TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY v FRANCIS JAMES STEEN - [2014] ACTSC 63

TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY
v FRANCIS JAMES STEEN
[2014] ACTSC 63 (9 April 2014)

DAMAGES – personal injury – motor vehicle collision – collision between moving vehicle and pedestrian – head injury – severe traumatic brain injury – fracture to right fibula and patella – skull fractures – fractures to facial bones – impairment of earning capacity – change of personality – cognitive impairment – impairment of memory – application of NSW legislation to assessment of damages – future care including likely admission to residential aged care facility – approach to assessment of damages for future where family unable to continue to care for plaintiff at home

Senton v Steen [2012] ACTSC 127
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Hulanicki v Walton [2014] ACTSC 17

Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act1999 (NSW)

No. SC 802 of 2006

Master Harper
Supreme Court of the ACT

Date: 9 April 2014

IN THE SUPREME COURT OF THE     )
  )          No. SC 802 of 2006
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: TREVOR VIDEAN SENTON BY HIS LITIGATION GUARDIAN THE PUBLIC ADVOCATE OF THE AUSTRALIAN CAPITAL TERRITORY
Plaintiff

AND: FRANCIS JAMES STEEN
Defendant

ORDER

Judge:  Master Harper
Date:  9 April 2014
Place:  Canberra

THE COURT ORDERS THAT:

the proceeding be stood over to 23 April 2014 for final orders.

This is a claim brought on behalf of the plaintiff for damages for personal injury arising out of a motor vehicle accident in New South Wales. The plaintiff sues by the Public Advocate of the Australian Capital Territory as his litigation guardian. The issue of liability has already been determined: Senton v Steen [2012] ACTSC 127. On 3 August 2012 I ordered that judgment be entered for the plaintiff for damages to be assessed, and that those damages be reduced by 30% for contributory negligence. Subsequently I heard the evidence as to damages.

On 24 June 2004 the plaintiff was walking across Kendal Street, Cowra and was struck by a motor vehicle driven by the defendant.

I found that the speed of the defendant’s vehicle at the moment of impact was between 11 and 16 km/h. I found that front offside corner of the vehicle probably struck the plaintiff on the left leg, sweeping his body up and forward so that his left shoulder and elbow struck the windscreen. I found that the plaintiff’s body was probably then thrown up above the height of the vehicle, and landed on the bitumen surface of the road, about a metre from the rear offside wheel of the vehicle and roughly parallel to it, with his head facing away from it. I found that both the defendant and the plaintiff failed to keep a proper lookout, and failed to see each other either at all, or until an instant before impact. It is possible that the plaintiff’s head came into contact with some part of the vehicle, but I think it more likely that it struck the road surface. The plaintiff suffered a severe head injury, and injuries to other parts of his body.

The oral evidence

Oral evidence was given by the plaintiff; his wife; her daughter and son-in-law; and Mr Alan Castle, a retired police superintendent who is now employed as co-ordinator of a men’s group which meets at Lanyon Homestead, of which the plaintiff has been a member for some years.

The plaintiff was born in January 1941. He was 63 at the date of the accident, and is now 73. He was born at Auckland in New Zealand, and migrated to Australia in 1965. He has lived here since. He married in 1982. He had not been married before, but his wife was divorced and had five children by her first marriage. She and the plaintiff do not have any children of their own, but over the years have had a lot to do with her children and more recently her grandchildren.

From about the middle 1980s, the plaintiff was self-employed, through a company he owned and controlled, as a travelling salesman. He had some seven wholesale companies he represented. He sold giftware, stationery, manchester, tools, jewellery and other items. His customers were newsagents and small shops in country towns, as well as a small number in the Canberra region.

The plaintiff divided his territory into eight runs, travelling as far north as Dubbo, west to Condobolin and south to Beechworth in Victoria. He ran his business from home, with some help from his wife on the accounting side. Typically he would leave Canberra early on a Monday morning, staying at various country towns during the week and returning home on Thursday night. He would spend the Friday and often some part of the weekend record-keeping, arranging his stock, communicating with the wholesalers and, when necessary, having his car serviced. The wholesalers would send him samples by post or freight carrier to his home at Richardson, a southern suburb of Canberra.

The plaintiff and his wife own the house. Apparently they were able to buy it when the plaintiff won a substantial poker machine jackpot in the late 1980s. By the time of his injury the house was unencumbered, but subsequently they have borrowed from a bank on reverse mortgage.

The plaintiff’s oral evidence must be evaluated in the light of his head injury, the medical evidence and the other oral evidence.

The plaintiff said that he loved his work. He got to know the customers fairly well, seeing each of them every eight or nine weeks. He enjoyed the long-distance driving.

After the accident he was unable to work for a long period, but eventually got back to work. He worked on for about eighteen months before retiring. The retirement was brought on because his major wholesale client, MacMillan Cards, took their work away from him. The business thereupon ceased to be viable.

When he got back to work after the accident, the plaintiff noticed some difficulties, because of his memory. Orders were sent to the wrong customers, and he did not realise that he had made a mistake. He was unaware of any communication problems with the clients otherwise, and believed that he had got on well with all of his customers, before and after the injury. He thought that the main problem with the downturn in his business was the drought conditions in the country, which affected purchasing by country people generally of anything other than necessities.

The plaintiff also attended trade fairs from time to time, in Sydney and Melbourne. He continued to attend them after his business closed, because he enjoyed travelling there and socialising with people he knew. His evidence was that he hoped to attend a trade fair a couple of months after the hearing. He said that he was entitled to two free long-distance train trips a year as a pensioner. He volunteered that sometimes he got the train to Goulburn for a haircut, returning the same day for a fare of $2.50.

He was asked whether he had had any intention to retire at any particular age before the accident. He said that he had not, and that he knew others of about his age who were still working as commercial travellers. He had been in excellent health before the injury. He had developed a tremor in both hands, particularly the left hand, since the accident, and as a result tended to spill food and drinks. He had always eaten with a fork in his left hand but had more recently had to use the right hand because of the tremor.

Senior counsel for the plaintiff asked him whether he thought he had changed at all since the accident. He said that he had become bored, and to break down the monotony of being at home he had started going to the men’s shed. Before the accident he had collected stamps but he found it difficult putting them in an album since and had put that hobby aside. He watched a lot of sport on television.

He had difficulties with his balance. This affected his walking, and getting up from a kneeling position. He recalled a day when he had fallen over trying to catch a child’s balloon. He could not get up by himself and had to be helped up by two people. He had to lean against the wall in the shower, particularly when he closed his eyes. He said that when he closed his eyes he was not sure where he was. He had to lean against something to put on underpants and trousers.

He had got lost on occasions since the accident. He had been to the wrong bus stop. He tended to forget things he had been told only a few minutes earlier.

He still had the motor vehicle he had used for his business, sitting in the garage. He ran the engine at intervals to keep the battery charged. He hoped that one day he might get his driving licence back. It had been taken away from him by his doctor. He had no idea why this had happened. He said that his wife now did the driving, but he tried to tell her what to do and how and where to do it. He was asked whether he ever interfered with the controls of the vehicle while she was driving. He said that he did not really do so, but that his wife might say that he did. He said that he might adjust the air conditioner or the heater, but not the lights or the indicators.

He agreed that he sometimes got angry when his wife was driving, when she would not do what he asked her to do, or did something differently from the way he would have done it. He agreed that he sometimes became angry with other drivers while he was in the car.

He was asked to describe his life. He said that he had lost his independence and could not go where he wanted or do what he wanted. His hearing had been much worse since the accident, and he wore hearing aids but found that they did not make much difference. He had continuous ringing in his left ear, but accepted that he could not do anything about it and had become used to it. His sense of smell and taste had also been greatly reduced, although he could still smell some things. There had been a recent incident where he had drunk milk which had become sour, and had not realised it.

He volunteered that his brother had died recently in New Zealand, and that he had not been able to go to the funeral because of the expense and also because of his court case. He recognised that he would have problems with air travel, both because of his health problems and because of difficulty obtaining travel insurance.

He said that he sometimes forgot to take his medication. His wife was supposed to make it up into small boxes but he usually did that himself, and sometimes got in wrong.

He was asked whether his wife did much for him. His response was that she did the laundry and the housework. He was able to load and unload the dishwasher. He had been able to mow the lawn but had damaged the two-stroke mower by filling it with petrol not mixed with oil.

He said that before the accident he and his wife had been able to manage reasonably well financially, although things had been something of a struggle at times, but that after the accident they no longer had the same money, and had to borrow on a reverse mortgage to make ends meet. They had initially borrowed $50,000.00 but the loan had increased by trial to $95,000.00.

He was asked about his own spending. He said that he enjoyed a couple of beers on a weekend at the club, and spent about $40.00 on the poker machines, but had never engaged in online gambling. He had bought books and some other things that he could not put a name to. He denied ever buying anything through telemarketing. He had a credit card, and said that that was where his pension went. He had had some of his cards cut up because he had not needed them any longer. He denied spending money on the credit card that he did not have, and denied ordering goods which had had to be returned because there had been no money to pay for them. He said that he was unaware of having any financial problems since the accident, and that the difficulties leading to the reverse mortgage had been simply due to weekly living expenses. His wife paid the household bills.

He agreed that he sometimes spoke to people in the street, of different ages, some of whom he did not know. He got on well with other people and with children. In particular he would speak to anyone he saw of Maori appearance, because of the New Zealand connection.

He thought that he might have got angry with doctors he had seen about the case due to frustration. He had not sworn before the accident but had occasionally done so since.

He admitted to an incident a couple of years before trial when he had been unlicensed but had taken his car out and driven it around the block, realising that this was illegal. He still thought that he was a better driver than his wife, and saw it as unfair that he did not have a licence. He attributed this to a “drowsy bout” three or four years earlier. He could not nominate any particular reason why his licence had not been returned, but he said that he had not really tried to get it back.

He said that his wife drove too slowly sometimes, and tended to stop at the traffic lights when she had been so close to the intersection when the lights changed that she could have easily gone through. He said that his wife was worried about red-light cameras but that half the time there were no cameras in the direction they were travelling.

He had a negative view about drivers on L-plates and P-plates. They tended not to indicate when changing lanes or turning corners.

He said that he would like to get his licence back so that he could engage in volunteer work with the Red Cross or Meals on Wheels.

He agreed that he sometimes took cash out using an ATM at a club, to spend on the poker machines. He was unaware whether his wife had a Power of Attorney for him. He conceded that he had used a credit card to buy overseas lottery tickets on perhaps three occasions.

He did not think that he would have any difficult living alone if he had to. He said he had lived alone for a number of years before he got married, and he had coped for some time when his wife went on a trip to Hong Kong while one of her children was living there.

He was asked what problems he had as a result of the accident. He answered “smell, taste, hearing, balance, short and long-term memory, DVT, fluid on the legs, epilepsy”. He was asked whether he noticed any difference in his behaviour. He said that he had not really, although he had occasionally raised his voice to his wife when she had been driving the car.

He was asked how he got on with his wife’s children. His answer was “I think I am married to their mother and that’s about it”. He was asked whether he had been close to them. He said that he did not think he was as close to them as he could be, but he did not think that this had changed since the accident. He did not think that things at home were very different to the way they had been before the accident. He hoped that once the case was over he might be able to buy his wife a nice car for them to travel around in.

