Traeger v Harris [No 4]
[2011] WADC 45
•23 MARCH 2011
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: TRAEGER by his next friend JOHN WINSTON TRAEGER -v- HARRIS [No 4] [2011] WADC 45
CORAM: SCHOOMBEE DCJ
HEARD: 18 OCTOBER 2010
DELIVERED : 23 MARCH 2011
FILE NO/S: CIV 1276 of 2009
BETWEEN: MICHAEL JOHN TRAEGER by his next friend JOHN WINSTON TRAEGER
Plaintiff
AND
TRENT JONATHON HARRIS
Defendant
Catchwords:
Tort - Personal injury - Assessment of damages - Brain injury suffered - Pre-existing ADHD, behavioural problems and learning difficulties - Whether increased deduction for contingencies appropriate in respect of loss of earning capacity - Retained earning capacity - Whether increased deduction for contingencies appropriate
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Result:
Judgment for the plaintiff in the amount of $2,921,152
Representation:
Counsel:
Plaintiff: Dr A S Morrison RFD QC & Mr G Droppert
Defendant: Ms B Mangan
Solicitors:
Plaintiff: Friedman Lurie Singh & D'Angelo
Defendant: Talbot Olivier
Case(s) referred to in judgment(s):
Bowen v Tutte (1990) A Tort Rep 81-043, 68,087
Brocx v Mounsey [2010] WASCA 196
Buckman v M & K Napier Constructions Pty Ltd [2005] NSWSC 546
George v Erickson (1998) 27 MVR 323
Griffiths v Kerkemeyer (1977) 139 CLR 161
Haywood v Collaroy Services Beach Club Ltd [2006] NSWSC 566
Kschammer v R W Piper & Sons Pty Ltd & Ors [2003] WASCA 298
Lawson v Flavel [2001] WASCA 272
Lewis v Bundrock [2008] QSC 189
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Morris v Zanki (1997) 18 WAR 260
Purkess v Crittenden (1965) 114 CLR 164
Reece v Reece (1994) 19 MVR 103
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Ross v Profile Packaging Pty Ltd & Anor [2008] WADC 8
Seltsam Pty Ltd v Ghaleb [2005] NSWCA 208
Shorey v PT Limited (2003) 197 ALR 410
Southgate v Waterford (1990) 21 NSWLR 427
Struthers v Harris [1983] WAR 123
Thomas v O'Shea (1989) A Tort Rep 80-251, 68,701
Villasevil v Pickering (2001) 24 WAR 167
Watts v Rake (1960) 108 CLR 158
Willett v Futcher (2005) 221 CLR 627
Wylde v Aristondo 'Arriaza (1997) 25 MVR 539
Wynn v New South Wales Insurance Ministerial Corporation (1995) 184 CLR 485
TABLE OF CONTENTS
Introduction
The plaintiff's childhood and teenage years prior to the accident
The plaintiff's injuries (other than the brain injury), treatment and remaining physical disabilities
The nature and extent of the brain injury
The attempts to rehabilitate the plaintiff
The plaintiff's post‑accident cognitive impairment, behavioural problems and psychiatric condition
The plaintiff's pre‑accident psychiatric condition, behavioural problems and learning difficulties
The cause of the plaintiff's post‑accident cognitive impairment and psychiatric condition
The plaintiff's pre-accident earning capacity
The plaintiff's post-accident retained earning capacity
The plaintiff's need for care and case management
The law regarding the effect of pre‑existing conditions on the assessment of damages
The law on proof of retained earning capacity in the absence of adequate rehabiliation
Assessment of damages
General damages (non-pecuniary loss)
Loss of past (pre-judgment) earning capacity
Loss of past superannuation
Loss of future earning capacity
Loss of future superannuation
Loss in respect of past gratuitous services
Loss in respect of future care
Past medical, travel and sundry expenses
Future medical, travel and equipment expenses
Interest on past losses
Cost of administration of trust fund
Summary of damages allowed
Schedule of Calculation of Damages
SCHOOMBEE DCJ:
Introduction
Mr Michael Traeger, the plaintiff, was aged 17 when he was involved as a passenger in a motor vehicle accident. The plaintiff suffered extensive injuries, significantly, a severe brain injury. The defendant's negligence in causing the accident is admitted, because the defendant drove through a red light in a suburban street in Perth. The disputed issues at trial were the nature of the brain injury, the extent of the resultant cognitive impairment, the extent of the plaintiff's loss of past and future earning capacity and his need for past and future care and future medical expenses. The plaintiff is now aged 23.
The defendant had pleaded that any loss or damage suffered by the plaintiff was caused or contributed to by a number of pre‑existing psychiatric conditions, behavioural problems and learning difficulties. By the end of the trial the defendant limited its reliance on the pre-existing conditions to attention deficit hyperactivity disorder (ADHD), oppositional defiance type behaviour, cognitive behavioural problems such as impulsivity and lack of motivation, depression, low intellect and learning difficulties. In its closing submissions the defendant also resiled from the position that all of the plaintiff's current cognitive impairment, behavioural issues and depression were caused by the pre‑existing conditions, but submitted that they were a contributing factor to the problems currently suffered by the plaintiff.
The defendant's case was that because of the pre‑existing ADHD, behavioural problems and learning difficulties the plaintiff would never have held down full time employment irrespective of the accident and would at best have worked in a labouring position for 50% of his working life. The defendant submitted that the starting point for the calculation of any loss of earning capacity should be that the plaintiff would only have worked as a labourer for 50% of the time.
The defendant's case was further that despite the plaintiff's current cognitive impairment, behavioural difficulties and depression, he still had a retained earning capacity. The defendant proposed that the plaintiff could work at least part time in a number of menial positions as long as he had a sympathetic employer and was supervised.
The matters relied upon by the defendant raise a number of factual issues which require determination before the application of the legal principles to the facts. These factual issues are the following:
(1) the plaintiff's childhood and teenage years prior to the accident;
(2)the plaintiff's injuries (other than the brain injury), treatment and residual physical disabilities;
(3)the nature and extent of the brain injury;
(4)the attempts to rehabilitate the plaintiff;
(5)the plaintiff's post-accident cognitive impairment, behavioural problems and psychiatric condition;
(6)the plaintiff's pre‑accident psychiatric condition, behavioural problems and learning difficulties;
(7)the cause of the plaintiff's post-accident cognitive impairment, behavioural problems and psychiatric condition;
(8)the plaintiff's pre‑accident earning capacity;
(9)the plaintiff's post‑accident or retained earning capacity; and
(10)the plaintiff's need for future care and case management.
The plaintiff's childhood and teenage years prior to the accident
The plaintiff and his twin brother, Daniel, were born on 10 February 1987. Mr John Traeger, the plaintiff's father, gave evidence that when the twins were four days old their mother, Mrs Cherri Traeger, remarked to him that she wished that she did not have Michael. Mr Traeger's view was that throughout the boys' childhood his wife had difficulty coping, favoured Daniel and whenever the boys were naughty or difficult, she assumed that the plaintiff was at fault and chided him or sent him to his room.
At age 4½ both boys were referred to the Warwick Centre, a child and adolescent clinic. At various visits to a psychologist or social worker at the clinic over the next three years the plaintiff was reported to have behavioural issues, to be manipulative, destructive, disobedient, defiant, boisterous, prone to throwing things and oppositional (exhibit 17 and 54). It was noted that the plaintiff was slower intellectually and more physically orientated than his twin brother. Mr Traeger reported to the senior social worker that the plaintiff's more demanding and insecure behaviour made it harder to engage with him and that he was concerned that his wife was too hard on him and not open and perceptive enough to both children.
At age 5 the plaintiff was enrolled at primary school and soon thereafter a younger brother, Robert, was born. In year 1 the plaintiff was referred to Dr Barry Clements, a paediatrician, for an assessment. Dr Clements came to the conclusion that the plaintiff was a healthy boy with 'nothing abnormal to find' and with no definite symptoms of ADHD. Dr Clements placed emphasis on the fact that the plaintiff behaved normally with his maternal grandparents and at school where the teacher, after some initial difficulties, had no particular problem in controlling him (exhibit 39).
In year 2, at age 6, an IQ test was taken by Ms Moore, a clinical psychologist at the Warwick Centre. The test indicated a verbal IQ of 84, a performance IQ of 96 and a full scale IQ of 89 (exhibit 3, page 22). Dr David Roberts, a paediatrician, to whom the plaintiff was referred a year later, explained in evidence that this test indicated that the plaintiff had a near average mathematical ability (100 being the average), but had a problem with language based skills. Nevertheless, the full scale IQ was still within the normal range (ts 623).
Ms Moore also carried out a psychological assessment of the plaintiff. She recorded that his year 1 teacher had described him as socially and academically behind the rest of the class, but had said that he had made progress in all areas. The teacher had no major concerns with the plaintiff's classroom behaviour other than finding it an effort to keep him motivated. Ms Moore noted that during the IQ test the plaintiff was highly distractible, found it difficult to sit and listen and moved from one activity to another. She came to the conclusion that the plaintiff's scores were generally in the low average range, but noted that he had difficulty describing the meaning of words and holding information while processing it. On the behaviour check list, Ms Moore indicated that the plaintiff had high levels of anxiety which manifested itself in poor self‑esteem and a negative comparison of himself to others (exhibit 3, pages 23 – 27).
At the end of year 2 the plaintiff was diagnosed by Dr Kay Johnston, paediatrician at the State Child Development Centre in Rheola Street, with ADHD and prescribed Dexamphetamine, which was later changed to Ritalin. Towards the end of year 3 the plaintiff was referred to Dr David Roberts, who confirmed the diagnosis of ADHD on the basis of the history provided by the parents and the assessment carried out by Dr Johnston (exhibit 3, page 2). Dr Roberts saw the plaintiff regularly for the next three years, once in year 7 and again reasonably regularly between August 1999 and June 2002 after the plaintiff's father had re‑established contact in year 8 (exhibit 14). Dr Roberts referred the plaintiff to various psychologists, a speech pathologist and an occupational therapist.
At the beginning of year 3, at age 8, another IQ test was carried out by Ms Forsberg, psychologist. On this occasion the plaintiff's score for performance IQ as well as verbal IQ was in the average range and his full scale IQ was noted to be at the 37th percentile (exhibit 3, pages 82 – 87). On this occasion Ms Forsberg noted that the plaintiff's concentration was fine, although he tended to rush and make silly errors. However, when encouraged to slow down, he was successful.
When the plaintiff was in year 4 his parents separated and subsequently divorced. Mr Traeger moved out and the plaintiff and his brothers stayed with their mother. Mr Traeger said in evidence that he saw the plaintiff regularly every second weekend and also mid‑week after sport training. He continued to read the plaintiff's school reports and attended as many parent-teacher meetings and medical appointments as possible (ts 91 – 92).
At about this time, the plaintiff's paternal grandmother, to whom he had been very close, died (exhibit 3 page 4). The plaintiff continued to be seen by various psychologists and social workers at the Warwick Centre. Their notes indicate that he was still having problems with anger, was disruptive and 'hyper'. However, the notes also record that the plaintiff was teased for being an 'ADHD kid' and he reported that he would be sent to his room 'for nothing' or blamed when his little brother had fallen over (exhibits 17 and 54).
In August 1999 when the plaintiff was 12½ years old and in year 7 it was decided that he should move in with his father. The plaintiff gave evidence that he was 'kicked out' by his mother and his father confirmed that his mother was no longer able to cope with the plaintiff. The notes taken at the Warwick Centre indicate that the plaintiff wanted to live with his father and that his mother was happy for him to do so (exhibit 17, pages 113 – 114 and 129). However, the change of home address meant that the plaintiff had to change schools, as his mother found it too difficult to pick him up at his father's home in the mornings and take him to school. Mr Traeger left home very early. The move to his father's house also meant that the plaintiff only saw his brothers every second weekend when they came to visit their father.
By the end of 1999 the plaintiff was diagnosed by Dr Roberts as suffering from depression and placed on antidepressants. Mr Traeger was concerned about his son's behaviour and took him to see a psychologist, Ms Barbara Skesteris. Ms Skesteris saw the plaintiff on a fortnightly basis for approximately two years. On first meeting the plaintiff she found him disengaged, avoidant, unresponsive and oppositional. She took a history from Mr Traeger which referred to the plaintiff as being oppositional with his mother and having significant problems adjusting to his new school. Ms Skesteris noted that Mr Traeger had a history of depression and appeared to be quite depressed. She also referred in her notes to the fact that there was a reported history of bi‑polar disorder in Mrs Traeger's family.
Ms Skesteris reported that she made slow but steady progress in the areas of therapeutic rapport and self‑control but concluded that the plaintiff needed a more intensive program to deal with his academic problems, school behaviour and peer relationships. Towards the end of 2000 she referred the plaintiff to the psychologist in charge of Andrew Relph School, a centre for adolescents with behavioural difficulties (exhibit 54, pages 87 – 95).
During 2000 the plaintiff had been enrolled at Duncraig Senior High School for year 8. At the beginning of that year Mr Traeger had taken sick leave for two months because of recurrent symptoms of a post‑traumatic stress disorder which he had suffered as a result of his work as a police officer.
Mr Traeger acknowledged that while in year 8 the plaintiff lit a fire in a bush area. However it was put out and there were no repercussions. Mr Traeger also agreed that the plaintiff was suspended on a number of occasions from Duncraig Senior High School, but could not remember the exact reasons for that other than that it had to do with the plaintiff's behaviour (ts 302).
Towards the end of 2000 Mr Traeger was diagnosed with a tumour on the thyroid and had to undergo extensive testing (ts 100). Fortunately it turned out that the tumour was benign, but for some time the plaintiff feared that his father would die and 'abandon' him (exhibit 3, page 20).
In year 9 the plaintiff attended for the first three terms at Andrew Relph School. He made significant improvement in his school work and was noted to have become less likely to be over‑excited and to overreact in unstructured settings and unfamiliar environments (exhibit 2, page 28). However, while at Andrew Relph School the plaintiff and three other students from his class were caught stealing lollies at Woolworths and were banned from the shop (ts 1221).
After three terms at Andrew Relph School the plaintiff was referred back to the general school system and attended Warwick Senior School which was associated with Andrew Relph School for the remainder of year 9 and the first term of year 10. He was teased for having been a 'SPED' (special education student) and bullied. As a result the plaintiff was enrolled at Padbury Senior High School in the second term of 2002 for year 10. Over the previous Christmas holidays the plaintiff had worked at McDonald's on Saturdays for eight hours, but the plaintiff said that it did not last long because he did not like the long shifts (ts 1145 ‑ 1146).
According to Mr Traeger the plaintiff fell in with the wrong crowd at Padbury Senior High School, constantly got into trouble, wagged school and showed deteriorating behaviour. He was suspended from school on two occasions and pleaded guilty to three separate charges of burglary with stealing. Mr Traeger gave evidence that the first charge related to a cannabis plant stolen from a neighbour. The neighbour advised Mr Traeger of this and he confronted the plaintiff who confessed. Mr Traeger telephoned the police and arranged for his son to speak to them on his own. He was not aware of what the other two charges involved that the plaintiff pleaded guilty to and the plaintiff could not remember them either (ts 1224). The plaintiff was convicted and referred to the juvenile justice team.
Mr Traeger gave evidence that in that year the plaintiff also started experimenting with marijuana. The father of a friend had told Mr Traeger that he had seen the teenagers smoke marijuana, but because they only had a small amount, Mr Traeger did not take this further (ts 290).
On 28 June 2002 was the last consultation with Dr Roberts. Dr Roberts wrote 'sociopath' in his notes (exhibit 14, page 61). In evidence Dr Roberts explained that this question had come up in his mind because the plaintiff had first told him that he had been convicted of three burglaries and in the same conversation had stated that his goal was to be a detective. The note was a reflection of a question raised in his own mind as to whether he had misread the plaintiff and not a diagnosis (ts 660).
In his second semester at Padbury Senior High School the plaintiff was directed to a more practical educational experience. He did three weeks' work experience with Marsmen Plumbing Pty Ltd in July and two weeks with Millenium Plumbing in September. From September to December he also attended a 12 week introductory course to a Certificate 1 in Engineering which was presented by MPA Skills, a plumbing and painting training company. The plaintiff gave evidence that he successfully completed that course. One of the requirements of this course was that participants obtain a senior first aid certificate from St John Ambulance Australia, which the plaintiff completed successfully.
After the plaintiff had completed the course with MPA Skills Mr Traeger asked Marsmen Plumbing Pty Ltd whether they would take on the plaintiff as an apprentice plumber, but was told that the plaintiff was too young and would need a driver's licence (ts 348). The plaintiff also applied for a pre‑apprenticeship course in plumbing for the next year, but was unsuccessful (ts 356 – 157). The plaintiff then decided to go back to school, but changed to Craigie Senior High School for year 11 in 2003.
In February 2003, when the plaintiff had just turned 16, Mrs Traeger arrived unannounced at Mr Traeger's door and handed him two letters, one addressed to Mr Traeger and one to the plaintiff. She told Mr Traeger that she could not take it any more and wanted no further contact with the plaintiff. The letter to the plaintiff referred to Mrs Traeger's love for the plaintiff as a baby, but indicated that her efforts in enforcing discipline had only resulted in the plaintiff blaming and bullying her. As a result she no longer wanted to have any contact with the plaintiff and specified that he was not to phone her or come to her house (exhibit 3 pages 45 ‑ 50).
The letter to Mr Traeger stated that the plaintiff 'carried the emotions and thoughts' of Mr Traeger and that Mrs Traeger refused to continue being a punching bag. The letter specified that she was not open to negotiation and if her demands were not complied with she would be forced to take action (exhibit 3, pages 51 – 53). Mr Traeger said that he did not show the letters to the plaintiff, but had no other option but to explain to him that his mother needed some time to herself and that he was not allowed to see her. Mr Traeger stated that the plaintiff was shocked about this and took it badly (ts 108 and 308). The plaintiff did not see his mother again until he woke up in hospital after the accident.
At the beginning of 2003, in the course of his work as a police man, Mr Traeger met Dr John Clarkson, a general practitioner, found him sympathetic and discussed the plaintiff with him. In March 2003 Dr Clarkson saw the plaintiff and referred him to Dr Malcolm Roberts, psychiatrist, who saw him very briefly and prescribed Dexamphetamine for his ADHD. Dr Clarkson prescribed various other medications, including an anti‑psychotic.
The plaintiff's progress at Craigie Senior High School during 2003 was variable with his English teacher reporting that he had worked steadily in the first semester, and the computer teacher saying that his classroom behaviour and work effort had been satisfactory. However, the plaintiff's mathematics teacher was of the view that he took shortcuts, was easily distracted from his work and required constant supervision, while the work studies teacher said that he was rude and disruptive. The plaintiff also missed 51 days of school.
