Tyron Vance v Stephen Chambers

[2016] NSWDC 79

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Tyron Vance v Stephen Chambers [2016] NSWDC 79
Hearing dates:	22 – 25 February 2016
Decision date:	13 May 2016
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Judgment for the plaintiff. For orders see [187]
Catchwords:	Assessment of damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588 Miller v Galderisi [2009] NSWCA 353 Penrith City Council v Parkes [2004] NSWCA 2001 Sampco Pty Ltd v Wurth [2015] NSWCA 117
Texts Cited:	Motor Accident Authority Permanent Impairment Guidelines (Ed 1 Oct 2007)
Category:	Principal judgment
Parties:	Tyron Vance (Plaintiff) Stephen Chambers (Defendant)
Representation:	Counsel: D A Wheelahan QC with G Radburn (Plaintiff) A C Casselden (Defendant)   Solicitors: Somerville Laundry Lomax Lee & Lyons Lawyers
File Number(s):	13/145633
Publication restriction:	Nil

Judgment

1. The plaintiff claims damages for injuries received by him in a motor vehicle accident that occurred on 8 August 2011, when he was a passenger in a vehicle being driven by the defendant on Sandon River Beach, on the north coast of New South Wales. Liability for the plaintiff’s injuries has been admitted by the defendant, and the parties have further agreed that the plaintiff contributed to his own injuries by his own contributory negligence, by failing to wear a properly fitted and secured seatbelt, and by voluntarily becoming a passenger in the vehicle when he was under the influence of alcohol. The deduction from any award of damages for the plaintiff’s own contributory negligence is agreed at 25 per cent.

2. The parties further agreed that, as a result of the MAS assessment process, the plaintiff suffered a whole person impairment of 25% for physical injuries, and a whole person impairment of 6% for psychiatric injuries.

3. The parties have also agreed that the plaintiff’s past treatment expenses amount to $14,700.00. Of that, the defendant’s seek a credit, pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) of $805.00.

Issues to be determined

4. This leaves the following matters to be determined in the assessment of damages suffered by the plaintiff:

1. Quantum of non-economic loss.

2. Quantum and need for past gratuitous care.

3. Quantum and need for future care.

4. Quantum of past wage loss.

5. Quantum of future economic loss.

6. Quantum and need for future treatment expenses.

Circumstances of the accident

5. Whilst it is unnecessary to determine liability, the circumstances in which the plaintiff was injured inform the nature and severity of the injuries suffered by him. The following contains my findings of fact in the matter, unless otherwise indicated.

6. On 8 August 2011, the plaintiff went to Sandon River, which is just south of the mouth of the Clarence River. He was with the defendant and another man, Tristan Jammerson, and after fishing, the three men decided to travel back to the plaintiff’s house by driving along the beach. The plaintiff’s house was at Wooloweyah, approximately 10 minutes away. As the vehicle travelled along the beach, it hit what it known as a “washout”. A “washout” is a section of sand washed out by tidal influence. The front wheel of the vehicle hit the 6washout and the vehicle overturned sideways. The plaintiff was ejected out of the roof, and the vehicle rolled on top of him. The vehicle came to a stop on all four wheels.

7. The plaintiff gave evidence that he was rendered unconscious, but a cold wave washed over him and woke him up, and he then saw both the defendant and the other man, Tristan, laying alongside each other on the beach.

8. The plaintiff dragged both the defendant and Tristan to higher ground and resuscitated Tristan.

9. Another vehicle came by and rendered assistance. The plaintiff was taken by air ambulance to Gold Coast Base Hospital.

The plaintiff’s injuries

10. The plaintiff was admitted to the Intensive Care Unit and intubated. It was noted that on arrival at the hospital he had a Glascow Coma Scale of 15.

11. In the early hours of 9 August 2011, CT scans of the plaintiff’s brain, neck, face, chest, abdomen and pelvis were carried out. Those studies revealed the following injuries:

1. There was a deep laceration over the frontal scalp.

2. There was extensive scalp haematoma.

3. There was a fracture of the right temporal bone, extending through the squamous down into the petrous temporal bone, running longitudinally across the skull base. There was blood in the external auditory meatus, and in the middle ear.