He was asked about his manner of dress. He said that he thought that would be brought up because his wife had said something about it. He said that when he was working he used to dress more formally but since then he tended to wear jeans and a t-shirt which he found comfortable, but he was not untidy. He had bought some items of clothing since the accident. He particularly liked ties, and had about a hundred of these, some of which he had bought since the accident although he would not venture an estimate as to how many. He could not recall ever having bought anything advertised in the Reader’s Digest or other magazines.

He said that he had a shower and changed his clothes two or three times a week, and that this was quite enough considering that he was not doing any dirty work, although he acknowledged that his wife did not agree with him about this.

He thought that he would be able to cook for himself if necessary. He had cooked for himself before he got married. He could heat Chinese meals in the microwave, and cook eggs on toast or a steak.

Counsel for the defendant asked the plaintiff about a number of events which had occurred before his accident, but generally he did not remember them.

A somewhat different picture of the plaintiff emerged from his wife’s evidence. She is a little older than he is. She grew up in Young, and married a man on the land. They were married for twenty years and had five children, the eldest of whom are now into their fifties. Her first husband was an alcoholic with a tendency to violence. After her divorce she met the plaintiff at a party in Canberra and they were married during 1982. She had a connection with the Anglican church in Young, and the local rector found her a job with the church in Canberra. After some time she found work in the Commonwealth Public Service, where she worked for about the next fifteen years, retiring in about 2000. In retirement she retained her involvement with the church on a voluntary basis. She did a few things around the house, including painting and arranging for the enclosure of a patio. She looked after the Business Activity Statements for her husband’s business. On Thursday nights he would hand her his receipts for petrol and other expenses.

The plaintiff’s wife received on retirement a superannuation lump sum with which she bought an allocated pension. In addition she remained entitled to fortnightly superannuation benefit payments.

She described the plaintiff, when they first met, as kind and thoughtful and “everything my first husband wasn’t”. It was very important to her that he drank very little, perhaps one or two beers a week. They had a group of friends and would go to each other’s houses for dinner. The plaintiff got on well with the other members of the group.

His wife described him as polite in his dealings with his clients and customers. She said that he had not been a pushy salesman. He kept his promises with the customers, and was regarded by them as genuine.

From when they married until 1991 the plaintiff and his wife lived in rented accommodation in Canberra. In 1991 they bought their present house, and had paid it off by 2000.

She said that the plaintiff loved his work, enjoyed visiting his customers and knew people in every town he visited. He got on reasonably well with her children.

She said that on retirement she was awarded a lump sum of about $60,000.00 which she invested in an allocated pension. By the time of trial most of this had been used up – there was about $14,000.00 left. In addition she received a pension of about $600.00 per fortnight. They were able to live comfortably on those payments in addition to what the plaintiff earned. They were not able to save money but were never really short of money, and the plaintiff had money from his earnings to spend on himself. He bought his own clothes, and spent some money on his stamp collection. He did not have extravagant habits. He was meticulous about his personal appearance and hygiene. He wore a tie when working, and showered and shaved every day.

She said that their marital relationship was generally a happy one until the accident.

After the accident, she visited him in hospital every day, and sometimes twice a day. Quite early on she noticed a change in his behaviour. If he did not want to do something he became difficult about doing it. He became angry at times. He wanted to come home from hospital. He was reluctant to participate in neuropsychological testing. He did not want to engage and did not understand why he needed to. He was rude to people and said very inappropriate things to them, including to the nursing staff. She was told by the nurses that they understood this and that he could not help it. It was simply an effect of the head injury. When she took visitors to see him, she and they would try to get him to moderate his language to the nurses but found it pointless. She was very embarrassed, saying that he talked about the nurses’ body parts. He made similar comments about the friends she took to visit him. He had never behaved in such a way before the accident.

After about five weeks he was discharged from hospital on a wheeled walking frame, which he used for about five months. During that period he was agitated. He wanted to drive his car but was not allowed to. He wanted to go back to work. He continued to act inappropriately and to make inappropriate comments, which his wife found distressing.

He had a problem with balance, and had to be helped to get dressed. He had to be helped in the shower with a plastic chair.

One day without her knowledge or approval he went to the garage and started her car. He backed it out of the garage but did not drive it off their property.

Visitors came to the house. She said that some understood and some did not.

Mrs Senton said that her husband almost never swore before the accident, but that he used a lot of bad language after he came home from hospital. He was, she said, completed self-focused. He was very off-handed towards her. There was a complete change in his personality. He was no longer kind or considerate. If the focus came off him he would become aggressive and loud. He took no interest in anyone else. On one occasion he threw something at her. If he did not get his own way he became angry and aggressive.

She said that over the six months before trial he had been on medication which calmed him a little, but he would still lose his temper from time to time and become loud and unpleasant. There were times when she was frightened of him.

Initially Mrs Senton did not cope with this at all well. She saw a doctor who suggested some strategies she could adopt to manage her husband, in particular diversion.

She gave evidence of something that happened when her dog had to be put to sleep because of a brain tumour. The plaintiff did not seem at all emotionally affected by this, and did not sympathise with his wife about the loss of her dog. She said that he had no reaction and did not seem to care one way or the other. He was much the same when his own dog had to be put to sleep. She said that when the focus came off him, he did not have any soft feelings.

He became aware some months before the hearing that his brother was expected to die of pancreatic cancer. She thought that he would be very upset about this, but he was not. She described his reaction as being along the lines of “Well, that’s happened. Okay. Well get back to me now”. A neighbour said to the plaintiff “Trevor, it’s not about you. It’s about your brother”. The plaintiff did not respond to this.

During the time after the plaintiff came home from hospital until he got his licence back, his wife drove him around. She said that he became angry and aggressive with her, and that she found this intimidating. He got annoyed with her when she would not park where he wanted her to, and angry when she stopped at a traffic light when he thought she could have gone through.

Eventually, after a second test, the plaintiff got his licence back. After this the plaintiff’s wife travelled reluctantly as a passenger when he was driving. He became angry with other drivers and flashed his lights at them. He was generally impatient and not as vigilant as he should have been. He seemed quite unaware that he had any problems. His biggest client, MacMillan Cards, was operated by Roy MacMillan and his partner Jenny. Jenny telephoned the plaintiff’s wife to explain that their customers in country towns were complaining about the plaintiff. He continually talked about his accident and his injuries. He would go into a shop and tell customers in the shop his story. He would not pick up cues that they were not interested or wanted to get away from him. MacMillans ultimately terminated their relationship with the plaintiff. His wife did not ever speak to him about what Jenny had told her, because she did not want him to know that Jenny had spoken to her first.

The MacMillans sent a letter to the plaintiff terminating their contract with him by a specified date. There was no real explanation in the letter for this, and the plaintiff was deeply resentful about it.

During the eighteen months after the accident when the plaintiff had his licence back and continued to work in the business, his wife’s evidence was that he seemed to be getting worse. His short-term memory was very poor, and his long-term memory was intermittent, sometimes good and sometimes completely unreliable. During that period he remained aggressive and intimidating towards her at home, and she was glad of the reprieve while he was away working. He was a completely different person from the way he had been before the accident. He continually told his wife what to do and how to do it, and did not tell her this nicely. He was quite aggressive about it. She sometimes found that the diversion strategy worked and he would forget what he had been angry about for an hour or so.

At the end of 2009 the plaintiff lost his licence again. When he was told by a doctor at Canberra Hospital that he was to lose his licence, he stormed out of the consultation.

After he lost his licence for the second time, his wife had to drive him as a passenger again. She has a small Volkswagen. On occasions the plaintiff had leant over and flashed the lights at other drivers. He regularly made comments about other drivers, and continually gave his wife instructions about how and where to drive and park. He was annoyed that she drove within the speed limit. After she parked the car he would point out all the other spaces she could have parked in. The conversation could not be described as friendly banter. By the time of the hearing she had reached the point where she would avoid taking the plaintiff in the car if she possibly could.

She said that another problem was that the plaintiff tended to approach people in the street and try to strike up a conversation. If they looked as though they were retired he would give them a card for the men’s shed. If he thought that they might be from New Zealand, he would ask them where they were from. Some people became annoyed by this, but the plaintiff did not seem to pick this up, and continued talking to them. He would approach children in the street and talk to them. His wife tried to stop him doing this but he took no notice. He told her that it was her problem and not his. On several occasions he had reminded her that she was receiving a carer’s allowance ($114.00 per fortnight) and that she was paid to look after him. There was no longer any affection between them.

She said that her husband had never physically assaulted her but had thrown things at her on two occasions. Once she was at the end of her tether and rang her son in Wagga, thinking that she was unable to cope any further.

At some point after the accident a friend who was a bank manager told her that she should have a power of attorney for her husband, so that she could supervise his finances, for example making sure that the registration renewal for his car was paid while he was in hospital. The bank manager came to their home with his wife, and they witnessed an enduring power of attorney signed by the plaintiff.

After this Mrs Senton became aware that the plaintiff was still gambling at different clubs, and spending considerably more money than they could afford. She added it up and realised that he had spent some $15,000.00 in less than a year, at a time when he was not earning any money. She went and saw the plaintiff’s bank manager and, with his agreement, cancelled his credit card. She then had to go home and tell her husband. She said he became very angry, the worst she had seen him. He got into his car and drove away. Eventually he returned but would not come into the house. He said that he would not come into the house while she was in there. She decided to go to a friend’s house, where she stayed the night. She was able to put her car out of sight in the friend’s garage.

After the plaintiff was prescribed anti-depressant medication, he calmed down but still became angry on occasions, and aggressive.

Mrs Senton’s evidence was that she had had a number of health problems, requiring her to consult her general practitioner, which she attributed to the tension of her situation at home with the plaintiff. She had been unable to sleep properly for a number of years since the accident, and was generally not coping. Physically she had developed peripheral neuropathy in her feet, causing numbness in the toes. Her doctor sent her to a neurologist who told her that her condition was probably due to stress. The numbness had caused her to fall a number of times, including one occasion in the main street of Tuggeranong where she had trouble getting back to her feet.

She said that her husband’s involvement with the men’s shed and the men’s group had both been positive for him and for her. He enjoyed the activity and it made him tired so that he slept better and was less likely to get angry.

She said that her husband tended to talk to other shoppers at supermarkets, looking at what they had bought and telling them that they could have got some things more cheaply at other shops. He would also find something to complain about and ask to speak to the manager. Sometimes he would be given a complaints form which he would bring home to complete.

Some customers, when he spoke to them, would be polite while others would ignore him. Generally people would try to get away from him as quickly as they could. She found it pointless saying anything to her husband about his behaviour, because it tended to make the situation worse. Instead she would move as far away from him as she could within the shop, and more recently had tried to make sure that he did not accompany her on shopping expeditions.

She also found at home that it was best not to challenge him, and to ignore him when he wanted to argue. She accepted advice from a priest at her church to give in to him and let him win. However, she found it very difficult to adopt this course when the plaintiff was wanting to do something involving a risk. She would then speak up but later regret having done so.

A few months before the hearing Mrs Senton became aware that her husband had been the victim of an online scam. He had authorised his bank to send money to an overseas account. Several hundred dollars had been sent when she found out about it. She went with him to the bank who got the money back. She realised that her husband must have given his bank account details to someone, either on the telephone or the computer.