In June 2003 the plaintiff was expelled from Craigie Senior High School for obtaining a teacher's password and using this to turn off a student's computer (ts 111 and 359). Mr Traeger gave evidence that the school principal contacted him and told him that it was part of the school's policy that the plaintiff had to be expelled for what he had done. Mr Traeger could not give any further details of the incident (ts 111 and 359 – 360).
In October of that year Mr Traeger arranged a brick paving and landscaping job for the plaintiff. However, this lasted only for approximately two to three weeks, because the plaintiff complained that he found the lifting of the limestone blocks too heavy. Mr Traeger said that he was initially cross with the plaintiff for giving up the job, but subsequently discovered that the plaintiff had suffered a hernia and had to have an operation for this in December 2003 (ts 112 and 328).
Towards the end of 2003 Mr Traeger also suffered a second breakdown resulting from his post‑traumatic stress disorder and was put off work for six months.
A new community college had opened in Clarkson and the plaintiff decided to repeat year 11 in 2004. The term 1 report from Clarkson Community High School rated the plaintiff's behaviour in four subjects as outstanding, very good or satisfactory, while in physical education and food production it was said to be below average. His progress was rated as satisfactory in music, senior science and food production, but below average in English and media studies and well below average in physical education. The plaintiff decided to give up on school (ts 112).
In May of that year the plaintiff did burnouts with a friend's car in a suburban street and pleaded guilty to 'causing undue and excessive noise'.
In July 2004 the plaintiff found a job, through a friend, as labourer for a tiler on a site in Mandurah. The plaintiff worked on that site for five to six weeks. Initially he drove to work with his friend, but when the friend was moved to another site, the plaintiff had to get up early in the morning before dawn to catch public transport to his employer's house from where he got a lift to Mandurah. He came home after dark. On one occasion the plaintiff asked his father whether he could borrow his car to go to work on Saturday as he wanted to show his employer that he was keen. His father agreed (ts 119). When the work in Mandurah was completed the plaintiff was not kept on, because his employer wanted a skilled assistant (ts 119). However, the plaintiff had decided that he loved tiling and wanted to do a pre‑apprenticeship in tiling. Mr Traeger made enquiries at TAFE but was informed that the next pre‑apprenticeship course would only start in January 2005 (ts 120).
In August 2004 the plaintiff obtained his driver's licence. Mr Traeger gave evidence that he returned to work in August 2004 and was happy at that time because not only had his own life returned to normality, but the plaintiff was also 'okay' (ts 368).
In July 2004 Mr Traeger obtained a referral by Dr Clarkson to Dr Oleh Kay, a psychiatrist (ts 334). Mr Traeger said that he was becoming concerned about the number of medications that Dr Clarkson had prescribed and wanted to have Dr Kay's opinion on the plaintiff's condition (ts 335). However, before the plaintiff got to see Dr Kay the accident occurred on 8 October 2004.
The plaintiff's injuries (other than the brain injury), treatment and remaining physical disabilities
The plaintiff sustained a fractured skull, a severe brain injury, injuries to the sixth and seventh cranial nerves, a disc injury at T11 on T12, a soft tissue injury to his back resulting in sciatica, a wedge fracture of vertebrae at L2, bilateral pneumothoraces (lung collapses), allergic reaction to antibiotics, sepsis, diplopia (double vision), superficial right arm thrombosis, diminished sense of smell, tinnitus, hearing loss in the left ear, depression and anxiety. The defendant admits all of these injuries except the loss of smell and that the depression and anxiety resulted from the brain injury.
The plaintiff required 33 days of acute inpatient treatment, including 10 days in the intensive care unit at Charlie Gairdner Hospital. He had post‑traumatic amnesia for 33 days (exhibit 1 page 61). Upon discharge from hospital he was an in‑patient at the Shenton Park Rehabilitation Campus of Royal Perth Hospital for nine days. Subsequently he received a range of treatment from medical practitioners, physiotherapists, occupational therapists and psychiatrists, underwent neuropsychological assessments, and was placed on various forms of medication.
The injuries to the sixth and seventh cranial nerves initially resulted in facial palsy which took some time to resolve. The injury to the sixth cranial nerve also caused the muscles which operate the eyes to permanently stop functioning properly. The plaintiff underwent three surgical procedures to tighten the eye muscles so that the eyes would look straight ahead, rather than turning in, and received at least three injections of Botulinum Toxin (Botox) to again relax some of the tightness. The plaintiff saw Dr Ross Agnello, ophthalmologist, on at least 17 occasions.
The plaintiff's vision has not been fully restored. If he wears glasses and looks straight ahead, dropping his chin slightly, he has clear vision. However, if he looks to the side or up and down, he has double vision. The plaintiff said he could not catch a football as he would see two coming at him (ts 1179). There is also a cosmetic consequence of the nerve damage in that when the plaintiff turns his head to the left the iris of the right eye does not move to the extent that the left iris does which makes him appear cross‑eyed (ts 1178). Dr Agnello assessed the plaintiff's residual disability as equivalent to 70% loss of vision in one eye (exhibit 1, page 44).
Dr Agnello stated in his report that a number of patients with sixth nerve paresis require further surgery over the course of their life to fine tune the surgical results. He was of the opinion that it would be reasonable to allow for two further surgical procedures. The other possibility was to do the fine tuning with Botox injections which would obviate the need for surgery, but this required a number of injections. Dr Agnello could not predict with certainty what the future would hold for the plaintiff, but said it was reasonable to allow for two surgical procedures together with five to seven injections at $200 to $260 per injection (exhibit 1, pages 182 – 183).
The plaintiff has ongoing hearing loss in the left ear and tinnitus, which appears mostly when he sleeps. The hearing loss means that when there are a lot of people talking the plaintiff cannot make out what they say (ts 1155). Dr Ian Mitchell, ENT specialist, described the hearing loss as a mild conductive deafness in the left ear (exhibit 1, page 177). Dr Philip Grey, head and neck surgeon, advised the plaintiff that further surgery might improve his hearing but might also worsen his tinnitus (exhibit 1, page 178). On this basis the plaintiff decided against further surgery (exhibit 1, page 178). Although, Dr Grey noted in his report that the plaintiff was becoming used to the situation, I accept that the plaintiff still has some residual disability as a result of the partial hearing loss and has to suffer the tinnitus.
The plaintiff gave evidence that he has ongoing back pain particularly after walking, running or standing a long time (ts 1155). Immediately after the accident he experienced neck and back pain with sciatica in the left leg (exhibit 1 page 22), limped because of pain in the left foot (exhibit 1 page 14), had reduced standing tolerance (exhibit 1 page 16) and non‑existent balance (exhibit 1 page 31). An MRI scan of the lumbar spine only showed some irregular disc end plate changes and minimal disc bulges, but no bone injury (exhibit 1 page 2 and 10). However, Mr Des Bushell, physiotherapist, reported in November 2004 that the plaintiff had musculo‑skeletal problems and that his symptoms could be reproduced from there (exhibit 1 page 21). Dr Marsden, occupational physician, acknowledged that the plaintiff had a 'lower back non‑specific mechanical strain injury' (exhibit 5, page 19). Dr Connaughton, occupational physician, who gave evidence for the defendant, reported 'symptoms of mechanical left low back pain with referred symptoms to the left leg' (exhibit 49, page 122).
I accept the plaintiff's evidence that his back still troubles him after prolonged activity. He said in evidence, in a context unrelated to his injuries, that he did not go white water rafting in Bali, because he was concerned about his back (ts 1175).
The plaintiff has a reduced sense of smell. He said in evidence that he could not smell gas and as a result of that had left the stove on without a flame burning. He could also not smell the fuel when he filled his car with petrol (ts 1156). There was no evidence by any medical practitioner to explain the likely cause of the reduced sense of smell. Nevertheless, I accept on the basis of the plaintiff's evidence that he has a reduced sense of smell which did not exist prior to the accident. The plaintiff's evidence in this regard was not challenged in cross‑examination.
I generally accept all of the plaintiff's and Mr Traeger's evidence. There was no indication that they tried to exaggerate the plaintiff's post‑accident disabilities and neither shied away from the behavioural problems that the plaintiff had experienced as a teenager. Their evidence was hardly challenged in cross-examination.
The nature and extent of the brain injury
The parties agreed that the head injuries included a skull fracture at the base, the development of intracranial gas, brain swelling secondary to trauma, subarachnoid and subdural bleeding and shearing injuries to the sixth and seventh cranial nerves. The only matter in dispute with regard to the head injury was whether the various scans undertaken showed frontal lobe damage or not.
Dr Cardaci, who is a consultant physician in nuclear medicine, came to the conclusion that the 2005 SPECT scan showed an altered pattern of blood flow in the temporal lobes and in the right inferior frontal lobe (exhibit 3, page 81). Dr Cardaci pointed to the distribution and severity of the abnormalities in the frontal and temporal lobes shown on this scan and said that this was consistent with trauma to the brain (ts 719). Dr Cardaci was not cross‑examined.
Dr Fong, the rehabilitation physician, who gave evidence for the defendant, came to the conclusion that an MRI scan performed in 2010 only showed structural damage to the left temporal lobe region, but not to the frontal lobes. Dr Fong also referred to the 2005 SPECT scan (or brain perfusion study) and said that this was reported to have shown irregularities in the right orbital frontal cortex and occipital regions, but not as showing extensive frontal lobe damage. He therefore questioned whether the symptoms reported by the plaintiff, which are generally associated with frontal lobe damage, could be supported by the 2005 SPECT scan or the 2010 MRI scan.
Dr Fong based his findings on the reports of the SPECT scans only and did not see the actual film (exhibit 43, page 34 and ts 1386). I prefer the opinion expressed by Dr Cardaci, who is a specialist in this area, conducted the 2005 SPECT scan of the plaintiff (exhibit 3 page 37) and saw the original film of this scan (exhibit 3, p 81).
Dr David Burke, a consultant physician in rehabilitation medicine specialising in acquired brain injuries, gave evidence on behalf of the plaintiff. He concluded that the plaintiff had a diffuse axonal injury and said that this was the most severe type of brain injury (ts 819 – 820). Dr Kay, the plaintiff's treating psychiatrist, said in evidence that the plaintiff had diffuse brain trauma and a frontal lobe syndrome (ts 1011).
The attempts to rehabilitate the plaintiff
The initial attempts to rehabilitate the plaintiff focussed on his physical injuries. It seems that unfortunately the extent of his cognitive impairment was not recognised and the behavioural problems, such as lack of motivation, mood swings and anger, were put down to his pre‑existing ADHD and other behavioural issues. As a result very little attention was given initially to assisting the plaintiff to cope with his cognitive impairment in his daily life. It may be that a contributing factor to this was that neither the plaintiff nor Mr Traeger realised immediately after the accident how much the plaintiff was affected by the brain injury. The plaintiff was keen to be discharged from the Shenton Park Rehabilitation Campus and expected to return to study, driving and surfing (exhibit 1, page 15; exhibit 26, page 1 and ts 148).
After the plaintiff had only spent a week at the Shenton Park campus Ms Janice Roberts, the social worker from Network Case Management Services who was assigned as his case manager, decided that ongoing services and treatment would best be provided through local community resources as the plaintiff did not have anyone to take him to the Shenton Park campus (exhibit 26 page 1). It seems that the only ongoing treatment that was arranged for the plaintiff was physiotherapy treatment and gym exercises. Ms Roberts' report of 18 November 2004 to the Insurance Commission of Western Australia (ICWA) stated that the plaintiff had made a remarkable functional recovery and seemed to be independent in personal care and able to prepare simple meals (exhibit 26, page 1 – 2).
A report by Ms Connie Trimboli, an occupational therapist in the neurosciences unit of Royal Perth Hospital to Dr D Fletcher, consultant of rehabilitation medicine at the Shenton Park campus, also dated 18 November 2004, paints a different picture (exhibit 1, pages 13 – 15). Ms Trimboli noted that on the Barry Rehabilitation Inpatient Screening of Cognition Test the plaintiff had scored 111/135 and that a score below 120/135 indicated impaired cognitive function. She said that the plaintiff demonstrated difficulties with mental imagery and mental control. She also administered the Mental Status Screening Test and noted that the plaintiff had severe deficits with verbal recall (2.5/25 for immediate and 3/25 for recent). However, she reported that the family had not noted memory deficits (Mr Traeger denied ever having said this to anyone) and the plaintiff felt that he was at pre‑admission level. Ms Trimboli reported that the plaintiff represented with impulsivity and reduced self‑monitoring, but said that the family had reported this to be pre‑existing.
As part of the community assessment, the plaintiff was taken shopping by Ms Trimboli. He was able to locate the majority of items, but did not initiate a search strategy when unable to locate an item. He over‑estimated the total of goods and was unable to locate the car at completion. Ms Trimboli noted that this performance might have been influenced by the plaintiff's reluctance to participate in the assessment (exhibit 1, pages 13 – 15).
As Dr Fletcher was no longer available, the plaintiff was referred to Dr Kim Fong, rehabilitation physician at the Shenton Park campus. Dr Fong noted in his report of 21 December 2004 that on cognitive screening evaluation the plaintiff showed indicators of disorientation and that his memory, calculation and abstract thinking skills were all significantly below expectation. However, Dr Fong said that it was unclear to what extent the pre‑existing ADHD contributed to this evaluation.
Dr Fong interpreted reports on the plaintiff's childhood and teenage years as showing 'the emergence of multiple sociopathic behavioural traits and a significant degree of alcohol dependency' (exhibit 43, pages 18 ‑ 20). Mr Traeger denied that the plaintiff had an alcohol dependency problem prior to the accident and doubted that he had said anything to Dr Fong about the plaintiff's clashes with the law (ts 387 ‑ 388). Mr Traeger thought that this information might have come from Dr Clarkson's notes (ts 367). Dr Clarkson's notes were not tendered by the defendant but extracts from them were put to Mr Traeger in cross‑examination.
Dr Fong also assumed in his report of 21 December 2004 that the plaintiff had abused substances and noted that 'so far he does not seem to have relapsed back into any substantial degree of alcohol or substance abuse'. Counsel for the defendant did not seek to rely on Dr Fong's findings of alcohol and substance abuse and applied to strike out the references to 'significant degree of alcohol dependency' and 'substantial degree of alcohol (abuse)' in the report. However, the initial incorrect labelling of the plaintiff by Dr Clarkson and Dr Fong may have been another reason why it was not identified earlier that the plaintiff had suffered significant cognitive impairment and required rehabilitation for domestic activities.
Dr Fong reported that the plaintiff seemed to be reasonably motivated towards embarking on vocational rehabilitation, but thought that this would prove difficult because of the many psychosocial factors involved and the plaintiff's lack of education. He noted in his report that the plaintiff was only achieving at around year 7 level before the accident. Again, it is not clear where Dr Fong got this information.
Dr Fong recommended that the plaintiff be assessed by Ms Jan Roberts for rehabilitation and attend six sessions with a clinical psychologist to address his emotional adjustment after the accident (exhibit 43 page 21). Dr Fong did not see the plaintiff again until he was asked for a medico-legal report by the defendant in May 2009 (exhibit 43 pages 26 – 31).
In a report dated 23 December 2004, Ms Roberts suggested that the plaintiff be assessed by the Educational Centre at the Shenton Park campus, but this does not seem to have occurred. In January 2005 Ms Roberts reported that the plaintiff was trying very hard during his attendances at physiotherapy and was keen to follow through on education opportunities. She suggested that ICWA be approached for assistance in funding a vocational rehabilitation program (exhibit 26 pages 4 ‑ 6).
On 17 January 2005 Dr Michael Kern, neurosurgery registrar, reported that the plaintiff was coping relatively well at home apart from mood swings. Dr Kern said that he had reassured Mr Traeger that it was normal for the plaintiff to have mood swings after a brain injury and that this would probably improve over time (exhibit 1 page 17). In May 2005 another case manager with Network Case Management Services, Ms Searson, reported to ICWA that the volatile mood swings and poor motivation experienced by the plaintiff since the accident had improved considerably and that this was put down to the antidepressant and mood stabilising medications that had been prescribed by his psychiatrist, Dr Oleh Kay (exhibit 26, page 7).
No progress seems to have been made in respect of vocational rehabilitation between January 2005 when Ms Roberts first suggested such a program and May 2006 when Mr Stephen Parker, a rehabilitation consultant, prepared an initial assessment report to ICWA (exhibit 5, pages 1 – 5). It may be that one of the problems was that the plaintiff was still undergoing corrective surgery for his eyesight. The first surgery occurred in November 2005 and the second procedure in May 2006. The plaintiff also had Botox injections in June 2005 and January and June 2006.
Mr Parker noted in his initial assessment report that the plaintiff was keen to get back to work. Mr Parker recommended to ICWA that the plaintiff be provided with a full vocational rehabilitation program. This included, among other things, establishing a realistic and obtainable vocational goal in consultation with all parties, finding a suitable work trial host and suitable training courses, developing a graduated return to work program with a well supported work environment and monitoring of the plaintiff's progress and need for assistance. Mr Parker indicated that the costs of such a program for 55 hours would be $6,784.25 excluding GST (exhibit 5 page 6).
Mr Parker further recommended that the plaintiff be provided with a trained personal buddy close to his own age who would focus on helping steer the plaintiff away from his impulsive behaviour, improve his self‑esteem and socialisation and assist him to keep up a regular routine of exercise.
It seems that by the end of June 2006 ICWA had not yet made a decision whether the proposed vocational rehabilitation program should be funded (exhibit 5, page 7). By then the plaintiff's solicitors had referred him to another rehabilitation provider, Ms Jan Bishop from Bennu International Consultancy, who first saw the plaintiff on 25 May 2006 (exhibit 26, page 15). Mr Parker advised in a subsequent letter that he had not followed up his proposal with ICWA after he had learned that the plaintiff had been referred to Bennu International Consultancy, because he was confident that the plaintiff was 'in good hands' (exhibit 5, page 7).
Ms Bishop gave evidence for the plaintiff. She qualified as a registered nurse but currently works as a case manager and is the proprietor of Bennu International Consultancy. She said she had 20 years experience in managing and rehabilitating young people, particularly people with acquired brain injury (ts 924 and 957). Ms Bishop identified the then‑existing issues for the plaintiff as 'loneliness, frustration, anger, depression, lack of community integration and recreational opportunities, financial constraints, need for employment opportunities, lack of confidence, impulsivity, short term memory issues, lack of concentration and mobility, back pain, eyesight problems and hearing issues' (exhibit 26, page 15). Ms Bishop established that the plaintiff's main interest was photography and recommended that he enrol in a photography course. She noted that Dr Fong had come to a similar conclusion in his report of 21 December 2004 (exhibit 26, page 17 and exhibit 43, page 20). Ms Bishop then arranged for the plaintiff to do a short evening course in photography at TAFE which the plaintiff completed successfully.
