Tauri By His Tutor Carmelle Skipper v Janlin; Circuses Pty Limited T/As Stardust Circus (No 3)

[2020] NSWSC 1918

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Tauri By His Tutor Carmelle Skipper v Janlin; Circuses Pty Limited T/As Stardust Circus (No 3) [2020] NSWSC 1918

Hearing dates:

27 – 30 May 2019

Decision date:

24 December 2020

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

The Court makes the following orders:

(1)   Judgment for the plaintiff in the sum of $1,801,934.40;

(2) Pursuant to s 101 of the Civil Procedure Act 2005 (NSW), interest shall be paid on the judgment at the prescribed rate from the date of judgment;

(3) A declaration under s 76(1) of the Civil Procedure Act that, as at the date of judgment, the plaintiff, Siar Tauri, is incapable of managing his affairs insofar as it relates to the management of the judgment sum;

(4) Pursuant to the provisions of s 77(2) of the Civil Procedure Act, the defendant shall pay the judgment sum, payable under Order (1) herein, into Court to await further order;

(5)   The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;

(6)   Leave is reserved to any party to address any arithmetic error; any omission of a claimed head of damage; the form of these orders; and any special or different order for costs; and leave is reserved to the plaintiff or his tutor to deal with any further order relating to the sum to be paid into Court.

Catchwords:

TORTS – personal injury – assessment of damage – infant head and brain injury – damages awarded – payment into Court

Legislation Cited:

Civil Liability (Non-economic Loss) Order 2010 (NSW)

Civil Liability Act 2002 (NSW), ss 16, 17

Civil Procedure Act 2005 (NSW), ss 76(1), 77, 101

Surveillance Devices Act 2007 (NSW), s 7(3)(b)

Trade Practices Act1974 (Cth), s 74

Cases Cited:

Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

Category:

Principal judgment

Parties:

Siar Tauri By His Tutor Carmelle Skipper (Plaintiff)
Janlin Circuses Pty Ltd T/As Stardust Circus (Defendant)

Representation:

Counsel:
R S Sheldon SC/E E Welsh (Plaintiff)
J C Chapman (Defendant)

Solicitors:
Brydens Lawyers (Plaintiff)
Bartier Perry Lawyers (Defendant)

File Number(s):

2004/192285

Judgment

1. HIS HONOUR: The plaintiff, Siar Tauri, has sued in negligence for injuries caused when he fell between the planks of seating for patrons at the circus conducted by the defendant. At the time of the accident, the plaintiff was 18 months old and he sues through his tutor and mother, Carmelle Skipper. The plaintiff suffered significant head injuries and these reasons for judgment deal with the assessment of damages occasioned by the negligence of the defendant.

2. Initially, proceedings for negligence were commenced in the District Court and, because of the age of the plaintiff, the determination of liability and damages was separated by the District Court. The issue of liability was decided by Finnane QC DCJ on 13 April 2007.

3. His Honour found that the defendant was negligent and causally responsible for the damage suffered by the plaintiff; in breach of s 74 the Trade Practices Act1974 (Cth), in that the defendant failed to provide services to the plaintiff that were reasonably fit for the purposes of the supply; and the plaintiff is entitled to damages both on account of the negligence and on account of the breach of s 74 of the Trade Practices Act.

4. The significance of the injuries led to an application for the proceedings in the District Court to be removed to the Supreme Court and on 20 September 2017, McCallum J (as her Honour then was) of this Court, ordered that the proceedings be transferred to this Court. As a consequence of the foregoing, the only issue before the Court requiring determination is an assessment of the damages payable by the defendant to the plaintiff. It is accepted and has already been determined, that damages are payable.

5. Determination of the damages depends upon a number of issues affecting quantum. They include the nature and extent of the injury sustained and whether that included brain injury; whether there was and continues to be a disability as a result of the injuries sustained and, if so, to what extent; the extent to which the plaintiff is entitled to damages for non-economic loss; whether there are any, and if so the extent of, out-of-pocket expenses and whether they were reasonably incurred as a result of the treatment for the injury; the requirement for continuing or future treatment and, in particular, whether there is a requirement for a vocational and/or rehabilitation case manager and, if so, to what extent; whether the plaintiff has suffered or will suffer economic loss and, if so, to what extent; whether there was a failure to mitigate; the entitlement to fund management; and whether the plaintiff continues to be under a legal incapacity in relation to the conduct of these proceedings.

6. The foregoing is taken from the Statement of Issues in Dispute filed in the proceedings, but the issues are, with respect, obvious. Notwithstanding that liability is not an issue, it is necessary to set out the background circumstances of the injury that was suffered. That background can be brief.

Accident

7. The District Court determined that the accident occurred after the interval at the circus performance in circumstances where the plaintiff, whilst quite close to his parents, slipped between the planks at the seventh and eighth level, fell down and struck his head on a metal support attached to the bottom of the stand. Both parents were present in the tent at the same time when the accident occurred. Essentially, the plaintiff and his parents were paying customers to the circus and the plaintiff fell between the gap between the seats provided to paying customers.

8. At the time of the accident, or just prior thereto, the plaintiff was sitting on the seventh level of the seating and, as stated above, fell into the gap between the seventh level and the eighth level. As a consequence of that fall, he suffered head injuries, which form the basis of these proceedings.

9. The plaintiff was born in Rotorua, New Zealand on 23 August 1998 and moved, with his family, to New South Wales in November 1999. The injury occurred on 22 April 2000.

10. Immediately after the injury occurred, the plaintiff was admitted to Liverpool Hospital, transferred to Westmead Children’s Hospital and was thereafter treated. The foregoing is sufficient background to establish the context in which an assessment of the injuries can occur.

Chronology

11. The plaintiff has provided a chronology, which, in most respects, fairly and neutrally summarises that which has occurred, in chronological order. I set out the chronology, not for the purpose of dealing with issues of contention as to the injury and the assessment of damages, but, rather, as a means of putting into context the events and treatment of the plaintiff. It is in the following terms:

Event

Date

The Plaintiff was born in Rotorua, New Zealand

23 August 1998

The Plaintiff’s family moved to NSW, Australia

November 1999

Date of injury

22 April 2000

Admitted to Liverpool Hospital

22 April 2000

X ray of the cervical spine at Liverpool Hospital:

“Artefact partially obscures the mid cervical region.

No definite fracture or dislocation was seen.”

22 April 2000

X ray of the chest at Liverpool Hospital:

“There is collapse of the left lower lobe.

The right lung appears clear.

An endotracheal tube is present with its tip above the carina.”

22 April 2000

X ray of the skull at Liverpool Hospital:

“There is a depressed fracture of the left frontal bone.

No other vault lesion was seen.”

22 April 2000

CT of the Head at Liverpool Hospital:

“There is a comminuted, depressed and displaced fracture of the left frontal bone associated with a small loft frontal extra-dural haematoma and multiple small areas of the left frontal contusion and mild local mass effect.”

22 April 2000

Transferred from Liverpool Hospital to Westmead Children’s Hospital

22 April 2000

Operation: The New Children’s Hospital in Westmead

1. Debridement and elevation of compound left frontal depressed skull fracture/craniotomy

2. Debridement of cortex

3. Dural repair

23 April 2000

X rays of the chest and cervical spine at the New Children’s Hospital in Westmead:

“Areas of Atelectasis involving the left lower lobe and perihilar regions”.

23 April 2000

CT of the head at the New Children’s Hospital in Westmead

“5mm depressed skull fracture, v small EDH, minimal underlying contusion.”

23 April 2000

X ray of the abdomen at the New Children’s Hospital in Westmead:

“There is a right femoral line with its tip projected to the right of the midline at the level of L3-4. There is a NG tube present. The bowel gas pattern is normal”.

23 April 2000

X ray of the chest at the New Children’s Hospital in Westmead:

“Unchanged appearance of heart and lungs”.

23 April 2000

X ray of the chest at the New Children’s Hospital in Westmead:

“Unchanged appearance with Atelectasis of the left lower lobe and right upper zone”.

24 April 2000

X ray of the cervical spine at the New Children’s Hospital:

“No definite evidence of a fracture. Probable physiological subluxation of C2 on C3”.

24 April 2000

CT of the Head at the New Children’s Hospital in Westmead:

“Resolving left frontal contusion adjacent to the site of previous depressed left frontal skull fracture”.

26 April 2000

X ray of the chest at the New Children’s Hospital in Westmead:

‘‘Almost complete resolution of the Atelectasis involving the left lower lobe. There remains some partial Atelectasis of the right upper zone”.

26 April 2000

Plaintiff commenced physiotherapy at the New Children’s Hospital in Westmead, carried out by Mr Scott W. Blundell

26 April 2000

Plaintiff discharged from the New Children’s Hospital

1 May 2000

The Plaintiff was provided with a referral to the rehabilitation department at the New Children’s Hospital, and was booked in for a vision and visual field assessment.

25 May 2000

Plaintiff consulted with Dr Stephen O’Flaherty at the New Children’s Hospital Brain Injury Clinic

7 June 2000

Consultation at the Royal Alexandria Hospital for Children

4 July 2000

Plaintiff’s family moved to Melbourne

August 2000

Plaintiff first consulted Dr Ramesh Melvani in Footscray, Victoria

27 October 2000

Plaintiff enrolled in Footscray West Primary School

January 2004

Plaintiff attended upon Dr Wee Beng Ch’ng in Footscray West in Victoria

8 April 2004

Plaintiff left Footscray West Primary School

23 April 2004

Commenced proceedings

13 September 2004

Plaintiff undertook schooling at St Albans East Primary School

2004-2005

Plaintiff commenced schooling at Albanvale Primary School

2005

Plaintiff consulted psychologist Susan Athaide at the request of school psychologist Dr Linda Maree to assess his cognitive abilities

25 February 2005

MRI of the Brain at Future Medical Imaging Group:

“Gliosis of the left frontal region is noted, consistent with known history of previous depressed fracture of the frontal area”

“No further intracranial abnormality is identified with no acute abnormality demonstrated”

21 April 2005

Completed schooling at Albanvale Primary School

2006

Plaintiff’s family moved to their current home

2007

Judgment for the Plaintiff in relation to liability

13 April 2007

Started schooling at Kurunjang Primary School

July 2007

Plaintiff underwent an intellectual disability test by psychologist, Claire McConville

2 June 2008

Plaintiff underwent a speech pathology assessment by speech pathologist, Karyn Muscat

7 June 2008

Plaintiff finished schooling at Kurunjang Primary School

December 2010

Plaintiff started schooling at Kurunjang Secondary College

2011

Plaintiff left his schooling at Kurunjang Secondary College

2014

Plaintiff completed a mechanic course (9 weeks long)

March 2014 to May 2014

Plaintiff attended upon Primary Medical and Dental Centre in Melton (Dr Edwin Vivares) regarding a boil on his left elbow

14 May 2014

Plaintiff was unemployed

July 2014 to April 2016

Plaintiff registered with ASAP Work Force in Laverton who provide a job search service

March 2016

Commenced employment with Oxford Cold Storage in Laverton, Victoria as a storeman through ASAP Work Force

6 April 2016

Plaintiff turned 18 years of age

23 August 2016

Plaintiff ceased employment with Oxford Cold Storage

November 2016

Employed with TUSK Group in Tullamarine

30 November 2016

Commenced assignment at Toll Australia as a storeman through TUSK

1 December 2016

X ray of the skull at City Xray:

“Single lateral view provided demonstrates no radiopaque foreign body identified.”