4. CT scan of the chest revealed a massive subcutaneous emphysema.

5. On the right side there was haemopneumothorax, with two chest drains sited in the lower chest.

6. There was some basal collapse on the left side with no major haemothorax.

7. A long line of rib fractures in the mid-axillary line on the right, and the right apex a further series of fractures of the necks of the ribs and adjacent transfer processes of the upper thoracic vertebral bodies were identified. This was described as constituting “a posterior right flail segment”.

8. Probable acute end-place fracture of one of the mid-thoracic vertebrae, with very little distortion of the overall alignment.

9. A CT scan of the abdomen revealed the laceration of segment 7 of the liver, without significant adjacent haemorrhage.

10. A CT scan of the face showed comminuted fractures of the nasal bones with gas in the left orbit.

11. A CT scan of the brain showed a very small acute haemorrhage in the anterior right temple fossa, perhaps a contusion or small amount of subarachnoid blood.

12. The following diagnosis was made at the Gold Coast Hospital:

“MVA multi-trauma

Severe chest injuries/ICC x 2 right side (haemopneumothorax); ICC x 1 left side (basal collapse)

Extensive anterior chest and forearm subcutaneous emphysema

Rib fractures/flail chest (right side)

Large and deep frontal laceration and haematoma

Right temple fracture extending to base of skull; no intra-cranial pathology on CT scan

Mid-thoracic vertebral end-place fracture

Small liver laceration.”

13. The plaintiff remained in hospital for 31 days until his discharge on 8 September 2011. He underwent further radiological studies in the months following his discharge.

The plaintiff’s evidence

14. The plaintiff gave evidence that he was born on 6 February 1981. He left school at age 14 and commenced working on a prawn trawler. He decided to pursue a career as a commercial fisherman, and at 15 years of age, borrowed $35,000.00 to purchase a fishing boat. He paid off that loan from his earnings from fishing. He had held a fishing licence from a very young age, and that licence covered a number of different classes, which enabled him to engage in a variety of types of fishing.

15. The plaintiff commenced fishing in about 1996, and worked full time as a fisherman on his own boat, depending on the tides and weather.

16. The plaintiff had suffered minor injuries in motor vehicle accidents on 7 November 2009 and 11 March 2011. Prior to the accident on 8 August 2011, he was in good health. He had been working in Queensland as a crab fisherman for a time, having had a break down in a long-term relationship, and because of bad fishing conditions on the Clarence River where he lived.

17. Prior to working in Queensland, the plaintiff worked, from time to time, on a farming property owned by his parents. He did that activity each year from 2005 to 2010 for approximately six months. He was not paid, but did the work to assist his family.

18. The plaintiff had returned from Queensland for a holiday just before the motor vehicle accident on 8 August 2011. The other passenger in the vehicle, Tristan, was his deckhand, and he had brought him with him from Queensland.

19. The plaintiff gave evidence of the circumstances of the accident, which, for the reasons set out above, are unnecessary to rehearse here.

20. Following the incident, he lost consciousness and he gave evidence that he remembered regaining consciousness in the intensive care unit at the Gold Coast Base Hospital. He had a great deal of therapy in hospital, and had to learn how to walk again.

21. The plaintiff gave evidence that he had experimented with cannabis from age 14 years, but it had not affected his work. He had in his early twenties commenced to consume alcohol at the rate of a carton of beer a day, which he consumed after work. He had substantially reduced that level of consumption following the accident.

22. On discharge from hospital, the plaintiff lived with his parents. He was prescribed analgesic medication for his back pain, but described having pain “just all over my body”. Cold weather and changes in weather affected his level of pain significantly. He also described having tingling in his feet which affected his ability to wear gum boots at work. He was required to wear a larger size.

23. The plaintiff also described suffering headaches all the time, which he had not suffered prior to the accident. He described a depression on his skull, on the left upper temple, near the hairline, and another on the right side.