She said that she had reached a point where she could not cope with her husband’s behaviour at home anymore. She had decided that she would like to live by herself, and just to visit him during the day. There had been some discussion with her son, who lives out of Yass, about an arrangement for her to come and stay with him and his family, but he had recently been posted to the United States with the Australian Federal Police and would be away for up to four years. This option was therefore no longer available.

She said that she realised that she could not move out until arrangements had been made so that her husband would be able to live on his own. She said that he would be quite happy to stay in the house and thought that he would be able to manage on his own, but the fact was that he would be quite unable to do so. She said that he would not be likely to agree to move anywhere else. When she had told him that she was thinking of moving out, he seemed to accept this and not to be unhappy about it.

Mrs Senton clearly felt bad about moving out and leaving her husband, and thought that it was very sad and amounted to her giving up, but she thought that if she continued to live with him neither of them would be able to manage, and she would not be able to look after him properly. She was unable to control his behaviour in public, or his diet or personal hygiene, and this worried her.

At one stage there had been discussion of the plaintiff moving into a retirement village at Yass, but she had realised that he was not going to agree to this because he did not think that there was anything wrong with him. She said that she had been nervous giving this evidence about intending to move out. She thought that if her husband found out that she had done so he would be very angry, and would probably react in the way he had when she had his credit card cancelled.

Mrs Senton said that there had been a couple of occasions when her husband had been using the stove and had left a hotplate on, fortunately without anything on it. She had spoken to him about it and he had been surprised that he had left it on. She did what she could to limit his cooking to the microwave oven.

Mrs Senton said that she reached the point at one stage where she thought her life was not worth living. She thought that she had failed and could not think of a way out of her situation.

On one occasion she and her husband went to Sydney by air for a medical appointment. There was an incident at the security check in Sydney on their way home. Apparently the plaintiff had something metal in a pocket which he should have put on a tray. The security personnel sent him back four times. He became very angry, to the extent that Mrs Senton thought that he might be arrested. She was able to explain to a senior staff member that he had a brain injury which accounted for his unusual behaviour. Since then she had taken to carrying a letter from a specialist explaining the position about her husband’s condition.

She said that the household lived entirely on her money. The plaintiff’s only source of money was his age pension, and he spent all of that on himself – some of it on counter lunches and bus fares, but most on poker machines.

Mrs Senton said that she thought that she could go away overnight and leave her husband alone. She would let the neighbours know and they would be available to keep an eye on the house. But she did not think that she could go away for a longer period, for example a fortnight, in the same way. She said that she had joined ACT Carers, who had told her that in the event of an emergency they could have someone at the house to help within half an hour. However, she realised that this would involve her husband calling them, and she was concerned that an emergency might arise which he might not recognise as an emergency.

She had come to the view that there was no likelihood of the plaintiff agreeing to leave the present home, and that the best arrangement she could come up with was for her to move out but to live somewhere nearby and visit him regularly. She said that she could not continue with the current arrangements. She had not, until the trial, been able to see any way in which the problem could be resolved.

Mrs Senton’s son-in-law, Matthew Innis, is a member of the Australian Federal Police, and has been for some twenty-five years. He has been married for about eighteen years to one of Mrs Senton’s daughters. At the time of the trial they were living on a property near Bowning. Mr Innis was aware of the plaintiff’s accident and visited him in hospital. In June 2006 he and his wife moved to Hong Kong on a posting. They returned in 2008, and had lived near Yass since then. They were due to move about six months after the hearing to Los Angeles on another AFP posting for at least two years and perhaps four years.

Mr Innis and his wife saw the plaintiff and Mrs Senton frequently before the accident, probably once a week. He described the plaintiff at that time as articulate and quite funny. He was able to converse about a range of topics, and was quite good company. He was a hard worker, spending a lot of his time on the road. He filled the grandfather role quite happily.

Mr Innis said that the plaintiff had absolutely loved his job, and talked about his work a lot. He drank very little and had the occasional flutter on poker machines.

Mr Innis said that from his observation the relationship between Mr and Mrs Senton had been a normal caring and loving one. They had been married for more than twenty years by the time of the accident and were at an age where they were probably moving towards retirement. The plaintiff always behaved in an appropriate fashion towards his wife. Mr Innis never saw him lose his temper or use bad language.

Senior counsel for the plaintiff asked him to describe the plaintiff now. The witness’s response was that the plaintiff was obnoxious. He was domineering and overbearing. He tried to dictate the life of himself and his wife. His behaviour on occasions was completely inappropriate. Mr Innis had seen him, a short time before the hearing, at a shopping centre where he walked up to small children and started talking to them, right down into their face, obviously startling their parents. He was always talking to people about his accident and his brain injury. Mr Innis said that he and his wife would come over and get him to move on to another area of the shops.

Mr Innis said that he had not seen the plaintiff do much since the accident around the house apart from watching television. His wife did everything for him. When Mr Innis and his wife took her mother with them on an outing she organised a next-door neighbour to come over and make sure the plaintiff was all right. She prepared his meals before she left so that all he had to do was heat them in the microwave. It was rare for her to travel even overnight without her husband.

He said that Mrs Senton had lost a lot of weight since the accident and appeared very stressed. She would often telephone and talk about what the plaintiff had been doing earlier in the day. His impression was that she was overwhelmed by this and that it had become the central focus of her life. She seemed to have no other life apart from her attendance at church once a week.

Mrs Innis also gave evidence. Her parents had separated when she was thirteen. After about six months she moved to Canberra with her mother and one of her brothers. She came to know the plaintiff, who married her mother in Canberra not long afterwards. She said that they had had a good, mutually respectful and loving relationship. She had seen it as a normal happy marriage. The plaintiff was an ordinary, hard-working, happy and easily satisfied man with a set working life. He had loved his work, to the extent of almost being obsessed with it. He talked about it a lot, and showed the family new products he was selling. Her view as a teenager had been that if he made her mother happy, she was happy too. She said that he did make her mother happy, and that he behaved reasonably towards her, although, having no children of his own, he did not really know how to interact with teenagers. He was, however, caring and concerned, and took on the role of a father to some degree.

Mrs Innis said that since the accident her mother was not the same person, and that she and her mother did not have the same relationship any longer. Her mother was very stressed and anxious all the time. In the earlier period after the accident, before she moved with her husband to Hong Kong, her mother would telephone her three or four times a day, telling her what the plaintiff had been doing, to such an extent that Mrs Innis sometimes avoided answering the telephone.

After she returned from Hong Kong in 2008 she had a discussion with her mother, during which she was horrified to discover that her mother seemed to be contemplating suicide as her only way out.

Mrs Innis said that the plaintiff had become completely self-centred and selfish. He had no insight into his behaviour or its effect on other people. He expected the world to revolve around him. He behaved like a small child. When he did not get his own way he became angry and aggressive. His behaviour was unpredictable. There was no longer ever any warmth or gratitude in his voice or manner. She said that the plaintiff used to buy her mother flowers every week before the accident, but now expected her to do everything for him and became angry if anything went wrong. He blamed her mother for the loss of his driver’s licence and career.

In Mrs Innis’ view he would be quite incapable of living on his own. He was forgetful, and would not know where to begin managing his day-to-day life. He was always losing things like his keys and his mobile phone. He forgot to turn his phone on. His behaviour in public was completely inappropriate. He would talk to small children, getting his face down to their level and obviously causing their mothers great concern. He would go behind counters at shops. He would approach strangers and start telling them about his accident and showing them his scars. He would explain to people why he was shaking and tell them that he did not have a driving licence any longer.

Mr Castle gave oral evidence. He had retired as a serving member of the AFP in 2002 with the rank of superintendent. He continued to do some contract work for the AFP, and also worked with a community organisation in Tuggeranong which ran the Lanyon Men’s Group (he also knew Mr Innis as a serving AFP member). His evidence was that the plaintiff had been referred to the men’s group in August 2007. Mr Castle was employed as the co-ordinator of the group, assisted by a number of volunteers. The group met at Lanyon Homestead each Thursday, in the former Nolan Gallery. His recollection was that the plaintiff had been referred by a social worker. He quickly fitted into the men’s group, but it was apparent that he had suffered a brain injury. He appeared a little lost and seemed to need company. The accident and his claim for damages were constant topics of his conversation. There were times when visitors came to look at part of the building where the men’s group was meeting. The plaintiff would engage them in conversation, sometimes to an unwanted and embarrassing extent. He could be intimidating at times, and he was certainly annoying. He tended to be over-friendly and unaware socially. He had a short fuse and was quick to take offence and become angry.

In the early days at the men’s group he used to drive his own car to Lanyon, but over the years Mr Castle had noticed a marked deterioration in his physical capacity. His shaking meant that it was no longer practical for him to get meals for people and hold plates. He was unsteady on his feet.

On a typical Thursday about eighteen or twenty members of the group would attend, with two or three volunteers. Some group members had physical disabilities and others had mental issues. Some had early Alzheimer’s disease and some were stroke victims.

The plaintiff’s behaviour would in normal situations be regarded as unreasonable but people within the group had learned to cope with him.

Mr Castle was himself injured in a motor accident about a year before the hearing. The plaintiff came by bus to visit him in hospital, which impressed Mr Castle although the plaintiff mainly talked about his own problems on that occasion.

He had seen the plaintiff at a shopping centre in Tuggeranong a few times, and also at a suburban club where the plaintiff had mainly been engaged in playing poker machines. Mr Castle was aware that the plaintiff’s financial situation was such that he could not afford to lose a lot of money on poker machines and took steps to move him away from the machines.

Mr Castle had formed the opinion that the plaintiff did not have any insight into his behaviour or its effect on other people.

The medical evidence

None of the treating doctors or other health professionals were required for cross-examination. All of the medical expert evidence was admitted in report and documentary form.

The general practitioner who treated the plaintiff after the accident, Dr Ian Pryor of Tuggeranong Square Medical Practice, prepared a number of reports for the defendant’s insurer and for the plaintiff’s solicitors. In summary, he recorded that the plaintiff had sustained severe head injuries with skull and facial fractures, significant brain damage, and soft tissue injuries to the neck, back and right shoulder. He had developed an extensive left leg deep vein thrombosis while in hospital.

The effects of the brain damage included increased sleepiness, reduced stamina, poor concentration, altered judgment, personality and intellectual changes, light-headedness especially on moving quickly, and paraesthesia of the right arm and leg.

The physical effects were likely to be permanent. The personality change and mental function deficits would also be permanent, and would probably become worse as he got older.

During 2006 the plaintiff had an MRI of the right knee because of persistent pain and instability. This showed tears of the medial and lateral meniscus and degenerative changes. He was referred for treatment of the knee to Dr Michael Gillespie, orthopaedic surgeon.

Because of trouble with his balance and episodes of acute vertigo, he was referred to Dr Colin Andrews, neurologist.

He was also referred to Dr Tuan Pham, ear nose and throat surgeon, because of tinnitus.

At about this time Dr Pryor noted complaints of swelling and tightness of the ankles, muscle cramps, dysaesthesia of the right hand, memory loss and deterioration of the senses of taste and smell. Dr Pryor thought that the plaintiff had greater physical and mental deficits than he was willing to admit. He thought that any improvement was unlikely and that it was more probable that his balance, mobility and more subtle mental functions would deteriorate.

He was concerned that the plaintiff might be developing premature dementia.