7 March 2017

MRI of the Brain at City Xray:

“There is evidence of gliosis/encephalomalacia with old blood products in the left frontoparetial region.

There is right mastoiditis and sinusitis as described.

Otherwise, the intracranial contents are unremarkable.”

7 March 2017

Commenced employment with Hudson Pacific as an order picker

4 May 2017

Finished assignment at Toll Australia

7 May 2017

Plaintiff’s father passed away

14 December 2017

Plaintiff ceased employment with Hudson pacific

December 2018

Plaintiff commenced employment with Allied Pinnacle as a store person

December 2018

Injuries suffered

12. As can be seen from the summary provided in the foregoing chronology, the injuries suffered by the plaintiff as a result of his fall were significant. Leaving aside the head injuries, for a moment, the left lung had collapsed (a pneumothorax). This would have caused sharp chest pain in the child and rapid breathing.

13. As described by his mother and tutor, Carmelle Skipper, the major injury was the head injury and, as noted from the clinical notes, a metal rod went into the skull at the frontal region.

14. The injury caused his left frontal bone to be fractured and depressed. As described in the foregoing chronology and taken from the hospital notes at Liverpool Hospital, he had suffered a comminuted, depressed and displaced fracture of the left frontal bone associated with a small left frontal extra-dural haematoma; multiple small areas of the left frontal contusion and mild local mass effect. This was treated by debridement, which is the removal of foreign objects and damaged tissue from the wound.

15. There was also a requirement to correct the depression by elevating the compound left frontal portion of the skull, which requires the surgical opening of the skull and the raising of the depressed portion in order to relieve intracranial pressure. As a consequence of that operation, the plaintiff has scarring, the current state of which is depicted in photographs. [1]

    1. Exhibits C and D.

16. Time has healed and/or ameliorated the appearance of the scars, but the description of the injury in an infant of that age, discloses that the injury was an extremely serious one. The damages assessment was deliberately delayed as a result of the judgment of Finnane QC DCJ, who came to the view that it was impossible, at the time of the decision on liability, to determine whether the consequences of the injury would be serious and permanent or merely transitory and his Honour ordered that the assessment of damages not occur before at least six years from the date on which liability was determined.

Lay evidence

17. The plaintiff gave evidence. By the time the plaintiff was called he was 20 years of age and was, at the time of his first evidentiary statement, employed by Hudson Pacific at Tullamarine. This employment was as an “order picker” for the wholesale food distribution industry. He worked as a casual employee, but at the time that the first evidentiary statement was given, in 2018, he was working full-time hours.

18. The plaintiff held a forklift ticket and can and did operate forklifts in the course of his employment.

19. Unsurprisingly, given his age at the time and the nature of the injuries, the plaintiff has no memory of the accident. Frankly, for the purposes of an assessment, it matters very little, except, of course, he cannot remember whether or not he was in pain and, if so, how much. The plaintiff has no memory of life before he was in Year 2 at school and can only vaguely remember that year. He does remember going to different schools.

20. The plaintiff left school at the age of 15 and did not enjoy secondary school. He says he was not good at school work, but liked cars and enrolled in a course to see if he could become a mechanic when he left school.

21. The course was nine weeks and the plaintiff completed the course, but did not have the confidence to look for work thereafter. He did not know what to do or how to look for work after the course and was unemployed from about July 2014 until March 2016, when he was assisted by a family friend to find employment through ASAP Workforce at Laverton in Victoria. At ASAP, he worked as a storeman and that employment ceased in November 2016, when the plaintiff’s hours were cut.

22. The plaintiff then registered with TUSK at Tullamarine and was employed as a storeman with Toll Australis. He says he was paid well in that work but again his work hours were reduced dramatically.

23. By March 2017, he was working only one shift per week. As a result of that limitation on hours, he ceased that employment and commenced employment with Hudson Pacific, in which job he had continued, at the time of the first statement, for about six months.

24. The plaintiff has one brother and four sisters, all of them older than the plaintiff. The plaintiff lives with his mother, his brother and one of his sisters and her partner. His father passed away on 14 December 2017, not long before the plaintiff compiled his first evidentiary statement.

25. His brother is a forklift driver working in warehousing. One of his sisters is an insurance claims officer.

26. In his first evidentiary statement, the plaintiff testified to the fact that, apart from going to work, he spent his time playing electronic games in his bedroom. He does not have many friends (in his words “any friends”), but sometimes socialises with his family. He would like to continue forklift driving and is interested in cars and motorbikes and would like to have been a motor mechanic.

27. He testified to the fact that he was teased at school about the scars on his head and called names like “Scarface”, which used to upset him.

28. If he were to find a task difficult, he would give up very easily and, as he was growing up, he had a lot of problems with anger and its management. He also gets tired very easily.

29. He testified to the fact that his anger causes him to lose his temper with people very easily. He has had difficulties at work as a consequence.

30. When he was working at TUSK, he had an argument with a woman. He became involved in arguments with people all the time at work. He criticises people if he considers them to be doing something wrong, including not working hard enough. In part, according to the plaintiff, this is because he says whatever he thinks, without thinking through the consequences.

31. He gave the example of being involved in a fight with his mother on the way to the airport, because she needed to go to the bank. He does not like plans being changed. He does not do jobs that he is supposed to do at home and he finds attending appointments for the Court case very annoying. He certainly does not like having to go to doctors, nor having his routine disrupted.

32. A second evidentiary statement was compiled by the plaintiff to supplement the material otherwise provided. He also gave oral evidence in chief and was cross-examined.

33. The second supplementary statement informed the Court that his employment at Hudson Pacific was terminated in December 2018. He had been working a one-day shift with that employer throughout 2018 and was never offered full-time employment. He was eventually offered a position on night shift, which was at a higher rate of pay because of the effect of penalty rates.

17. At about the same time, he was offered employment with Allied Pinnacle Truganina, Victoria, undertaking the same sort of work and commenced employment with Allied Pinnacle (hereinafter “Allied”) on 12 December 2018. He has been paid approximately $1,000 net per week at Allied and works afternoon shift from 1 PM to 9 PM. At Allied, he has not been offered full-time employment. If he were to be made a permanent employee, the pay would reduce by approximately $3-4 per hour.

18. He commenced a relationship with Ms Maha Kargar, who worked in administration at Hudson Pacific. This relationship commenced in or about August 2018. Ms Kargar is about five years older than the plaintiff and, at the time of the second statement, the plaintiff spent most of his weeknights at her place, but returned home for the weekend. The relationship with Ms Kargar has assisted him in feeling better about himself.

19. Notwithstanding that assistance, he continues to have problems with anger management and continues to become frustrated both at work and at home. He has significant difficulties in remembering things and, for example, can spend hours looking for his keys. He seeks to overcome that by writing himself notes on his phone.

20. The plaintiff does not generally read for leisure nor watch television. He says that is because he cannot concentrate on anything for very long.

21. The plaintiff’s father was a container forklift driver at Port Melbourne. The plaintiff considers it to be a good job and one which he would like to have been able to do, but does not think he would be able to get into that type of work now, because he has no contacts, as a result of his father’s death.

22. He is still very self-conscious about his scar; still suffers from quite bad headaches, at least three times per month; the headaches sometimes occurring in the morning when he wakes.

23. He has been absent from work as a consequence of the headaches and has also been absent as a consequence of the fact that, on occasions, everything “has just become too much” for him.

24. As already stated he gave oral evidence, both in chief and in cross-examination.

25. The oral evidence, both in chief and in cross-examination, was impressive. The plaintiff showed himself to be extremely frank and truthful. He is simple; gets confused easily; has little insight into his disability or inabilities; became confused on a number of occasions with the questions that were being asked; and in some areas was quite vague as a consequence of his simplicity.

26. His answers were slow and his demeanour disclosed that he plainly had some difficulties with questions and answers and became frustrated in giving evidence. That attitude was true both of evidence in chief and in cross-examination.

27. His partner, with whom he lives three or four days per week, is a barista. At the time that he gave oral evidence, the plaintiff was working for an agency and had been allocated to work at Amwide. The agency that employs the plaintiff is LEAP Power. He obtained that employment through his brother-in-law, who works at the same site and is married to his youngest sister.

28. Although it was fairly obvious, as an inference, from the plaintiff’s evidence that he obtained his employment at Hudson Pacific through his mother who had worked there, he did not seem to understand that connection. The circumstances of his leaving Hudson Pacific are relevant, but the plaintiff had no insight as to the real reason that he departed Hudson Pacific.

29. At the time that he was giving evidence, he was working between 37 and 45 hours per week and earning, as already stated, $1,000 per week net.

30. His oral evidence corroborated those matters that were in his statements. He testified to the fact that he became frustrated and overwhelmed and that was a reason that he would take, sometimes, days off from his employment. He was asked what he meant by the term “frustrated” and his answer was: “I don’t know. Sometimes I just can’t think properly.”

31. By reference to the meaning of the term overwhelmed, the plaintiff said: “… I guess, I have too much thoughts in my head, and I can’t concentrate or anything.” When that happens, the plaintiff stays in his room and does not talk to people, or many people.

32. At Hudson Pacific, the plaintiff could work up to 50 or 55 hours per week and would, as a minimum, have worked about 40 hours per week. That occurred at least three weeks a month.

33. During the course of the evidence in chief, the plaintiff made it clear that there were times when he did not agree with those who supervised him and would, in those circumstances, either argue with them or, a few times, he left work early. The arguments were little arguments and occurred “most days”, but he had bigger arguments maybe three times since he worked there.

34. When asked, somewhat simplistically, what he meant when the arguments were “a bit bigger”, the plaintiff described a screaming match in which work would stop as a result. The screaming match was with the warehouse manager and staff manager.

35. As a result of that argument, the plaintiff was called into human resources and had a conversation with human resources staff. That conference/interview/discussion was for approximately 30 minutes. It involved the plaintiff, the warehouse manager and the head of human resources.