Ms Bishop subsequently recommended another suitable course for the plaintiff at TAFE which was a semester course for Certificate 4 in photo imaging (exhibit 26, page 21). Ms Bishop applied to ICWA for funding for this course and some equipment for which ICWA paid. The plaintiff was also provided with a carer to take him to the lectures. It soon became apparent that the carer had to assist the plaintiff in taking notes because he could not remember what the lecturer had said (ts 1158). The plaintiff received an attendance certificate for the course, but did not pass it, as he did not have a sufficiently sophisticated camera for taking field trip photos and did not manage to produce all of his assignments (exhibit 26, page 29).
At some stage Ms Bishop organised a work trial for the plaintiff at Wicked Willies Surf Shack where he worked for two days a week for approximately four to six weeks (exhibit 26, page 42). Ms Bishop reported to ICWA on 4 September 2008 that this work trial had come to an end because the plaintiff lost interest and had organised work elsewhere. She noted that the plaintiff could not follow directions and forgot what had been told to him (exhibit 26, page 42). The plaintiff said in evidence that he liked working at the surf shop but was not able to operate the EFTPOS machine, although it had been shown to him a number of times. As a result he was not offered a job (ts 1159 ‑ 1160). Mr Traeger also stated that his son had reported to him that he could not operate the EFTPOS machine and was easily exhausted after a few hours' work (ts 166).
The plaintiff started taking photographs of patrons at one or two pubs or nightclubs for the purpose of promoting social events at these venues. Ms Bishop reported to ICWA in January 2008 that the plaintiff would like to start his own photography business, but was struggling with establishing a daily routine and staying on task (exhibit 26, page 33). Ms Bishop said she had appointed a volunteer accountant who would be a mentor to the plaintiff and guide him on how to set up a business, budget and process receipts. Ms Bishop gave evidence that although the accountant had made himself available on a number of occasions, the plaintiff did not turn up for the appointments (ts 962).
Towards the end of 2008, the plaintiff met Mr Kenneth Lockhart, who is currently aged 35 and has worked as a disc jockey for all of his life. Mr Lockhart arranged with the manager at the Mullaloo Beach Hotel for the plaintiff to take photographs of patrons every Sunday afternoon when Mr Lockhart was presenting a DJ session. Mr Lockhart negotiated with management for the plaintiff to be paid for this service and assisted him in preparing invoices on a regular basis.
The plaintiff said that he worked regularly on Sunday afternoons for the Mullaloo Beach Hotel and that it took him approximately two hours to take the photographs. However, he liked to spend the whole afternoon at the hotel, socialising mainly with Mr Lockhart and assisting him with playing music. The plaintiff explained that after taking the photographs he would process them and upload them onto a website which would take him until 2 o'clock in the morning (ts 1307 ‑ 1308).
In addition to the photography job the plaintiff also found employment, through a friend, clearing used glasses at a hotel on a Friday night. However, this did not last long. The plaintiff gave evidence that the job involved stocking the fridges and mopping the floors and that he got too tired working on Friday night and then having to be at the Mullaloo Beach Hotel on Sunday. He preferred to concentrate on the photography job (ts 1302 – 1303). Mr Traeger also gave evidence that the hotel job involved some lifting which had caused the plaintiff back pain (ts 166).
At some stage (which may have been prior to the Mullaloo Beach Hotel) the plaintiff found another job, through a friend, at a freight company where he unloaded parcels from a conveyer belt and sorted them by postcode. He worked for 10 hours on a Sunday night and two days a week for 4 – 5 hours. However, the plaintiff found the job too tiring, as he was also doing photography at a pub on Friday nights at that time. The plaintiff stated that he would sleep for two days after a 10 hour work session. The freight sorting job was also not suitable as the plaintiff got confused about the postcodes (ts 1295 – 1296).
These seem to have been the only job opportunities that the plaintiff was introduced to or trialled. There was no record of a vocational rehabilitation program drawn up in cooperation with the plaintiff which identified suitable work or training, showed that any work trial hosts were contacted apart from the Wicked Willies Surf Shop, or indicated that the plaintiff was given assistance and support in working out what he could do with regard to a particular job and how he could best achieve this. It may be that these matters were discussed orally with the plaintiff by Ms Bishop to some extent, but there is no satisfactory record or oral account of this.
Ms Bishop gave evidence that it was very difficult to motivate the plaintiff, that he refused to engage with the accountant and various carers and that he was 'living in the now' (ts 969, 1089 and 1093). Ms Bishop said that despite her extensive experience in rehabilitating brain injured young people she had reached the point where she had to acknowledge defeat in respect of the plaintiff (ts 1112).
In January 2008 Ms Bishop raised with ICWA that a domestic rehabilitation program was required for a period of three months so that the plaintiff could learn to cope with domestic activities without relying on his father (exhibit 26, page 33). Ms Bishop gave evidence that the plaintiff had established a co-dependency on his father and relied on him to do everything for him (exhibit 26, page 41 and ts 958 – 959). Ms Bishop reported to ICWA that the plaintiff lacked concentration, short term memory and the ability to stay on task and became easily distracted. This made it difficult for him to perform domestic activities such as cleaning, cooking, washing his clothes and generally keeping the house clean and tidy.
From September 2007 to November 2007 the plaintiff was referred to Meath for a three month domestic rehabilitation program. This involved the plaintiff staying at Meath for four days a week. The progress notes taken at Meath indicate that the carers had considerable problems motivating the plaintiff to do a domestic task, stay on task and not become distracted. It was even more difficult to teach the plaintiff to initiate a task. There are numerous references to the plaintiff having been asked to take his dirty dishes to the kitchen or to wash them up and to those dishes still being there the next day and the day thereafter (exhibit 26, pages 55, 68, 70 and 71). There are also many entries regarding the plaintiff starting a task, such as doing his washing, and then forgetting to complete it by not hanging out the washing (exhibit 26, pages 59 and 68). The notes state that the plaintiff did not initiate necessary tasks, such as cleaning expired food items out of the fridge or emptying the rubbish bin. There are many references to the plaintiff leaving the rubbish on the kitchen counter once it could no longer be squashed into the rubbish bin (exhibit 26, pages 68, 69 and 71).
The various carers also noted that the plaintiff lacked concentration, was unable to prepare an invoice or complete his photographic work and was unable to follow instructions, including a recipe (exhibit 26, pages 60, 63, 64, 67 and 70). The progress notes are further littered with references to the plaintiff sleeping for a number of hours in the daytime (exhibit 26, pages 55, 56, 57, 58, 59, 63, 67 and 68). There are also numerous references to the plaintiff needing assistance with financial management and that he tended to spend all his social security allowance on one outing rather than budgeting for it to last for the week (exhibit 26, pages 60, 69 and 71).
At the end of the three month trial the occupational therapist, Ms Christine Hawkins, who was assigned to supervise the plaintiff, reported on 25 November 2007 that the plaintiff still required support and assistance with the following tasks:
1.taking his medication on a regular basis;
2.waking at a set time each morning and waking for morning appointments;
3.cleaning and maintaining a hygienic living area, including doing the dishes and cleaning out the fridge;
4.planning weekly meals and shopping accordingly;
5.ensuring that he had enough money each week to buy food, as he spent his money on the weekend and had no money left for shopping;
6.planning and sticking to a set budget as he often had to borrow money which resulted in a spiralling effect and the plaintiff having no funds;
7.reading and following a recipe when cooking;
8.staying on task and not being distracted from necessary activities; and
9.improving his memory (exhibit 1, pages 102 – 103).
The evidence by Mr Traeger indicated that this position has been largely unchanged to date and that the plaintiff essentially relies on his father to do all domestic tasks for him (ts 179).
The plaintiff's post‑accident cognitive impairment, behavioural problems and psychiatric condition
Dr David Burke, the consultant physician, reviewed the plaintiff on 7 occasions between June 2006 and September 2010 (exhibit 1 page 179). At his first review Dr Burke recorded that the plaintiff had complained about reduced short term memory and said that he had a good memory before the accident (exhibit 1 page 63). Mr Traeger also gave evidence that the plaintiff had a good memory prior to the accident (ts 150).
Mr Traeger said that after the accident the plaintiff could no longer conduct a normal conversation, reacted easily to things, could not remember things and was disorganised (ts 149 ‑ 152). Prior to the accident he was able to have a meaningful conversation with the plaintiff about world events or the plaintiff's relationships. He was also able to reason with the plaintiff and get him to do chores in the house. After the accident this was no longer possible (ts 155 ‑ 156). The plaintiff had retreated into a much narrower world and had adopted a childlike view of things. Mr Traeger said that the plaintiff was like a 10‑year‑old (ts 156 and 188). He liked to watch television, particularly cartoons, but could not understand a subtle joke made on a TV show (ts 156). Mr Traeger stated that the plaintiff suffered from mood swings and got angry very easily (ts 156 ‑ 157).
Mr Traeger gave evidence that in spite of him having tried to teach the plaintiff some household chores, the plaintiff was not able to initiate anything. The plaintiff was enthusiastic about things from time to time such as doing his own washing, but never got around to doing it (ts 169). The plaintiff was able to prepare a simple meal such as frying a steak or sausages, but was unable to attend to a second dish such as vegetables at the same time, unless everything went in the same pan. The plaintiff could not be relied upon in looking after himself as he had left the gas flame on after cooking on more than one occasion. He had also burnt a pot with water dry (ts 169).
Mr Traeger gave evidence that it was no good asking the plaintiff to do the shopping, washing, cleaning or tidying. He would not initiate the task or not understand why he should be taking turns with his father to do the cleaning up. Mr Traeger said if he gave bed sheets to the plaintiff, the changing of the sheets never happened (ts 182). Mr Traeger stated that the plaintiff would get angry when asked to do things or do them perfunctorily. Mr Traeger said the plaintiff could become motivated about a new project, but then not follow through. For example, the plaintiff wanted to grow vegetables and Mr Traeger bought him a mushroom tray and a tomato tray. In both instances the plants died (ts 185).
Mr Traeger gave evidence that he had to organise and pay for the maintenance of the plaintiff's car. When the plaintiff had incurred a traffic fine, Mr Traeger explained to him the consequences of not paying it, but despite this the plaintiff did not take any steps to pay the fine. Eventually Mr Traeger paid it (ts 183).
Mr Traeger also stated that the plaintiff was unable to organise his financial affairs. Initially Mr Traeger had given the plaintiff access to his social security allowance, but he spent it in a day. The plaintiff had also incurred a telephone bill on his iPhone of $1,300 when he went on a trip to Bali. On his return Mr Traeger had suggested to the plaintiff that he ring his service provider and arrange for time to pay. The plaintiff did so, but agreed to an amount that he could not possibly afford on his pension (ts 182 – 183).
Dr Burke noted that the plaintiff and his father had described persistent difficulties in planning, organisation, problem solving and initiative in the home environment. The plaintiff also reported difficulty with understanding speech, particularly if it was complex or lengthy information, and said he was not able to read much because he lost concentration (exhibit 1, pages 63 and 72). The plaintiff also told Dr Burke that he got lost easily when driving and therefore stayed in the area that was familiar to him. He also tended not to go out much at night for the same reason (exhibit 1, pages 64 – 65).
When Mr Traeger reported to Dr Burke that the plaintiff would not respond when asked to perform domestic tasks, Dr Burke noted that this could either mean that the plaintiff had difficulty with problems requiring divided attention or was perhaps unable to cope with information overload. Dr Burke was of the view that both these explanations would be consistent with the findings in the 2007 neuropsychological report by Dr Hayward (exhibit 1, page 72).
Dr Linda Hayward, clinical psychologist, performed neuropsychological testing on the plaintiff in 2007 and 2008. Her reports were admitted by consent, as was the report of Ms Vidovich, a clinical neuropsychologist who performed the first battery of neuropsychological testing on the plaintiff in 2005. Ms Vidovich came to the conclusion that her assessment indicated clear areas of impairment, particularly in auditory attention and expressive verbal skills. She also noted that the plaintiff was easily distracted and impulsive, had a lack of confidence and needed constant reassurance. She was of the view that distractibility, impulsiveness and lack of confidence was commonly observed in individuals with a history of attentional disorders, but recognised that the brain injury might have exacerbated the plaintiff's attentional problems to a degree.
Ms Vidovich also reported that the plaintiff's test results indicated severe feelings of depression, moderate levels of stress and mild to moderate symptoms of anxiety. She came to the conclusion that the brain injury might have exacerbated the attention deficit disorder to a degree and that this, in association with the emotional and mood issues were likely to be the underlying cause of the decline in his cognitive functioning. Ms Vidovich thought that it was relatively early in the recovery process and that any permanent cognitive disability resulting from the accident was likely to be mild. She emphasised that it was important that the plaintiff and his father were given considerable support and that a case manager from a suitable rehabilitation organisation implement a realistic and progressive rehabilitation program. She noted that significant mood and motivational issues might negatively compromise any future rehabilitation efforts (exhibit 52).
Ms Hayward again tested the plaintiff in 2007 and 2008. She came to the conclusion that there had been some improvement in his intellectual profile relative to his initial assessment in 2005. However, even though the plaintiff had been placed on Dexamphetamine in 2007, his intellectual profile still showed difficulties with auditory memory as well as word finding and weakness in the verbal domain and working memory. She found that the plaintiff had an impulsive response style, forgot what he was meant to do during complex tasks, had difficulty planning ahead and made many errors. She was of the view that this showed problems with his executive function.
Dr Hayward also came to the conclusion that a behavioural assessment indicated significant changes in the plaintiff's frontal systems. She reported that the responses by Mr Traeger and the plaintiff placed the plaintiff in the normal range of behaviour prior to the accident, but with regard to post‑accident behaviour showed elevations on the apathy, disinhibition and executive function scale. She further reported that the depression inventory indicated that the plaintiff was suffering from moderate depression.
Dr Hayward came to the conclusion that the test results were likely to reflect some worsening of pre‑existing difficulties but also indicated additional difficulties resulting from the brain injury, particularly the problems with memory and executive function. Dr Hayward was of the view that the plaintiff's problems with regard to memory, impulsivity, poor planning, poor self‑monitoring, behavioural difficulties, apathy and executive dysfunction had impacted significantly on his activities of daily living (exhibit 1, pages 104 ‑ 125).
After a further assessment in 2008 Dr Hayward was of the view that there had been some improvement in the plaintiff's profile which could be related to expected recovery over time from a head injury, but that he continued to have the problems listed in her earlier report (exhibit 1, pages 128 – 139).
Dr Marjorie Collins, a clinical psychologist, who obtained her doctorate in neuropsychology, gave evidence on behalf of the plaintiff. She conducted further neuropsychological testing on the plaintiff in June 2010 including an IQ test. The IQ test showed that in 2010 the plaintiff's intellectual functioning was overall in the low average range, at the 21st percentile. She compared this to the plaintiff's IQ test at age 8 when he had performed in the average range at the 37th percentile. Dr Collins gave evidence that this was a good indicator of the plaintiff's loss of intellectual function as a result of the brain injury. She noted that the IQ test done at age 6 had only placed the plaintiff in the 23rd percentile, but said that it was easy to underperform in an IQ test, particularly if a person was anxious. There was reference in the psychological assessment done by Ms Moore at the same time that the plaintiff had been anxious. Dr Collins said that it was not possible to over‑perform on an IQ test, and that the result placing the plaintiff at the 37th percentile at age 8 was a good indicator of the plaintiff's intellectual capacity prior to the accident.
Dr Collins was of the view that the outcome of the 2010 neuropsychological assessment was similar to the scores that the plaintiff had achieved in 2007 and 2008. This indicated that his cognitive function had stabilised, but that he still had the same cognitive deficits, particularly with regard to auditory memory and word finding. This meant that the plaintiff would experience difficulties learning and recalling verbal material, including what people had said and what he had read.
Dr Collins also found problems with executive function in that the plaintiff was impulsive, displayed poor self monitoring, low average deductive reasoning skills and problems keeping track of task rules. His performance suggested that he was likely to have difficulty with multi‑tasking, be impulsive, to have poor attention, poor organisation and planning, impaired memory, difficulties with problem solving, impaired self‑regulation and lack of motivation.
On the behavioural assessment Dr Collins found that the plaintiff had less insight into the impact of his behaviours, or ability to adjust his behaviour, had become more impulsive, hyperactive, emotionally labile and socially inappropriate than prior to the accident. She recognised that all of these behaviours could be associated with ADHD, but came to the conclusion that the ratings on the behavioural assessment indicated that these problems had become more pronounced since the accident (exhibit 1, pages 164 – 169).
Dr Burke came to the conclusion that Dr Hayward's findings on the neuropsychological assessment were consistent with the reported difficulties described to him by Mr Traeger (exhibit 1, p 76). He stated that the cognitive deficits identified by Dr Hayward were likely to contribute to the plaintiff's apparent lack of motivation, which could more accurately be described as a degree of adynamia (the lack of ability to initiate). Dr Burke said that a degree of adynamia was common in patients who had suffered injury to the frontal lobes of the brain (exhibit 1, p 90).
The defendant placed considerable emphasis on the fact that the plaintiff was still able to drive a car and submitted that it did not make sense that the plaintiff allegedly suffered significant cognitive impairment, if he was nevertheless able to drive a car. The defendant referred to a driving assessment of the plaintiff undertaken by an occupational therapist on 20 January 2010. The report by the occupational therapist indicates that the plaintiff displayed evidence of organisation on a visual recognition slide test, had adequate speed of cognitive organisation on a symbol digit modalities test and showed good planning, organisation and problem solving abilities on a cube design test (exhibit 1, pages 47 ‑ 49). The plaintiff also passed the practical driving session and was said to have shown good attention and concentration.
The plaintiff objected to any reliance being placed on this report, as the occupational therapist was not called as a witness. I agree that it would be difficult to compare the findings on the driving assessment to the observations made in the neuropsychological reports without any explanation of the tests involved in the driving assessment. The findings in the driving assessment report were not put to Dr Collins. However, Dr Collins was asked in cross‑examination whether it was not odd that the plaintiff was unable to work the EFTPOS machine or till but could drive a car and operate a computer. Dr Collins explained that the inability to operate a till was likely to result from lack of executive function. The plaintiff was likely to have problems sequencing information and organising himself, particularly as he would have had to deal with social interaction at the same time. On the other hand, he might be quite capable to drive a car or operate a complex computer program, because these functions required different sorts of skills which were mediated by different parts of the brain (ts 1055 – 1056).