The loss of smell and taste was in Dr Pryor’s opinion devastating. Everything the plaintiff ate was bland and had only texture. He had lost any pleasure in eating.

Dr Andrews saw the plaintiff a number of times. He attributed the vertigo, tinnitus, and loss of smell and taste to the head injury. He was concerned that the plaintiff might be suffering from depression. He thought that his symptoms were permanent.

During 2009 Dr Andrews saw the plaintiff again because of seizures. He regarded these as probably caused by post-traumatic epilepsy, another result of the head injury. He also recorded that the plaintiff had been getting what he called “icepick” pains in the head, particularly behind the left eye, lasting about ten seconds at a time. These were painful and were not uncommon following a head injury, particularly in people with a prior history of migraine headaches.

Dr Andrews had seen the plaintiff in December 2002, some eighteen months before his accident, on referral from the plaintiff’s previous general practitioner, Dr Cleary. Symptoms included tremor in the hands, greater on the right, and occasional mild migraine headaches. Dr Andrews prescribed Inderal which he thought would be adequate for tremor suppression.

Dr Gillespie saw the plaintiff in September 2006. He noted that the plaintiff’s right knee had not been specifically examined or noted as an injury at the time of the accident. He accepted that the knee had been asymptomatic prior to the accident. X-rays showed a united fracture of the patella and a healed fracture of the head of the fibula. The latter had not been noted on the x-ray report but Dr Gillespie was able to see it on the film. There was also some narrowing of the medial joint space, and subchondral sclerosis. The MRI scan showed tears of both the medial and the lateral meniscus with loss of articular surface. Dr Gillespie’s view was that the changes in the knee were both chronic and post-traumatic. He suspected that the fractures happened at the time of the accident, whilst some of the arthritic changes may well have predated that injury. It was likely that the injury had accelerated the onset and progression of the symptoms.

In October 2006 Dr Gillespie operated on the knee, performing an arthroscopy and shaving and abrading the damaged areas to a stable base. The meniscus tears were resected. It was likely that the right knee condition would progress over time to a point where a total knee arthroplasty might be required. Whilst some of the degeneration almost certainly predated the injury, Dr Gillespie accepted that the plaintiff had suffered injury of some violence to the knee, causing the meniscal tears and the fractures. The other damage had been progressed by the significant impact at the time of injury. The plaintiff would be left with at least mild to moderate stiffness and discomfort in the knee.

Dr KN Chandran, neurosurgeon, treated the plaintiff in Canberra immediately after his admission to hospital on the day of the accident. He confirmed a severe head injury causing disturbance of memory and balance, and also some depression. He did not see the plaintiff after September 2004, three months after the injury.

The plaintiff was referred, apparently by a rehabilitation consultant engaged by the defendant’s insurer, to a clinical neuropsychologist, Dr Marian Scarrabelotti. Dr Scarrabelotti saw the plaintiff and his wife during a number of sessions commencing in November 2004. Her opinion was that the plaintiff’s head injury had caused moderate to severe brain injury which had affected his higher level executive function difficulties. He displayed impulsivity, aggression, risk-taking, difficulty incorporating the ideas of others and a general lack of insight into the effects of his injury. She saw him prior to his return to work and during the period when his licence was suspended. She found him difficult to engage, argumentative, and dismissive of attempts to discuss the injuries and their effects on him.

Dr Pham performed an audiogram and detected hearing loss in both ears. The plaintiff had suffered from tinnitus for two years since the accident by the time Dr Pham saw him, and Dr Pham thought that it might be permanent although this was not necessarily so. He suffered from dizziness, labyrinthus and positional vertigo. The hearing loss was 14.1% in the right ear and 16.1% in the left ear, giving a combined figure of 13.5%. The symptoms related to his inner ears were caused by the head injury and were likely to represent a long-term disability.

The plaintiff was seen in August 2007 by Mr Peter Rawling, a Sydney neuropsychologist. He noted that the plaintiff’s Glasgow Coma Scale score was as low as 6 on his admission to Cowra Hospital, indicative of a very severe head injury. It seems that the score subsequently dropped to 3, the lowest score consistent with continued life.

Having regard to this information, and the damage apparent on MRI scans of the brain, Mr Rawling thought that the plaintiff had made a surprisingly good recovery. However, he performed poorly on memory testing and had difficulty with executive functioning tests. He was a difficult candidate for assessment, and would become hostile when he experienced difficulty with a test. He would question the value or relevance of the test and would give up quickly, without any sustained effort.

There were aspects of his behaviour which were indicative of frontal lobe dysfunction. He was garrulous, over-familiar and intrusive in relation to others. He was rigid and opinionated in his thinking. He was quickly roused to anger. He had little insight into the impact of his behaviour on others. He was very disorganised in his approach to tasks.

Mr Rowling assessed his whole person impairment secondary to his emotional and behavioural changes at 25%, and his mental status impairment at 15%. These combined to lead to a whole person impairment secondary to his brain injury of 36%.

In June 2008 the plaintiff was referred by his general practitioner to Dr Roger Tuck, a Canberra neurologist, because of difficulties with loss of balance. Dr Tuck thought that these difficulties were a result of damage to his brain stem caused in the car accident. He arranged further testing but was, in his words, not “able to find anything fixable”.

The plaintiff has been assessed on a number of occasions during 2009 for certificates under the Motor Accidents Compensation Act 1999 (NSW). These are not of particular relevance to my task, except that there is universal agreement that he has suffered a whole person impairment greater than 10%, the threshold for damages for non-economic loss under that Act.

Mr Rawling saw the plaintiff on a number of occasions, commencing in March 2006. In his final report in December 2007, he said that, more than three years after the injury, the plaintiff’s condition arising from his brain injury should be seen as permanent. He mentioned that there was a substantial body of published research which suggested that an extensive brain injury of the type sustained by the plaintiff could lead to the accelerated onset of dementia, although there was no evidence of this by that time. It was difficult to predict which individuals might develop dementia, and all that could be said was that the plaintiff would have to be considered as having an increased risk of developing dementia as a result of the brain injury.

The solicitors for the plaintiff qualified a number of other doctors as expert witnesses. In January 2006 they sent the plaintiff to Dr Gerard Barold, a specialist in occupational medicine. The plaintiff was at that time still capable of working, but Dr Barold thought that he would have difficulty finding employment in an open and competitive labour market and would be better served by early retirement. He thought that he would need to see his general practitioner six times a year and a neurologist twice a year, and that he had a continuing need for analgesics. He had required virtually full-time care for the first six months after his accident, and since then had required eight hours of domestic assistance per week. He expected that this need would continue permanently.

In the same month the solicitors sent the plaintiff to Dr Stephen Buckley, a consultant physician in rehabilitation medicine. Dr Buckley’s opinion was that the plaintiff’s cognitive and behavioural impairment was permanent, and that his right knee was likely to deteriorate gradually. He thought that the plaintiff would be capable of living independently but if it were not for his wife, that he would need a case manager for two hours a week. He would need to see his general practitioner four times a year, a rehabilitation physician once a year, and an orthopaedic surgeon once a year. He would need a housekeeper for five hours a week and a handyman for three hours a week. The case manager should be a healthcare professional with extensive experience in the management and care of traumatic brain injury patients. Such a person might be an occupational therapist, a registered nurse, a social worker or a psychologist. The task of the case manager would be to assist the plaintiff to plan and maintain an activity program to promote quality of living, including adequate physical activity and mentally stimulating activities. The case manager would also assist with basic day-to-day finance and would offer liaison with doctors and other agencies, acting as an advocate for the plaintiff where appropriate. The aim of the case manager would be to ensure that everything possible was done to maximise the plaintiff’s quality of life, independence and assimilation into the community.

Dr Buckley saw the plaintiff again in January 2008. Mrs Senton was also present, and was able to speak to Dr Buckley privately. He noted that it had become apparent that the injury to the right knee was more serious than he had previously thought, and that the knee was likely to be vulnerable to rapid osteoarthritic change.

After speaking to Mrs Senton and reading other reports, Dr Buckley changed his opinion about the plaintiff’s capacity to manage his own independence. He thought it unlikely that without his wife he would be able to maintain domestic and personal hygiene or nutrition without the regular availability of a supervisor. He thought that he would need two hours a day of housekeeper assistance to deal with these matters.

He remained of the view that the plaintiff would need a case manager. He thought that this need would be for eight hours a month for the first six months following any significant new arrangement such as a move to a new home or a change of nursing agencies. Thereafter four hours a month should be adequate.

He also thought that since he had first seen the plaintiff he had deteriorated to a stage where he was unable to manage his own affairs and would require administration as a protected person, and fund management.

The solicitors also sent the plaintiff to Dr Alan Searle, a senior and very experienced orthopaedic surgeon. He saw the plaintiff in June 2007. He regarded the plaintiff’s bodily injuries other than his head injury as sufficiently severe to have rendered him unemployable on their own. He thought that there would be a gradual increase in the symptoms and disability in the right knee as degenerative changes progressed. He said that there might have been some early degenerative changes present in the knee before the car accident, but that it had not been causing any symptoms. His opinion was that the plaintiff would require a total replacement of the right knee within ten years. He said that the car accident had caused a great deal of pain and suffering, and had severely impaired the plaintiff’s physical activities.

The plaintiff was sent by his solicitors in July 2007 to Dr Leon Le Leu, occupational physician in Canberra. At that time the plaintiff was no longer working but was still driving. Dr Le Leu thought that the plaintiff’s driving should be restricted for safety reasons partly because of his vertigo and partly because of his road rage, the severity of which the plaintiff probably underestimated. He concluded that the plaintiff was unfit for any conceivable work and that this was a direct result of the accident.

The solicitors obtained a number of reports from Dr Patricia Jungfer, a Sydney psychiatrist. She first saw the plaintiff in May 2006. She saw him on numerous occasions, the last being three weeks before the hearing.

Her opinion was that his lack of insight was not amenable to therapy.

She agreed with Dr Buckley about his care needs and employability. She thought that his change in personality had caused substantial strain on his wife, and that the viability of the marriage was in doubt. She thought that ideally he should be managed by a rehabilitation service with expertise in the area of brain injury, to provide support and assistance for Mrs Senton.

She also made the point that brain injury increased the risk of the development of Alzheimer’s disease by a factor of 2 or 3. She thought that the plaintiff was incapable of managing his financial affairs and should have the services of a professional funds manager.

She did not think that he required full-time care from a cognitive or psychiatric perspective, or that he would do so in the future. However, he would not be capable of living independently, because it would be unsafe. He would require paid attendant care on a rotating shift basis. He would not require permanent live-in staff, and in any event this would not be a viable option because carer burnout would be too high.

In a report of 21 June 2011, Dr Andrews, neurologist, cast some doubt on the causal connection between the car accident and some of the plaintiff’s symptoms. He thought that the complaints of occasional neck pain were probably related to pre-existing cervical spondylosis rather than to the effects of his head injury. He thought that the cramping in his fingers and the tremor in both hands might be related to his head injury but he could not be certain whether they were not part of the ageing process. He thought that a complaint of pain in the right hip was probably not related to the accident, and that his knee problems were probably age-related. He did not think that the swelling of the left leg and both ankles were related to the deep vein thrombosis, or to the car accident. His complaints of pain in both feet and a feeling of coldness and sponginess were possibly due to poor peripheral circulation. He doubted whether these symptoms had been caused by the car accident. He agreed with the opinion expressed by Mr Rawling about personality change, impairment of memory and cognitive function.