36. His evidence also discloses that he has trouble with paperwork. His English at school was problematic. Most of his subjects at school, with the exception of mathematics, were problematic and he continues to have difficulty reading and writing. Nevertheless, he is able to fill in forms that were necessary for the purposes of his employment and, from time to time, uses the computer for that purpose. However, the use of a computer is infrequent and occurs, at work, about five times a week for a short period. The plaintiff did not use a computer at home.

37. The plaintiff owns a motor vehicle. He has bought and sold motor vehicles including a motorbike. He borrowed money from his partner for the purpose of one of the purchases. The motor vehicle cost $12,000 and the plaintiff borrowed $2,500. He also obtained two loans from the Commonwealth Bank; each for $4,000. He is still paying off the loans from the Commonwealth Bank. They were in relation to motor vehicles that have since been sold.

38. He gave evidence as to a desire to work at Port Melbourne; and otherwise desired to work on buildings, it seems, by cleaning them on the outside. In that regard, he ventured that he would like to ‘put money in’ with his cousin who is doing that kind of work. The cousin, however, does not own a business; the cousin is employed by a company.

39. The plaintiff gave evidence about his work on motor vehicles. That evidence corroborates, if true, the general impression of the witness as truthful and unsophisticated.

40. In the course of the cross-examination, it became clear that, at different times over a short period, the plaintiff had owned eight vehicles, which he would buy and sell, but had owned only two at any one time. That was for a period of four months.

41. He had engaged in dirt bike riding with a workmate and the workmate’s brother. The workmate worked with the plaintiff at Allied. He was cross-examined about the work he did on vehicles and, despite Counsel seeking, during the course of cross-examination, to give the impression that the plaintiff was capable of doing significant and serious mechanical work, it became clear that the plaintiff engaged only in simple mechanical work on motor vehicles, notwithstanding that he worked with his father and/or brother on such vehicles and had worked on vehicles for most of his life. For example, the plaintiff was incapable of changing brakes, without the intervention of his brother or another person with more skill.

42. During the course of the cross-examination of the plaintiff, it was sought to be demonstrated that the plaintiff made a profit on the buying and selling of car parts and/or the purchase of motor vehicles (including motorbikes), their repair and sale. The plaintiff answered the questions put to him as fully as he was able, but within the limitations already described in these reasons for judgment. It is clear from the evidence, including the evidence of his brother, that the plaintiff did not make a profit.

43. In relation to this aspect, as just stated, the Court reaches the conclusion that: there was no profit obtained from such activity. Generally, this activity was done as a matter of interest; if anything, losses were occasioned; the plaintiff could not do all of the repair work that was necessary to bring the motor vehicles to a rejuvenated state; and there was little or no understanding of the financial implications of the activity undertaken. Moreover, the plaintiff acts on whim, rather than any rational or planned basis.

44. The plaintiff was also cross-examined on the basis of his activities; his mood; and his relationships, including his use of Facebook and social media. The difficulty with the questions and answers is that the accuracy of the answer from the plaintiff depends upon the plaintiff having an insight into his behaviour and moods, which is not the impression the Court has gained. The plaintiff has almost no insight into many of the disadvantages and/or mood affects from which he suffers. He does have some insight into some aspects.

Other Lay Evidence

Carmelle Skipper

62. An evidentiary statement was also filed on behalf of the plaintiff’s mother and tutor, Carmelle Skipper. At the time of the first evidentiary statement, Ms Skipper was 47 years of age and widowed. As already stated, the plaintiff’s father, Ms Skipper’s husband, passed away on 14 December 2017. She confirms that the plaintiff is the youngest of her six children and, at the time of the first statement, she was employed at Hudson Pacific.

63. By way of background, Ms Skipper describes the fall at the circus and the fact that the plaintiff suffered a head injury and the hospitals to which he was taken. She recites that the plaintiff underwent a craniotomy to treat the depressed skull fracture and that the plaintiff was under the care of Dr Stephen O’Flaherty at Westmead Brain Injury Rehabilitation Service, after discharge.

64. The family moved to Melbourne in 2000 and Ms Skipper testifies that the plaintiff was slower in achieving his milestones as an infant than were his brothers or sisters. There were obvious delays in the development of his literacy and numeracy skills and, according to his school reports, the plaintiff was one to two years behind his age-comparable peers in reading development.

65. At primary school, Footscray West Primary, the plaintiff was provided with special education, being speech pathology and one-on-one tutoring. Notwithstanding that the family moved around and the plaintiff changed schools, the plaintiff was provided one-on-one tutoring and other assistance throughout his primary school.

66. Ms Skipper suggests that the developmental delay and need for tutoring and other assistance was as a result of the brain injury. That opinion is a lay opinion but was not the subject of objection or examination. Ms Skipper attested to the plaintiff being a poor student and that his behaviour became a big problem.

67. Ms Skipper signed the plaintiff out of school at 15 years of age in order for him to complete a mechanic’s course, but the course was only nine weeks and thereafter he was unemployed for approximately three years. The employment records suggest the period was closer to two years. During that time, he lacked motivation and spent all this time in his bedroom. He also fought with the family “all the time” and had “absolutely no self-confidence”.

68. After that period, his older brother’s friend managed to obtain work for the plaintiff through an employment agency and he has been working ever since, with some problems and breaks.

69. He worked with two agencies on a casual basis, but in each case the work availability diminished and ultimately ceased. The plaintiff became upset about that issue and Ms Skipper was able to assist in obtaining a job for the plaintiff at Hudson Pacific, where she worked, in or about March or April 2017.

70. Apart from work, the plaintiff spends most of his time in his bedroom playing electronic games. He does not socialise. The plaintiff also refuses to work around the house, but he does his own washing.

71. Discussing the plaintiff’s history, Ms Skipper described him as “hard to live with” ever since primary school. The plaintiff threw tantrums when he was younger, much more often than Ms Skipper considered normal or usual and as he aged, particularly when in high school, he became very angry when things did not go his way. That is still the situation.

72. Ms Skipper has more arguments with the plaintiff than she does with any other member of the family and there would hardly be a day that passed without an argument with the plaintiff. In such arguments, the plaintiff can sometimes kick or punch or smash something, which has happened several times in the past. The family deals with that by trying not to irritate him and the family understands that he has a problem with anger management, but Ms Skipper worries about what would happen if one of these arguments occurred with a stranger.

73. Ms Skipper has observed the plaintiff having arguments with people at work. Ms Skipper described the plaintiff, her son, in the following words:

“He is impulsive. He does things without thinking. He drives his motor vehicle when he knows he shouldn’t. He has been caught riding his motorcycle several times without his L plates and he has had one accident. My son-in-law takes him for driving lessons sometimes. No one else in the family wants to do that because he is too impatient.

He has said that he is fed up with the case. I am worried that he will make an impulsive decision to end the case without thinking about it. I am concerned about whether he is really able to look after his own affairs. I have seen how badly affected he has been through his life by this head injury. I do not think he understands that because he does not remember a lot of things that happened when he was younger and he is extremely stubborn.

[He] does not seem to care about anything.”

74. In her second evidentiary statement, Ms Skipper disclosed that she had resigned from her employment at Hudson Pacific in December 2018 as a consequence of health issues. She had suffered a mild cardiac condition and is currently waiting to undergo cataract surgery, after which she intends to seek to return to work.

75. Ms Skipper referred to the plaintiff’s attitude at Hudson Pacific as being “sometimes poor” and referred to the fact that he argued with the manager. In oral evidence, Ms Skipper made it clear that there were, in fact, two managers with whom the plaintiff had argued.

76. Ms Skipper also testified to the fact that his girlfriend/partner seems to have had a good effect on him and she seems to be able to control his rudeness and/or temper more than most.

77. At one stage, during an argument with Ms Skipper and his sister Tia, the plaintiff became extremely angry to the point where he punched holes in the walls of the house. He tends to lose control of himself; shows a lack of respect; and can be very selfish. He also torments his younger cousins, who are in their sub-teen years, and continues to do so until they cry.

78. Ms Skipper is aware that the plaintiff has taken out two or three personal loans, which he has repaid, at least on the understanding of Ms Skipper.

79. Ms Skipper was examined in chief and cross-examined. Generally, her oral evidence corroborated the comments in her evidentiary statements and provided some greater detail of courses and events that were undertaken by the plaintiff.

Maha Kargar

80. Maha Kargar is the girlfriend/partner of the plaintiff and met him at work at Hudson Pacific. She described the plaintiff as extremely shy and disclosed that they developed a friendship, which ultimately turned into a relationship. She testified that when they first met, she noticed that the plaintiff always wore a hat and that he has a very obvious scar on his forehead, about which he is extremely self-conscious.

81. Ms Kargar also testified about the plaintiff’s difficulties with anger management and frustration. He would, earlier in the relationship, become angry and then very emotional and would burst into tears. He would ignore Ms Kargar for hours when that happened and just wanted to be alone and would lock himself in a room.

82. The couple share an interest in cars, but the plaintiff becomes frustrated and very angry when working on his car and gives up very easily. She seeks to talk him through those problems but, at times, he will not communicate with her, once he becomes frustrated and angry in the way that she has described.

83. As earlier stated, she has worked with him on cars and testified that she could not ever see him becoming a mechanic. While his reading and writing is fair, in the observation of Ms Kargar, she has had to help him with both at times. He is “quite a good sleeper” but takes a very long time to wake up in the morning and get out of bed.

84. They go out once a week, generally, and, when Ms Kargar first met the plaintiff, he did not socialise with anyone at all. Generally, it is the two of them that go out alone.

85. According to Ms Kargar, the plaintiff is also quite forgetful and his inability to remember frustrates him even more. Ms Kargar gave examples of such issues and they included forgetting to lock the car, even after a reminder, which led to items being stolen; and forgetting where things had been put such as keys and wallets and the like.

86. This may sometimes cause him to spend a significant amount of time to locate items that he has left in a place that he cannot recall. This has also led to other inconveniences. For example, Ms Kargar told the Court of a time when the plaintiff had lost his wallet, causing them to believe it had been stolen. As a consequence, they cancelled all the credit cards, after which they found the wallet on the couch.

87. Ms Kargar spends a significant amount of time with the plaintiff and testifies to him having suffered, and continuing to suffer, migraines and headaches. She has urged him to see medical practitioners but he often refuses to go and takes the view that it is “just related to his accident”.

88. These headaches are suffered usually a few times a week and on occasion he will wake up from sleep as a consequence of the pain. He has also had days off work due to the severity of the headaches. There is, in Ms Kargar’s observation, no pattern to the occurrence of the migraines; they occur randomly.

89. Again, Ms Kargar gave oral evidence in chief and was cross-examined. In the course of the examination-in-chief, evidence was adduced relating to bank accounts.