24. The plaintiff also described tiring very quickly whenever he engaged in physical activity. His sleep was very interrupted, he suffered nightmares, particularly about his friend Tristan, whom he had resuscitated following the accident.

25. The plaintiff described being quite forgetful following the accident and that effected daily activities including losing his keys, wallet and phone. He made significant use of a whiteboard to assist him to remember things.

26. The plaintiff described himself as “pretty fit” prior to the accident. He had played rugby league and was a State level swimmer as a boy. Since the accident, he no longer had that level of fitness. He could not drive a car for longer than half an hour and needed to stretch. Following a drink-driving offence in August 2015, he no longer drove.

27. Before the accident, the plaintiff enjoyed beach fishing and motorbike riding as recreation. He was able to carry out all household chores, although his then partner, carried out most of the domestic duties. He now had difficulty with domestic activity such as making a bed, cooking and cleaning, and relied on his mother, and girlfriends to assist him. For the last few years, his mother had assisted him with everything, which he described as:

“A: Prep meals, do a bit around the house, washing, a bit of cleaning.

Q: Why don’t you do that?

A: I do bits of it.

Q: Why don’t you do all of it?

A: Because I don’t seem to do it properly or – I just can’t get around to everything each day on my own.

Q: What’s the problem from your perspective?

A: Just physically and probably a bit of mental problem.”

28. The plaintiff gave evidence that he had acquired, prior to the accident, a total of nine fishing boats, each of which had a particular function for commercial fishing. He had kept those nine boats, one of which he used. When asked why he kept the other eight, he answered:

“Because I’ve worked hard for them, it’s just nice to know that they’re there, I suppose.”

29. The boats were kept out of the water, and he had no future plan for them.

30. Following the plaintiff’s discharge from hospital, when consulting a specialist doctor a couple of years thereafter, the plaintiff realised that he had no sense of smell of taste. There had been no change to that, and when asked how he felt about it, he said:

“A: It’s just another hump in the road.”

31. Whereas prior to the accident, he described an active social life on weekends, he rarely went out socially now. He had also enjoyed scuba diving prior to the accident, but was unable to enjoy that activity because of trouble “equalising”. He also described suffering tinnitus in his ears, which involved a constant high pitch pinging. He experienced that three or four times a day over three or four days every week, and it made him cringe.

32. In addition to his own fishing licence, the plaintiff also had a commercial fishing licence, being a secondary licence, in the name of him and his father. The various licences related to different vessels which were engaged, prior to his accident, in different fishing activities.

33. The plaintiff gave evidence that he had, since the accident, never returned to commercial fishing for profit, but notwithstanding that, he had always tried to get onto the water every day. On occasions he had gone crabbing with his mother, and occasionally brought a few traps in by himself. He gave evidence that shortly after he got home, he commenced fishing with his father on a daily basis. He would drive the boat, and his father lifted the traps. That process continued for six to nine months when he commenced fishing with his mother, his father returning to his previous work. The plaintiff gave evidence that his mother was a massage therapist who had been working full time. She gave up that work to assist him by going fishing on a daily basis. The plaintiff drove the boat, and his mother lifted the pots. On occasions, he had helped her lift the pots. He said that by doing so, he noticed that he became “pretty well over-stretched myself and be laid up for a few days”. They had to change the size of the pots from 80 kg traps to 3.5 kg traps.

34. The crabs that were caught would be sold by his mother, and she would keep the proceeds. This was a trade-off for his board and lodgings.

35. The plaintiff gave evidence that he continued to carry out this activity because he loved it, notwithstanding that it was uncomfortable. At the hearing, the plaintiff gave evidence that he had not been fishing for a couple of weeks because the licence his mother was leasing had been transferred by its owner. They were awaiting another licence to become available.

36. The plaintiff gave evidence that his mother assisted him at home for “probably a couple of hours a day”. This involved cleaning, washing and preparing meals. His mother or father would also drive him to medical appointments. Another difficulty was that, unless they were there, he would get lost and not be able to find his destination.