The plaintiff’s case also relies on a number of reports by occupational therapists as to his care needs. The most recent of these reports is a set prepared in July 2011 by CDC Services. The reports were prepared by Helen Wood, occupational therapist, and Narelle Sohier, registered nurse. They are lengthy and very detailed. The opinion and recommendations are for the appointment of an occupational therapist with experience in traumatic brain injury as a case manager for one to two hours a week; eight sessions of physiotherapy; the services of a podiatrist once a month; assistance by personal and domestic carers for about eighteen hours a week while living with his wife or 54 hours a week while living separately from his wife; and additional respite and vacation care. The report also recommends that the plaintiff be provided with various items of equipment including an electric recliner chair and a wheelchair.

Counsel for the defendant tendered reports by Professor Richard Mattick, neuropsychologist; Dr Seamus Dalton, consultant in rehabilitation medicine; Dr Belinda Shepherd, occupational therapist; Dr Brian Zeman, consultant in rehabilitation medicine; and Associate Professor Gideon Caplan, geriatrician and consultant physician. The opinions expressed by some of these practitioners were significantly different to those put forward by practitioners in the same fields on behalf of the plaintiff.

Professor Mattick saw the plaintiff at his consulting rooms at North Sydney on three occasions, in October 2006, June 2008 and June 2012. In 2006 the plaintiff was stiff working and driving. He found the plaintiff garrulous with a tendency to tangential responses with irrelevant detail. He said that this “could possibly be consistent with frontal lobe damage”. He seemed poorly motivated in relation to completion of tasks as part of the assessment, but appeared genuine, and not to be exaggerating his problems. There was evidence of impulsivity, tactlessness, irritability, disinhibition and perseveration. Professor Mattick speculated in his report that some of these symptoms might have been present prior to the injury. He assessed the plaintiff as apparently able to function in activities of daily living, domestic activities, community activities and social and leisure activities, with no obvious impairment in pragmatic communication. He thought that the plaintiff’s poor results on neuropsychological assessment were indicative of lack of engagement in the process rather than poor ability. He concluded that there was no impairment in the plaintiff’s general intellectual abilities. He thought that the plaintiff’s memory was probably commensurate with his level of intelligence. He recommended that the plaintiff be reassessed after being convinced of the need to make a reasonable effort and to tolerate the process of assessment. He accepted that the plaintiff had suffered some frontal lobe damage causing personality change. He thought that the plaintiff could benefit from anger management treatment with which he could probably improve markedly. He saw no reason why the plaintiff could not work in a number of capacities. He did not believe that there had been any impairment in his intellectual abilities, and did not necessarily accept that his memory had been markedly impaired.

He saw the plaintiff again in June 2008. Professor Mattick records that the plaintiff told him on that occasion that he had intended to retire at the age of 70 if it had not been for the accident. The plaintiff told him that he had been able to work from early 2005 until early 2007, doing much of the work that he had done before the accident, although on two occasions he had sent orders to the wrong customer because of poor memory. He mentioned a number of areas of work he thought he could cope with, including stocking shelves at a supermarket and working for a car rental company. Professor Mattick formed the view from what the plaintiff told him that he was fully independent in all of the basis activities of daily living. Professor Mattick found him pleasant and affable, and generally a coherent historian, if still a little tangential. He formed the view that the plaintiff was able to carry out domestic, community, social and leisure activities, and was able to make judgments about finance and spending money. He did not believe that the plaintiff suffered any psychological disorder, or any significant problems related to organic personality change. He found no memory impairment. He thought it possible that there had been a personality change but if so he thought that this had improved since he first saw the plaintiff. He speculated that the plaintiff’s employment as a travelling salesman might have been terminated because of personality issues associated with his head injury, but these no longer seemed to be significant. He said that it was well recognised that personality changes could improve over time, and it may have been that the plaintiff’s condition had not fully stabilised when he first saw him. He thought that the plaintiff’s intellect and memory were intact, did not believe that he required any care or domestic assistance, and thought that he was capable of employment in a range of clerical or similar jobs.

Professor Mattick saw the plaintiff again shortly before trial, in June 2012. He was again satisfied that the plaintiff was capable of managing his own money. He thought that he had been quite careful with money, and saw no evidence of any tendency for him to be a spendthrift. He thought that the plaintiff might have suffered an organic personality change, but suspected that some of the characteristics he observed might have been present before the accident. He noted that the plaintiff did not seem to have come to any harm over the period by then of eight years since the accident. His characteristics of being humorous, disinhibited and perhaps overly familiar were unlikely to cause him any marked harm.

He again found no impairment in the plaintiff’s overall intellectual capacity. He said that it was necessary to take account of the fact that the plaintiff did not enjoy being tested and did not participate in being tested in a motivated way. He thought that any incidents of apparent memory impairment were probably due to the normal ageing process, and that generally the plaintiff’s intelligence and memory were intact.

He accepted that the plaintiff showered only once or twice a week. Whilst he thought that this would not cause the plaintiff any harm, he might benefit from the provision of some personal care and help with domestic duties. He did not think that it was clear that the antidepressant medication the plaintiff was taking provided him with any benefit although he said that it would not cause him any harm. He thought that the plaintiff might benefit from some counselling for his disinhibition and inappropriate behaviour. He thought that eight to twelve sessions of counselling by a clinical psychologist might be helpful in that regard.

He thought that the plaintiff had probably been somewhat disinhibited before the accident. He disagreed that there had been any loss of intelligence or significant impairment of memory, and he disagreed with occupational therapists who had expressed the opinion that the plaintiff required assistance in a range of different areas every day. He thought that the plaintiff had been functioning adequately for the eight years since the accident, and that he would continue to do so into old age, subject to normal age-related changes and his disinhibition.

Dr Dalton saw the plaintiff on one occasion, in July 2007. He focused on the plaintiff’s physical injuries. He conceded that the brain injury was not within his sphere of expertise, although he did say that he thought that further recovery of cognitive function was unlikely. He thought that the arthritis in the right knee might become increasingly symptomatic with age, although it was possible that it would not. He found some restriction of movement in the left knee, which he attributed to arthritis which was not yet causing any pain or other symptoms. He said that if the plaintiff’s condition deteriorated to the extent that he required a total replacement of the right knee, that would not have arisen from injuries sustained in the car accident. The underlying osteoarthritis in the right knee was not causally related to the accident. Any fracture of the patella sustained at that time had healed without complication, and this might have aggravated the pre-existing osteoarthritis.

Dr Dalton thought that the plaintiff was independent in self-care and did not require domestic or household assistance.

Other physical symptoms the plaintiff complained about, including some pain and stiffness in the neck, shoulders and knees were likely to be related to degenerative changes, not to the car accident. He was doubtful in any event whether the fracture of the patella had been caused in the car accident.

Dr Shepherd, occupational therapist, saw the plaintiff at the request of the solicitors for the defendant on three occasions: in June 2007, June 2011 and May 2012. She was asked to provide an opinion on his claim for past care and his need for future care.

In her first report she accepted that the plaintiff showed minimal insight into his continuing impairments, in particular his changes in behaviour and his relationship with his wife and others. Her opinion was that the plaintiff’s apparent successful functioning in daily activities was due to the daily structure and practical support provided by his wife. She noted that he had no household responsibilities and had only to look after himself and occupy his time. She said that without that structure his performance of daily activities would deteriorate significantly.

She regarded it as reasonable and necessary that Mrs Senton had provided personal care for 1.5 hours a day for five months after the plaintiff’s initial discharge from hospital, plus half an hour a day for giving injections. However, by the time she saw him she did not think that the plaintiff required attendant care services, although he would do so if his wife were not there and he were living on his own. If he were to reside alone in his house, he would need an hour a week of assistance coordinating appointments and structuring his time, and an hour a month coordinating his medication.

She noted that Mrs Senton had always carried out domestic duties and the plaintiff had not done so even before the accident. She thought that the plaintiff would have needed an hour an month for lawnmowing, and another two hours a year for gardening assistance. She noted that before the accident he had paid for home maintenance as required, and thought it reasonable that he continue to do so in the future.

He would need two hours a week domestic assistance if his wife were not there, and another hour of domestic support to facilitate activities including shopping and payment of household accounts.

She accepted that Mrs Senton should be provided with counselling for stress by a clinical psychologist, and should be provided with the opportunity to holiday away from her husband, and that he should be provided with a companion for a holiday each year. She allowed one week a year each for this, with 24-hour care for the plaintiff if holidaying alone, and twenty hours of care if he were left at home while his wife was holidaying.

She suggested some minor modifications to the bathrooms in the house. She thought that he should be provided with physiotherapy services and with a referral to an occupational therapist.

Her opinion was that he did not require the assistance of a case manager while living at home with his wife, but that he would do so if his wife were no longer available to provide support. Case management would demand four hours a month for the first four months and thereafter one hour a month of generally coordinating services for the plaintiff’s needs, including developing strategies to facilitate household management and budgeting, facilitating community participation, coordinating appointments and monitoring his medication usage.

When she saw him for the second time in mid-2011, she said that he was a significantly different man. He had been diagnosed during 2009 with epilepsy and had developed tremors. His gait was wider and he appeared less steady on his feet. She generally increased her estimates of the amounts of time he had required since she first saw him for care and other services, and her estimates of what he would require in the future.

When Dr Shepherd saw the plaintiff for a third time, shortly before the hearing, she observed him to be more aggressive and abrupt, both with her and with his wife, although not hostile or threatening. She thought that he needed 11.75 hours a week of assistance. If he were to move to what she described as independent community accommodation, he would require 19 hours of paid support per week. If his wife was no longer willing or available to provide support, Ms Shepherd thought that the plaintiff would be best looked after by placement in a residential aged care facility. He would require some equipment including a wheelchair, a shower chair, an over-toilet frame, a wheeled walking frame, and a traymobile or kitchen trolley.

Dr Zeman saw the plaintiff three times: in June 2008, June 2011 and July 2012. Dr Zeman’s reports are on the letterhead of the Vocational Capacity Centre at North Sydney, as was the report of Dr Dalton.

He accepted that the plaintiff had suffered a severe traumatic brain injury which had caused behavioural problems and mild cognitive impairment. He noted facial fractures, loss of the sense of smell, some hearing loss and tinnitus, and deep vein thrombosis of the lower left leg which he said had resolved. His opinion was that the injuries to the right knee were not related to the car accident. He speculated that these unrelated knee problems might have played a part in the plaintiff’s retirement. Dr Zeman accepted that there were no reports available to him of symptoms of the right knee before the accident, but at the same time he found no report of any injury to the right knee during the plaintiff’s time in hospital, which he saw as inconsistent with the knee having been injured in the accident. He said that the old united fracture of the right patella, discovered for the first time in mid-2006, would certainly have occurred more than twelve months earlier but it could have been several years earlier. The same applied to the old fracture of the right fibula. He concluded that the plaintiff had probably had previous right knee injuries which he had forgotten.