90. Ms Kargar and the plaintiff do not have joint bank accounts, but Ms Kargar holds some of the plaintiff’s money in her bank account. The couple had been in a close relationship, at the time that evidence was adduced, for about eight or nine months. About five months before giving evidence, the plaintiff placed between $15,000 and $20,000 in Ms Kargar’s account, for her to hold for him so that they could save.

91. From that money, Ms Kargar provided the plaintiff with about $2,500 so that he could purchase a car. Otherwise, the money remains in her account except, on rare occasions, when the plaintiff asks her to pay for fuel or for a particular bill.

92. Ms Kargar was cross-examined about the transfers and/or cash deposits as between her and the plaintiff’s accounts. She also testified that the plaintiff works on cars, but always with someone else; usually his brother, Caesar.

93. Ms Kargar is involved in the decision-making as to whether a vehicle should be purchased. And it was Ms Kargar who insisted that the plaintiff not ride motorbikes anymore. The money held by Ms Kargar is money to which the plaintiff does not have access, notwithstanding that it is his money.

Tia Tauri

94. Evidence was adduced from Tia Tauri, the plaintiff’s sister. At the time the statement was completed, Tia was 27 years of age and described the personality traits of the plaintiff.

95. Tia described the plaintiff as “shy and very withdrawn”. He is, according to his sister, a person who declines, frequently, to go on family outings. He is keen on computer video games, on which he spent a significant amount of time, enabling him to remain withdrawn and isolated in his room.

96. Over and above the foregoing, the evidence of Tia is that the plaintiff, by his nature, is “a bit irritable and not terribly tolerant”. He quickly becomes argumentative and he is short tempered.

97. Tia describes her brother, the plaintiff, as being prone to verbal outbursts and one who rarely “quietly discusses the point”. He also has a short attention span.

98. The plaintiff has no interest in reading and/or watching movies. The personality of the plaintiff is in stark contrast to that of his brother, Caesar, and his two closest male cousins, Dyson and Te-nari.

99. Tia was pregnant at the time she gave evidence and, on account of that condition, was not, at the time, employed. She has two other children who are nine and seven.

100. Tia was cross-examined as to family organisation and discipline, the answers to most questions being inconsistent with some of the assumptions and/or information provided to Ms Zeman, whose report will be dealt with later in these Reasons for Judgment. Otherwise, her oral evidence, both in chief and in cross-examination, confirmed the evidence otherwise given in her evidentiary statement. Some of it was unhelpful, in the sense that it was material about which the witness did not know any greater detail or of which she was wholly unaware.

101. Another sister, Danielle Tauri-Pompey, was also called to give evidence. Her evidence was to the same effect as that evidence given, in relation to the plaintiff, by Tia.

102. Danielle testified as to the outgoing and friendly nature of Caesar and the two cousins and the withdrawn; irritable; argumentative; and anti-social attitude of the plaintiff. She also described him as “not very tolerant” and likely to become angry if somebody disagrees with him or wants him to do something other than what it is he wants to do.

103. After school, Danielle attended university, but dropped out after six months. She was studying fire technology and was the only woman in the course. After dropping out of university, Danielle worked at various jobs in the service industry and in warehousing and in meat storage.

104. Danielle gave evidence detailing some of the arguments she had with the plaintiff as a result of his “irritability”. Again, the oral evidence did not detract from the substance of the evidence otherwise adduced in her statement.

Caesar Pompey

105. The plaintiff’s brother, Caesar Pompey, gave evidence by telephone as a result of his work commitments and unavailability to travel to New South Wales. [2] The major issue upon which Mr Pompey was called to give evidence-in-chief, was to prove the truth of his payslips and he was otherwise cross-examined as to the capacity of the plaintiff. Notwithstanding the major reason for his evidence-in-chief, a Statement of Evidence was prepared, served and relied upon in the course of the proceedings.

     2. Tauri By His Tutor Carmelle Skipper v Janlin Circuses Pty Limited T/As Stardust Circus (No 2) (Supreme Court (NSW), Rothman J, 29 May 2019, unrep).

106. Essentially, the evidence of Mr Pompey was, in relation to the plaintiff, in or to the same effect as his two sisters. He described the plaintiff as “unsociable and withdrawn”; much happier “being isolated in his room playing computer video games rather than socialising”. The plaintiff declines invitations; does not enjoy participating in family events; did not participate in the family’s Christmas lunch or New Year’s Eve celebrations; preferred to stay home alone, isolated in his room playing computer video games. The plaintiff was the only member of the family who did not attend the celebration in New Zealand for their grandmother’s 74^th birthday.

107. Mr Pompey described the plaintiff as being “short-tempered” and “easily agitated”. The plaintiff has mood swings frequently; becomes frustrated and angry at trivial things; and becomes completely withdrawn, refusing to speak to anyone.

108. In all of those regards, he is very different from every other member of the family: both the immediate family and the extended family, at least amongst the children.

109. At the time of giving evidence, Mr Pompey was working as an operator of a heavy forklift; the machine weighed 45 tonnes and, when loaded, 80 tonnes. He works for a company called Phonetic Systems in Brooklyn, Victoria and loads and/or unloads shipping containers. 11 payslips of Caesar Pompey were admitted, [3] which disclose a base salary of $1,040 per week and varying overtime between $58.50 and $1,222 per week.

     3. Exhibit F.

110. The cross-examination confirmed that the plaintiff could perform minor repairs on motor vehicles and there was some cross-examination on the other tasks that he could perform, although the cross-examination did not take the matter much further than the general statement by Mr Pompey as to the capacity of his brother. The cross-examination also dealt with the purchase of vehicles and the assistance, if any, provided by Mr Pompey in that regard.

111. Mr Pompey was also cross-examined about his attitude to school. Without disclosing any pedagogical expertise, Mr Pompey explained, in practical terms, that which has been the subject of significant dissertation on the different learning methods of different persons. Mr Pompey described himself as a “practical learner”, who made little or no effort at academic work. The relevance of the foregoing is, it seems, by way of comparison with the plaintiff and his performance and abilities at school, but the answers were important in understanding the differences between the plaintiff and his brother in their capacities for conceptual analysis and thinking, and for English expression.

Expert Evidence

112. Some of the medical reports that are in evidence have already been the subject of description by the Court in these Reasons. Most importantly, from the aspect of medical evidence, is the evidence adduced as a result of a conclave between three experts and, in particular, the oral evidence that was adduced as a result of the examination and cross-examination of those experts.

113. A conclave occurred on 22 May 2019 at which Dr Ben Teoh, Mr Peter Rawling and Dr John Sydney Smith attended. The conclave occurred in circumstances that are described in the preamble to the report and in the course of the oral evidence. A number of the documents upon which Dr Smith relied had not been seen by either Dr Teoh or Mr Rawling at the time of the Conclave report and each of the latter two relied upon the summary of those documents provided by Dr Smith in his report. By the time evidence was adduced orally, all three of the witnesses had seen the documentation.

Evidence other than the experts in conclave

114. It is necessary to deal briefly with the other medical evidence, albeit that most of it is uncontroversial.

115. The Court made it clear to the parties that the history taken in relation to the defendant, and any facts asserted, would be treated by the Court as the basis for the opinions and not as evidence of the truth of the facts asserted. There are some exceptions to that, relating to the chronology of events and the clinical examination results during the course of the early childhood of the plaintiff. Another exception relates to comments made by the plaintiff’s father, who was deceased at the time of the proceedings, and whose statements, recorded in one or more early clinical reports, are admissible under the exception relating to that circumstance.

116. In the latter category, is the comment in a report on the letterhead of The New Children’s Hospital, Royal Alexandra Hospital for Children, over the signature of Dr Stephen O’Flaherty, which records that, as at 7 June 2000, when the plaintiff was examined and when he was just under two years of age, the plaintiff’s father noted that the plaintiff had “returned to his pre-accident level of functioning” but had a concern because of the plaintiff’s “somewhat aggressive behaviour” being “more marked”.

117. As earlier stated, the plaintiff suffered a head injury, when a metal rod went into his skull in the forehead region, causing a fracture (or shattered skull) and oppression of the frontal bone; a small left frontal extra-dural haematoma; multiple small areas of left frontal contusion and a mild local mass effect. He was treated by debridement, which included the removal of dead brain tissue. There was evidence in the imaging of an area of gliosis at this left frontal region; and some cortical signal abnormality noted on the frontal bone, each of which is consistent with the history of a previous depressed fracture.

118. There was no intracranial mass lesion; no midline shift; no mass effect hydrocephalus noted. There was, indeed, in that respect, no further intracranial abnormality.

119. In 2005, as a result of issues associated with school performance, the plaintiff was assessed for cognitive abilities. He was then aged 6 ½ years. He was assessed as having a reasonably good working memory and above-average object assembly capacities, which measures visual motor coordination; an understanding of spatial relationships; and the ability to synthesise concrete parts into meaningful wholes. He also showed above-average geometric design.

120. His average range included, as earlier stated, his working memory; his knowledge of events or objects in the environment; his capacity for picture completion; his completion of mazes, disclosing perceptual organisational ability or the ability to follow a visual pattern; block design, which measures the ability to analyse, synthesise and reproduce abstract designs; and comprehension.

121. The plaintiff scored below-average in arithmetic; vocabulary; the understanding of the concept of similarity; and the capacity to recognise similarities and dissimilarities between objects and words.

122. The plaintiff displayed a significant difference in his verbal and non-verbal scores and fell in the low-average range for verbal skills and the average range for non-verbal skills.

123. The difficulty with the use of such tests in proceedings such as this is manifest. It measures the performance of the plaintiff, but does not indicate whether that performance is or has been affected by the injury that occurred.

124. Thus, to use an extreme example, if, after a head injury, Albert Einstein showed an average skill in mathematics on a score such as this, we could readily assume he was significantly affected by some form of injury associated with the accident that was being measured. Yet, a score of average, below average or above average on any particular skill set measures the plaintiff against his peer group; it does not measure the plaintiff against that which would have been achieved were it not for the brain injury.

125. There can be no issue, and there was no issue at trial, that the plaintiff suffered significant brain injury, particularly to the frontal lobe. The imaging results to which the Court referred above were confirmed in a report of 7 March 2017 in which it was found there was a tract of encephalomalacia/gliosis in the left fronto-parietal region, which was recognised as the legacy of the known injury. The encephalomacia displayed some blooming on gradient echo sequences. The fundamental issue before the Court is the effect, if any, of the brain injury.

126. There is little doubt that the consistent history taken by medical practitioners, which is also consistent with the evidence before the Court, is that he has, over the years, displayed “severe difficulties with his behaviour at home” and seems to have displayed behavioural and cognitive difficulties.