37. In cross-examination, the plaintiff told the court that he had refreshed his memory from a number of documents before giving evidence. He agreed that crabbing was seasonal work and that he made most of his money from crabbing in peak season from January to March. He agreed that 2009 and 2010 were particularly bad seasons for fisherman on the Clarence River, and it was in that year that he moved to Queensland.

38. The plaintiff gave evidence that he was able to take his boat on a road trailer to the boat ramp and launch it. He tried to avoid rotation with his lower back, but he also went out every day. He used three of his nine boats regularly for a mixture of activity. His mother purchased fuel for the vessels, and she sold the crabs direct to the local co-operative or to Chinese agents.

39. The plaintiff agreed that he had been prescribed anti-depressant medication in 2006 until 2009, but denied taking the medication, because it made him sick. He agreed that he had problems with alcohol and cannabis dependency, and had consulted a Dr Howe in 2006. He could not recall that he told Dr Howe that he had headaches for two years at that time. Nor could he recall telling Dr Howe that he had suffered a back injury and been prescribed Tramal in 2006. The plaintiff gave evidence that he had been involved in some violent incidents relating to his alcohol consumption in hotels. He had been convicted of assault, but denied having behavioural problems that Dr Howe had characterised as a conduct disorder.

40. The plaintiff admitted that in 2007 he suffered a shoulder injury whilst skylarking on the back of a utility. He denied having suffered numerous shoulder injuries despite describing that in a letter to the Director of Fisheries and Resources Management in February 2010. He could not in fact recall more than one shoulder injury.

41. The plaintiff gave evidence that he had an operation on his nose prior to the accident, but denied suffering from sleep apnoea.

42. The plaintiff also described an incident in January 2009, when he was skindiving and went very close to a 35 foot long shark. He admitted to having nightmares and flashbacks in relation to that incident.

43. When questioned about the licence that he shared with his father, he agreed that they split the proceeds of that fishing activity 50/50 between them. They did that for a number of years, but he denied doing that after the accident in August 2011.

44. The plaintiff was questioned about the working arrangement he had for fishing with Mr Chambers, the defendant. He denied that it was a partnership, but agreed that they shared the proceeds of fishing 50/50 between them. He was asked about complaining to Dr Hope in September 2010 of ringing in his ears and a suggestion made by Dr Hope to wear ear muffs to reduce the noise from motors. He did not recall that.

45. Prior to the accident, he agreed that his mother did most of the paperwork and business activity statements for him. She would pay his bills. In the 12 months prior to the accident he had one employee only, namely, Tristan Jammerson. He was employed as a deckhand and he did the heavy lifting and winching, whilst the plaintiff drove the boat and tied the crabs up. He conceded that he was able to continue to drive the boat and do some other activities related to fishing.

46. When asked why he did not complain of a loss of his sense of taste, he answered:

“A: Cause I had that many other injuries that were more prominent to, to every day life than – than whinging about some, what something tastes like or smelt like.”

He had no recollection of being able to taste following the accident.

47. The plaintiff had not been prescribed any anti-depressant medication since the accident, and had a total of 26 sessions of physiotherapy. He denied that in October 2011 he was independent in his personal care and mobility and that he was independent in household tasks.

48. The plaintiff was questioned about leasing his fishing licence to a Mr Wall, although he did not receive any money for it. It was one of his commercial fishing operation licences for net fishing in the Clarence River. He did that at the request of a friend. The plaintiff presently only holds one licence which has a number of endorsements attached to it.

49. The plaintiff was cross-examined about his evidence that the proceeds of crab fishing went to his parents. He gave evidence that they paid for the crabs to be taken to Sydney or Melbourne, and on-sold.

50. The plaintiff was cross-examined about household chores and agreed to being capable of using a vacuum cleaner, cooking meals and doing laundry. He denied being able to make his bed, but said he was able to do shopping and some gardening. He agreed that he could launch his boat on his own, but could not push it off the trailer on his own.

51. In re-examination, the plaintiff clarified that although there was a peak season and a winter season, he still went crabbing all year. Since the accident, he had only operated his vessel without assistance for recreational purposes.

