There is no evidence whatever as to what work needed to be done or how the plaintiff performed any work that he did do. Upon the evidence he may not even have mowed a lawn or weeded a garden. If he did do such work the block of land involved was a quarter acre block on which apparently there was constructed a large house and one might think that unless the yard of the house was in very poor condition when the plaintiff arrived to work around it, it would have been difficult for him to find enough work to do around the yard to occupy 25 hours. It emerged in the evidence that this “service” was prescribed regularly for persons ordered to do community service work. I gain no assistance from this evidence as to the capacity of the plaintiff to perform work with or without supervision or as to his ability to apply himself regularly for 25 hours involving 8½ hours on each of the first 2 days and 8 hours on the  third day doing things in an efficient way for which he would be commercially employable - even on a casual basis.

The same probation officer was called to give evidence that the plaintiff did some painting work for him personally in March-April 1993 at an agreed rate of $50 per day. The areas painted seem to me to be not large and indeed both the plaintiff and Mr Pitter did the painting. Apparently Mr Pitter paid the plaintiff $200 for 4 days work. Both of them were painting a stairwell and a bedroom in Mr Pitter's house and I cannot believe that the amount of time taken by both of them to do this gives any indication that the plaintiff would be commercially employable as a painter. The painting done by each of them was acceptable to Mr Pitter who knew very little about painting. He purchased water based paint and he and the plaintiff each applied it. The plaintiff used some masking tape and newspaper to cover up some exposed wooden beams and window surrounds to prevent them from being splattered with the water based paint. The fact that each of them was able to apply water based paint over a period of 3 or 4 days to achieve a standard acceptable to Mr Pitter does not persuade me for that reason alone that the plaintiff has any real capacity to be commercially employed as a painter. Undoubtedly he has done some painting. He has assisted his father, who is a tradesman painter, from time to time. Perhaps his father exaggerated a little when he said that the plaintiff would not get up on scaffolding. On the other hand his father may well have discouraged him from getting up on scaffolding because in his earlier days with his brain injury he tended to have black outs and dizzy spells etc. However this evidence does not persuade me that the plaintiff has any greater capacity to be employed commercially as a painter than Mr Pitter has - he has no trade qualification whatever to do that work. He painted a mural on a wall of a house at Noosa Heads at the suggestion of his father; that apparently took one and a half weeks. Photographs of the mural were tendered and I accept that it satisfied the demands of the lady for whom it was painted. The plaintiff's father was quite proud of the standard of that work and looking at photographs of it undoubtedly there was some skill and application on the part of the plaintiff in painting it. It appears on the evidence that he changed his mind and altered things as he went along and eventually the materials he used in painting the mural cost between $700 and $1,000, whereas the contract price was $350. The plaintiff’s ability to persevere with artistic endeavours in which he is very interested and motivated certainly does not persuade me that it is at all probable that he will be able to make any significant income from the performance of that sort of work.

The mere fact that from time to time he has produced screen printed T-shirts and perhaps other screen printed cloths - sometimes spending a whole day producing one T-shirt also leaves me unpersuaded that he is or will in the future be commercially employable doing that sort of work or that he will make any significant income on a self-employed basis.

The plaintiff has certainly indicated that he contemplates setting up some sort of screen printing business with some of his unemployed friends at Noosa. He has looked at a screen printing shop and he has certainly produced some screen printed shirts. It may very well be good for him to so apply himself and occupy his time doing such things. It may indeed be that he should continue to do that and it may be possible although I think not very likely that he will be able to make some even if only nominal income from it. There was no investigation as to whether the screen printing that he has been involved in so far was any more financially successful than the wall mural painting that he agreed to do, which seems to have been a financial disaster.

All those things said however I have no doubt that the plaintiff will from time to time be able to earn some income by engaging in a variety of semi-skilled or labouring activities. He might do some sort of artistic work such as screen printing or even perhaps painting some murals on walls - particularly with the assistance of persons who have some capacity to determine what price should be asked for the performance of such work by him. His most financially rewarding endeavours so far seem to have been labouring work under the supervision of somebody.  I have little doubt that he has the capacity to work from time to time as a labourer's offsider on a casual basis. Just how much work of that sort is or will be available it is impossible to say. While the plaintiff lives in the Noosa area, undoubtedly he will have to compete with others seeking casual labouring employment of this sort.

I think the likelihood is that when work becomes available those persons with whom he is acquainted and who have employed him in the past, at least on small jobs will offer him employment again at perhaps $10 per hour “in the hand”. If he works all day, he will get $80 per day. I think it will often be the case that he will only work for a day or perhaps half a day at a time. Sometimes undoubtedly he will work continuously for a couple of days. Perhaps he will make some money from time to time screen printing, although it does not seem on the evidence that he has made much doing that up to date.