Dr Burke acknowledged that driving was complex as one had to react to situations and plan a journey, but was of the opinion that it required less skill than some other everyday life skills (ts 806). Dr Connaughton, an occupational physician, who gave evidence on behalf of the defendant, was of the view that some cognitive function was required to drive a car, but acknowledged that if the plaintiff only drove in familiar areas, that would make a difference as it would require significantly less planning (ts 1468 – 1469). The plaintiff gave evidence that he often got lost while driving and had to ring his father to obtain directions as he was unable to read a map or use a GPS (ts 1173 – 1174).
Apart from the impairment of his cognitive and executive functions, the plaintiff also suffers from considerable fatigue. Mr Traeger gave evidence that the plaintiff slept excessively during the day and that he had to sleep for long periods after any form of exertion (ts 166 and 185). The plaintiff stated that when he had been out in the afternoon taking photographs at Mullaloo Beach Hotel and had processed them thereafter until 2 o'clock in the morning, he would sleep for more than 24 hours after that to recover (ts 1308). The progress notes kept by the carers at the independent living trial at Meath also repeatedly reported that the plaintiff went to sleep for a few hours in the morning or afternoon (exhibit 26, pages 55 – 71).
Dr Danny Shub, a child, adolescent and adult psychiatrist, who was employed by the defendant to provide a medico‑legal report, but gave evidence for the plaintiff, said that fatigue was a common symptom for people with acquired brain injury. He explained that fatigue resulted from both structural and functional derangements in the central nervous system and from changes in neuro‑transmitter functioning. He stated that there was much literature about people with acquired brain injury who developed a chronic‑fatigue‑like syndrome which could be very pervasive and persistent (ts 908).
Dr Oleh Kay gave evidence that the plaintiff still suffered from depression and was being treated for this. Dr Kay said in his report that depression was a well recognised complication of a traumatic brain injury which arose both through psychological but also neuropsychiatric mechanisms, because a head injury upset the chemistry of the brain (exhibit 1, page 53, ts 1004).
The plaintiff's pre‑accident psychiatric condition, behavioural problems and learning difficulties
Dr David Roberts saw the plaintiff from time to time from age 7 to 15, reviewed his school reports, liaised with the school on at least one occasion and referred the plaintiff to various psychologists at different times. He also saw both parents together with the plaintiff, at least from time to time, as his notes refer to input by Mr Traeger (exhibit 14, page 39). Dr Roberts was therefore in a good position to assess the plaintiff's mental health and behavioural problems prior to the accident.
Dr Roberts confirmed the diagnosis of ADHD made by Dr Kay Johnson. It does not appear that he made his own assessment in that regard, but said that Dr Johnston undertook an assessment which supported the diagnosis of ADHD in accordance with the Diagnostic Statistical Manual of the American Psychiatry Association (DSM‑IV). Dr Roberts emphasised in his reports that the basis of the diagnosis was inattention, over‑activity and impulsivity and not any learning difficulties (exhibit 3, pages 2 and 14).
Although Dr Roberts referred in his medical notes to the plaintiff being 'prone to be oppositional defiant … ODD', he explained in evidence that he never diagnosed the plaintiff with oppositional defiant disorder (ts 656 – 657). In his report to the plaintiff's solicitors, dated 26 August 2010, Dr Roberts stated that the plaintiff externalised and acted out his psychological distress, particularly at the end of year 8 when he feared that his father was dying from the thyroid tumour, and this was incorrectly interpreted as oppositional defiance (exhibit 3, pages 5 – 6). Dr Roberts also diagnosed the plaintiff with depression in mid‑2001 and prescribed Zoloft.
Dr Roberts explained in his report to the plaintiff's solicitors (exhibit 3, pages 1 – 11) what he saw as the underlying reasons and trigger for the plaintiff's behavioural problems. He said that there were substantial psychological and social problems that existed within the Traeger household and a lack of consistency in parenting. He noted that there was a significant response by the plaintiff once he had suggested a behavioural program. He also referred in his notes to the fact that the plaintiff was fine with his maternal grandparents who used strict discipline. In evidence Dr Roberts said that the problem was the inability of the family to come to terms with the plaintiff's personality and temperament and to implement appropriate parenting practices (ts 598).
Dr Roberts further came to the conclusion in his report that by far the most significant contributing factor to the plaintiff's behaviour was the mental imbalance of his mother. His mother had rejected him in favour of his twin brother and the plaintiff had reacted against that rejection. Dr Roberts described the plaintiff's reaction as an attachment disorder. Dr Roberts pointed out that the discord between the plaintiff's parents was another reason for the plaintiff's behavioural problems. The parents' separation and subsequent divorce was a 'serious assault' on the plaintiff's mental wellbeing, because it meant that his father, who was his principal ally and supporter, left the household at the behest of his mother. Dr Roberts recorded that around that time the plaintiff's paternal grandmother, with whom he was very close, died.
Dr Roberts said the plaintiff saw further manifestation of his mother's rejection of him by her inviting a new partner to move in with her soon after the separation from his father and then 'giving up' the plaintiff to live with his father in August 1999 because she could not control his behaviour. The letter written by the plaintiff's mother asking him not to have any contact with her was another manifestation of his mother's rejection of him. Dr Roberts emphasised that the rejection of the plaintiff by his mother dwarfed all other influences on the plaintiff.
Dr Roberts noted that the plaintiff's good progress through primary school suggested strongly that his ADHD was amenable to effective treatment. Dr Roberts was of the view that the plaintiff had not suffered from significant learning problems in primary school and his behavioural problems were largely home based. Dr Roberts said in May 1996, when the plaintiff was in year 4, the principal of the school telephoned him to tell him that the plaintiff was progressing well at school (exhibit 14, page 40). Dr Roberts explained that the occasional comment by a teacher in school reports that the plaintiff was exuberant and displayed a lack of attention was not unusual in respect of primary school boys.
Dr Roberts came to the conclusion that the plaintiff's school performance only deteriorated in high school. He said this was consistent with the plaintiff's developmental age and the other psychosocial influences impacting upon him. Dr Roberts was of the view that the plaintiff had suffered from depression at that time, which might also have had some generic origin, as Mr Traeger also suffered from depression. However, a pre‑disposition to mental health problems did not mean that these problems could not be controlled and patients could not do well. Dr Roberts took some comfort at the time from the fact that the plaintiff's development at school was alternating between good and bad which meant that he was not locked into a negative downward spiral. Dr Roberts was of the opinion that this indicated that there was a good chance that the plaintiff would come to terms with his troubled background and in particular the strained relationship with his mother as he matured. But for the accident, he expected the plaintiff to have reached a more stable pattern of mental wellbeing which would have enabled him to go to tertiary education, most probably in respect of a trade, and to lead a normal and happy adult life.
Dr Roberts identified that there were a number of factors which pointed to a positive prognosis. He thought that the plaintiff had shown resilience and that a child with less resilience would have been even more affected by the psychosocial influences. The plaintiff also had an extroverted personality, had established friendships and was liked by his peers. The extroverted personality meant that the plaintiff externalised and acted out to express his psychological distress which was far healthier than internalising his distress. The plaintiff was a competent sportsman which gave him a sense of self‑worth. The plaintiff's father was a source of love, acceptance, strength and support for him. Dr Roberts thought that the plaintiff had an average academic ability and was able to achieve satisfactorily when other factors did not adversely impact upon him.
Dr Roberts also placed particular emphasis on the fact that late in secondary school the plaintiff settled down and it seemed that with maturity he was beginning to 'lay to rest his daemons'. Dr Roberts relied on the fact that the plaintiff attended two placements of work experience with plumbing companies, successfully completed the introductory course towards a Certificate 1 in Engineering and had planned to start a pre‑apprenticeship course in tiling in the next year (exhibit 3, page 8 and exhibit 31).
Dr Roberts commented that the pattern of a troubled boy with a difficult psychosocial background, struggling through school, showing oppositional defiance and patchy academic performance but periods of good progress, then blossoming in late adolescence and going on to an apprenticeship or university was not uncommonly seen.
I accept all of Dr Roberts's evidence on the basis that of all the medical practitioners who gave evidence at the trial he was the one who was in the best position to make a balanced assessment of the plaintiff's learning difficulties and behavioural problems during his school years, whilst the other medical practitioners had to rely on the hear-say bits and pieces of information that appeared in the school reports and in the notes made by the psychologists and social workers employed at the Warwick Centre. Dr Roberts consulted with both Mrs and Mr Traeger and saw the plaintiff repeatedly on an ongoing basis.
Dr Roberts expressed his concern that Dr Kay had referred in his reports to the plaintiff's 'abuse of marijuana' and to the plaintiff having 'probably [used] other drugs for some time before his motor vehicle accident'. Dr Roberts pointed out that there was no evidence to this effect and that it was mere speculation. Dr Roberts said he made a note in May 2002 (exhibit 14, page 60) that the plaintiff was then using marijuana, but thought that experimentation with this drug was common in teenagers and that there was no reason to have labelled this experimentation with 'abuse'.
The defendant resiled by the end of the trial from any reliance on alcohol or drug abuse by the plaintiff prior to the accident. Insofar as it is necessary to make a finding in this regard, I accept Dr Roberts' opinion and also question on what basis Dr Kay made the speculative comments in his report.
Dr Shub, who is a psychiatrist and was asked by the defendant to provide a medico‑legal report, ascribed all of the plaintiff's learning difficulties and behavioural problems to the psychosocial factors and his reaction to his domestic circumstances (exhibit 3, pages 69 and 107).Dr Shub was of the view that the plaintiff may have met the diagnostic criteria for ADHD (exhibit 3, page 67), but that many of the symptoms that were likely to have led to the diagnosis of ADHD may have been better accounted for by a diagnosis of a mood disorder (exhibit 3, page 105). Dr Shub said that in his experience most children and adolescents who presented with attentional difficulties were manifesting symptoms of either an underlying mood disorder or anxiety state.
Dr Shub was of the view that the 'attachment disorder' that Dr Roberts had referred to was not a recognised diagnostic entity in DSM‑IV, but he agreed with Dr Roberts that many of the plaintiff's psychological difficulties arose from the disturbed parental relationship and particularly the conflicted interaction between the plaintiff and his mother. Dr Shub stated that these issues would have impacted upon the plaintiff's emotional and behavioural functioning and restricted his capacity to focus, concentrate and process information (exhibit 3, pages 102 ‑ 103).
Dr Shub also questioned the diagnosis of depression when the plaintiff was a teenager and noted that many of the plaintiff's depressive symptoms were related to the acrimonious parental separation and the plaintiff's distress when his father was diagnosed with a thyroid tumour (exhibit 3, pages 65 – 66 and 69). Dr Shub pointed out that a distinction needs to be drawn between the experience of symptoms of a particular condition and the diagnosis of a specific condition or disorder (exhibit 3, page 103).
Dr Shub also made the comment that the fact that the plaintiff was asked to leave Clarkson Community College would not necessarily have reflected his level of behaviour, as some schools had a low tolerance for children who did not conform (ts 890 - 891).
I also accept Dr Shub's evidence in its entirety. He was asked by the defendant to provide a medico-legal report and is therefore unlikely to have been biased towards the plaintiff.
The cause of the plaintiff's post‑accident cognitive impairment and psychiatric condition
The medical evidence was overwhelmingly that by far the most significant contributory factor to the plaintiff's current cognitive impairment, behavioural difficulties and depression was the brain injury. Dr Burke came to the conclusion that the plaintiff's ongoing cognitive deficits were predominantly as a result of the brain injury (exhibit 1, pages 68 and 181). Dr Burke stated that after reviewing all the relevant documentation he was of the view that the plaintiff's ADHD, which was well controlled on Dexamphetamine, and his past psychological problems were not at all relevant to his present ongoing cognitive and behavioural difficulties. Any contribution from these pre‑existing conditions was minor (exhibit 1, pages 147, 181).
In arriving at this conclusion Dr Burke relied, amongst other matters, on the 2010 MRI scan which showed small punctuate areas in the left temporal and parietal lobes laterally. Dr Burke explained that these punctuate areas were a consequence of the haemorrhagic contusion of the brain and that this was clear evidence of a significant past traumatic brain injury (exhibit 1, page 147).
Dr Shub was also of the opinion that the acquired brain injury was the major ongoing cause of the plaintiff's psychiatric problems irrespective of the diagnoses that were made prior to the accident (exhibit 3, page 70). Dr Shub said even though the plaintiff experienced various psychological difficulties prior to the accident, the brain injury complicated his clinical state and resulted in significant additional cognitive impairment (exhibit 3, page 62). He pointed out that even if the diagnosis of ADHD had been correct, the plaintiff's current cognitive difficulties could not be entirely explained by such a disorder (exhibit 3, page 109).
Dr Kay was of the view that the severe head injury was by far the most significant contributing factor to the plaintiff's ongoing difficulties. Dr Kay pointed out that the problems that the plaintiff had experienced before the accident were relatively common for children in the community (exhibit 1, pages 186 – 187).
Dr Kay expressed the opinion that the plaintiff's current depression was different in nature and severity to what he had experienced prior to the accident. Dr Kay said that before the accident the plaintiff had depressive symptoms which were related to the acrimonious parental separation, while currently his depression was endogenous (from within) (exhibit 1, page 186 and ts 1004).
Dr Kay questioned the plaintiff's diagnosis of ADHD. He said that it was not possible to now confirm the diagnosis, but his gut feeling was that the plaintiff did not have ADHD (exhibit 1, pages 57, 58). Dr Kay stated that even if the plaintiff had a valid pre‑existing diagnosis of ADHD, his current disabilities were totally the result of his head injury (exhibit 1, page 57). However, he acknowledged in cross-examination that the plaintiff was a complex case and that his head injury might not explain everything that the plaintiff had difficulty with (ts 987, ts 1002 and ts 1012). Dr Kay said the severity and frequency of symptoms associated with ADHD in childhood usually diminished over time. Approximately 60% of children diagnosed with ADHD no longer met the criteria for the disorder at age 30, although sometimes symptoms of impulsivity and inattentiveness remained, but they tended to be less severe in later life (ts 985).
Dr Kay also pointed out that the plaintiff had matured a lot. He said that the plaintiff was now a nice, affable person who was no longer aggressive or angry, although he still came across like an adolescent. Dr Kay reported that after the accident and before the plaintiff met his girlfriend Ashley in 2005, he did not function well and was quite irresponsible. However, the relationship with Ashley brought about a big improvement and even when the relationship ended, the improvement continued (exhibit 1, page 185; ts 997 and ts 1003).
Dr Burke also commented that the plaintiff was now a pleasant young man who was quite jovial on occasions (exhibit 1, page 98). There was also evidence from Ms Eleanor Quinton, a carer who had attended at the plaintiff's home for eight hours per week over a six month period in 2009. Although she found that the plaintiff was not prepared to engage with her, she described him as a happy‑go‑lucky person who was always polite and never angry or rebellious (exhibit 57).
The plaintiff made the same impression on the court during his evidence. He was a good-looking, neatly presented, affable young man who answered the questions patiently and willingly. The plaintiff has not clashed again with the law for the past six years, has apparently has not resumed his association with anti‑social peers and no longer smokes marijuana. Mr Kenneth Lockhart gave evidence that the plaintiff consumes alcohol in a social setting, but does not drink to excess, and that he has seen people offer drugs to the plaintiff which he refused to take (ts 475).
The fact that the plaintiff appears to have matured into a law abiding, polite and affable young man goes against the defendant's submission that the plaintiff's behaviour at senior school indicated that he was destined to become a misfit in society and would be permanently unemployable for most of the time. The reality of how the plaintiff developed in adulthood is a factor that must be given weight.
Mr Traeger gave evidence that after the accident the plaintiff and his mother became reconciled and that the plaintiff went to her house from time to time (ts 578). The plaintiff said he went bowling with his mother and her new family on one occasion (ts 1326).
Counsel for the defendant submitted that the reconciliation between the plaintiff and his mother and the calming of the plaintiff's behaviour only occurred because the accident interrupted the plaintiff's previous pathway which was set on him becoming a misfit in society. However, the plaintiff was likely to reconcile with his mother, mature and settle down in any event, as recognised by Dr Roberts who thought that there was a good chance that the plaintiff would come to terms with his strained relationship with his mother and 'lay to rest his daemons' (exhibit 13, page 8).
Dr Kay also pointed out that children were not set in stone and had the capacity to change. He said even though the plaintiff had clashed with the law, this should not be judged in the same way that adult offending behaviour is judged (ts 998 ‑ 999).
Dr Hayward came to the conclusion that the plaintiff's performance in the neuropsychological assessments was the result of pre‑existing difficulties which had been made worse by the brain injury and of additional disabilities emanating from the brain injury. She was of the view that the problems with memory and executive function were directly related to the brain injury (exhibit 1, page 123).
Dr Collins was also of the view that the plaintiff's memory and executive functioning problems were more likely to stem predominantly from the brain injury (exhibit 1, page 169). She recognised that it was difficult to disentangle the contribution of the possible pre‑existing ADHD from the contribution made by the brain injury. However, she pointed out that the 2007 and 2008 assessments by Dr Hayward were undertaken while the plaintiff was on Dexamphetamine. If his cognitive impairment was the result of his ADHD one would have expected the medication to have ameliorated the symptoms, but the plaintiff's performances on the 2007 and 2008 assessments were lower than expected. Dr Collins acknowledged that the plaintiff possibly had a pre‑existing mild weakness in the verbal domain, but was of the view that this had been compounded by the brain injury (exhibit 1, page 169).
Dr Fong, the rehabilitation physician who gave evidence on behalf of the defendant, was of the opinion that it was not possible to separate out the effects of the plaintiff's brain injury from his other pre‑accident conditions. Dr Fong was of the view that the plaintiff's pre‑existing conditions would have made him more vulnerable to the residual effects of his brain trauma and that his capacity to compensate for his brain injury would have been at least moderately adversely affected by the pre‑existing conditions (exhibit 43, pages 29 – 30).
Dr Fong was not prepared to accept that the brain injury was the predominant cause of the plaintiff's current cognitive and behavioural difficulties. Dr Fong placed considerable reliance on the fact that the 2010 MRI scan and the 2005 SPECT scan had not shown damage to the plaintiff's frontal lobes. He stated that from his extensive experience in managing brain injured patients he would have expected there to be clearer evidence of frontal lobe atrophy and scarring before it could be said that the brain injury was the main cause of the plaintiff's residual symptoms, particularly those related to executive function (exhibit 43, page 34).