He said that the plaintiff’s life expectancy would be reduced by about 5% because of the severity of his brain injury. He accepted that the plaintiff was medically unfit to carry out his previous work full-time but thought that he was capable of doing so for twenty hours a week. The plaintiff did not in Dr Zeman’s view require any personal care, attendant care or nursing care although he might need some occasional prompting and assistance with organisation. He thought that the appointment of a case manager was justified, for eight hours a year, to coordinate and deal with relevant issues, and that Mrs Senton might benefit from counselling by someone experienced in brain injury on how to manage the plaintiff’s behavioural problems. The plaintiff would also need help with financial management, and physical assistance for an hour a week for gardening and the like.

In September 2008 Dr Zeman provided the solicitors with a supplementary report, having been provided with some surveillance material. He said that the material showed the plaintiff displaying a greater range of abilities than he had demonstrated when the doctor saw him. No such surveillance material was adduced in evidence, nor were any of the plaintiff’s witnesses cross-examined about anything which might have emerged from the material. I do not propose to take any notice of the supplementary report in those circumstances.

Dr Zeman saw the plaintiff again in June 2011. He had been diagnosed with epilepsy and had lost his driver’s licence. His tremor and balance seem to have worsened since last seen. Dr Zeman said that he would have expected the plaintiff to have retired from his work by then even if the accident had not occurred, the plaintiff having turned seventy.

He commented on the suggestion that the plaintiff might be at an increased risk of the development of dementia such as Alzheimer’s disease because of his brain injury. Dr Zeman said that this had not been proved scientifically, and that Alzheimer’s was common with age.

He found that the plaintiff was unfit for employment because of his worsening tremor. Otherwise his opinion was generally the same as before.

Dr Zeman saw the plaintiff again in July 2012, a month or so before the hearing. He did not accept that the plaintiff required any help with financial management due to cognitive problems resulting from the car accident.

Associate Professor Caplan saw the plaintiff in April 2012. He was provided with copies of other medical reports then available. He expressed some doubt whether the plaintiff had suffered damage to the frontal lobe. He took a history that the plaintiff was able to read and send emails, and to read a New Zealand newspaper on line. He thought that some of the characteristics displayed by the plaintiff, such as verbosity, loquacity, garrulousness, egocentricity and risqué humour were personality features which would be valuable in a travelling salesman travelling to isolated country towns and probably mainly selling to male shopkeepers. Professor Caplan suspected that the plaintiff had been a gambler long before the accident and that it was only the current income deficit in the household which made this more difficult to cope with.

He doubted whether the plaintiff’s retirement had been caused by the head injury. He speculated that the economic downturn might have played a part, as would the plaintiff’s lack of computer skills. He noted that in any event most people had retired by the age of seventy-one. He thought that a lot of the plaintiff’s behaviour had more to do with his personality than his injuries. His conclusion was that the underlying personality had been unmasked by the retirement rather than changed by the head injury.

He found no evidence of Alzheimer’s disease or other dementia, and noted that a causal link between head injury and the development of dementia had not been established. He said that it would be almost impossible to disprove such a link.

He said that patients with traumatic brain injury had about 2.5 times the risk of death compared with the general population, and that the reduction in life expectancy averaged six to seven years.

Professor Caplan accepted the plaintiff’s statement that he was able to take on the role of storekeeper at the Men’s Shed and assist with barbecues, yet he claimed to be unable to assist with housework. He deduced from this that the plaintiff had a psychological resistance to helping at home rather than a physical incapacity. He thought that the plaintiff was physically able to retrain to do light duties but was unprepared to do so for psychological reasons. Any reduction in his contribution to helping around the house was not in Professor Caplan’s opinion due to disability caused by the car accident. He thought that the plaintiff might benefit from counselling to adjust his views about helping with housework and sharing his pension with his wife.

Consideration of the evidence and factual findings

As a starting point I should say that I accept the evidence of Mrs Senton without reservation. She was not really challenged to any significant degree in cross-examination. She came across to me as an honest witness with a good memory, and with no tendency to exaggerate. She deserves immense credit for the way she has stood by her husband over the ten years since his accident. He has become a completely different man from the man she married. I have no doubt that many women in her position would have been totally unable to cope with the demands of looking after him and putting up with the changes in his personality, in particular his complete lack of any emotional warmth or gratitude, or indeed of any comprehension of how much she was doing for him.

I also accept the evidence of her daughter and son-in-law, which was not challenged. Similarly I accept the evidence of Mr Castle, the Men’s Group supervisor.

The picture of the plaintiff which emerges from the oral evidence is much more serious than the picture which emerges from some of the medical reports. I had the benefit of three days of evidence from the plaintiff, his wife, Mr and Mrs Innis and Mr Castle, as well as evidence given by the plaintiff during the earlier liability phase of the proceedings. I accept that doctors do not have the time to take in a background and history over that sort of period, and that inevitably they will be acting on a summary of the background and events.

I can also rely on my findings, and the evidence I accepted, as to the mechanism of the impact itself, and the force with which the plaintiff’s body must have come into contact with the defendant’s vehicle and the road surface. I am not sure that the severity of the impact was brought through to some of the doctors who expressed opinions about the bodily injuries other than the head injury.

There is general acceptance by all of the medical experts that the plaintiff suffered a severe traumatic brain injury, and that this has caused a major change in personality, as well as memory impairment and lack of insight. There is some different of opinion between the doctors and the occupational therapists as to how serious the effects of the head injury are. It seems to me that the plaintiff’s needs have been somewhat hidden by the support his wife has provided for him. She has been there with him, apart from one period of three weeks and a few days here and there, effectively 24 hours a day 7 days a week. She has prepared his meals and washed and ironed his clothes, she has helped him with showering and generally with his mobility, particularly in the earlier stages. She has found him and brought him home when he has caught the wrong bus. She has organised his getting to and from the Men’s Shed and the Men’s Group. She has shepherded him away from embarrassing and sometimes confrontational situations, in shops and other public places. She has paid off his credit card debts and arranged bank loans so that there was enough money for them to live on. She has accompanied him to appointments with doctors and other health professionals. Generally she has, in a subtle way, looked after the organisation of his life.

I generally accept the evidence of Mr Rawling, Dr Buckley and Dr Jungfer, whose evidence I have found particularly helpful in coming to an understanding of the degree of the plaintiff’s disability consequent on his brain injury.

The masking of the extent of the role played by Mrs Senton in generally organising her husband’s life has had the effect that some of those who have examined the plaintiff have apparently accepted his own perception that he is capable of looking after himself to a substantial degree. Professor Mattick, psychologist, concluded that the plaintiff suffered from some minor functional impairment but was generally able to function from day to day. He also concluded that the plaintiff had no impairment of intellectual ability and only minor impairment of memory. Indeed, he thought that the plaintiff was probably capable of finding employment. It seems to me that in arriving at his opinion, Professor Mattick has accepted the plaintiff at face value, and has not really understood the full picture. I suspect that if Mrs Senton were to move out for a month or two and leave the plaintiff to look after himself, Professor Mattick’s opinion would be shown to be utterly misconceived. He seems to have made some assumptions about what the plaintiff was like before the accident which are inconsistent with the oral evidence I have accepted.

The defendant has not qualified an orthopaedic expert, or at least has not tendered an orthopaedic report. I accept the opinions of Dr Gillespie and Dr Searle. It seems to me far more likely than not that the fractures to the patella and fibula of the right leg happened in the car accident. There is no evidence of any pre-accident knee injury or indeed of any pre-injury traumatic event in which the knee might have been injured. The impact was a severe one, undoubtedly of sufficient force to cause such fractures. The head injury and in particular the brain injury were of such significance that it is probably unsurprising that relatively minor injuries to the right knee were not looked for or found during the plaintiff’s time in hospital.

There is no evidence that, absent the car accident, the plaintiff’s knees would ever have caused pain, still less that they might have led ultimately to joint replacement surgery.

I prefer the opinions of Dr Gillespie and Dr Searle to those of Dr Dalton and Dr Zeman on the issue of causation of the knee injuries and disabilities.

I accept that the plaintiff has some loss of hearing in both ears following the brain injury and probably due to it. I recognise that some loss of hearing is a common feature of the ageing process. The tinnitus, however, was undoubtedly caused by the brain injury and is, one must accept ten years after the accident, permanent and untreatable. Tinnitus alone is a very serious disability and will generally sound in substantial damages.

There are two issues raised on the medical reports about which there is some difference of opinion. The first is whether the brain injury has predisposed the plaintiff to the development, or earlier development, of Alzheimer’s disease or other dementia. The second is whether the brain injury has reduced his expectation of life.

Dr Jungfer expressed the view that a person with a significant closed head injury had two to three times the risk of developing Alzheimer’s disease than an ordinary member of the population. Dr Zeman says, no doubt correctly, that this has not been proven scientifically, and Professor Caplan makes the reasonable point that it would be almost impossible to prove or disprove by using accepted scientific method. Nevertheless I accept that the plaintiff is at increased risk of the development of dementia, but that so far there is no evidence that he has begun to develop it.

As to loss of expectation of life, Dr Zeman has expressed the opinion, without going into any detail, that the plaintiff’s life expectancy will be reduced by approximately 5% because of the severity of his brain injury. Professor Caplan has said that at his age the plaintiff would have a life expectancy of about fifteen years, and this should be reduced by reason of the brain injury by seven years, that is close to 50%. He has referred to a population study on mortality after traumatic brain injury. Senior counsel for the plaintiff handed me a copy of the article during his closing address: Mortality after discharge from acute care hospitalisation with traumatic brain injury: A population based study, Ventura and others, Arch Phys Med Rehabil Vol 91, January 2010. Counsel for the defendant objected, but it seems to me that it is necessary for me to read the article in order for me to understand Professor Caplan’s report fully, and the submission of senior counsel for the plaintiff. It is apparent from the article that the figures are skewed by the number of brain injury patients in poor socioeconomic groups who tend to die quite soon after leaving hospital, and that the excess in mortality lessens as time after injury increases. The risk of dying within the first month of discharge was much higher than expected. After that, the figure dropped markedly and continued to diminish for those who survived at least one year. The present plaintiff has already survived ten years, from age 63 to age 73, and there is no suggestion in the evidence apart from this statistical material that he is at increased risk of dying from any particular condition in the foreseeable future. There seems to me no justification for reducing damages calculations based on the normal life expectancy for a man of his age, other than to reflect the ordinary vicissitudes of life.

Both Dr Zeman and Professor Caplan play down the impact of the car accident and the head injury on the plaintiff, in part by speculating that he probably exhibited much the same sort of behaviour before the accident, and in part by regarding the effects of the head injury on his personality and behaviour as not of great significance. I reject any suggestion arising from their reports that the car accident and head injury were not the cause, nor even a cause, of the significant changes in personality and cognitive impairment now seen in the plaintiff. I can only assume that Dr Zeman and Professor Caplan did not obtain a detailed history from Mrs Senton, or that they did not accept what she told them. If one accepts her evidence, as I do, the opinions of Dr Zeman and Professor Caplan cannot stand, and nor can most of the opinions expressed by Professor Mattick.

The reports by the occupation therapists are helpful to the extent that they identify the various areas where the plaintiff has needed personal care and domestic assistance in the past, and where he is likely to need such help in the future. There is no great difference of opinion between them. The differences in the hours and amounts they come up with can be explained on the basis of the assumptions on which they are based.