I find that the plaintiff’s brain injury will probably prevent or at least make extremely difficult the establishment of a stable enduring domestic relationship with a woman; he will be deprived of the opportunity of enjoying a family life which he might otherwise have enjoyed.

I assess damages for pain, suffering and loss of amenities of life in the sum of $75,000.

Of that sum I apportion $25,000 for past loss.

I award interest on $25,000 at 2% per annum for 13.5 years which amounts to $6,750.

I assess special damages in the agreed sum of $6,569.90.

I award interest on $2,400 of that sum at 10% per annum for 10 years which amounts to $2,400.

The plaintiff suffered a pre-trial reduction in income for 6 years from the time he left school. Had he become a member of the defence forces and/or an apprentice in a trade of some sort over the pre-trial period, he would probably have earned a little less than he would had he worked more or less full time as a labourer. On the other hand of course the long term prospects for secure employment in the armed forces and/or in a trade as he matured and gained experienced and/or promotion would require damages to be assessed for future economic loss by adopting either a marginally higher weekly loss or perhaps allowing a smaller discount for contingencies than might otherwise be the case.

I assess the plaintiff's past economic loss in the sum of $132,500 less moneys actually earned from casual labour pre-trial.   I have regard to ex. 14, 15, 16 and 20 in making this assessment.  I find it exceptionally difficult on the material to determine just how much the plaintiff has earned over the last six years. I have regard to the estimates made in ex.4 and  I assess damages on the basis that since leaving school the plaintiff has probably earned or could have earned something in the vicinity of $22,500. I assess past economic loss therefore in the sum of $110,000.

For the purpose of calculating interest I deduct the DSS benefits (ex.22) in the sum of $32,159.36 and adopt the figure of $77,840. I assess interest on this sum at 5% per annum for 6 years which amounts to $23,352.

With respect to the value of the loss of employer contributions to superannuation - on the assumption that he would have been employed by an employer rather  than been self employed - I refer to my discussion of this problem in the case of Hornberg v Horrobin  and Warroo Shire Council - (Writ No. 836 of 1997) unreported decision delivered 24 October 1997.

For the reasons I gave in that case I take the view that the proper way to assess damages for the loss of employer superannuation contributions in the past is simply to reduce the total of those contributions by 30% being the sum of the tax taken from contribution by the employer to a superannuation fund and the tax to be taken from the superannuation fund benefit comprising the contributions and income eventually paid out to the employee. In my view it is not appropriate or indeed permissible to assess damages on the basis not merely of the loss of employer contributions but also of the loss of income those contributions would generate (after payment of income tax, management fees etc) while invested in the superannuation fund.

I adopt a broad brush approach assuming loss of salary in the defence forces for 6 years. I adopt the contribution rate of 5% for the first four years loss of gross salary of $87,735 which is $4386.  70% of that sum is $3,070. I adopt the contribution rate of 6% for the last two years loss of gross salary of $59,607 which is $3,576.46. 70% of that sum is $2,503.50.  I assess the total of these sums, being $5,573.50, as the value of lost employer contributions to superannuation for those six pre-trial years.

With respect to future economic loss, I will assume that had it not been for his injury at date of trial the plaintiff would have been employed in the army earning about $533 per week. All things going well, I will assume that by age 65 were he to remain in the army and progress as anticipated through the ranks, his income in today's terms would have eventually increased by up to $140 per week. Of course the plaintiff  undoubtedly in my view would have played football had he joined the services and would have been exposed to the attendant risks; as well he would  have been put to all the risks that persons in the defence forces must run.

It is impossible to predict the plaintiff’‘s future advancement or the risks to which he  would have been put had he joined the defence forces or indeed engaged in some trade outside the defence forces.

In my view the plaintiff's present earning capacity doing casual labouring work and perhaps if fortunate supplementing his earnings as a labourer with screen printing or engaging in some other sort of artistic activities would be about $120 per week.

I assess therefore his net future loss in the sum of $413 per week.

The present value of the loss of that sum for 42 years is $378,308.

This sum of course must be discounted for contingencies. On the one hand the plaintiff was a keen footballer and should he have played representative football in the armed forces he would have been at risk of injury. As well the very nature of employment in the armed forces would put him at risk. On the other hand had he risen through the ranks to the level to which he might have been expected to rise, his income in real terms would have increased the longer he stayed with the armed forces. The evidence indicates that upon early retirement he might expect to obtain an income comparable with that which he then received in the defence forces.