Dr Burke was of the view that Dr Fong had placed undue reliance on the MRI scan (exhibit 1, page 147). Dr Cardaci identified that the 2005 SPECT scan did show abnormal blood flow to the right inferior frontal lobe. He explained the fact that corresponding lesions were not evident on the MRI scan by pointing out that the two scans involved different techniques (exhibit 3, pages 40 – 41). I prefer Dr Cardaci's findings to the opinion expressed by Dr Fong, as Dr Cardaci is a specialist in the area of nuclear medicine and performed the 2005 SPECT scan.
Dr Fong was also of the view that memory impairment, emotional lability, poor anger management and low levels of personal motivation and initiation could arise from causes other than organic brain injury, such as substance abuse or depression (exhibit 43, page 34). However, there was no evidence that the plaintiff was taking any substances at present or had done so since the accident. Although Dr Oleh Kay expressed the opinion that the plaintiff suffered from depression, this was not said to be severe or impacting on his daily behaviour. Dr Kay gave evidence that the plaintiff was on medication for his depression.
Dr Burke was of the view that the effect of psychological problems on cognitive functions could be identified to some degree by an experienced neuropsychologist (exhibit 1, page 147). Dr Collins acknowledged that problems with lack of initiation, drive, persistence, loss of energy and interest could have their origin in depression. However, at the time that she tested the plaintiff in 2010 the personality assessment inventory did not indicate that he was experiencing symptoms of depression, but the behavioural assessment nevertheless indicated that the plaintiff suffered from these problems (exhibit 1, pages 164 - 165). Ms Collins acknowledged that the depression and anxiety suffered by the plaintiff in childhood and adolescence might have compromised his ability to cope with stressors and that the plaintiff therefore had fewer internal resources to draw upon to adjust to his current circumstances. On the other hand, she said emotional problems were common after a traumatic brain injury. Dr Collins came to the conclusion that the brain injury had made the plaintiff’s psychological issues worse and was a significant contributor to his current emotional and psychosocial adjustment (exhibit 1 page 171).
I accept the evidence of Ms Collins who performed the neuropsychological tests on the plaintiff and stated that checks done during these tests indicated that the plaintiff's responses were valid and reliable (ts 1210). It does not seem that Dr Fong was provided with the neuropsychological reports.
Dr Connaughton initially expressed the view in his first report to the defendant's solicitors that the significant weaknesses in auditory working memory and verbal comprehension identified by Dr Hayward were consistent with ongoing effects from the traumatic brain injury (exhibit 149, page 123). However, after Dr Connaughton was provided with further documentation by the defendant, he was no longer prepared to accept that the greater proportion of the plaintiff's cognitive problems related to the direct effects of the brain injury. He came to the conclusion that the plaintiff's current situation was contributed to by the medical and other conditions that were present prior to the accident, the direct effects of the brain injury and the effects of the compensation claim process (exhibit 49 page 134). Dr Connaughton relied upon the fact that the plaintiff was referred for assessments with regard to his behavioural and interpersonal problems since age 5, the diagnosis of ADHD at age 7 and the later diagnosis of depression. Dr Connaughton was also influenced by references to substance and alcohol abuse in the plaintiff’s documented history (exhibit 49, page 133).
However, the evidence at trial, particularly that of Dr Roberts, who had seen the plaintiff regularly over many years, explained that the reasons for the plaintiff's behavioural and interpersonal problems were the psychosocial factors and not some inherent mental disorder. The evidence of Drs Shub and Kay was that even if the diagnosis of ADHD was correct, it was not likely to have had any significant ongoing effect into adulthood. There was also no evidence which supported a conclusion that the plaintiff was engaged in substance and alcohol abuse prior to the accident.
I accordingly do not accept that the assumptions on which Dr Connaughton based his conclusions are valid. The medical evidence of the plaintiff's expert witnesses was overwhelmingly that if the brain injury was not the only cause of the plaintiff's current cognitive impairment, lack of executive function, behavioural problems and depressive symptoms, then it was at least the predominant cause. I accept that evidence.
The plaintiff's pre-accident earning capacity
The next issue is the plaintiff's earning capacity prior to the accident and whether it was likely that he would have completed an apprenticeship as a tiler or whether he would only have worked as a labourer for 50% of his working life as submitted by the defendant. The defendant relied on the plaintiff's learning difficulties, ADHD and disruptive behaviour throughout his school life.
It is correct that there are a number of references in the plaintiff's primary school reports to him lacking concentration, being impulsive, disruptive and distracting other children. On the other hand, as Dr Roberts said, this is probably not unusual for many young children, particularly boys. The primary school reports contained an equal number of comments that the plaintiff had worked hard, had made progress in all areas of his work and behaviour and that his behaviour in the classroom and playground had been 'great'. Whereas there were some concerns about his reading and writing skills there were also a number of comments that he had improved these skills and was making good progress.
The plaintiff's year 7 first semester report (exhibit 2, page 11 ‑ a report for the second semester does not appear to be available) indicates that he had met the required performance criteria in maths, reading, writing and oral except for word identification skills and grammar/punctuation. The teacher's comment was that due to inconsistency the plaintiff was not making the progress he should be making and that he could produce work of high quality if he did not rush his work or make silly mistakes. The teacher said that she was pleased with his progress in mathematics, particularly mental and oral.
After the plaintiff had moved in with his father in August of year 7, Mr Traeger wrote a letter to the teacher to find out how his son was doing at school and mentioned that he had difficulties with his homework. The teacher replied that the plaintiff was having neither more nor less problems than many of the other children. She said that the plaintiff's work in maths and spelling was quite good and that his reading comprehension was only slightly below average. She did not consider that he required any special programs (exhibit 2, page 12).
There is no doubt that the plaintiff's school performance dropped considerably when he went to high school. An additional problem was that the plaintiff appeared to have played truant on a substantial number of days. Mr Traeger gave evidence that he had to leave for work early in the morning and the plaintiff had to make his own way to school.
As a result of the plaintiff's lack of progress in year 8 he was referred to the Andrew Relph Centre for year 9 where he demonstrated significant improvement in spelling, writing, comprehension and mathematics. The school psychologist reported that the plaintiff was a sensitive, caring person who could be trusted with responsibility but that his 'feelings of unfairness' overtook him at times.
When the plaintiff was placed at Warwick Senior High School for the last term of year 9, his report indicated that he had shown a consistent good attitude, excellent participation in class and had tried very hard at all times. Unfortunately, the plaintiff was teased at Warwick Senior High School and moved to Padbury Senior High School in year 10. The plaintiff only changed schools in the second term and the report by Padbury Senior High School for the first semester makes repeated reference to difficulties resulting from his late arrival (exhibit 2, pages 39 ‑ 45). Some teachers said that the plaintiff had made satisfactory progress in the circumstances; others were referring to his disruptiveness in class. The report for the second semester of year 10 refers to repeated absences from class, but this was also the semester during which the plaintiff completed the two work experiences and the MPA skills course (exhibit 2, pages 47 – 52). It appears that most of the absences from school are to be explained on that basis.
The plaintiff applied to join a pre-apprenticeship course for plumbing in the next year, but was unsuccessful. He returned to school in 2003 joining Craigie Senior High School for year 11, but was expelled in June of that year. His father then found him the landscaping job in October 2003.
At the beginning of 2004 the plaintiff decided to repeat year 11 at Clarkson Community High School, but this only lasted for one term. In July 2004 the plaintiff started to work on the tiling job in Mandurah.
One of the work experiences in 2002 was with Millenium Plumbing, but unfortunately there is no written record available of how the plaintiff performed on that occasion. The other work experience was for about 11 days with Marsmen Plumbing Pty Ltd. Mr Traeger acknowledged that the managing director, Mr Godwin was a friend of his, and the written reference by Mr Godwin, which stated that the plaintiff had undertaken the various tasks and was willing to learn, must therefore be read from that perspective. However, it is interesting that Mr Godwin noted that his office staff had commented on the plaintiff's politeness during his stay (exhibit 2, page 54).
Mr Godwin also completed an employer's evaluation form which gave an average rating to the plaintiff's initiative to complete tasks, to his determination when faced with challenges, to response to feedback, motivation and enthusiasm, time management and cooperation with others, and an above average rating to his ability to follow instructions, adapt to workplace requirements and to dress and personal grooming (exhibit 29).
The outline for the MPA skills course indicates that this was a 12 week introduction to multi‑trades in the metals industry for youth at risk. The outline provides that a participant's competency is to be assessed on practical demonstration, written assessment and verbal communication (exhibit 29). The certificate obtained by the plaintiff after completion of this course states that it is 'in partial completion of Certificate 1 Engineering' (exhibit 2, page 55). The defendant submitted that this indicates that the plaintiff did not complete the certificate. However, the plaintiff gave evidence that he had attended all classes and passed all assessments and this evidence was not challenged. As the outline indicates, this was an introductory course and not likely to have been a full course for a Certificate 1 Engineering.
Dr Roberts, Dr Kay and Dr Shub each placed considerable emphasis on the plaintiff's commitment and ability to have successfully completed the work experience programs (or at least the one with Marsmen Plumbing for which there was a record) and the MPA skills course. Dr Roberts said this achievement leant weight to his belief that the plaintiff was maturing and was successfully pursuing his plans to become a tradesman (exhibit 32). Dr Roberts was also of the opinion that the plaintiff's decision to repeat year 11 in 2004 showed significant maturity and resilience because it would have been 'quite destructive of a teenager's ego' to repeat a year (ts 608 – 609).
Dr Roberts did not see any reason why the plaintiff would not have had a normal employment capacity despite his diagnosed ADHD. He said that he had followed many of his patients who had been diagnosed with ADHD and that most of them had completed a trade or other qualification and done well to a greater or lesser extent. He said that the symptoms of ADHD often settled or ameliorated substantially in adulthood and many of his patients had gone on to lead highly functional lives (ts 610 ‑ 611).
Dr Shub was also of the view that the work experience placements and successful completion of the MPA course were strongly indicative of the plaintiff's improved clinical state prior to the accident (exhibit 34). He also emphasised that the diagnosis of ADHD did not preclude an individual from gaining or successfully maintaining employment. He said he had treated many hundreds of individuals with the disorder who had successfully maintained occupational, social and recreational functioning in adulthood. A diagnosis of ADHD, if appropriately managed, did not necessarily confer social‑economic disadvantage (exhibit 3, ts 68 and ts 79). Dr Shub conceded that there was a substantial percentage of individuals with ADHD who did experience difficulty in obtaining and maintaining gainful employment. However, he pointed out that the diagnosis in the plaintiff's case remained unclear (exhibit 3, pages 78 ‑ 79).
Dr Shub acknowledged that prior to the accident the plaintiff had problems with interpersonal functioning, cognitive impairment and impulsivity similar to those that he experienced currently, but said that before the accident these problems were qualitatively and quantitatively different (ts 894). Dr Shub particularly referred to the plaintiff's problem with getting fatigued easily which impacted upon his work as a photographer and had a significant effect upon his ability to interact with others (ts 904).
Dr Kay was also of the view that the fact that the plaintiff had completed the 12 week MPA course and two sets of work experience indicated that it was likely that he would have been able to work as a tradesman in adulthood (exhibit 31).
Dr Burke was of the opinion that based upon the reports that he had seen the plaintiff was getting his act together towards the end of secondary school and was heading towards undertaking an apprenticeship as a tiler (exhibit 1, page 181 and ts 770).
Dr Hayward and Dr Collins both expressed the opinion that young people with a profile and background such as the plaintiff, including ADHD, were still able to gain meaningful employment, particularly in general labouring or a trade (exhibit 1 page 124 and page 172). Dr Hayward also thought that the fact that the plaintiff had passed the MPA skills course and had planned to enrol for a pre-apprenticeship course indicated that his behaviour and emotional problems had stabilised prior to the accident and that it was likely that he would have achieved his goal (exhibit 1 page 124). Dr Collins stated that there was no correlation between how people did at school and how they performed in employment. Children could be expelled from school for various reasons, but that did not necessarily mean that they did not do well in adult life. She said research as well as her professional experience had indicated that children with similar histories to the plaintiff's, particularly children who had problems with their parents, generally ended up being able to function properly at work (ts 1041 – 1042).
Dr Fong also agreed in evidence that if the plaintiff had successfully completed the MPA skills course, had attended two work experience placements and had subsequently worked as a landscaper for three weeks and as a tiler's assistant for five or six weeks, he would have had the potential to become a tradesman (ts 1391 – 1392). In his earlier report Dr Fong had stated that it would be 'plausible to speculate' that the plaintiff would have 'encountered difficulties in trying to establish a sustainable employment pathway' (exhibit 42, page 30). However, Dr Fong was prepared to change his view when he was given the additional information regarding the plaintiff's progress late in senior school and agreed that on that basis the plaintiff had the potential to become a tradesman (ts 1391 – 1392).
Dr Connaughton agreed that the fact that a teenager suffered from ADHD and depression would not necessarily prevent him from entering the workforce, particularly if these conditions were adequately managed. He conceded that the plaintiff might have been able to handle these issues more effectively with the passage of time (exhibit 49, page 138). However, Dr Connaughton was of the view that oppositional defiant disorder was a risk factor for the development of passive‑aggressive behaviour in adulthood and that the highest risk factor for long term unemployment was a lack of education, particularly, if the person had only achieved year 10 or less (exhibit 49, page 138 and ts 1487 ‑ 1488). Dr Connaughton pointed out that one of the most important factors in predicting future employment was the behaviour exhibited by an employee or potential employee (ts 138).
Dr Connaughton was of the view that because of the combination of problems experienced by the plaintiff in childhood and adolescence there were significant pre-existing risk factors for his future employment. Dr Connaughton expressed the opinion that it was a highly optimistic view that the plaintiff would have successfully completed an apprenticeship as a tiler, because this would have required the plaintiff to have located an employer, stayed with him with for four years and have completed an education component at TAFE for his apprenticeship. Dr Connaughton stated that it would have been more likely that the plaintiff would have become a trade assistant (exhibit 49, pages 138 – 139 and ts 1487).
Dr Connaughton based his opinion on the plaintiff having done a two weeks work experience and having achieved 'partial completion' of certificate 1 in Engineering (exhibit 49 page 132), but he had not seen the certificate relating to the MPA course and the skills that it entailed. Dr Connaughton was of the impression that the plaintiff had only partially completed the MPA skills course and that he had been absent from Padbury Senior High School for 138 half days, although in fact these absences were explained by the plaintiff's attendance at the MPA skills course. When these revised assumptions were put to Dr Connaughton in cross-examination, he was reluctant to accept them, but acknowledged that this was a significantly different history for the year 2002 than what he had relied upon (ts 1484 – 1485). Dr Connaughton also accepted that the MPA skills course was reasonably challenging both on a practical and theoretical level (ts 1533).
When it was put to Dr Connaughton that the plaintiff had worked for three weeks for a landscaper in 2003, but had to stop because he developed a hernia, had decided to go back to year 11 and then worked as a tiler's assistant for five or six weeks and was of average intelligence, Dr Connaughton indicated that he was not able to rely on these assumptions unless he had written references from employers who had actually paid the plaintiff. Dr Connaughton also had difficulty in accepting that the plaintiff was of average intelligence (ts 1533 – 1537). Dr Connaughton expressed the view that the assumptions being put to him painted the picture of a completely different person and that he found it difficult to consider the plaintiff's capacity for work based on these assumptions in three or four minutes while giving evidence (ts 1536). Dr Connaughton had previously expressed in his reports that he found it difficult to establish a reliable set of facts for the plaintiff's pre‑accident status and that it was not clear to him what level of schooling the plaintiff had achieved. He noted that there were significant differences in the information provided to different assessors at different times (exhibit 49, pages 132 and 138).
It is understandable that Dr Connaughton found it difficult to know what assumptions he should base his opinion on, because some of the medical practitioners relied on selective facts and often made conclusions in their reports that were not borne out by the evidence presented at the trial. One example is Dr Fong referring in his report of 21 December 2004 to 'multiple sociopathic behavioural traits and a significant degree of alcohol dependency' which conclusions were later adopted by various other report writers, but not borne out by the evidence at trial. This gave rise to Dr Connaughton relying on assumptions that were different to the facts proven at the trial.
Dr Connaughton also only saw the plaintiff on two occasions, once on 3 December 2008 and once on 29 June 2010. I prefer the views regarding the plaintiff's potential for employment expressed by Dr Roberts and Dr Burke who had ongoing contact with the plaintiff; Dr Roberts before and Dr Burke after the accident.
I find that on the basis of the IQ test taken at age 8 that the plaintiff was of average intelligence even though he had some weakness in the verbal domain. I accept that there were pre-existing problems with concentration, attentiveness and impulsivity which affected his progress at school. However, despite these problems the plaintiff managed to progress reasonably satisfactorily throughout primary school. He was never asked to repeat a year or placed in a special education class.
It does not seem to make much difference to the determination of the plaintiff's pre‑accident earning capacity whether he was correctly diagnosed with ADHD or not. Even if he had suffered from ADHD, all medical experts agreed that if this condition had been properly managed and diagnosed early, as it had been in the plaintiff's case, this in itself would not have been any impediment to the plaintiff realising his ambition to complete an apprenticeship as a tiler.
Dr Shub and Dr Kay thought that the plaintiff's lack of concentration, impulsivity and disruptive behaviour could be more accurately ascribed to a mood disorder or the psychosocial factors at home. If that had been the correct diagnosis, the plaintiff's problems would have been likely to have subsided as he matured and became more able to deal with his difficult relationship with his mother.
There then remains the question whether the plaintiff's oppositional defiance type behaviour would have persisted into adulthood, have developed into a passive-aggressive disorder and would have prevented him from behaving appropriately at work, as suggested by Dr Connaughton. If the salient facts of the plaintiff's history are viewed in isolation, such as his clashes with the law, his experimentation with marijuana, his repeated suspensions at school and his expulsion from Craigie Community College, a picture of a misfit in society with no capability to hold down permanent employment could possibly be supported.
However, if these salient facts are viewed in context, as explained by Dr Roberts, a different picture emerges. This is a picture of a child troubled by parental rejection and favouritism from an early age, having to cope with some verbal learning difficulties while being compared to a twin brother who was exceptionally bright, having to deal with his parents' separation, a new partner to his mother moving in very soon after his father moved out, being asked at a later stage to live with his father and separated from his brothers because his relationship with his mother was fraught with difficulties, having to cope at age 13 with the worry of his father possibly dying together with his father's ongoing depression and repeated occurrences of post‑traumatic stress syndrome, and then having to deal with his mother's outright rejection in the letter and the firm prohibition against seeing or contacting her. In the context of what the plaintiff had to cope with, it is a wonder that he did not act more waywardly than he did.