127. One of the reports is that of Professor Bruce J Brew, who is a Professor of Neurology at the University of New South Wales and practises at St Vincent’s Hospital. He was Awarded Membership of the Order of Australia (AM) for his services to neurology.

128. Prof Brew describes the nature and extent of the injuries sustained by the plaintiff. He describes the plaintiff as having suffered “a significant head injury when he was 18 months old”; a depressed fracture of the left frontal bone; an extra-dural haematoma; and multiple areas of contusion in the frontal lobes. Prof Brew then says:

“The severity of the head injury is further supported by the fact that his Glasgow Coma Scale when he was admitted to Liverpool Hospital and then subsequently transferred to Westmead Children’s Hospital dropped to 11.”

129. Prof Brew describes the severity of the injury as having “led to a degree of learning difficulties” on the part of the plaintiff, which, in Prof Brew’s opinion, is corroborated by the fact that the plaintiff required a teaching assistant. Prof Brew also referred to the plaintiff’s inability to keep up with his classmates in secondary school and the fact that he stopped formal schooling in Year 9. Prof Brew also referred to his behavioural disturbances and the fact that he was “much more disinhibited”, referring to several violent outbursts as a child.

130. The third piece of evidence relating to the severity of his injuries, to which Prof Brew refers, is the marked gliosis in his left-frontal lobe, to which the Court has already referred. Lastly, Prof Brew referred to the serial neuropsychological testing as supporting the severity of the head injury.

131. Prof Brew expresses the view that the plaintiff continues to have cognitive problems: finds reading difficult and has difficulty organising himself. There was no cross-examination of Prof Brew.

132. According to the professor’s report, the plaintiff’s fitness for work is limited by the plaintiff’s deficits in executive functioning, language and behavioural control. As a consequence, he is limited to work that is semi-skilled “at best” and which provides a “very structured and predictable environment”.

133. The professor also expressed the view that the difficulties that the plaintiff experiences with interpersonal relationships would render it advisable that the work would entail limited contact with others. Prof Brew takes the view that the deficits that he commented upon in 2017 would remain and would be permanent. He is, in the long-term, at risk of developing epilepsy, although that risk is relatively low. In his supplementary report, Prof Brew makes clear that the right frontal lobe was much less significantly damaged compared to the left-frontal lobe of the plaintiff’s brain.

134. Dr Stephen Buckley provided a report dated 30 April 2017. Dr Buckley is a consultant physician in rehabilitation medicine. He summarises the medical reports and other information with which he was provided as indicating a serious brain injury having been suffered by the plaintiff, with behavioural impairment, some relatively moderate cognitive impairment, and particularly poor language development.

135. Dr Buckley described a history and series of circumstances relating to the plaintiff’s conduct which reflects the view the Court takes of the evidence otherwise adduced at the hearing. Dr Buckley also referred to a number of reports including the Neuropsychological Assessment of Mr Rawling, who was part of the conclave and gave evidence at the same time as the other two participants. Dr Buckley confirms that there is no doubt that the plaintiff sustained a serious brain injury and refers to the debriding of the brain on initial treatment.

136. Dr Buckley takes the view that the damage to the left-frontal lobe is likely to have extended to language impairment which is, generally, on the left part of the brain. Nevertheless, Dr Buckley, consistent with the other medical evidence, and the view of the doctors in conclave, suggests that the major effect of the injury is in executive functioning and rational responses.

137. As a consequence of the opinion that the major effect is on executive functioning and rational consideration of environmental interaction, neuropsychological assessment is, in the view expressed by Dr Buckley, a poor descriptor of “personality” and “environmental interactive behaviours”, even though it is a good identifier of cognitive dysfunction. In relation to the issues affected by this kind of injury, the historical view of persons who know the patient well are a better indicator and, in that regard, Dr Buckley referred to Mr Rawling’s report, quoting the mother or summarising her response, as indicating that the plaintiff had an “explosive temper associated with violent acting out, lack of respect or concern as to the feeling of others and disregard of the law”.

138. Dr Buckley called for further comments from those who know the plaintiff well, which were provided to him and which formed the basis for a subsequent report of 23 June 2017.

139. Dr Buckley expressed the view that a case manager would be appropriate, if the plaintiff were to move away from his family or outside of an established structural pattern for relationships and for behaviour. He will have considerable difficulty in identifying work options available to him and, because of his behavioural impairment, the plaintiff is likely to have difficulty in maintaining employment in the longer term.

140. As a consequence of that opinion, the opinion expressed by Dr Buckley is that there should be another person available for the plaintiff to turn to for assistance in developing plans to maximise his quality of life and to assist him if and when he loses his employment. This person is identified by Dr Buckley as a “Case Manager”.

141. In the view of Dr Buckley, such a person should be a healthcare professional with extensive experience in the management and care of those who have sustained traumatic brain injury. Such a person could be an occupational therapist; registered nurse; social worker or psychologist and would need to be able to assist the plaintiff to plan and maintain an activity program which will promote quality of living, particularly with respect to adequate physical activity and adequate mentally stimulating activities.

142. Dr Buckley expresses the view, with respect fairly obviously given the nature of the evidence adduced in the proceedings, that the plaintiff has “poorly developed social skills” and “irritable intolerant behaviour”, which according to Dr Buckley is caused by his frontal-lobe injury, and those issues will result in the plaintiff having “difficulty maintaining appropriate work relationships with customers, work peers, supervisors and employers”. Dr Buckley expresses the view that it is unlikely that the plaintiff will be able to maintain employment for more than half the period of time that would otherwise be available during his working life.

143. These comments were confirmed, once again, in a third report, dated 18 May 2018, in which Dr Buckley concentrated particularly on funds administration and funds management and, in the course of which, Dr Buckley altered his view. In the third report, Dr Buckley was of the view that, in light of his subsequent observations, he is a person who requires orders for the administration of his funds and does not have the capacity to manage a large sum of money, if the Court were otherwise minded to grant damages of a sizable amount. Dr Buckley was not cross-examined, either on any of his reports or on any opinions expressed.

144. The Court has deliberately left until later the views expressed in the initial reports by Dr Teoh, Mr Rawling and Dr John Sydney Smith. There are other reports upon which the defendant relies. The report by Dr Fahey will be dealt with later in these reasons.

145. Essentially, Dr Matheson, consultant neurosurgeon, took the view that the injury was “local” with “a little bit of underlying local brain damage”, from which the plaintiff has wholly and totally recovered leaving him “with no disability”. He does concede there is a small risk of epilepsy in the future.

129. Dr Matheson deprecates the effect of the MRI scans suggesting that the remnants of blood, leaving iron pigments, make the MRI scan exaggerate the level of damage. There is thus, in the opinion of Dr Matheson, an “over reporting of damage in MRI scans as against CT scans, which tend to under-report brain damage” and neither of which are appropriate tools for assessing intellectual functioning.

130. His previous reports were confirmed on examination in 2008 and his previous opinions were confirmed. Notwithstanding the lack of testing or any comparable figures, Dr Matheson came to the view that the plaintiff had no “cognitive impairment”. It may be, given the terms of the last report, that this was an assumption that the doctor was asked to make.

131. To the extent that the doctor expressed the opinion that the injury to the head was “local” “with a little bit of underlying local brain damage”, it is rejected. The Court accepts the view expressed by the doctors in conclave and the original treating physicians that the plaintiff suffered left-frontal lobe brain damage caused by the accident on 22 April 2000 and that the injury was significant.

132. The defendant also relied upon a report of Ms Sanja Zeman, dated 8 May 2018. Ms Zeman is an occupational therapist. Much of the report related to expressing an opinion as to the living needs of the plaintiff, in circumstances where, as it was ultimately pressed before the Court, no such claim for past or future domestic assistance was maintained or pursued. Further, the claim by the plaintiff for a “Case Manager” was, in some sense, a misnomer, in that the claim of the plaintiff was for a “Crisis Manager”, dealing, as earlier indicated, with strategies and plans, inter alia, relating to employment motivation, more than domestic assistance, hygiene and the like. [4]

     4. See reference to the opinion of Dr Buckley.

133. Ms Zeman’s report deals, in large measure, with the opinions based upon her comparison between the plaintiff’s performance and the performance of his siblings in like areas. Ultimately, the evidence before the Court seems to differ significantly from the assumptions made by Ms Zeman in that regard.

134. This is based upon the assumption by Ms Zeman that the plaintiff was living “no differently to other family members”. Further, Ms Zeman expresses the view, which is a matter of fact, that the plaintiff had demonstrated the capacity to source, apply for, secure and maintain employment on the open labour market. That is not the effect of the evidence adduced in the proceedings and accepted by the Court.

135. Rather, the evidence in the proceedings is that such employment that has been obtained has been obtained largely with the assistance of his mother or his extended family and the plaintiff has disclosed, in his evidence, an inability to understand the steps that are necessary to obtain employment or to plan any career or employment future. As earlier stated, he has been dependent on others and the view of others as to those aspects of his life.

136. As to the necessity for “Case Management”, the opinion of Ms Zeman is based upon her opinion that the plaintiff is “not likely to accept any case management intervention”.

137. To the extent that Case Management is appropriate or found to be appropriate, Ms Zeman expresses the view that such a person should be a person who is able to work with the plaintiff “to establish goals and facilitate achievement of such goals” and therefore suggests, if, contrary to her view, the Court determines Case Management is required, the engagement of an occupational therapist. Such a person, she suggests, would be engaged to facilitate identification and development of goals, organisation and planning.

138. Nevertheless, the foregoing should not be confused with the primary view expressed by Ms Zeman that the plaintiff did not require Case Management and, on her assessment, the plaintiff is unlikely to accept any Case Management into the future. However, if his family circumstances would alter in the future, then, in the opinion of Ms Zeman, he may need Case Management as a result of the loss of his usual family and social support mechanisms.

139. Notwithstanding the foregoing, the report of Ms Zeman notes that the plaintiff is not currently receiving occupational therapy intervention, but that he would benefit from it in order to “facilitate cognitive rehabilitation, notably in relation to acquisition of living skills and interpersonal skills”. This would include the use of memory prompts; task planning and routine task organisation. Ms Zeman recommended 10 hours at $200 per hour for such assistance.

140. Ms Zeman also sets out the ordinary understanding of Case Management and its categorisation and, based upon the plaintiff’s context and environment, concludes that it is highly improbable that the plaintiff will agree to Case Management. [5] Ms Zeman discounts the need for the provision of a service broker; clinical, rehabilitation or direct care; and chronic, long-term, integrated Case Management. Nevertheless, a Case Manager geared to either strengths-based or assertive/recovery models would be appropriate.