52. The nasal surgery the plaintiff underwent meant that he could breathe a lot better, and he thereafter did not require a CPAP machine for sleeping.

53. The plaintiff gave evidence that he could not operate the vessel for fishing by himself and could only do so with the assistance of someone who held a commercial fishing licence.

Evidence of Mrs Robyn Vance

54. Mrs Vance is the plaintiff’s mother. She gave evidence that she had for many years owned and operated a remedial massage practice in Yamba. At the time of the hearing she was 62 years, but prior to her son’s accident, she presumed that she would continue her work for another 10 years. Her son was a professional fisherman, and she and her husband also held commercial fishing licences.

55. When asked how her son operated his business prior to the accident, Mrs Vance answered:

“A: Excellent organisation. He organised his daily working life himself.”

56. She described his application to his work as 100 per cent. She knew that he had a problem with drinking alcohol and she encouraged him to get a referral to a counsellor, Dr Howe, for that problem. It did not seem to affect his capacity for work. Prior to the accident, he could do everything to look after himself.

57. Mrs Vance gave evidence of the daily care she provided to the plaintiff while he was in hospital, for up to 10 hours per day. She returned to work in 2012 for two days per week, working part-time. That continued until mid-2013 when she sold her practice so that she could assist the plaintiff with his daily activities on his fishing vessel. Prior to that, her husband was helping their son.

58. Mrs Vance was asked what she noticed when the plaintiff came home from hospital. She said:

“A: Well, I had to instigate all forms of activity, all forms of cleanliness, looking after himself, looking after the house, his financial affairs. Basically, everything.

Q: For how long did that continue?

A: That would have continued – he was in our house – in 77 Lakes Boulevard – I think until the end of 2012. Then he relocated into 75 Lakes Boulevard, where I – because I was actually going in there to help him after that. But while he was living in our house – in 77 Lakes Boulevard – of course he didn’t have to do any housework or look after any lawns or gardens.”

59. She described her son as being in “lots of pain” and that he was depressed.

60. Prior to the accident, she described him as “very outgoing, happy”, with an active social life. He was very fit and very strong with an excellent work ethic. He did not take holidays.

61. Mrs Vance recalled that the plaintiff went to Queensland to work on the Pimpama River in early 2001. He returned home a week before the accident for a break. When asked what she did with regard to his fishing, she said:

“A: Yes, I did. I went out with him, in the boat, because I believed that that was the best therapy for him.”

62. Mrs Vance said that fishing improved his mood and that he drove the boat whilst she lifted the pots. She had been leasing a fishing licence to do that, however, Mr Roberts sold that licence in 2016 to another person. She was now trying to lease a commercial licence.

63. She confirmed that the plaintiff had held a fishing licence since he was 16, and it had never been cancelled. She described what she did for the plaintiff when he came home from hospital in December 2011:

“A: At that time I was doing all his washing. I was cooking all the meals. I was doing any overhead work that he needed or helping him get dressed when he had to have his arms up over his head. I was pretty well looking after him full time. However, that did get better when I started to go back to work.

Q: If he needed transportation?

A: I had to drive him.

Q: To what type of events or locations would you drive him?

A: He attended a few physiotherapy appointments and exercise appointments, and also lots of legal, medical appointments that I had to take him to.”

64. Mrs Vance gave evidence that her sleeping was disturbed at night by the plaintiff suffering nightmares. That continued for the whole time he stayed in their home. She assisted him with dressing and also doing his hair, as he had difficulty lifting his hands above his head because of the injury to his ribs. She gave evidence that between December 2011 and June 2012 she spent 20 hours per week assisting him with grooming, cooking his meals, doing his washing and providing transport, as well as physically and emotionally taking care of him. When asked what she meant by “emotionally”, she said:

“A: Listen to what he had to tell me and debriefing about the accident, constantly.”

65. That emotional support was still going on. She had noticed an overall improvement in his mood and from the middle of 2012 he could drive small distances.

66. Mrs Vance gave evidence that he required the care and support she gave him. She also massaged him which relieved his pain and increased his range of movement.