I agree with Dr Roberts that the plaintiff showed considerable resilience to survive such a difficult childhood and teenage years. It should also be noted that throughout his senior school years the plaintiff lived with his father, who was trying to cope with his own mental illnesses, was working full time and had to leave for work before the plaintiff got up for school. It is not surprising that a child under all those psychosocial pressures and with no supervision or firm guidance in place would have misbehaved from time to time.
I also agree with the importance attached by the various medical experts to the fact that the plaintiff was able to motivate himself and persist in completing two sets of work experience, the MPA skills course and the first aid certificate. In addition, he could motivate himself to get up early and take various forms of public transport to get to the tiling job in Mandurah. Even if one takes into account that the evaluation form from Marsmen Plumbing was completed by a friend of the father, it shows that the plaintiff had initiative to complete tasks and determination to deal with challenges. The reference to the staff having commented on his politeness is telling. I also accept Mr Traeger's evidence that just prior to the accident he had been happy to see that the plaintiff had settled down and was 'okay' (ts 368).
On the basis of these findings, I have come to the conclusion that the plaintiff's pre-accident employment capacity was to have completed an apprenticeship as a tiler and to have worked as such for the rest of his working life.
The plaintiff's post-accident retained earning capacity
The defendant's case is that the plaintiff has a substantial retained earning capacity despite his current cognitive and behavioural difficulties and depression. Ms Ruth Jodrell, an occupational therapist, who provided a report to the defendant came to the conclusion that the plaintiff had the physical, intellectual and cognitive skills to engage in employment which was supervised, routine, structured and did not have high demands for memory, organisation and planning skills. She said examples of such employment were a stores person, night stacker, gardener, kitchen hand, cleaner, courier, hospital orderly, farm hand, trades assistant or council worker. Ms Jodrell acknowledged that the plaintiff would need to work under a sympathetic employer and that it would have to be employment which he found interesting (exhibit 56, page 108). She agreed that employment in a sheltered workshop would be inappropriate for the plaintiff as he did not want any employer to know of his difficulties (ts 1624 and exhibit 56, page 86).
The defendant's case is that the plaintiff had never been given the opportunity to be introduced into a suitable job by an employment agency specialising in finding work for disabled people. Ms Jodrell stated that such an agency would provide the appropriate support until the plaintiff had established a routine and learned to do the required tasks without needing constant prompting. She was of the view that the plaintiff was not so cognitively impaired that he could not motivate himself to do something that he wanted to do (exhibit 56, page 102). She suggested that, if necessary, treatment in behaviour modification techniques could be provided to change the plaintiff's orientation towards compliance and working within designated boundaries (exhibit 56, page 109).
Ms Bishop gave evidence that she had tried to get the plaintiff to see Mr Lucas Arco, a psychologist, to work on the plaintiff's motivation and commitment, but that the plaintiff had refused to do so even though Mr Arco had come to the see the plaintiff at his house on more than one occasion (ts 1090 and 1093). Ms Bishop stated that the plaintiff had at all times indicated to her that he wanted employment and his own accommodation and that he recognised that he needed to improve his lifestyle, but although the plaintiff had these aspirations, he lacked the initiation, organisation and planning skills to implement changes towards these goals (exhibit 26, page 94). Ms Bishop explained that even when therapists appointed to work with the plaintiff had discussed with him the skills he required and had put a program in place to assist him, the plaintiff was unable to initiate and follow through the program and remain on task. Ms Bishop provided as an example an occasion where the plaintiff forgot that he had an appointment because a friend rang and asked him to go to the beach with him. Although therapists provided timetables and routines in daily living skills and set up times to meet with the plaintiff and supervise him, he was often not at home or felt too tired to participate when the therapists arrived at his home (exhibit 26, page 94).
One of the difficulties with Ms Jodrell's approach was that she had only seen the plaintiff on two occasions for an appointment at her office. She had never observed the plaintiff carry out any domestic or vocational tasks. An account of how the plaintiff performed in a vocational situation was given by Mr Bradley Durack, who has been a friend and self‑appointed mentor for the plaintiff. Mr Durack is currently aged 31 and met the plaintiff on the internet by reason of their mutual interest in photography. Mr Durack is a carpenter by trade but now works as a professional photographer. In 2008 he was building patios near Yallingup and offered the plaintiff a job as his assistant. He also offered the plaintiff a room at his property in Yallingup.
Mr Durack gave evidence that this arrangement only lasted two or three weeks, because he became frustrated with the plaintiff's inability to focus on his work. Mr Durack gave as an example that when he asked the plaintiff to carry the roof sheets from the front of the property to the back, he would only do so for about an hour and then lose track. Mr Durack said he repeatedly had to tell the plaintiff what to do. If he showed the plaintiff on one day how to do something, the plaintiff would not remember it the next day. Mr Durack gave evidence that the plaintiff appeared keen, but became quickly distracted. At some stage Mr Durack took away the plaintiff's mobile phone because he constantly went onto the internet. Mr Durack said the plaintiff regularly forgot his medication, his hat or his lunch and they had to drive back for half an hour to pick this up.
When this evidence was put to Ms Jodrell, she said that she could not make any judgment on it, as she did not know how complex the tasks were and what instructions had been given to the plaintiff (ts 1659). Dr Kay, the plaintiff's treating psychiatrist, on the other hand, thought that this evidence was significant as it was a good illustration of the plaintiff's frontal lobe difficulties (ts 988).
Ms Bishop also emphasised that the most effective measuring tool to determine a brain damaged person's needs was by observation, monitoring and assessing the person in his daily living activities (exhibit 26, page 40). She was of the view that the account given by Mr Durack was a good illustration of the problems with initiation, focus and memory experienced by the plaintiff (ts 946).
I agree with Dr Kay and Ms Bishop that the account given by Mr Durack is a good practical illustration of the cognitive impairment experienced by the plaintiff. The plaintiff had every reason to be motivated to perform at his very best, as this was his first opportunity to establish himself independently and in an environment where he was working for a friend who was likely to be supportive. Mr Durack said he did not realise at the time that the plaintiff had a brain injury, or at least not how bad it was, and spoke harshly to the plaintiff on a number of occasions which resulted in the plaintiff breaking down in tears (ts 439). In giving evidence, Mr Durack gave the impression of being a very balanced, kind and supportive person. He has made numerous efforts to get the plaintiff out of the house, has taken him on visits to Yallingup and Broome, has allowed him to accompany him on photographic assignments and has introduced him to his friends (ts 439 – 443).
Mr Kenneth Lockhart also gave evidence that he had tried to teach the plaintiff how to be a disc jockey and had allowed him to put on records early in the afternoon at the Mullaloo Beach Hotel when there were not a lot of people. Mr Lockhart had shown the plaintiff how to use the volume, control and sound effects, but the plaintiff did not retain any of this information from week to week. He constantly had to be reminded to stop playing too much with the sound effects (ts 470 – 471). Mr Lockhart had also observed that the plaintiff was often disorganised with his own photography work. He regularly forgot to bring the right equipment such as lenses or flashes and had run out of batteries on numerous occasions (ts 465 ‑ 466).
Another problem with Ms Jodrell's approach is that she did not seem take into account the plaintiff's problems with fatigue (ts 1623), which Dr Shub explained were a recognised consequence of a brain injury (ts 908). Fatigue seems to have been a major contributor for putting a stop to the plaintiff's own attempts at re-establishing employment.
Ms Jodrell also made a number of incorrect assumptions, such as that the plaintiff was competent to drive long distances on his own to Margaret River and to Albany (exhibit 56, page 83). The plaintiff's evidence was that he had only driven on his own to Yallingup on one or two occasions and at other times had driven with a friend. He had not driven to Margaret River or Albany. Ms Jodrell was also not aware that the plaintiff got lost regularly when driving outside familiar areas and had not managed to use a GPS (ts 1173 ‑ 1174). This evidence by the plaintiff was not challenged (ts 1173). Ms Jodrell thought that the plaintiff would nevertheless be able to work as a courier if given the necessary support by a sympathetic employer (ts 1610 - 1611).
Ms Jodrell emphasised that the plaintiff should not have been allowed to try out jobs without appropriate assistance and supervision, as this had set him up to fail (ts 163). She was of the view that it might take 6 ‑ 12 months with the assistance of a rehabilitation provided to establish a routine for the plaintiff which he could then follow without constant support and supervision (ts 1680). Ms Jodrell said it was important that there was a structure to reinforce regular attendance and identify problems at work before they became barriers to ongoing employment (exhibit 56, page 87).
Ms Jodrell was also of the opinion that another option was to support the plaintiff's part time photography work as far as organisation, accounting and planning was concerned (exhibit 56, page 87).
Dr Connaughton was of the view that the plaintiff was unlikely to be able to operate a photographic business on his own because of his reduced executive function, planning skills and memory (exhibit 49, page 124). However, he thought that the plaintiff could work for a professional photographer who was a supportive employer and would make allowance for his memory and planning deficits. Dr Connaughton acknowledged that the plaintiff would require a routine and also some supervision (exhibit 49, page 124). It does not appear that Dr Connaughton has explored how this would work in practice, as there is unlikely to be routine in photography work and there would not be much point in employing the plaintiff to go on photographic assignments if he needs someone to accompany him to assist with locating the site and interacting with the clients.
Professor Mulvey, who provided a labour market analysis report in respect of commercial photographers to the defendant (exhibit 5, pages 69 – 72), came to the conclusion that self-employment and contract work was common in this occupation and that sharp business and people skills were required. He reported that a search of the JobSearch network on 3 May 2010 had failed to locate any advertised vacancies for photographers in the Perth metropolitan area.
Mr Durack gave evidence that when he first communicated with the plaintiff on the internet they agreed to meet at a location to photograph a lightening storm. However, the plaintiff forgot his tripod and could not take any photographs (ts 450 - 451). Mr Durack stated that he had also observed the plaintiff on an occasion when he was asked to take wedding photographs for a friend. When they arrived at the venue, the plaintiff froze and did not know what to do. On another occasion when Mr Durack had asked the plaintiff to meet him at a venue where he was taking a photo shoot, the plaintiff could not find the address (ts 440 ‑ 441).
In light of the evidence of the shortcomings in the plaintiff's ability to initiate, plan, organise, find a location, remember the necessary equipment and relate to customers it is extremely doubtful that any professional photographer would send out the plaintiff on his own for photographic shoots. The plaintiff seems to require constant reminding and supervision. At best the plaintiff could work alongside a professional photographer as his assistant, but it is unlikely that such limited assistance would merit payment.
Dr Connaughton was also of the opinion that the plaintiff could find regular employment in a simpler form, for example loading and unloading freight or in one of the jobs suggested by Ms Jodrell (exhibit 49, page 125 and 138). Dr Connaughton observed that the difficulty experienced by the plaintiff when he did the freight unloading job was to attend on time. Dr Connaughton suggested that a carer could assist the plaintiff in getting to work on time (exhibit 49, page 125).
However, the problem does not seem to be limited to the plaintiff getting to work on time. The evidence established that the plaintiff is likely to have ongoing problems at work in remembering what he has been told, keeping focused on a task and not making mistakes. One would expect the plaintiff to be able to work on a factory process line where everyone around him is doing the same job and the tasks are so repetitive that there is hardly anything to be learned or remembered and there is constant indirect supervision by the other workers. However, it is unlikely that the plaintiff would relate to such a job or have the motivation to persist with it.
When Mr Durack's evidence was put to Dr Connaughton, he questioned the reliability of the information and said that it did not make sense as the plaintiff was able to drive a car (ts 1549). Mr Durack was not challenged in cross‑examination with regard to his account of the plaintiff's work experience.
Dr Connaughton was also of the view that factors other than the head injury, such as depression, social issues and the compensation claim process could impact upon the plaintiff's lack of motivation (exhibit 49, page 139). However, the fact that the plaintiff looked for and found employment on his own, such as the job clearing glasses and the freight unloading job, indicates that he was motivated to find employment. The problem seems to have been rather that the plaintiff was unable to sustain the commitment required and became too fatigued. This was the opinion of Ms Bishop who mentioned as another example of his lack of focus and commitment the fact that the plaintiff took photos at nightclubs, but then lost interest and forgot to send out a bill (exhibit 26, page 44).
Dr Connaughton had not been told about the plaintiff's problems with fatigue (ts 1501) and also assumed that the plaintiff could drive independently to Albany and Margaret River (ts 1505). Dr Connaughton only saw the plaintiff on two occasions (exhibit 49, page 129) and did not have the opportunity to observe him in his daily life.
When it was put to Ms Bishop that the plaintiff could still be eased into a routine at a suitable job by a specialised employment agency, Ms Bishop said she had suggested such opportunities to the plaintiff, but he was not interested in any type of work where he was seen as a person with a head injury (ts 1092). Ms Bishop explained that it had been very difficult to engage the plaintiff in discussing structured employment that he was not interested in. She stated that her consultancy also used specialised vocational rehabilitation providers when necessary, but one of the problems was that the plaintiff had acquired certain learned behaviours and a co-dependency on his father and it had been difficult to steer him into any particular direction (ts 958 and 1091 ‑ 1092).
Ms Bishop was not able to provide detail of what her agency had done to try and engage the plaintiff in structured employment other than the Wicked Willies Surf Shack. All she could do was to refer to various entries in her invoices which showed that employment options had been discussed with the plaintiff. After the work experience with the Surf Shack in February 2007 (exhibit 26, page 77A) there were only a few more entries in April and May 2007 and March and August 2008 where employment was discussed (exhibit 26, pages 80 and 81).
However, I am reluctant to make a finding that Ms Bishop could have done better in rehabilitating the plaintiff into employment. She gave evidence that she is a very experienced provider of rehabilitation services to young people with acquired brain injury (ts 957), which evidence was not challenged, and she herself admitted that she had been frustrated by her lack of ability to make any greater progress with the plaintiff's rehabilitation into employment (ts 1112). It is telling that in the May 2007 invoice Ms Bishop referred to the plaintiff's failure to attend appointments and job opportunities and requested that the plaintiff sign a contract to commit to attending appointments (exhibit 26, page 77C). This supports Ms Bishop's evidence that the plaintiff was very difficult to engage.
Dr Burke, who had seen the plaintiff on many occasions after the accident between June 2006 and December 2009, was of the opinion that the plaintiff was permanently unfit for any labouring or trade jobs requiring physical work, because of his impaired cognitive skills and also because of his ongoing complaints about back pain (exhibit 1 page 77). Dr Burke stated that the plaintiff's prospects of returning to open employment in any field were remote, because of a combination of his cognitive and behavioural difficulties, most importantly the adynamia, poor memory and lack of ability to plan, organise and problem solve (exhibit 1, pages 78, 92 and 180). Dr Burke pointed out that the plaintiff was also still suffering from double‑vision, impaired hearing and lower back pain (exhibit 1, page 68).
When Dr Burke was asked in cross-examination whether the plaintiff was likely to settle into one of the employment positions suggested by Ms Jodrell if he was given adequate assistance and supervision, Dr Burke replied that rehabilitation into employment would only be successful if the job involved something the plaintiff wanted to do (ts 812). Dr Burke also made the comment that the Commonwealth rehabilitation providers could not always deliver in practice what seemed feasible in theory (ts 812).
Dr Burke acknowledged that there was a possibility of the plaintiff working for a professional photographer in a closely supervised position, but stated that he doubted whether such a position existed in a competitive field of work such as photography (exhibit 1 page 92). Dr Burke was of the view that the plaintiff's photography was more likely to remain a part time job or a hobby rather than paid work. He said the plaintiff should be encouraged to continue with this photography and should have somebody to assist him part time with the business side of his work (exhibit 1, page 92). Dr Burke expressed serious doubts that the plaintiff would last in any other employment even if it was very structured and on a part time basis, as the plaintiff wanted to work as a professional photographer (exhibit 1, page 180).
Dr Burke doubted whether a vocational rehabilitation service would be able to improve the plaintiff's ability to work as a photographer, as there had already been considerable input by Mr Lockhart and Mr Traeger in supporting the plaintiff with his photography business (exhibit 1, page 148).
I accept all of Dr Burke's evidence because he had seen the plaintiff on a number of occasions and would have been able to make a good assessment of what the plaintiff could and could not do.
Dr Hayward was also of the view that the plaintiff's difficulty with memory, problems with monitoring ongoing behaviour, a tendency to make mistakes, reduced motivation and difficulties with emotional regulation would all impact on his ability to obtain and sustain employment, although he might be able to sustain work where he was supported into it and had a sympathetic employer (exhibit 1, pages 124 ‑ 125 and 139).
Dr Collins was of the opinion that it would be likely that the plaintiff would experience difficulties with employment because of cognitive deficits and psychological problems. She said that these issues were likely to impair his ability to learn and remember verbal material, organise everyday activities, plan and problem solve, multi-task, persist on tasks, regulate his own behaviour, respond appropriately to feedback, motivate himself to commence and complete tasks without prompting and function effectively in work relationships (exhibit 1, page 173).
It is difficult to assess whether, if the plaintiff had been placed on a more structured and intensive rehabilitation program when first introduced to potential employment such as at the surf shop or the freight company, he would have fared better in dealing with problems at work and in maintaining the employment. It is easy to say with hindsight that one could have done better and that all options were not sufficiently explored by Ms Bishop. The defendant initially pleaded that the plaintiff had failed to mitigate his losses by failing to partake in appropriate vocational rehabilitation, but this plea was withdrawn. It is therefore not necessary to make any finding in this regard. Nevertheless, the question whether the plaintiff was given all reasonable opportunities to settle into a potential job remains relevant to the question whether he might still do so in future if he tried another, perhaps more structured, vocational rehabilitation program.
The plaintiff's real interest and exceptional ability lies in photography. Dr Kay said he himself had some experience of photography, but was very impressed by the high level of skill and talent exhibited by the plaintiff's photography (ts 996). It is unlikely that the plaintiff will settle into a job as kitchen hand or cleaner given his lack of motivation, inability to stay on task and disinterest in domestic or cleaning chores. Some of the jobs suggested by Ms Jodrell would be unsuitable, such as courier or hospital orderly, because the plaintiff has difficulty retaining verbal information, finding locations, initiating a task and staying on task. These cognitive problems are likely to impact even on jobs such as a stores person or night stacker. Presumably there would be some form of supervision for those jobs, but it would have to be a very sympathetic employer who would not mind repeatedly telling the plaintiff to stay on task and redirecting him what to do.
The best arrangement for constant supervision would be for the plaintiff to work as an assistant to another workman, such as a gardener, trades person or council worker. However, even this situation did not work in the case of Mr Durack, who was sympathetic to the plaintiff. Working as an assistant to another trades person or labourer is also likely to involve physical work which is likely to cause the plaintiff to have problems with his back.