     5. See Exhibit 19-1, Tab 3, p 38, [18.6.7].

The conclave evidence

158. I turn then to the three doctors in the conclave. The defendant qualified Dr John Sydney Smith who, apart from the conclave report and the oral evidence, has reports dated 27 August 2018 and 3 October 2018. The report of 27 August 2018 commences, after an introduction, with general comments expressing the suspicion of the doctor, apparently arising from two or three flashes of light emanating from the plaintiff’s yellow jacket at the time of his appointment, that the plaintiff may have been audio recording the interview or taking photographs.

159. It is not absolutely clear how it is said that the plaintiff could take photographs from inside his jacket. As to the audio recording, the doctor then makes clear that he did not give permission for any visual or electronic recording being made. There is no evidence that any such recording was made and I do not understand why the general comments are in the least bit relevant to the medical opinion expressed by the doctor, unless it is intended to imply some inappropriate behaviour on the part of the plaintiff or provide information that might be thought to influence the view that the Court may take of the plaintiff. It does not. Further, if there were a recording, it is not clear that it would have been unlawful,[6] particularly in circumstances of the plaintiff’s memory issues and his assertion of rights in proceedings.

     6. Surveillance Devices Act 2007 (NSW), s 7(3)(b), because the plaintiff would have been a “principal party”.

160. Dr Smith was provided with a number of reports from which he gained some awareness of other doctors’ views. Included amongst those reports was the report of Dr Fahey, to which earlier reference has been made. Dr Smith is a psychiatrist. In the course of his first report, he refers at length to the opinion of Dr Fahey, paediatric neurologist, who came to the view that the plaintiff had “the behavioural, emotional and cognitive effects of a moderate severity TBI sustained at 20 months of age.” (“TBI” refers to traumatic brain injury.)

161. Dr Smith refers to the schooling and courses attended by the plaintiff and at some length to the reports obtained in relation to his performance. In particular, he refers the tests performed by Mr Rawling and other practitioners. Dr Smith sets out his understanding of the behaviour of the plaintiff’s siblings at school and their performance.

162. In that comparison he dismisses as “unlikely” the view that the plaintiff gave him that his sister did one year of university to study “something to do with firefighting” and does so on the basis of what he understood was the sibling’s Year 8 performance. Nevertheless, the evidence before the Court is that Danielle attended university and studied Fire Technology.

163. Dr Smith takes the view that the disinhibition of personality, if it occurred at all, was only ever of a mild degree and any aggressive behaviour would have been fostered by the lack of parental control. Nevertheless, he expresses the view that the aggressive behaviour was never of a serious nature and the plaintiff has “no features now that would suggest that he has any residual disinhibiting behaviour”.

164. In Dr Smith’s view, the brain injury and damage has not left the plaintiff “with any neurological disorder, behavioural change, cognitive impairment, or speech problem”. Further, he suffers no disability of an ongoing nature, which was assessed on the basis of the academic and social performance of his siblings.

165. The supplementary report of 3 October 2018 was prepared to enable Dr Smith to comment on evidentiary statements of the plaintiff, his mother, his brother Caesar, his sisters Tia and Danielle and the reports of Peter Conrad. The conclusion reached by Dr Smith is to the following effect:

“In regard to the claim that he has no friends and does not socialise, [the plaintiff] told me in August 2018 that he had many friends at work and a couple of close friends in the neighbourhood and on most weekends he socialised with his cousins. Otherwise, the picture presented by his family members is that of a relatively shy boy who gets upset if he cannot get his own way. This is not the picture expected in someone who is suffering a disinhibiting change of personality due to brain damage which is exemplified by restlessness, hyperactivity, irritability, uncontrollable aggression often with violence, impulsiveness, tactlessness, profanity and neglect of hygiene and appearance.”

166. The foregoing opinion essentially criticises the credit of the evidence provided by his family and friends as against the opinion expressed by the plaintiff as to his own ability to obtain friends and socialise. Presumably, Dr Smith has assumed the plaintiff has sufficient insight to be able to assess those matters.

167. It must be said, leaving aside for present purposes the nasty comment about his sister and her ability to attend university, that the doctor’s attitude, at least as it is expressed in the report, seems argumentative and, based upon the oral evidence, the doctor seems to take on the role of an advocate, rather than an independent expert.

168. Notwithstanding that view, to which I adhere, Dr Smith, when faced with some irrefragable aspects of the circumstances faced by the plaintiff, qualified his view significantly. The content of Dr Smith’s first report, under the heading “Neuropsychiatric Assessment”, after having recited a long history from other reports and material, refers to the plaintiff’s parents as “Maori and unrelated”. The relevance of their Maori descent to the opinion was never explained.

169. I return then to the report of the conclave and the oral evidence adduced from the participants in the conclave. Before doing so, I should point out that Dr Teoh is a consultant psychiatrist and Mr Rawling is a clinical psychologist. As to the nature of the physical injuries suffered by the plaintiff, I prefer the evidence of Prof Brew.

170. Nevertheless, the effect of the injury is that which is dealt with by the psychiatrists and psychologist. The neurological evidence is that the plaintiff suffered “a significant head injury”, the details of which have already been recited in these Reasons. It is unnecessary to deal, at length, with the original reports of the other two participants in the conclave.

171. It should be noted that significant material was before the conclave, including the two reports of Dr Michael Fahey. Each of the participants in the conclave agreed that the plaintiff suffered left-frontal lobe brain damage and that the damage was wholly caused by the accident on 22 April 2000.

172. Each also agreed that a person can have gliosis, but still continue to function without impairment, injury or disability, particularly if the gliosis is in the frontal lobe. Mr Rawling suggested that such unimpaired functioning is unusual, but Dr Smith disagreed with that view. All of the doctors agreed that there was no further treatment required.

173. Mr Rawling, in that regard, while conceding that no regular ongoing treatment was required, seemed to express the same view as that expressed by Prof Brew in that, given that the plaintiff was a person at risk of impulsive, aggressive and socially inappropriate behaviour, as a result of the frontal lobe damage sustained in the accident, he should have access to Crisis Management on an as-needed basis.

174. Dr Smith’s view was that any such need for Crisis Management would not be as a result of any effect of the accident. It is not clear from any evidence of Dr Smith as to his view as to what would be the cause for such a need, except the passing comment as to his parents’ lack of discipline and/or management.

175. Further, each of the experts agreed, at least on the information available from the report of Dr Smith, bearing in mind the limitations earlier expressed as to the time that each of the other experts had to view some material, there was no need for a vocational or rehabilitation Case Manager, as opposed to Crisis Management.

176. The conclave report expresses the view that each of the participants agreed that the plaintiff’s academic achievements were consistent with or within the range to be expected, having regard to the achievements of his siblings. As to the question of incapacity, there was a marked difference in approach. Dr Teoh and Mr Rawling considered that the plaintiff’s two years of unemployment that followed his completion of the mechanic’s course demonstrated lethargy, aggressiveness and impulsive antisocial behaviour typical of frontal lobe damage. Dr Smith continued to express the view that it was largely environmental factors, unrelated to the accident that caused that lack of motivation and that he has not exhibited the “constellation of features that define a disinhibiting change of personality” associated with brain damage.

177. As to incapacity for work, Mr Rawling considered that the plaintiff was at risk of some ill-judged disinhibiting behaviour in the future, which risk cannot be quantified. Dr Teoh agreed with that assessment. Dr Smith disagreed and reiterated that the plaintiff had no features that suggested a personality change associated with brain damage.

178. As earlier stated, the conclave report [7] was before the Court and each of the participants gave oral evidence. Dr Teoh gave evidence by telephone, by arrangement between the parties and the participants in the conclave.

     7. Exhibit E.

179. At the commencement of the conclave, I asked a series of questions, the first of which related to the evidence of tantrums in which the plaintiff engaged as a child. The question was related to whether the tantrums were or could be associated with frontal lobe damage. Mr Rawling and Dr Teoh each agreed strongly that, in the case of the plaintiff, the tantrums were a striking difference between his behaviour and the behaviour of his siblings. In the words of Mr Rawling, with which Dr Teoh agreed:

“I believe it can and I believe the testimony from the mother was striking because she’s not a terribly sophisticated woman, but the difference in the child and the difference between him and the rest of his siblings were striking to her, and the tantrums themselves were extreme, just the sort of thing you’d expect with a frontal lobe injury”.

180. Dr Smith disagreed, consistent with his otherwise expressed view that the tantrums were “encouraged” or “not discouraged”, because the mother gave into them and that was an environmental factor that contributed to the issue. The difficulty with that proposition is that the mother was not cross-examined on the basis that she treated the plaintiff any differently, in terms of discipline, from any of her other children. It is true that the mother comforted the plaintiff, as a very young child, when he threw tantrums and he would bang his head against a wall, but it was never suggested in cross-examination, or otherwise, that her treatment, in discipline terms, was a factor that encouraged the continuation of tantrums as an “environmental factor” or otherwise.

181. Further, Dr Smith suggested that there was required to be a number of features before it could be an indicator of Frontal Lobe Syndrome and, to be fair to Dr Smith, he made it clear that he was unaware of the “severity of these tantrums that the mother described”.

182. Mr Rawling took the view that there could be different combinations of symptoms and it was unnecessary to have all of the symptoms before one could come to the view that there was frontal lobe damage causing an effect.

183. The conclave seemed to express the view that the lesion and brain damage in the area in which it was inflicted should not, in and of itself, impair verbal language skills. However, Dr Jayne Antony, consultant paediatric neurologist, was of a different view. In Dr Antony’s supplementary report of 14 June 2006, She expressed the view that Mr Rawling’s assessment “shows a very marked discrepancy between his verbal IQ which is low average, and his performance IQ which is in the high average range. He also had other weaknesses such as attention span and a very poor performance on the sequences sub-test. [The plaintiff’s] area of injury is on the left side of the brain and that is the dominant lobe of the brain which controls speech. Therefore the findings on the neuropsychological testing do relate to the function of the area that has sustained the injury.” [8]

     8. Report of Dr Jayne Antony of 8 March 2005 and Supplementary Report of 14 June 2006, Exhibit A, Tab 12, pp 41-44 and 46.

184. Dr Teoh agreed, it seems, with the view expressed by Dr Antony and suggested that, while he initially considered that his verbal performance discrepancy was unrelated to the head injury, after he had looked at more information in the documents, he took the view that “his learning difficulties [were] related to the brain damage because of his difficulty in retaining information and also because of his behavioural problems, distractibility, [and] irritability in school. Those factors could have contributed to his learning problems unrelated to just the verbal performance discrepancy.”