The approach to past care and assistance is easier than the future, because what has happened in the past is a matter of evidence. My task is to identify the need caused by the injuries, in the context that most of the services have been provided by Mrs Senton, and that these include services, if that is the right word, which she would have provided to and for her husband if he had not been injured.

I must take account of the fact that prior to his accident the plaintiff was typically away from home from Monday morning until Thursday night each week, and therefore not requiring or receiving any such services from his wife. I need to make a finding as to whether he would be likely to have been still working by now if it had not been for the accident, or if not, when he would have been likely to have retired. Counsel for the defendant submits that he would have retired by the age of 70, and some of the doctors have made this assumption thought without much explanation as to how they have arrived at it. Senior counsel for the plaintiff submits that his client would probably still be working, and would probably have worked well into his seventies.

Professor Mattick notes in his report of 11 June 2008 that the plaintiff told him that he had intended to retire at age 70, had the accident not occurred. That is the only reference in the evidence to such an intention. There is no evidence of anything said by anyone before the accident about any intention to retire. All of the rest of the evidence is that the plaintiff loved his work. There is no suggestion that he had any particular projects or activities to look forward to in retirement. He had not made any financial provision for retirement by way of superannuation, although he conceded that he should have done so. He would thus have been immediately much worse off financially when he stopped work.

The other side of that coin is that the plaintiff was driving some 1500 km a week, nearly 400 km each day he was on the road, and that such extended driving would become increasingly taxing for an older man. It might have been open to him to cut down on some aspect of his workload as he got older, as opposed to moving immediately into complete retirement.

The plaintiff is now 73. I think it likely that he would have continued to work beyond age 70, but that by age 75 he would probably have ceased to work. Perhaps he would have cut back by degrees during those later years if that option had been available to him. A reasonable and practical way to approach this issue for the calculation of damages is to assume that he would have continued to work until the present, but would not have earned further income in the future.

I accept the weight of the medical evidence, to the effect that the plaintiff has no remaining earning capacity. I accept that it has not been feasible for him to contemplate any income-earning activity since he closed his business in 2009.

If it had not been for the accident, I think that it is far more likely than not that the plaintiff and his wife would have remained living in the family home alone together, in a satisfactory and contented relationship, until now and for as many years into the future as they were able to look after each other. There were no factors in the case of either of them which would have suggested any reduction in their life expectancy, or increased likelihood that either of them would suffer from some debilitating illness independently of the ageing process.

The plaintiff is now 73 and has a life expectancy of about 13.5 years. Mrs Senton is 75 and has a life expectancy of about 14.5 years.

It is necessary to consider what might happen in the future, and how the various possibilities should be reflected in an award of damages.

I accept Mrs Senton’s evidence that she has reached the end of her tether and will make arrangements to live separately from her husband once funds are available to permit this. If he cannot be persuaded to move into other accommodation, then it is likely that she will move into something smaller, perhaps an apartment or townhouse, in the same general area. It would be appropriate, in the plaintiff’s interests, for me to make orders about payment out of the award of damages to permit this. The plaintiff could then continue to live in the present family home with appropriate assistance, including some continuing help from his wife, who has made it clear that she proposes to continue a relationship of some kind with her husband although not living in the same house.

Another possibility is that the plaintiff will move into a residential aged care facility. This might happen fairly soon, or not for a number of years. It would first require an assessment of the plaintiff’s needs by an aged care assessment team under the applicable Commonwealth legislation, which would also be relevant to determining how much he would be required to pay to the operator of the facility by way of an accommodation bond, and how much by continuing periodical payments. It would have to be recognised that the facility operator would be entitled to retain some part of the accommodation bond but that the bulk of it would be repayable to the plaintiff if he were to move out, or to his estate upon his death.

If the plaintiff were to move into a residential aged care facility before his wife moved out of their home, she might decide to stay there, or she might decide to move into something smaller, possibly a self-care unit at a retirement village.

The cost to the plaintiff of moving into and living in an aged care facility would depend upon the report of the assessment team, as would the level of care which could be expected to be provided to him as a facility resident.

Provided that both the plaintiff and his wife remain in their present state of health, it seems to me that one of these scenarios is more likely than any other hypothesis. I think it more likely that in the short term the plaintiff will be reluctant to move out of the house and that his wife will choose to do so. In the medium to longer term, probably within five to ten years, I think it will become more likely that the plaintiff will accept the need to move into such a facility and will do so.

It is not incumbent upon me to decide, in relation to the future, what is more probably than not going to happen, and to calculate figures based on that finding. Rather, it is a matter of weighing up the various possibilities and applying a proportionate approach to those possibilities: Malec v JC Hutton Pty Ltd (1990) 169 CLR 638.

I accept the opinion expressed by Dr Searle in July 2007 that within ten years the plaintiff will require a right total knee replacement at a cost of $21,600.00 at that date including hospital, surgical and anaesthetic fees and the cost of the prosthesis. It seems likely to me that that event is probably now about five years away.

The indication for such surgery will be increasing pain in the knee joint.

Damages

Because the collision occurred in New South Wales, I am required to apply the substantive law of that State in assessing damages. The Motor Accidents Compensation Act 1999 (NSW) contains a number of provisions which have an impact on the assessment of damages.

Section 125 of the Act limits damages for past and future economic loss to a base of $2,500.00 net per week, subject to indexation of that amount under s 146. That limit will not have the effect of limiting the plaintiff’s damages in this case.

Section 127 provides that a discount rate of 5% is to be adopted for the assessment of damages for future losses.

Section 131 provides that no damages are to be awarded for non-economic loss (that is, general damages for pain and suffering, loss of enjoyment of life and loss of expectation of life) unless the degree of permanent impairment of the injured person exceeds 10%. Counsel are agreed, and I am satisfied, that the degree of the plaintiff’s permanent impairment exceeds that figure.

Section 134 fixes a limit on the amount a Court may award for non-economic loss. The present limit is $477,000.00. It was not submitted on behalf of either party that the award for non-economic loss in this case under the general law might exceed that limit.

Section 137 provides that interest may not be awarded on non-economic loss or on notional awards for attendant care services. Under the section, interest is also not recoverable in certain circumstances, depending upon offers of settlement made by the defendant which will necessarily be unknown to the Court at the time of assessment of damages. This, it seems to me, will necessitate the publication of these reasons in an incomplete form, to provide the parties with the opportunity to adduce evidence of any relevant settlement offers. The section also provides for a maximum rate of interest, being 75% of the rate prescribed for the purposes of s 101 of the Civil Procedure Act 2005 (NSW) for the period concerned. This rate is also a matter on which I would appreciate guidance from counsel for the parties.

Under s 141B, no damages are to be awarded for notional (that is, unpaid) attendant care services unless the services are provided for at least six hours a week and for at least six consecutive months. If the services were provided for forty hours a week or more, the amount of compensation must not exceed NSW average weekly earnings per week. If less than forty hours per week, that component of damages is limited to one-fortieth of the average weekly earnings figure. Counsel have agreed that in the present case it is appropriate to adopt an average figure of $22.00 for the period up to judgment. Senior counsel for the plaintiff has conceded that no more than forty hours per week is to be allowed for the past.

I have had the benefit of schedules of damages provided by counsel for both parties. Senior counsel for the plaintiff seeks an award of $250,000.00 for non-economic loss. Counsel for the defendant concedes that $200,000.00 would be justifiable on the evidence. I must take account of the severity of the injuries, the age of the plaintiff and his lack of insight into his condition. I remind myself that this component is to compensate the plaintiff for his loss, and not his wife although in some respects she has been through a more gruelling period since the accident than he has.

I take account of the fact that in a recent brain damage case, Burns J awarded $375,000.00 for general damages, in respect of a female plaintiff aged twenty at injury and twenty-eight at trial: Hulanicki v Walton [2014] ACTSC 17. Every case depends on its own facts. There were some similarities but many differences between the facts in that case and in this one. It seems to me on reflection that a figure which will properly recognise the various elements encompassed within the concept of damages for non-economic loss would be $240,000.00. I award that sum. As I said, by virtue of the NSW statute it does not attract interest.

Past treatment expenses were agreed to the date of trial at $77,066.68. There will have been an increase in this figure since trial, though only of a modest amount. I award $80,000.00 for past treatment expenses. There is no claim for interest on that figure.

For the future, it is convenient to consider medical, hospital and chemist expenses separately from the cost of care. There is no disagreement that the plaintiff will require about six attendances per year on his general practitioner at about $65.00 per visit; attendances on a rehabilitation physician about once a year; attendance on an orthopaedic surgeon about once a year; and medication at about $60.00 per month. Of the other claims made on behalf of the plaintiff, I am not persuaded that he is likely to undergo therapy by a psychologist, or that he would be likely to join or use a gym. He may need and utilise occupational therapy, particularly in the event of any change in his living arrangements. He may require physiotherapy from time to time. He may need referrals to a neurologist. He probably will need pressure stockings. The defendant concedes that in addition it would be reasonable to allow $5,000.00 for equipment, which would include hearing aids.

He will very probably come to total right knee replacement in about five years. The present cost is $21,600.00. It would be reasonable to allow $15,000.00 now.

The plaintiff’s calculations are based on a life expectancy at trial of 15.56 years, for which the multiplier would be 579.5. The defendant’s calculations are based on an expectancy of eight years, the multiplier being 345.6. The defendant’s expectancy figure assumes the correctness of the opinion evidence of Professor Caplan, which I reject. The plaintiff is now seventy-three. There is some evidence of a reduction in life expectancy by reason of the head injury, but nothing like the amount suggested by the defendant’s doctors. I propose to work on a life expectancy of between eleven and twelve years, and to use a multiplier, adopting a 5% interest rate, of 450.

One might be tempted to assume that with ageing there will be an accelerating reduction in capacity and a parallel need for medical and other care. However, there is no evidence that this is the case generally, or in relation to the present plaintiff. Anecdotal experience is in both directions. Some people age noticeably in their later years, while others seem to retain all of their faculties, perhaps until a short final illness and death. A finding of any increasing need for care in the aged regardless of, or independently of, compensable injury would have to be based on evidence, which one would expect to be called by the defendant. There is no such evidence in this case.

Based upon that multiplier, and the figures put forward by counsel, I make the following allowances for future treatment:

General practitioner $3,500.00

Rehabilitation physician $2,000.00

Orthopaedic surgeon $1,500.00

Neurologist $1,000.00

Physiotherapy $2,500.00

Occupational therapy $3,000.00

Medication $6,500.00

Stockings $1,500.00

Other equipment $5,000.00

Knee replacement $15,000.00

_______________
$41,500.00

I note that the life expectancy figures already take account of the vicissitudes of life in both directions. In those circumstances no reduction on account of vicissitudes is appropriate.

Past loss of earnings is agreed between the parties to trial at $161,692.00.

I have already said that I am satisfied that the plaintiff would have continued to work if it had not been for the accident, probably until about the present date. He was seventy-one at trial and is now seventy-three. The amount claimed at trial for the future was at the rate of about $500.00 per week or $25,000.00 per year. It is about twenty months since trial. For past loss of earnings I allow $200,000.00. I shall hear counsel as to whether an allowance is justified for interest on all or part of that sum.

I make no allowance for future loss of earning capacity.