The best solution for the plaintiff to engage in some future employment would be to increase the opportunities for him to take photographs for remuneration. Ideally, the plaintiff needs an assistant who can seek out opportunities, introduce the plaintiff, assist with any interpersonal communication difficulties, attend with the plaintiff at photographic shoots, make sure that he arrives on time, take the right equipment, find the right location and assist with the presentation of photographs and the business side of matters. Whether the plaintiff would earn enough money from his photography to pay such an assistant is another matter and no evidence was presented in this regard.
Having given the matter of the plaintiff's retained earning capacity careful consideration, I am unable to find that there is any prospect that the plaintiff will earn more in future than a small increase on his current earnings from his photography business. I will allow for a small increase on the basis that if the plaintiff has a carer he will be able to be more organised in terms of leaving on time, taking the right equipment, planning when to edit the photographs, being prompted about sending out invoices and having assistance to some extent with problem solving. Any allowance made for a carer will be on the basis that the carer will mainly attend to the plaintiff's personal, organisational and social needs, and not be a dedicated business assistant. I am not intending to allow for the costs of a business assistant, as such a case was not put and no evidence was led regarding the expense of an assistant and to what extent it would be likely to increase the plaintiff's income from his photography business. However, being more organised on a personal level and with his financial affairs is likely to assist the plaintiff to some extent in obtaining more opportunities for paid photography work and making a better income from it.
The plaintiff's need for care and case management
The plaintiff's case was that he will need four hours of care per day until age 55 and an extra five hours per week thereafter. Mr Bishop explained that this was necessary to assist him with his financial affairs, domestic activities, social interaction and emotional wellbeing. The defendant conceded that the plaintiff was incapable of managing his own financial affairs and needed some assistance with that as well as limited support and supervision with domestic activities. However, the defendant submitted that the plaintiff had an active social life and did not require any assistance with social and community interaction.
A lot of time at the trial was spent on establishing the extent of the plaintiff's social interaction after the accident and his capacity to initiate social activities and maintain meaningful relationships. The defendant's case was that the plaintiff had a large network of friends with whom he communicated on Facebook and that his bank statements showed that he regularly visited many places where he purchased items at shops or used an automatic teller machine. The defendant tendered all the entries made on the plaintiff's Facebook page during the period 15 January to 23 July 2010.
The defendant further submitted that the plaintiff's social adeptness was illustrated by him having been to Bali four times after his accident, regularly attending nightclubs and music concerts, having driven repeatedly to Yanchep for surfing and having driven to Albany and Margaret River on his own. Not all of these assumptions were supported by the evidence.
If the plaintiff's declared gross income from the photography business is relied upon, $90 should be deducted from the gross weekly earnings of a qualified tiler, which leaves a sum of $1,193.58 ($1,283.58 minus $90.00) as representing the plaintiff's estimated loss of gross weekly earnings. The attached schedule sets out the calculation of the damages for loss of future earning capacity based on the amount of $1,194 gross weekly income over the remaining years of the plaintiff's working life. This amounts to $775,607.35.
This leaves the question whether any additional amount should be deducted on the basis that the plaintiff has retained the capacity to do other jobs which may be better remunerated or is able to increase the income from his photography business. As indicated earlier, I have come to the conclusion that the plaintiff does not have a retained earning capacity other than the ability to increase to a small extent the income to be made from his photographic business.
It is difficult to say to what extent the plaintiff's income might increase if he has the assistance of a carer to organise his personal life and financial affairs. It should be noted that Professor Mulvey came to the conclusion in his labour market analysis report (exhibit 5, page 70) that part-time photographers earned approximately $21 – 25 per hour, which is a modest amount. Instead of deducting a particular additional amount from the gross weekly earnings of a qualified tiler, I prefer to increase the amount for normal contingencies in order to reflect the plaintiff's limited capacity to earn more from his photographic business than he currently does.
The parties agreed that it was appropriate for the court to take into account the plaintiff's retained earning capacity by increasing the usual percentage for contingencies, as was done in Bowen v Tutte (1990) A Tort Rep 81-043, 68,087 and George v Erickson (1998) 27 MVR 323, 335.
I would normally have allowed a 5% discount for the contingencies of sickness, accident, unemployment and industrial disputes. In my view an additional 5% discount to allow for the plaintiff's retained earning capacity (over and above the $90 gross income per week which has already been taken into account) is appropriate. A total contingency deduction of 10% from the sum assessed as representing the plaintiff's loss of future earning capacity should be made. This leaves the amount of $ 698,046.64 as representing the plaintiff's loss of future earning capacity.
Loss of future superannuation
The plaintiff is also entitled to 9% superannuation in respect of the gross weekly income that he would have earned in the future but for the accident. The relevant calculation is set out in the attached schedule and amounts to $88,375.10.
As his plaintiff's retained earning capacity is only in respect of his own photographic business, there is no amount to be deducted to allow for the retained capacity to earn superannuation. For the same reason the additional 5% reduction to reflect the contingency that the plaintiff may earn more in future from his photography business should not be made, as the plaintiff would not receive any superannuation payment in respect of his own income.
However, the 5% deduction for contingencies which reflects the normal adverse contingencies needs to be deducted. In addition I propose to deduct a further 15% in respect of the Jongen formula, for the reasons explained earlier. The total amount allowed for loss of future superannuation is $70,700.08, as set out in the attached schedule.
Loss in respect of past gratuitous services
The plaintiff claimed the costs of the care provided to him by Mr Traeger, the plaintiff's mother and his step-sister from the date of the accident until the date of the judgment. Mr Traeger gave evidence that when the plaintiff was discharged from Shenton Rehabilitation Campus Mr Traeger took time off work until January 2005 to look after the plaintiff full time. Mr Traeger said that he had to do everything for the plaintiff, ask him what he wanted and make suggestions of things for him to do. The plaintiff acted like a child and often cried at night and complained about pain. Even after Mr Traeger had gone back to work he had to take off time on numerous occasions to drive the plaintiff to various appointments with physiotherapists, doctors and the eye clinic (ts 149).
In light of this evidence the plaintiff's claim of 40 hours of care per week for the first year after the discharge from Shenton Park Rehabilitation Campus appears to be reasonable.
For the next two years and until the commencement of the Meath Trial in September 2007 the plaintiff claimed 30 hours of care per week. On the basis of Mr Traeger's evidence that he did all domestic tasks for the plaintiff plus assisted him with his financial affairs and took him to medical appointments, this also appears reasonable.
During the Meath Trial the plaintiff still spent time from Friday to Sunday at home, but some of his domestic tasks, such as washing would have been completed during the week. It seems that two hours per day, or six hours per week, would be sufficient to allow for the time spent by Mr Traeger in caring for the plaintiff over the weekends during this period.
After the completion of the Meath Trial until the date of the judgment the plaintiff claimed 28 hours care per week, which was reduced to 20 hours per week for the period during which ICWA paid for eight hours domestic help per week. Mr Traeger gave evidence that at the time of the trial he spent two to three hours per day doing housekeeping, such as cooking, cleaning and washing, for the plaintiff and attending to his financial needs (ts 184). An allowance of two and a half hours per day would therefore be appropriate for the latter period.
The plaintiff relied on the hourly rate of $31.06 for a nurse assistant working during the day and $35.72 for a nurse assistant working in the evenings, as charged by Care Community Nursing Services (exhibit 26, page 97). As these rates amounted to more on a weekly basis than the average weekly total earnings of all employees in Western Australia for the relevant quarter (exhibit 26, page 90), the plaintiff only relied on 1/40 of the average weekly total earnings to reflect the hourly rate, as the plaintiff is required to do by reason of s 3D (3) and (5) of the Motor Vehicle (Third Party Insurance) Act 1943. The calculation of 1/40 of the average weekly earnings over the relevant time period and the calculation of the total amount allowed for past gratuitous services are set out in the attached schedule. The resultant sum is $151,775.38.
There was no evidence that the plaintiff's mother or his step-sister provided any care or assistance to him. The evidence was that the plaintiff socialised with them from time to time and that he was 'really close' to his stepsister, but there was no evidence that they provided services in order to care for him.
The plaintiff also claimed two hours of care provided weekly by Mr Durack and Mr Lockhart in the period from February 2008 to the date of the judgment. However, there was very little evidence that either Mr Durack or Mr Lockhart provided care or assistance to the plaintiff in order to satisfy a need that the plaintiff had.
Mr Durack's evidence was that he took the plaintiff along for a trip to Broome where he had to take wedding photographs. Mr Durack said that he did so because the plaintiff asked if he could come along and because he thought that the plaintiff spent far too much time at home, particularly on the computer and appeared almost depressed. However, Mr Durack also said that he benefited from having the plaintiff's company for such a long drive and that it was safer with two people driving. Mr Durack stated that he got some reward out of seeing how happy the plaintiff was (ts 439 and 441 - 442).
Mr Durack also invited the plaintiff on a few occasions to spend time with him at his Yallingup house. Mr Durack said that he did so because he saw the plaintiff as a 'troubled young person with a few issues' whom he wanted to help and give opportunities that he would not otherwise have (ts 445). When Mr Durack invited the plaintiff to be his assistant for the building of patios in Yallingup, Mr Durack did so, at least partly, for his own benefit and did not realise at that time that the plaintiff suffered from a serious brain injury (ts 439).
The trips and visits with Mr Durack have clearly been excellent opportunities for the plaintiff to get out of the house and to enjoy the friendship that Mr Durack has offered him. However, I am not persuaded that these trips were necessary to meet the plaintiff's needs and that Mr Durack should be compensated for his friendship with and generosity to the plaintiff. Seeing Mr Durack as a witness, I think he would be quite surprised if he was told that he was to be paid for his friendship with the plaintiff.
The same applies to Mr Lockhart's involvement with the plaintiff. Mr Lockhart gave evidence that he initially asked the plaintiff to take photographs of him while operating as a DJ and a friendship developed between him and the plaintiff. Mr Lockhart had the idea that taking photographs of patrons at sessions where he was a DJ would be a good way to promote those sessions (ts 459 – 460). This is how it came to be that Mr Lockhart arranged for the plaintiff to take photographs at the Mullaloo Beach Hotel.
Mr Lockhart made attempts to teach the plaintiff to act as a DJ and allowed him to play records in the early part of the afternoon. He also spent time with the plaintiff in the DJ box during the afternoon sessions. Mr Lockhart arranged free entry for the plaintiff to music festivals and introduced him to the promoters of these festivals to create photography opportunities for the plaintiff (ts 462).
Mr Lockhart gave evidence that he assisted the plaintiff to prepare invoices because he did not know how to arrange for payment (ts 460). On the other hand, the plaintiff has promoted events at which Mr Lockhart has been the DJ by sending out invitations on Facebook and Myspace (ts 461).
It is apparent that Mr Lockhart has assisted the plaintiff from time to time, particularly in liaising with management and helping the plaintiff to prepare invoices, but their relationship is also based on friendship and some mutual support. I would have been prepared to make an allowance for the time that Mr Lockhart has spent in organising photography opportunities for the plaintiff and assisting him with his financial affairs, but there was no evidence regarding what time should be allocated to these activities.
In the absence of such evidence I am not prepared to allow the plaintiff's claim regarding care provided by Mr Durack and Mr Lockhart.
Loss in respect of future care
The plaintiff claimed 28 hours per week of ongoing care and support. I have already made a finding that four hours per weekday for future care and three hours on Saturdays would be reasonable, particularly because the plaintiff also requires support to organise some social activities and to assist with his financial affairs.
The plaintiff relied on the rates for a multi-skilled carer as set out in the fee schedule provided by Care Community Nursing Services (exhibit 26, page 97). Ms Bishop explained that a multi-skilled carer was the same as a nurse assistant level 1.1 (exhibit 26, page 95). Counsel for the plaintiff submitted that there should be a daily allowance of two hours of care in the evening which is charged at a higher rate. In my view it is not necessary that the services by a carer be provided in the evenings. The appropriate hourly rate should be $31.06 for weekdays, $46.59 for Saturdays and $54.36 for the eight public holidays per year which I have allowed for. The plaintiff should also be entitled to an additional five hours care per week after age 55. The appropriate calculations are set out in the attached schedule. The total amount allowed for future care is $702,323.34.
As indicated earlier, I have also allowed for three hours of case management per month. It appears that Ms Bishop put up her rates from $110 per hour to $121 per hour after July 2009 (exhibit 26, pages 85 ‑ 87). Her invoices were the only evidence available in this regard. I accept that the three hours per month should be calculated at the rate of $121 per hour and have done so in the attached schedule. The amount allowed for future case management is $73,071.60.
This results in a total amount of damages for future care and case management of $775,394.94.
Past medical, travel and sundry expenses
The only costs for past medical treatment that remained in dispute between the parties were the costs for the additional attendances on Dr Kay not included in the Medicare refund and the costs of the Dexamphetamine prescribed for the plaintiff by Dr Kay since the accident. Counsel for the defendant submitted that as the plaintiff had been referred to Dr Kay just prior to the accident and had been placed on Dexamphetamine by Dr Clarkson prior to the accident, these costs would have been incurred in any event, even if the accident had not occurred, and were therefore not causally related to the brain injury.
Dr Clarkson referred the plaintiff to Dr Malcolm Roberts, psychiatrist, in about April 2003 for a prescription of Dexamphetamine. Mr Traeger gave evidence that Dr Roberts prescribed this after a 15 - 20 minute consultation (ts 146). However, by the middle of 2004 Mr Traeger became concerned about the number of different medications that his son was taking and asked Dr Clarkson for a referral of the plaintiff to Dr Kay. Mr Traeger also started weaning the plaintiff off all his medication (ts 1153). Mr Traeger did not notice any difference in the plaintiff's behaviour while on or off the medication (ts 147 and 154). I have previously referred to the fact that both Drs Kay and Shub questioned the diagnosis of ADHD. It is therefore at least uncertain that the plaintiff was indeed in need of the prescribed dexamphetamine prior to the accident.
Dr Kay stated that despite questioning the diagnosis of ADHD, he had continued to prescribe the plaintiff Dexamphetamine after the accident because of its usefulness in treating an acquired traumatic brain injury (exhibit 1, pages 57 - 58). Dr Shub also came to the conclusion that stimulant medication such as Dexamphetamine was appropriate to treat secondary forms of ADHD arising from brain injury. Dr Shub stated that the plaintiff was also vulnerable to emergent depressive phenomena as a result of his injury and that there should therefore be some allowance for pharmaceuticals (exhibit 3, page 112).
It is more likely than not that the plaintiff would have been taken off the Dexamphetamine at some stage if the accident had not occurred. Dr Kay was sceptical about the diagnosis of ADHD and considered that the concoction of medications that the plaintiff was taking at the time of the accident was inappropriate (exhibit 1, page 58 and ts 982). In addition there was the evidence that I have already referred to that teenagers diagnosed with ADHD often grow out of it.
I am not persuaded that the defendant has discharged its evidentiary onus of proving that the plaintiff would have remained on Dexamphetamine in any event if the accident had not occurred. Neither Dr Clarkson nor Dr Malcolm Roberts were called as witnesses in order to support such a case and the evidence by Drs Kay and Shub points the other way. On the other hand, I am satisfied on the basis of Dr Kay's and Dr Shub's evidence that the prescription of Dexamphetamine after the accident is an appropriate method to deal with the plaintiff's acquired cognitive deficits or at least increased cognitive deficits. The costs of the provision of dexamphetamine after the accident should therefore be allowed.
I can also see no reason why the costs of the additional attendances on Dr Kay, which occurred after the accident, should not be allowed. The plaintiff is clearly in need of psychiatric consultation and assistance as a result of his brain injury and I am not persuaded that he would have continued to see Dr Kay on an ongoing basis if the accident had not occurred.
Accordingly, I have allowed for the costs of past medical expenses as set out in the attached schedule, the total of which is $8,174.72.
Future medical, travel and equipment expenses
The plaintiff claimed a yearly visit to a rehabilitation physician and relied in this regard on a report by Dr Fong. However, Dr Fong said in his report that he would recommend that an allowance be made for one medical specialist appointment per year with either a rehabilitation physician, ophthalmologist or psychiatrist (exhibit 43, page 31). There is no evidence that the plaintiff requires a visit to a rehabilitation physician on an ongoing basis. A yearly visit to an ophthalmologist and repeat visits to a psychiatrist should be allowed for.
The plaintiff claimed for six visits per year to a general medical practitioner. There was no evidence that the plaintiff would require regular future visits to a general medical practitioner in relation to the injuries which arose from the accident. The evidence relied upon by the plaintiff was a schedule of past medical expenses paid by ICWA which indicates that the plaintiff saw a general medical practitioner on a monthly basis between June and November 2006 and again on two occasions in March 2009. There was no evidence that these visits were related to the injuries resulting from the accident or that visits were required in the future.
The only medication that the plaintiff needs is related to his cognitive deficits and potential depression and Dr Kay can prescribe the necessary medication. Accordingly, I make no allowance for visits to a general medical practitioner.
I will allow four visits per year to a psychiatrist as set out in the attached schedule. Dr Shub was of the opinion that the plaintiff had a long‑term need for psychiatric treatment arising from the accident (exhibit 3, page 111).
The plaintiff claimed a yearly visit to an ophthalmologist for the next five years. As this was supported by Dr Agnello (exhibit 1, page 182), I will allow for five annual visits. It is also reasonable to allow for six of the five to seven Botox injections that Dr Agnello thought might be required and for one ophthalmological surgical procedure. Dr Agnello suggested that it was reasonable to allow for two further surgical procedures, but stated that this might not be necessary if the fine tuning could be done with Botox injections. Accordingly, I have allowed for one surgical procedure and six injections as set out in the attached schedule.
The plaintiff claimed travel expenses to medical appointments and estimated that he would travel 150 kilometres per year. However, as the attendances on medical practitioners claimed by the plaintiff have been halved, the travel expenses should only be calculated in respect of 75 km per year.
The future provision of pharmaceuticals, in the form of Dexamphetamine or other medication suitable to regulate the plaintiff's cognitive deficits and potential depression should be allowed for in the amount as claimed by the plaintiff. This has been set out in the attached schedule.
The plaintiff also claimed equipment expenses to allow for the stove modifications suggested by Ms Jodrell which would allow for the plaintiff's forgetfulness in switching off gas or electrical appliances (exhibit 56, report dated 2/11/2010). The defendant agreed the costs of $2,394.64 claimed in this regard.
The total amount allowed for the costs of future medical, travel and equipment expenses is $52,968.24.
Interest on past losses
The plaintiff claimed interest on the amounts allowed for loss of past earning capacity, loss of past superannuation, past gratuitous services and past medical, travel and sundry expenses. These amounts are allowed as indicated in the attached schedule and amount to $72,240.97.