67. At the beginning of 2013, the plaintiff’s partner Shelly moved into live with him for a period of 12 months. During that period, Mrs Vance did not provide any domestic assistance. From early 2014, when he reverted to being on his own, Mrs Vance did provide assistance and said:

“A: I now at that stage are now going there to instigate clean-ups. He’s able to do a certain amount of housework. He can’t do any overhead work. He can’t make the bed, to lean over the bed. I do the lawns, I do the garden and cleaning windows, general household chores.”

68. Mrs Vance described the activities involved in taking the boat out each day and gave evidence that the proceeds of fishing went to her and her husband. She paid for all of the expenses and they provided him free rent. She had not observed any signs of improvement in her son’s physical condition in the last two years and he continued to complain of tingling in his feet.

69. In cross-examination, Mrs Vance confirmed that she sold her massage business at a profit, to take up commercial fishing. The arrangement she had with her son was that he would live at the house rent free, but she did not pay for his food.

70. Mrs Vance agreed that when the plaintiff’s fractured ribs healed, he was physically able to do more of the activities on his boat. He was also able to do more of the lifting, and she accepted that.

71. In further examination-in-chief by leave, Mrs Vance gave evidence that the plaintiff had problems affecting his memory. She said that he had no organisation skills whatsoever, and she observed him losing his wallet, losing his phone and not knowing what the next day was. Those matters had not improved.

72. In further cross-examination, Mrs Vance denied, prior to the accident, that she gave her son assistance in the paperwork, paying bills or doing his business activity statements. She said that she might have occasionally, but she did not do it full time. She denied that he had suffered a number of head knocks in relation to assaults, or that he had suffered head injuries. She was not aware that he had suffered headaches, vertigo or ringing in the ears.

The plaintiff’s medical evidence

73. The plaintiff tendered a bundle of medical reports, together with a number of MAS certificates in support of his case (Ex A, Vol 1). Those reports and the medical opinions contained in them, attest to the very severe nature of the plaintiff’s injuries.

74. On 13 December 2012, an MRI scan of the plaintiff’s spine was carried out by Dr Craig Dyer. He reported as follows:

“Clinical:

MVA 8/08/11. Flailed chest. Neck and back pains. Radicular symptoms.

Report

There is a mild thoracolumbar scoliosis. The lateral vertebral alignment is normal. There is a chronic anterior wedge fracture of T8 (28%). There is no acute fracture evident. Spinal cord signal intensity is normal.

In the cervical spine there is a small C6/7 posterio-central disc protrusion partially effacing the anterior CSF plane, but not impinging on the cord.

In the thoracic spine there is no significant disc herniation. There is no spinal or neural impingement.

In the lumbar spine there is a broad-based L4/5 disc protrusion but no associated thecal/neural impingement.

Conclusion

No acute fracture evident. Chronic anterior wedge fracture T8 (28%). No spinal or neural impingement.”

75. Dr Hopcroft, who first examined the plaintiff on 8 November 2012, was of the opinion that the MRI scan reliably diagnosed the cause of the plaintiff’s ongoing spinal pain and radicular symptoms arising from the cervical, thoracic and lumbosacral areas of his back. Dr Hopcroft was of the opinion that the plaintiff’s ability to work as a commercial fisherman was severely compromised by his injury. His prognosis was for a slow progression with post traumatic osteoarthritis developing in the facet joints of his neck, thoracic spine and lumbosacral spine, which was likely to restrict his capacity for heavy physical employment activities into the future. Dr Hopcroft was of the opinion that the plaintiff would require ongoing reviews by his treating general practitioner on a three monthly basis and would require domestic assistance in the future, with heavier chores, including high cleaning activities, gardening and heavier lawn maintenance duties for six hours per week.

76. Dr Steven Huntsman, consultant psychiatrist, examined the plaintiff on 18 September 2012, and on 20 January 2016, he diagnosed a post-traumatic stress disorder, together with an adjustment disorder, with depressed mood. The plaintiff also suffered alcohol dependence, which was, at the time of his first examination, in remission.