The whole exercise is a rather imprecise one and on the assumptions I have made I adopt  25% as a discounting factor for contingencies which is a little higher than the conventional figure.

So discounted I assess the plaintiff's future economic loss resulting from his injury in the sum of $283,731.

With respect to loss of future superannuation and/or pension rights upon retirement from the armed forces I again simply adopt a broad brush approach. Making all due allowances I assume that a weekly employer contribution of about 9% of present gross weekly  income would have been held in a fund for the fund for the plaintiff. That is 9% of $712.64 which is $64 per week.  Of this sum 30% would have been lost in tax when it was contributed and when it was drawn out. The plaintiff would ultimately have received $44.90 per week. The present value of the loss of that weekly benefit for 42 years is $41,128. I discount that figure by 25% to $30,846.  For the first 5 years of future earnings the employer contribution would in fact have averaged 7.2% rather than 9%. I take that into account and assess the value of lost future employer superannuation contributions in the sum of $29,470.

With respect to past care upon the  Griffith v Kerkemeyer claim I have regard to ex.12 and assess damages under this head in the sum of $50,000.

Interest on past care at 2% per annum for 13.5 years since the accident amounts to $13,500.

With respect to future care under Griffith v Kerkemeyer  I assume that the plaintiff has a 53 year life expectancy.

I find that the plaintiff will probably need a minimum of 2 hours per day care either from his parents or from some other person in a structured managed residential environment having regard to his psychological/psychiatric condition resulting from his brain injury. I adopt the figure of $11 per hour as being the current market cost of such care - on the assumption that in fact somebody can be employed regularly for one hour every morning and one hour every afternoon or evening looking after the plaintiff's needs for only $22 per day. That I find  is the value of the services actually provided by the plaintiff’s parents at the present time. Making this assumption the value of the services needed by the plaintiff is $154 per week.

The plaintiff’s parents will probably be able and willing to provide a stable secure domestic environment and attendant services for the plaintiff for about 10 years.

The present value of $154 per week for say 10 years using the 5% tables is $63,140. I do not propose to further discount this sum for contingencies. On balance contingencies resulting in a diminution for the need for services for the duration of that need are offset by exigencies which may require an increase in services as the plaintiff and his parents grow older and he eventually suffers a reduction in the constant care and attention he receives from his parents as they grow older.

In 10 years time the plaintiff will need additional services of a housekeeping and supervisory kind.  I find that he will then need at least an additional 8 hours per week. It will then cost him $242 per week for necessary services. The present value of $242 per week for 43 years is $223,124. The value of that sum postponed for 10 years is $150,733. I assess his future Griffiths v Kerkemeyer loss therefore in the sum of $213,873.

I assess damages for future psychiatric treatment which the plaintiff may usefully receive in the sum of $1,500.

The damages assessed so far amount to $889,702.40.    It is clear that the plaintiff needs a protection order because he is quite incapable of managing his own affairs or properly  investing the money he receives by way of award of damages. The public trustee charges to manage the damages awarded to the plaintiff - ie. the sum of $821,719.40 will be approximately $74,012.30

In summary therefore I assess damages in this case as follows:-

Pain, suffering and loss of amenities of life..................................................................... $75,000.00

Interest on $25,000 of that sum.......................................................................... $6,750.00

Special damages agreed.................................................................................................. $6569.90

Interest on $2,400 of that sum............................................................................ $2,400.00

Past economic loss ................................................................................................... $110,000.00

Interest on $77,840 of that sum........................................................................ $23,352.00

Loss of pre-trial employer superannuation contributions................................................... $5,573.50
Future economic loss.................................................................................................. $283,731.00

Loss of future employer superannuation contributions     $29,470.00

Past Griffith v Kerkemeyer damages.......................................................................... $50,000.00

Interest thereon ............................................................................................... $13,500.00

Future Griffith v Kerkemeyer damages..................................................................... $213,873.00
Future psychiatric costs ................................................................................................. $1,500.00
Public Trustee charges to manage the plaintiff’s estate .................................................. $74,012.30

I assess the plaintiff’s damages in the sum of $895,731.70 and give judgment for the plaintiff against the defendants for that sum.

On the evidence I am prepared to make a protection order pursuant to s.67(1) of The Public Trustee Act subject to due notice being given personally to the plaintiff pursuant to s.67(3) of the Act.

I give the parties liberty to apply and submit a draft protection order along the lines of that appearing in the precedents to the Queensland Supreme Court Practice, Ryan Weld & Lee in para. 8162 with such variations and additions as are thought appropriate in the circumstances of this case.