185. In the course of cross-examination, by reference to the approach of Dr Fahey, Dr Smith agreed that the plaintiff had a Glasgow Coma Scale score as low as 11 and that he, as a consequence, would have suffered a moderate traumatic brain injury. He also agreed with the proposition that the long-term prognosis for a moderately severe traumatic brain injury suffered by a child of that age was for reduced intellectual capacity, impaired attention, memory, and slowed speed of processing; along with the interruption of cerebral development, including frontal lobe maturation in the period particularly before five years of life. Dr Smith also agreed that, as a general rule, the younger the victim the more adverse was the outcome.

186. The cross-examination of Dr Smith undermined the assessment that Dr Smith had of the behaviour and performance of the plaintiff’s siblings. At one stage, Dr Smith was shown transcript of evidence adduced in these proceedings by Caesar, relating to his school performance, to which earlier reference has been made, and differences in learning approaches.

187. That evidence of Caesar was accepted, by Dr Smith, as disclosing a much higher level of verbal capacity and an ability to identify two fundamentally different concepts of learning, neither of which could be attributed to the plaintiff. That difference is a qualitative difference in cognitive functioning, according to Dr Smith in cross-examination. Ultimately, notwithstanding the view expressed by Dr Smith in his reports as to the comparability of the plaintiff to his siblings, Dr Smith in cross-examination accepted that his brother Caesar is “far more accomplished, not only linguistically, but in terms of his ability to think about things”.

180. Each of the other participants in the conclave agreed that there was a qualitative difference and that Caesar’s conceptual thinking and expression was “quite sophisticated”.

181. Further, it became clear that the issues associated with frontal lobe injuries became more acute when the person suffering the injury is in an environment that is unstructured and when facing distress.

182. Dr Smith was also questioned about the views he expressed as to the lack of aggressive behaviour, as distinct from lethargy. Dr Smith ultimately accepted that some examples, particularly the destruction of property associated with his sister’s refusal to give way to him while cooking her child’s meal in the kitchen, were out of all proportion to the problem and the sort of thing one would expect from someone with a frontal lobe syndrome.

183. Dr Smith was also cross-examined about disinhibited behaviour and agreed that some of the behaviour that was in evidence before the Court as to that which the plaintiff had done in relation to motor vehicles and motor bikes was the sort of disinhibited behaviour of a person with a Frontal Lobe Syndrome, if it was consistent. The Court takes the view that the kind of behaviour relating to motor vehicles, done on a whim by the plaintiff, often inconsistently with advice received, is not confined to a single episode and occurs consistently. It is also, as Dr Smith put it, suggestive of the absence of a plan and indicative of impulsiveness.

184. The overwhelming view also was that the plaintiff could not be expected to undertake formal learning that would be required at a TAFE or University: he lacks expressive language skills and sophistication; he has little capacity for formal learning; and could not be expected to undertake required intensive concentration.

185. Evidence was also adduced in relation to the relevance of the emotional ability of the plaintiff, which is evidenced in the history that the Court accepts. At one stage, during the cross-examination of the participants in the conclave, it was suggested that some of the issues faced by the plaintiff were as a result of the death of his father and the distress occasioned by that difficulty. However, it seems that the participants, with the possible exception of Dr Smith, took the view that the death of a parent, while one of the more stressful events in a person’s life, is a different kind of stress and is not the kind of pressurising or frustrating stress that can trigger a reaction by those suffering frontal lobe injury.

186. Each of the participants also agreed that the manner in which the plaintiff gave to his girlfriend/partner, Ms Kargar, $20,000, without any formal indication of the manner with which the monies would

187. be dealt, was an indication of impulsivity, in circumstances where the relationship had only existed for 3 to 4 months and in circumstances where the couple were not living together on a permanent, full-time basis.

Dr Fahey

196. I turn then to Dr Fahey’s reports of 28 November 2012 and 11 February 2013, which are before the Court. Dr Fahey was qualified by the defendant and was not cross-examined. The first report, refers to an assessment of outcomes of a brain injury. Dr Fahey is a specialist in child neurology and clinical genetics. The passage is worth repeating. It is in the following terms:

‘It is generally accepted that the severity of the injury provides the best prediction of outcome following TBI [traumatic brain injury], with the worst result seen in those children with the most severely injury (sic). Whereas mild TBI is associated with little residual impairment, more severe TBI is characterised by reduced intellectual capacity, impaired attention, memory and slowed speed of processing. A further critical predictor of outcome following traumatic brain injury is a Childs’s age and developmental level at the time of injury. It is thought that damage may interrupt cerebral development including myelination, frontal lobe maturation particularly before five years of life but more so with younger injuries. With such injuries, essential processing skills and executive functions may fail to mature as a later result of the injury. Behaviour problems associated with injury before three years include hyperactivity, conduct problems, poor self-control, and internalizing difficulties. Those injured prior to four showed greater social difficulties than children injured after this age.

Following inflicted brain injury, pre-school children have severe learning difficulties, attention deficits and memory problems that do not become manifested until the children enter school. Late changes also include ongoing structural brain changes following an early injury, with progressive loss of hippocampal volume continuing into adult hood. The younger brain appears more vulnerable, with lasting deficits and emotional issues such as temper outbursts, mood swings, memory problems and learning difficulties.” (References omitted.)

197. The report of Dr Fahey also makes clear that:

“impairments in executive functioning may present as disordered attention, flexibility, planning, monitoring and reasoning. They also refer to the ability to consciously control one’s cognitive activities and monitor and regulate behaviour. These functions are important for success in ‘real world’ environments, including school. Many aspects of executive functioning are developing rapidly in children younger than six years of age. Cognitive, social and emotional functions may all be affected by deficits in the executive domain following TBI.

Executive dysfunction is well described following moderate to severe TBI in childhood but not following mild injury. An Australian study however, identified impairments in children who had sustained moderate or severe TBI before three years of age, again suggesting that the effect of a TBI is modified by the age at injury. In regards specifically to frontal lesions: studies of children with frontal damage from all causes from zero and three years of age indicate problems with executive function. Particularly these children had problems with self-regulation and rule adherents.

A range of deficits can be seen in the early years following childhood TBI; these are well-established and include reduced intellectual capacity, slowed processing speed and impaired memory. Numerous studies document an association between injury severity and poorer outcome. Moreover, such injuries made [read: may] interfere with development and reduce the capacity to learn. Many studies suggest that injury may particularly lead to secondary academic problems.

… Both ADHD and anxiety symptoms are demonstrated to emerge later in children who were younger at the time of injury.

More recently contradictory findings have emerged regarding ten-year result following childhood TBI. In spite [of] these studies showing a generally average to low average cognitive abilities, there is persisting increased risk of poor nonverbal abilities and poor processing speed. Severe injury and a younger age at injury pose particular risk.”

…

… [T]here is increasing evidence surrounding the risks associated with more ‘severe insult, young age at insult, social disadvantage and, potentially, male gender. When any two (or more) of these factors occur together (e.g. severe injury/young age, severe injury/social disadvantage), a “double hazard” effect may result where risk is greater than simply the additive effects of the individual dimensions’.”

198. Dr Fahey comes to the conclusion that, on the balance of probabilities, the plaintiff’s condition is related to the events of 22 April 2000 and the plaintiff has “the behavioural, emotional and cognitive effects of a moderate severity TBI sustained at 20 months of age.” Dr Fahey also concludes that, apart from a slight speech impediment that was not present prior to the incident and the presence of the scar, the main effect of the accident on the plaintiff appears to have been on “social and executive function”.

199. The foregoing opinion was reached on examination when the plaintiff was 14 years of age. A supplementary report, dated, it seems, 11 February 2013, confirms the earlier report and expresses the opinion that the direct physical and clinical results of the injury have stabilised.

Consideration and Conclusion

200. To some extent, the cases of the plaintiff and the defendant were like ships in the night. Much of the defendant’s evidence, and significant amounts of the cross-examination, seemed to have been directed to a case that was never that claimed by the plaintiff. Much of the cross-examination, in particular, seemed to deal with the physical capacity of the plaintiff, rather than the disabilities that were claimed to have arisen from the brain injury.

201. There can be no doubt, and in these proceedings it has already been decided, that the plaintiff was injured in a fall for which the defendant is responsible. As a consequence of that fall, there were significant injuries to the plaintiff, as an infant of 18 months of age. The neurological evidence makes clear that there are physical injuries to the frontal lobe of the plaintiff’s brain and those physical detriments continue.

202. The only real issue in the proceedings is whether the physical injury suffered by the plaintiff at 18 months of age has had the effect claimed; whether that effect has continued; and whether that effect is permanent.

203. Dealing with the last-mentioned aspect, the medical evidence is that whatever injury was sustained and whatever be the effects of that injury, the plaintiff will not improve and, to that extent, the injury has “stabilised”. Regardless of how one measures the effect, the overwhelming evidence of those that are close to the plaintiff is that the plaintiff suffers continuing deficits. Those deficits involve impaired executive functioning; aggressiveness; impulsiveness; inability to sustain intense concentration; poor memory; embarrassment at the physical scar; and cognitive impairment. The plaintiff also continues to experience migraines.

204. The plaintiff’s behaviour as a child was significantly different from that of his siblings. His family gave evidence and each of them displayed a truthful, honest and reliable account of the issues that affected and continued to affect the plaintiff.

205. Each of them disclosed a somewhat laconic understatedness in describing the injuries and its effect. That understatedness increased the impact of the evidence greatly.

206. As earlier stated in these Reasons, the Court’s own impression of the plaintiff accords with the analysis of Mr Rawling and evidences the research to which Dr Fahey referred. The injury occurred at a very young age and certainly under the age of five, which was one of the criteria to which Dr Fahey’s report referred. He has other factors which exacerbate the difficulties associated with the brain injury to a degree that is greater than the mere addition of the different factors.

207. The employment experience at Hudson Pacific, about which there was much evidence, is as good an example of the difficulties that the plaintiff has suffered and will continue to suffer, as any other evidence. Of course, in answer to much of the emphasis of the defendant’s case, it was not disputed that the plaintiff could physically perform the work at Hudson Pacific. Yet that physical performance contrasts starkly with the emotional capacity to obtain the employment, on his own, and retain the employment on his own.

208. The employment was gained as a result of the assistance of his mother. As the untimely and tragic death of his father evidences, emphasised by the mother’s recent health issues, that will not be a permanent feature of the plaintiff’s life. Notwithstanding the influence of his mother at work, the plaintiff had an argument with two managers, causing the human resources personnel to interview him. The evidence from the plaintiff is that he left because he wanted better pay.

209. I doubt that is the case, but if it were the case, it exemplifies the whimsical nature of the plaintiff’s decision-making. He exchanged permanent, secure employment, albeit as a casual, with an employer who had regard for his personal circumstances and employed other members of his family, for employment that was also casual, insecure and netted, only on good weeks, a wage that was not significantly greater than the income he was receiving.