77. Dr Huntsman took a history of the plaintiff having a conduct disorder as a child, and he performed poorly at school, leaving in year 10 to work in the fishing industry. He was of the opinion that the plaintiff was unable to manage his business affairs or day-to-day operation of his fishing boats, and was unlikely to return to his pre-injury duties as a fisherman.

78. That opinion was shared by Dr Boon, clinical neuropsychologist, who assessed the plaintiff on 4 June 2013. The cognitive results of that testing indicated the plaintiff’s visual attention span, visual working memory, ability to sustain attention/concentration, ability to sustain mental effort, and being able to work quickly under timed pressure, planning/organisational skills, complex thinking/reasoning skills were compromised relative to his expected premorbid skills. The plaintiff was also reporting clinical symptoms of anxiety/depression in the severe range, that were likely to compromise his neurocognitive skills further.

79. Dr Boon reported on the CT scan of the plaintiff’s brain on 9 August 2011, which showed a deep laceration over the frontal scalp, and an extensive scalp haematoma. The study also showed a fracture of the right temporal bone, extending through the squamous, down into the petrous temporal bone, running longitudinally across the skull base. She was of the opinion that the neurocognitive deficits indicating below premorbid expectations could be considered sequelae to a possible acquired brain injury sustained in the motor vehicle accident on 8 August 2011.

80. The plaintiff was examined by Dr Paul Darveniza on 12 September 2013. Dr Darveniza is an eminent neurologist who had access to the MRI scan referred to above, together with the neuro-psychometric testing carried out by Dr Boon. He was of the opinion that at the time of his examination, the plaintiff’s disabilities may be considered stable and permanent. He was of the opinion that the plaintiff was fit for light sedentary duties, but permanently unfit to return to his former occupation of commercial fisherman. Further, he required professional domestic assistance at the rate of 2-3 hours per month for heavy household and yard chores. Dr Darveniza, in a separate report dated 16 September 2013, made the following assessments of whole person impairment, pursuant to the Motor Accident Authority Permanent Impairment Guidelines (Ed 1 Oct 2007), utilising AMA (1)(b) as follows:

“(1) A 4 per cent whole person impairment of the forebrain …

(2) A 4 per cent whole person impairment of the right upper extremity …

(3) A 4 per cent whole person impairment of the left upper extremity …

(4) A 4 per cent whole person impairment for loss of the sense of smell …

(5) A 5 per cent whole person impairment of the cervical spine …

(6) A 15 per cent whole person impairment of the thoracic spine …

(7) A 5 per cent whole person impairment of the lumbosacral spine …

(8) A 15 per cent whole person impairment in psychiatric impairment …

Combining the above impairments gives a combined whole person impairment of 46 per cent. …”

81. The plaintiff was examined by Dr J F Davis, a specialist in occupational medicine, on 1 June 2015. He set out the following assessment of the plaintiff’s future treatment needs:

“Counselling, 10-12 sessions at a cost of $220.00 per session, with reassessment undertaken on a needs basis.

A core stabilising program at a cost of $2,700.00, together with a provision of a gym pass at $1,200.00.

Palliative measures by way of physical therapies requiring 8-10 treatments per year at a cost of $75.00 per treatment.

Continuing review by a GP on a quarterly basis at a cost of $75.00 per visit.

Possibility of a decompression procedure at the cost of $15,000.00.

Bilateral knee arthroscopies and patella chrondroplasties at a cost of $8,000.00 each.”

82. Dr Davis also had the opportunity of reviewing the report by Ms Sanja Zeman, occupational therapist, dated 14 July 2014, which is referred to below. He agreed with Ms Zeman’s opinions with regard to the past, present and future care requirements of the plaintiff.

83. Finally, Dr Davis proffered the opinion that the plaintiff “will never be capable of returning to work as a professional fisherman, and his prognosis for returning to any form of employment in the future must remain quite guarded, as a result of both the physical and psychological consequences of this accident”.