Cost of administration of trust fund
In January 2010, the plaintiff was declared to be incapable of managing his financial affairs and his father was appointed as his guardian pursuant to the Guardianship and Administration Act 1990. The defendant accepts that it would be appropriate to place any award of damages to the plaintiff into a trust fund to be administered by a trustee.
The defendant does not object to the trustee being National Australia Trustees and concedes that the plaintiff is entitled to recover from the defendant the costs of the once‑off establishment fee, the annual management expenses and the annual tax return preparation fees to be charged by National Australia Trustees.
The plaintiff tendered by consent a report by Mr Corey Plover, an actuary, which estimated the management fees that would be payable by the plaintiff to the trustee over the life time of the trust in respect of various potential amounts of damages. The actuarial report is based on the premise that the trust fund would earn interest and make payments to the plaintiff over the remainder of his estimated lifetime, being 62 years, in such a manner that at the end of those years the fund would be depleted. The calculations take into account the 6% discount rate to allow for the net present value of future outlays.
Mr Plover has also calculated what additional sum representing management expenses would have to be paid by the defendant in respect of each potential sum of damages to ensure that the fund does not run out prior to the end of the plaintiff's estimated lifetime. For example, in respect of a sum of $2 million in damages, the additional sum required for management expenses would be $611,748 in order to ensure that the management fees would not have to be paid from the amount of damages allowed.
The defendant does not object to paying the additional sum for management expenses payable to the trustee. However, the plaintiff also claimed that further costs would be incurred by him if the additional sum representing management expenses were to be paid into the trust fund and managed as part of the global amount and that the defendant should be liable for those additional costs. In other words, the plaintiff claimed management expenses on top of management expenses.
The plaintiff relied on Willett v Futcher (2005) 221 CLR 627 [10], [49] in which the High Court, in a joint judgment, held that where a defendant's negligence caused the plaintiff's impaired intellectual capacity, the plaintiff was entitled to all the costs of administering his or her financial affairs, which included all remuneration and expenses that the trustee could properly charge. The High Court also stated at [51] that the incurring of expenses by the administrator in investing the trust fund with reasonable diligence was a direct result of the defendant's negligence and the damages to be awarded were to be calculated so as to place the plaintiff, as far as possible, in the position that he or she would have been, had the tort not been committed.
The plaintiff submitted that if management expenses on management expenses were not awarded he would be under‑compensated, as the additional management expenses occasioned by placing the management fees into the global fund would have to come out of the funds allowed for other heads of damages. The plaintiff submitted that in respect of an award of damages of $2 million which would generate management expenses of $611,748, the plaintiff would be undercompensated by $130,471 if that amount was not added as management expenses upon management expenses.
The plaintiff, quite properly, also referred the court to Lewis v Bundrock [2008] QSC 189 [50] – [17] in which Martin J held, in reliance upon the decisions by Burchett AJ in Buckman v M & K Napier Constructions Pty Ltd [2005] NSWSC 546 [10] and by Hidden J in Haywood v Collaroy Services Beach Club Ltd [2006] NSWSC 566 [8] that management expenses upon management expenses were not recoverable. The reasoning adopted in these three decisions is essentially that the logic of such a proposition would require a never‑ending series of calculations because each additional amount of management expenses would require further management expenses to be paid, and it was not appropriate to try and make an exact mathematical calculation of the damages to be awarded.
Apart from the reasoning in Lewis v Bundrock, it also does not make sense to me that where a substantial amount representing management expenses is made part of the trust fund and is available for investment over a period of time, it would result in a net loss if the second lot of management expenses incurred by investing and managing the first amount is not provided for. The first amount representing management expenses earns interest which should hopefully be more than what it costs to manage that amount. If I am wrong in this regard, there should also be some mechanism by which the amount representing the management expenses can be paid into a bank account, where it is not managed and is merely used each year to pay the management fees.
Mr Plover did not give evidence, but it seems that he has in any event calculated the necessary fund management expenses on the basis that payment by the defendant of such expenses would ensure that the plaintiff is not deprived of the full use of the amount allowed for other heads of damages. Mr Plover stated at 2.3 of his report under the heading 'Assumptions concerning cost of investment management' the following:
The valuation methodology employed in this report is to uplift the fund by an amount that ensures the balance is not depleted by fees and charges prior to the end of the Plaintiff's life expectancy.
Accordingly, I do not agree that it is appropriate or necessary to allow the plaintiff any management expenses upon management expenses other than the fund management expenses as calculated by Mr Plover in his actuarial report in respect of the various proposed amounts of damages.
The total amount of damages allowed in respect of all heads of damages except the gratuitous services is $2,129,180.48. The amount allowed for gratuitous services needs to be deducted first, as this amount will go to Mr Traeger and will not be paid into the trust fund (see Morris v Zanki (1997) 18 WAR 260, 291). The management expenses calculated by Mr Plover in respect of an amount of $2,129,180.48 (rounded to $2,130,000) are $640,196.60. I allow these expenses as an additional item of damages.
Summary of damages allowed
The following table sets out a summary of the damages allocated under each head of damages, the total amount, and the allowed costs of the administration of the trust fund.
Head of damage Amount allowed General damages (non-pecuniary loss) 235,900.00 Loss of past (pre-judgment) earning capacity 193,869.42 Loss of past superannuation 21,885.48 Loss of future earning capacity 698,046.64 Loss of future superannuation 70,700.08 Loss in respect of past gratuitous services 151,775.38 Loss in respect of future care and case management 775,394.94 Past medical, travel and sundry expenses 8,174.72 Future medical, travel and equipment expenses 52,968.24 Interest on past losses 72,240.97 Sub‑total damages 2,280,955.86 Cost of administration of trust fund 640,196.60 TOTAL 2,921,152.46
Calculation of cost of administration of trust fund
Sub-total damages 2,280,955.86
Less past gratuitous services 151,775.38
Total damages to be administered 2,129,180.48
Plus cost of administration
on $2,2100,000 633,653.00
on $30,000 ($2,181.20 per $10,000) 6,543.60
Total cost of administration 640,196.60
Schedule of Calculation of Damages
A. Loss of past earning capacity
| PERIOD | WEEKS | GROSS (WEEKLY) | TAX | NET | TOTAL | |
| 8 Oct 04 – 30 Jun 05 | 37.86 | Pre-apprenticeship course | 0.00 | |||
| 1st 6 months | 1 Jul 05 – 31 Dec 05 | 26.14 | 450.00 | 43.26 | 406.74 | 10,633.38 |
| 6 – 18 months | 1 Jan 06 – 31 Dec 06 | 52.00 | 580.50 | 64.79 | 515.71 | 26,816.93 |
| 18 – 30 months | 1 Jan 07 – 31 Dec 07 | 52.00 | 783.68 | 113.21 | 670.46 | 34,864.04 |
| 30 – 42 months | 1 Jan 08 – 31 Dec 08 | 52.14 | 909.06 | 155.42 | 753.64 | 39,296.96 |
| 1 Jan 09 – 22 Mar 11 | 115.86 | 1,222.00 | 260.28 | 961.72 | 111,422.40 | |
Total: | 223,033.72 |
Earnings since accident
| PERIOD | WEEKS | GROSS (WEEKLY) | TAX | NET | TOTAL |
| 8 Oct 04 – 30 Jun 06 | 90.00 | 0.00 | 0.00 | 0.00 | 0.00 |
| 1 Jul 06 – 30 Jun 07 | 52.00 | 40.77 ($2,120 taxable inc.) | 0.00 | 40.77 | 2,120.00 |
| 1 Jul 07 – 30 Jun 08 | 52.14 | 73.23 ($3,808 taxable inc.) | 0.00 | 73.23 | 3,808.00 |
| 1 Jul 08 – 30 Jun 09 | 52.00 | 89.06 ($4,631 taxable inc.) | 0.00 | 89.06 | 4,631.00 |
| 1 Jul 09 – 30 Jun 10 | 52.00 | 93.50 ($4,862 estim. taxable inc.) | 0.00 | 93.50 | 4,862.00 |
| 1 Jul 10 – 23 Mar 11 | 37.86 | 93.50 ($4,862 estim. taxable inc.) | 0.00 | 93.50 | 3,539.64 |
| Total | 18,960.34 |
Loss of past earning capacity as adjusted
| Loss of past earning capacity | 223,033.72 |
| Minus earnings since accident | 18,960.34 |
| Sub-total | 204,073.08 |
| 5% deduction for contingencies related to pre-accident history | 10,203,65 |
| Total for past loss of earning capacity | 193,869.42 |
B.Loss of past superannuation
| PERIOD | WEEKS | GROSS INCOME LOST PER WEEK | SUPER | LOSS | |
| Gross as per A minus gross income from employers | |||||
| 8 Oct 04 – 30 Jun 05 | 37.86 | Pre-apprenticeship course | 0.00 | ||
| 1st 6 months | 1 Jul 05 – 31 Dec 05 | 26.14 | 450.00 | 0.09 | 1,058.79 |
| 6 – 18 months | 1 Jan 06 – 31 Dec 06 | 52.00 | 580.50 | 0.09 | 2,716.74 |
| 18 – 30 months | 1 Jan 07 – 31 Dec 07 | 52.00 | 742.92 *1 | 0.09 | 3,478.87 |
| 30 – 42 months | 1 Jan 08 – 31 Dec 08 | 52.14 | 856.18 *2 | 0.09 | 4,017.93 |
| 1 Jan 09 – 23 Mar 11 | 115.86 | 1,128.50 *3 | 0.09 | 11,767.03 | |
| Sub-total | 23,037.35 |
| 5% deduction for contingencies related to pre‑accident history | 1,151.87 |
Total: | 21,885.48 |
*1$742.92 = $783.68 - $40.76 ($2,120 earned in 2007 financial year ÷ 52)
*2$856.18 = $909.06 - $52.88 ($2,750 earned in 2008 financial year ÷ 52)
*3$1,128.50 = $1,222 - $93.50 (estimated 2010 taxable income ÷ 52)
C. Loss of future earning capacity
| YEARS | GROSS (WEEKLY) | TAX | NET | MULTIPLIER | TOTAL |
| 42.87 | 1,194 | 250.90 | 943.10 | 822.4 | 775,607.35 |
| Sub-total | 775,607.35 |
| 10% deduction for normal contingencies and contingencies related to add. earning capacity | 77,560.73 |
| Total | 698,046.64 |
D.Loss of future superannuation
| YEARS | GROSS PER WEEK | SUPER RATE | WEEKLY SUPER | MULTIPLIER | TOTAL |
| 42.87 | 1,194 | 0.09 | 107.46 | 822.4 | 88,375.10 |
Sub-total: | 88,375.10 |
| 5% deduction for normal contingencies | 4,418.76 |
| 15% deduction for Jongen formula | 13,256.27 |
| Total | 70,700.08 |
E.Loss in respect of past gratuitous services
YEAR AVERAGE WEELY EARNINGS 1/40 OF AVERAGE WEEKLY 2004 741.70 18.54 2005 778.17 19.45 2006 819.67 20.49 2007 903.55 22.59 2008 966.30 24.16 2009 1,016.37 25.41 2010 1,063.88 26.60 2011
1,072.70
26.82
| START OF PERIOD | END OF PERIOD | NUMBER OF WEEKS DURING PERIOD | HOURS PER WEEK | HOURLY RATE | TOTAL |
| Discharge 19-Nov-04 | 31-Dec-04 | 6 | 40 | 18.54 | 4,449.60 |
| 1-Jan-05 | 31-Dec-05 | 52 | 40 | 19.45 | 40,464.84 |
| 1-Jan-06 | 31-Dec-06 | 52 | 30 | 20.49 | 31,967.13 |
| 1-Jan-07 | 2-Sep-07 | 34.86 | 30 | 22.59 | 23,621.38 |
| Meath trial 3-Sep-07 | 29-Nov-07 | 12.43 | 6 | 22.59 | 1,684.48 |
| 30-Nov-07 | 31-Dec-07 | 4.43 | 17.5 | 22.59 | 1,751.29 |
| 1-Jan-08 | 11-Feb-08 | 5.86 | 17.5 | 24.16 | 2,476.40 |
| 12-Feb-08 | 31-Dec-08 | 46.17 | 9.5 | 24.16 | 10,595.84 |
| 1-Jan-09 | 31-Dec-09 | 52 | 9.5 | 25.41 | 12,552.17 |
| 1-Jan-10 | 31-Aug-10 | 34.57 | 9.5 | 26.60 . | 8,735.21 |
| 1-Sep-10 | 31-Dec-10 | 17.29 | 17.5 | 26.60 | 8,046.50 |
| 1-Jan-11 | 23-Mar-11 | 11.57 | 17.5 | 26.82 | 5,430.54 |
| Total | 151,775.38 |
F. Loss in respect of future care and case management
| CARE WEEKDAYS PER YEAR | CARE SATURDAYS PER YEAR | CARE 8 PUBLIC HOLIDAYS PER YEAR | AVERAGE WEEKLY COST FOR CARE TO AGE 55 | AVERAGE WEEKLY COST FOR CARE AFTER AGE 55 |
| 253 (365-104-8) x 4 hrs @ $31.06 = $31,433 | 52 x 3 hrs @ $46.59 = $7,268 | 8 x 4 hrs @ $54.36 = $1,740 | $40,441 ÷ 52 = $778 | $ 778 + 155 $ 933 |
| YEARS | WEEKLY COST OF CARE | DISCOUNT MULTIPLIER | DEFERRAL FACTOR | TOTAL |
| To age 55 | 778 | 748.40 | 1 | 582,255.20 |
| From age 55 (in 30.87 years) | 933 | 739.60 | 0.174 | 120,068.10 |
| Sub-total | 702,323.34 |
| CASE MANAGEMENT HOURS PER MONTH | YEARS | WEEKLY COST | DISCOUNT MULTIPLIER | TOTAL |
| 3 hrs @ $121 per hr | 61.12 | 12 x 3 x 121 ÷ 52 = 84.00 | 869.90 | 73,071.60 |
| Sub-total | 73,071.60 |
| Total for future care and case management | 775,394.94 |
G. Past medical, travel and sundry expenses
| PROVIDER | PAID BY MEDICARE |
| Medicare Australia Notice of Past Benefits | 2,410.95 |
| Additional attendances on Dr Kay since Medicare Notice | 135.90 |
| Sub-total | 2,546.85 |
| START OF PERIOD | END OF PERIOD | ITEM | NUMBER OF WEEKS | WEEKLY COST | TOTAL COST |
| 8/10/2004 | 21/3/2011 | Dexamphetamine medication | 336.71 | 2.50 | 841.79 |
| 1/8/2006 | Computer for digital photography course at TAFE | 2,667.68 | |||
| Sub-total | 3,509.47 |
| TRAVEL TO PROVIDER | ROUND TRIP DISTRANCE | NUMBER OF TRIPS | RATE PER KM | TOTAL COST |
| SCGH outpatient (including eye clinic) | 60 | 8 | 0.40 | 192.00 |
| Shenton Park Rehab | 40 | 2 | 0.40 | 32.00 |
| Dr Agnello | 22 | 22 | 0.40 | 193.60 |
| Dr Agnello (operation) | 44 | 3 | 0.40 | 52.80 |
| Physiotherapy Mirrabooka | 26 | 16 | 0.40 | 166.40 |
| Physiotherapy Subiaco | 44 | 15 | 0.40 | 264.00 |
| Physiotherapy Joondalup | 10 | 24 | 0.40 | 96.00 |
| Dr Kay | 66 | 26 | 0.40 | 686.40 |
| Dr Burke | 32 | 7 | 0.40 | 89.60 |
| Dr Shub | 46 | 1 | 0.40 | 18.40 |
| Dr Burke | 32 | 7 | 0.40 | 89.60 |
| Dr Fong (Shenton Park) | 41 | 2 | 0.40 | 32.80 |
| MRI (Subiaco) | 45 | 1 | 0.40 | 18.00 |
| Dr Collins (Fremantle) | 85 | 2 | 0.40 | 68.00 |
| PROVIDER | ROUND TRIP DISTRANCE | NUMBER OF TRIPS | RATE PER KM | TOTAL COST |
| (cont'd) | ||||
| Western Hearing | 32 | 1 | 0.40 | 12.80 |
| ENT surgeons | 45 | 2 | 0.40 | 36.00 |
| General medical practitioners | 5 | 35 | 0.40 | 70.00 |
| Sub-total | 2,118.40 | |||
| Total for past medical, travel and sundry expenses | 8,174.72 |
H. Future medical, travel and equipment expenses
| TREATMENT | COST (PER VISIT/ITEM) | VISIT/ITEM PER YEAR | YEARLY COST | WEEKLY COST | MULTIPLIER (61.12 years) | TOTAL |
| Psychiatrist | 300.00 | 4 | 1,200.00 | 23.08 | 869.90 | 20,074.62 |
| Ophthalmologist | 138.00 | 1 | 138.00 | 2.65 | 5 years-multiplier 226 | 599.77 |
| Pharmaceuticals (Dexamphetamine) | 120.30 | 12 | 1,443.60 | 27.76 | 869.90 | 24,149.76 |
| 6 x Botulinum toxin injections | 1,380.00 | |||||
| 1 x Ophthalmological incisional surgery | 3,870.00 | |||||
| Travel expenses to appointments – say 75 km per year at 40c per km | 30.00 | 0.58 | 869.90 | 501.87 | ||
| Sub-total | 50,576.01 | |||||
| ITEM | COST | YEARS TO REPLACEMENT | WEEKLY COST OF ITEM | MULTIPLIER | TOTAL |
| Vigil-Aide isolation switch for electric or gas stove | 425.00 | 10 | 0.82 | 869.90 | 710.98 |
| Installation of Vigil-Aide isolation | 250.00 | 10 | 0.48 | 869.90 | 418.22 |
| Isolation switch for portable electric cooking appliance | 220.00 | 10 | 0.42 | 869.90 | 368.03 |
| Plus initial capital costs | 895.00 | ||||
| Sub-total | 2,392.33 |
| Total for future medical, travel and equipment expenses | 52,968.24 |
I. Interest on past losses
| Past Loss | Amount allowed | Interest rate p/a | Years From 8/10/2004 to 21/3/2011 | Amount of Interest |
| Past loss of earning capacity | 193,869.42 | 0.03 | 6.45 | 37,531.85 |
| Past loss of superannuation | 21,885.48 | 0.03 | 6.45 | 4,236.89 |
| Past gratuitous services | 151,775.38 | 0.03 | 6.45 | 29,382.72 |
| Past medical, travel and sundry expenses (excl. Medicare and additional visits to Dr Kay) | 5,627.87 | 0.03 | 6.45 | 1,089.52 |
| Total | 373,158.15 | 72,240.97 |
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