210. More likely is that the termination from Hudson Pacific was as much a result of the intervention of human resources as it was the plaintiff’s desire to obtain more money. The plaintiff showed a significant lack of insight into his own deficits; his own emotional lability; and his lack of personal interaction skills.

211. The preference by Dr Smith of the plaintiff’s assessment of his friendships and relationships over the assessment of his mother and siblings pays no regard to the plaintiff’s lack of insight into his circumstances.

212. The preference may be as a result of what I perceive to be Dr Smith’s advocacy on behalf of the defendant, which commissioned him. Nevertheless, the independent assessment of his mother, his siblings and his partner are far more telling and accurate than is the assessment of the plaintiff himself.

213. As a result of the Court’s conclusions and the physical neurological evidence that supports the issues, it is clear that the mother had great difficulty coping with the aggression of the plaintiff during his very early childhood. I have almost no doubt, and certainly I am satisfied on the balance of probabilities, that the tantrums were as a result of the brain injury that he had suffered and that his continuing aggressiveness is a result of the brain injury, as are the other disabilities to which the Court has referred in the course of these Reasons for Judgment.

214. As earlier stated, the plaintiff had a significant head injury, which required the removal of debris and dead brain tissue from his frontal lobe and surgical elevation of the skull fracture. He had a Glasgow Coma Scale score of 11 which, by the criteria defined by Dr Fahey, represents a moderate traumatic brain injury.

215. Given the age at which the injury occurred and the moderate nature of the severity of the injury, these are factors that determine better the long-term outcomes and, the low Glasgow Coma Scale score evidences specific injury and significant long-term effect.

216. The evidence confirms that long-term effect. The plaintiff was, prior to the injury, placid; was developing at a rate that the mother described as normal; was talking; and otherwise had no evident difficulties. Immediately following the accident, the tantrums commenced; he suffered headaches monthly or more frequently; he developed a speech impediment; and his development slowed significantly. It is of course possible, notwithstanding that there is evidence that there could be no other cause associated with these matters, that these detriments were merely coincidental, but on the balance of probabilities it is not a possibility that the Court accepts.

217. As a result of these injuries, the plaintiff has suffered significant detriment in his emotional state; is highly emotionally labile; has suffered impediment in his academic progression; has an inability to form close friendships in the usual way, although he does have some persons with whom he is emotionally close. He continues to display aggressiveness; impulsiveness; lacks executive functioning; and is generally socially isolated. The plaintiff is extremely fortunate that he has a supportive family and, at the time that evidence was being adduced, a very supportive partner. But there is no guarantee that those circumstances will endure. The kind of behaviour that the plaintiff exhibits can be testing and trying on the most supportive persons.

218. I turn then to the effects. The medical attention to which the plaintiff has been exposed has been minimalist, given the nature of his injury and the headaches and other sequelae from which he suffers. It is necessary, as a consequence of the foregoing, to determine the damages that are appropriate in all of the circumstances.

219. It should be reiterated that the plaintiff was born on 23 September 1998 and the accident occurred on 22 April 2000. He was approximately 18 months old at the time of the accident. His life expectancy is 85.24 years and his working life expectancy is one that involves, necessarily, cessation at 67 years of age.

220. Pursuant to the terms of the Civil Liability (Non-economic Loss) Order 2010 (NSW) and ss 16 and 17 of the Civil Liability Act 2002 (NSW), the maximum amount of damages able to be awarded for non-economic loss, in a most extreme circumstance, is, from 1 October 2020, $687,000. The restrictions on the enjoyment and difficulties associated with the life of the plaintiff, while significant, do not approach the most extreme.

221. The plaintiff still has some significant enjoyment of life; has formed a significant relationship, which, for his sake, I hope endures for the remainder of his life. Nevertheless, his difficulties must be compensated.

222. He continues to suffer significant migraine headaches as result of the injury he sustained. He also must continue to compensate, in terms of his convenience or inconvenience, the effects of his loss of memory and the other matters to which the Court has already referred. It seems, an appropriate assessment of the percentage of the most extreme case is 55% of the most extreme case and the Court will award non-economic loss of $377,850.

223. In terms of past economic loss, there are two aspects that need to be factored into the assessment of damage. First, the plaintiff was out of work and out of school, unemployed, for two years, as a consequence of his de-motivation, resulting from his accident. Reference has already been made to these factors.

224. Dr Buckley referred to the likelihood that the plaintiff will suffer at least 50% loss in his ability to obtain full-time employment as a result of the emotional and physical issues associated with the injury. That of course is a reference to future earnings. There is some aspect of it that refers to past economic loss. But the Court cannot double count. Nevertheless, apart from the two-year period, the plaintiff suffered significant loss of work: less shifts; and this seems to support the estimate of Dr Buckley.

225. The evidence adduced in relation to the earnings of Caesar Pompey, the plaintiff’s brother, together with the evidence otherwise adduced in relation to the plaintiff’s earning capacity satisfies the Court that it is appropriate to determine the earning capacity of the plaintiff on the basis of average weekly earnings for full-time male employees, including overtime, in relation to future economic loss. As at May 2019, that was gross $1,814.70. As at May 2020, the figure is $1,889.70, which produces a net wage, after tax, of $1,371.70.

226. Dealing first with past losses, the plaintiff lost two years’ worth of income as a result of his injury, but that occurred when the plaintiff was 15. The plaintiff’s mother estimates that the time that he was unemployed at that point was almost three years, but the material suggests that it was, in fact, closer to two years in duration. As already stated, there were other past economic losses associated with his injury.

227. There are difficulties associated with assessing that amount. If the plaintiff had not suffered the injury, it is likely he would have stayed at school for a longer period and therefore may not have worked at all for at least one of the two to three year period. Judging by the circumstances of the plaintiffs’ siblings, it is likely he would, nevertheless, have left school at or about 16 years of age.

228. Further, the wage at that time, even the average weekly earnings, was a different amount to that which it currently is. In 2013, the average weekly earnings was $1,603.10, leaving an after-tax income of $1,203.10 and two years at that rate would be $125,122.40. Three years would amount to $187,683.60. But they are adult averages.

200. Even in those periods of the past in which the plaintiff has earned income, that income would have been reduced as a consequence of the factors to which reference has already been made. It is difficult to estimate precisely the amount of that loss. It is also clear that assessing the loss on the basis of three years’ loss of income on adult male overtime earnings is also inappropriate. The evidence of past earnings is that the plaintiff, when fully employed, earned at least $1,000 per week net. He has been out of school, as at the date of judgment, for six years. I assess past economic loss as two years at $1,000 per week and four years at 50% of $1,000 per week, totalling $208,000.

201. In relation to future economic loss, the estimate can readily be performed. I accept the estimate of Dr Buckley that the plaintiff will, on average, lose 50% of his work as a result of his injury. I assess his earnings on the basis of average weekly earnings for the whole of his working life. Average weekly earnings, at present, is, after tax, $1,371 and the loss, per week, is, as presently estimated, $685 per week. I allow for vicissitudes of 15%, on the usual basis. The multiplier for 46 years’ employment is 956.1, on the usual 5% basis, resulting in $556,690.

202. I allow for past superannuation losses an amount of $22,880 and for future superannuation amount of 13% of the calculated figure, resulting in an allowance of $72,370.

203. I allow for a Crisis Manager, or as it has sometimes been called a Case Manager, but I do so on the basis of it being an uncertain requirement. [9] I allow two hours per week, as and when necessary, but that will depend, to some extent, on the degree of support for the plaintiff from his family. I allow 60% of that amount on account of the assessed uncertainty and the rate for the Case Manager at $205 per hour, or $410 per week, for the remainder of the plaintiff’s life, reduced by 40% to take account of the uncertainty associated with that aspect. That uncertainty depends, as set out in the report of Dr Buckley (at p 4), on the plaintiff being outside his family home and in a less structured environment. That amount is $251,412.

     9. Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; [1990] HCA 20.

204. No amount is allowed for past treatment expenses and no amount is allowed for future treatment expenses, other than the Crisis Manager to which reference has been made. I do not understand a claim is made in these regards, but I reserve to the plaintiff the right to raise these issues, if I have misunderstood the submission. There were certainly past medical treatments associated with the injury.

205. It is obvious, from the material in this case, that the plaintiff is incapable of managing his funds and that incapacity arises from the effects of the injury suffered as an 18 month old. I allow the sum of 21% of the damages otherwise assessed for funds management, being an amount of $312,732.40.

206. I do not consider that the plaintiff is wholly incapable of making decisions in his own interest, but, as already indicated, he acts on a whim; impulsively; and often irrationally. In respect of these proceedings, the plaintiff has expressed the view that he was sick of the legal proceedings and wanted to give it all away. In some respects, given that his whole life has been lived in the context of proceedings that have existed from the time he was just under two years of age, that attitude is unsurprising, but evidences the difficulty associated with allowing the plaintiff to have control of his investments and the amounts that are to be awarded under the judgment to be issued.

207. In the circumstances, in relation to these amounts, the Court considers that it is appropriate to continue the existing arrangements in relation to the running of the proceedings and order that the amounts to be awarded be paid to the plaintiff’s tutor, his mother, Carmelle Skipper, to be held on trust for the plaintiff. It is clear, on the evidence adduced, that pursuant to the provisions of s 76(1) of the Civil Procedure Act 2005 (NSW), the plaintiff is incapable of managing his own affairs.

208. The plaintiff and/or his tutor have leave to deal with that aspect of the orders and, if a trust be the appropriate arrangement, the terms of any such trust, prior to the entry of the judgment. Leave shall also be granted to each of the parties to deal with any arithmetic issues associated with the foregoing judgment.

209. The Court makes the following orders:

1. Judgment for the plaintiff in the sum of $1,801,934.40;

2. Pursuant to s 101 of the Civil Procedure Act 2005 (NSW), interest shall be paid on the judgment at the prescribed rate from the date of judgment;

3. A declaration under s 76(1) of the Civil Procedure Act that, as at the date of judgment, the plaintiff, Siar Tauri, is incapable of managing his affairs insofar as it relates to the management of the judgment sum;

4. Pursuant to the provisions of s 77(2) of the Civil Procedure Act, the defendant shall pay the judgment sum, payable under Order (1) herein, into Court to await further order;

5. The defendant shall pay the plaintiff’s costs of and incidental to the proceedings;

6. Leave is reserved to any party to address any arithmetic error; any omission of a claimed head of damage; the form of these orders; and any special or different order for costs; and leave is reserved to the plaintiff or his tutor to deal with any further order relating to the sum to be paid into Court.

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Endnotes

Decision last updated: 24 December 2020