In relation to past care, there is no claim for the period until the plaintiff went home from hospital in July 2004. From then until he went back to work in January 2005, his wife looked after him. I take account of the provision in s 141B of the Motor Accidents Compensation Act (NSW) that no allowance is to be made in respect of services which would have been provided if the person had not been injured. This would preclude any allowance, for example, for provision of meals to the plaintiff on those days when he would have had meals provided by his wife in any event, notwithstanding the fact that he has had a need for that assistance as a result of his injuries. During that period, if it had not been for the injuries he would have been on the road from early each Monday morning until late each Thursday evening. He would have been at home on Fridays, Saturdays and Sundays, and I must take care not to compensate him for services his wife provided to him on those days during that period if she would have provided them if the accident had not happened. He is, however, entitled to damages for the provision of meals during the Monday to Thursday periods of each week, because if it had not been for the accident his wife would not have been providing those meals for him.

In addition, I am satisfied that she spent time each day looking after his bathing and generally helping him with almost everything, and driving him about.

It is unclear to me precisely how the section should be applied in respect of a plaintiff who, for much of that time, really could not be left alone except for short periods. I am satisfied that there were periods of time when his wife was actually engaged in providing care and other services to him, and that there were other periods of time when she had to be there but was probably not providing any identifiable services to the plaintiff. For that period the defendant concedes twelve hours a week, which was the period sought in the third amended statement of particulars. I am therefore comfortable in awarding the agreed rate of $22.00 per hour for twelve hours a week for twenty-six weeks, that is $6,864.00.

From February 2005 until June 2007, while the plaintiff was working, there is a claim for seventeen hours a week, whilst the defendant concedes seven hours a week. During that period the plaintiff was away from home from Monday morning until Thursday night each week, and was functioning well enough to be able to look after himself as to meals and accommodation while away. It also seems on the evidence that during that period, while he was at home, he was generally more contented because he was working, and was less of a handful for his wife than he later became. Nevertheless it seems to me that on the evidence it is reasonable to allow twelve hours a week for that period of 104 weeks at $22.00 per hour, a total of $27,456.00.

The starkest difference between the parties relates to the plaintiff’s need for care during the period from February 2007 to date. Counsel for the defendant concedes eight hours care per week, while senior counsel for the plaintiff seeks forty hours. Forty hours per week is mentioned in s 141B of the NSW Act. Subsection 141B (4) provides that compensation for the value of attendant care services, where the period is forty hours or more per week, must not exceed NSW average weekly total earnings of all employees in New South Wales as estimated by the Australian Statistician. At the agreed rate of $22.00 per hour, compensation for forty hours a week would be $880.00.

Although counsel on neither side made any specific reference to this, I take it that there is an understanding that $880.00 per week is roughly equivalent to NSW average weekly earnings during the period in question so that forty hours per week would represent the maximum entitlement of the plaintiff regardless of how many hours of care were actually provided on an unpaid basis.

In her most recent report, Dr Shepherd, the occupational therapist qualified by the defendant, arrived at a total of 11.75 hours per week, not including garden and home maintenance, for the plaintiff’s needs, said to be based on the pre-accident household roles and responsibilities of the plaintiff and his wife. She allowed one hour a day for management including monitoring and administration of medication, prompts for appropriate behaviour and personal care, reviewing of daily schedule and tasks and ensuring taking of the appropriate belongings to activities. She then allowed another quarter of an hour per week for co-ordination of appointments and prescriptions. She allowed one hour a week for shopping for personal belongings and 3.5 hours a week for transport.

The occupational therapist who prepared the last report for the plaintiff, Ms Helen Wood, arrived at a total of about eight hours a week for the services provided by Mrs Senton up to the hearing, making no allowance to those services she provided before the accident. She arrived at a total of seventeen hours per week for each of the various periods when Mrs Senton had been away from the home. Mrs Senton was in hospital for a week during 2009 and a family friend moved into the home to provide assistance to the plaintiff. She stayed with one of her sons in Wagga for a week during 2010, and during this time neighbours provided monitoring and dinners. She went to Hong Kong for a week in 2007, and during that period the neighbours also helped. For those periods Ms Wood provided 12.2 hours a week for meal preparation, 1.25 hours per week for laundry and bedmaking, and 3.5 hours per week for cognitive prompting, a total of seventeen hours per week.

Ms Wood then proceeded to calculate the plaintiff’s needs at the time she prepared her report, when in her opinion he required a higher level of care than had previously been recommended. She calculated that the plaintiff would require 18.27 hours of care per week while he was living in the house with his wife, and 67 hours per week of care during respite when his wife was away from the home. She calculated that if he was living separately from his wife he would require 54.38 hours per week of care. The major difference between those three sets of figures was that she allowed seven hours per day, or forty-nine hours per week if the plaintiff was living separately from his wife, to be provided by personal carers.

It seems to me that the figures provided by both occupational therapists suffer from some shortcomings. They fail to allow for the fact that Mrs Senton was not providing services before the accident between Monday morning and Thursday night each week. They also fail to take account of the fact that part of the plaintiff’s needs caused by his injuries is the need to have someone there with him most of the time, to monitor his activities. As I have previously said, this need has been generally masked by the fact that the plaintiff’s wife has been there anyway. But it is not in accordance with principle to treat the fact that she was living in the house and “there anyway” before the accident as equivalent to her having provided services in the nature of care to her husband. Before the accident he did not need care. True it is that she cooked the meals, did the washing and made the beds, while he seems to have done very little around the house, but otherwise he was completely independent.

For most of the time since the plaintiff stopped working, he has needed someone with him in the house, though not continuously. He seems to be all right once he goes to bed at night, and able to get up during the night as he needs to, and back to bed. During the afternoons he could probably be left in front of the television to watch sport or sleep, but it would be quite impractical to leave him alone all day, or even to bring someone in to provide assistance for an hour at a time here or there. He really needs monitoring for much of his waking day.

It seems to me reasonable to fix an average for the period from February 2007 to date of at least four and perhaps five hours a day. I propose to allow thirty hours per week for that period, at the agreed rate of $22.00 per hour. The period is some seven years and two months, or 372 weeks. For that period I allow a sum of $245,520.00.

The provision for past care is accordingly:

July 04 to January 05 $6846.00

February 05 to January 07 $27,456.00

February 07 to April 14 245,520.00

___________
$279,840.00

The calculation of a figure for future care involves a considerable degree of speculation as to what is likely to happen in the future, and in particular the extent to which the plaintiff’s needs will be attended to by his wife and her family without charge, as against the provision of those needs on an institutional and paid basis.

It seems to me inevitable that Mrs Senton will stay in the family home for some little time, at least until arrangements can be made for her to purchase some other place of residence for herself, and until she is satisfied that adequate arrangements have been made for her husband’s care. This, it seems to me, is likely to take at least six months and perhaps a year. I should accordingly assess damages on the basis that it is more likely than not to take about nine months. That means that she will continue to live with her husband for that period, and to look after him. I allow thirty hours per week for nine months at $22.00 per hour, that is $8,580.00. At the end of that time, I think it likely that Mrs Senton will move into her own accommodation, living within reasonable proximity to the family home, visiting regularly and continuing to play a part in looking after her husband. It seems a reasonable approach to allow three hours a day for her to continue in that role.

I must do the best I can to forecast how long it might be before the plaintiff has to move into a residential aged care facility. It seems to me that a reasonable forecast in that regard is five years. I accordingly allow three hours a day for five years at $22.00 per hour for services which will be provided by Mrs Senton. Using the 5% tables, the present value of $22.00 per hour for three hours a day for seven days a week for five years is $107,184.00.

For the time during that period of five years when Mrs Senton is not available to provide assistance, the plaintiff will need commercial care, which will be paid for out of his damages. As he gets a little older, the number of hours he needs per week is likely to increase a little. It seems to be reasonable to allow another two hours a day, that is fourteen hours a week. Senior counsel for the plaintiff argues that I should allow a commercial rate of $53.00 per hour. Counsel for the defendant proffers $48.00 per hour. I propose to adopt a figure of $50.00 per hour, that is $700.00 per week. The 5% multiplier of 232 produces a figure of $162,400.00 for that provision of care.

It seems to me that that level of care will cater adequately to the plaintiff’s needs for that period of nine months plus five years. By then the plaintiff will be about seventy nine, and Mrs Senton will be about eighty-two.

From then, I think it appropriate to assess damages on the basis that the plaintiff will move into a residential aged care facility, where he is likely to spend the rest of his life. It will not make any significant difference, from that point, whether or not he succumbs to dementia, so far as the cost of his care is concerned.

There is a dearth of evidence as to what accommodation bond might be required to secure him a place in such a facility. As I have said, there is likely, as the law presently stands, to be a right in the provider to retain a small proportion of the bond at the end of the plaintiff’s life, but an obligation to repay the balance of the bond to his estate. He will therefore be deprived, for the period of his residence in a facility, of the income which might otherwise have been expected to have been received on that capital amount. We are here in an area of extreme speculation, but that does not mean that the Court should shirk its responsibility of arriving at a figure to compensate the plaintiff for that notional loss of income. With little to go on, I can only do the best I can. It seems to me that a reasonable reflection of the loss of income on that capital will be of the order of $10,000.00 a year.

When the plaintiff goes into aged care accommodation, he will have a life expectancy of a further 7.5 years or thereabouts. By then his wife will be in her early eighties and it is probably unreasonable to expect much assistance from her towards his care.

In respect of a period commencing in five years and concluding in say thirteen years, the applicable 5% multiplier is 502 minus 232 equals 270. For that period, for the loss of potential earnings on capital related to the accommodation bond, I allow $50,000.00.

For the last seven to twelve years of the plaintiff’s life I allow eight hours a day care at $50.00 per hour, and adopt the same multiplier of 270. It seems to me reasonable to reduce the resulting figure to take account of the probable negative vicissitudes of life by that stage, as the plaintiff approaches the end of his life. For care for that period I allow $600,000.00.

The allowance for future care will therefore be as follows:

Next five months $8,580.00

Subsequent five years – wife $107,184.00

Subsequent five years – carers $162,400.00

Following 7.5 years

– loss of income on accommodation bond $50,000.00

Following 7.5 years – care $600,000.00

___________

$928,164.00

A summary of the damages to which the plaintiff is entitled is accordingly as follows:

General damages (non-economic loss) $240,000.00

Expenses – past $80,000.00

Expenses – future $41,500.00

Loss of earnings – past $200,000.00

Care – past $279,840.00

Care – future $928,164.00

___________
$1,769,504.00

That total seems to me to represent a fair reflection of the effect of the plaintiff’s injuries upon him.

Because of the decision I have previously come to about liability, that figure must be reduced by 30% for contributory negligence to $1,238,653.00.

Before I proceed to judgment, I shall need to hear the parties about any claim for, or entitlement to, interest on past loss of earnings. Counsel for both parties also acknowledged that the damages should include a component for funds management, but sought to be heard as to the correct approach to that component prior to the making of final orders.

The parties may also wish to be heard about costs.

I shall accordingly stand the matter over for fourteen days following publication of these reasons, for further submissions about those matters.

I certify that the preceding two hundred and fifty eight (258) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 9 April 2014

Counsel for the plaintiff:  Mr AJ Bartley SC & Mr SJ Longhurst
Solicitors for the plaintiff:  Porters
Counsel for the defendant:  Mr WM Fitzsimmons
Solicitors for the defendant:  Moray & Agnew
Date of hearing:  27-30 August 2012
Date of judgment:  9 April 2014