84. The plaintiff was also examined by Dr M Rochford, urologist, in respect of his post-micturition incontinence, following the indwelling bladder catheter utilised whilst he was in hospital. Dr Rochford was of the opinion that he would require a specialist urologist review for investigating the possibility of urethral stricture and then relevant investigations would cost between $1,500.00 and $2,500.00.

85. The plaintiff was examined by Dr K Hallison, ENT surgeon, on 21 July 2015, who confirmed that the plaintiff had sustained total loss of smell as a result of the fracture of the base of his skull, for which there was no treatment available.

86. The MAS Certificates, including the combined certificate of Dr Wood dated 12 February 2015, were tendered as conclusive evidence as to the matters certified in them pursuant to s 61(2) of the MACA. The various certificates included an assessment by Assessor Fry of six per cent for forehead scarring, and an assessment by Dr John O’Neil of whole person impairment of seven per cent for brain injury/impairment to forebrain, together with four per cent for loss of smell, a total of 11 per cent whole person impairment. A total combined impairment was assessed by Dr Wood of 25 per cent on 12 February 2015, together with an assessment of six per cent whole person impairment for PTSD by Dr Parmegiani on 23 March 2015.

87. It was not in issue between the parties that the plaintiff had satisfied the impairment threshold pursuant to s 131 of the MACA so as to be entitled to an award for damages for non-economic loss.

88. None of the medical specialists referred to above were required for cross‑examination so as to challenge the opinions expressed by them.

Defendant’s medical evidence

89. The defendant relied on two reports of Dr David Maxwell dated 7 November 2013, and 9 December 2013 (Ex 8). In his first report, Dr Maxwell proffered the opinion that the plaintiff sustained fractured ribs, which had now healed, but there was no evidence that he currently had any significant pathological cause for his current symptoms. As to his work capacity, Dr Maxwell opined:

“He is quite fit for work in any capacity without any restrictions or limitations. He has no pathological condition which would affect him working.”

90. In his subsequent report dated 9 December 2013, Dr Maxwell commented on two previous motor vehicle accidents referred to in the clinical notes of Dr D W Hope, which occurred on 7 November 2009 and 15 March 2011. On both occasions the plaintiff had complained of pain and stiffness in his neck and back. Both reports of Dr Maxwell were admitted over the objection of the plaintiff on the basis they had not been served in the proceedings.

91. The defendant also relied on a report of Dr B J Williams, ENT surgeon. Dr Williams opines that there was no evidence of loss of smell or loss of taste in the hospital notes, outpatient notes, GP notes, and that the first mention of loss of smell was by Dr Darveniza on 16 September 2013, over two years after the relevant motor vehicle accident. He then states:

“In my opinion, the relevant accident in August 2011 did not cause loss of smell or loss of taste, because there is no evidence of such injury recorded by his treating doctors. There is no mention of such injury in the first two years after the relevant motor vehicle accident, even though he was examined on many occasions.”

92. I note, however, that Dr Williams recorded in his report that the “Sensonics Smell Identification test indicated Anosmia”, namely, loss of smell.

93. The defendant also relied on a vocational capacity assessment by Professor James Bright, vocational psychologist, in which Professor Bright opined that the plaintiff was not recommended to return to his pre-injury work as a commercial fisherman. However, he opined further that the plaintiff should be able to work in sedentary or semi-sedentary work capacities, including the following:

• Control room operator

• Weighbridge operator

• Security alarm monitor

• Seafood packer

• Sales assistant in a fishery

• Ticket seller

94. If the plaintiff could be persuaded to undertake further training, Professor Bright was of the opinion that he might consider the following employment:

• Purchasing officer

• Animal attendant

The occupational therapists’ reports and their concurrent evidence

95. The plaintiff relied on a report dated 14 July 2014 of Ms Sanja Zeman, occupational therapist. Ms Zeman undertook an assessment of the plaintiff’s therapeutic needs on 10 June 2014. She was qualified with a large number of medical reports and as part of the assessment process, conferred with his parents. Following a detailed assessment, she concluded that since 1 November 2012, the plaintiff had required assistance for 36.16 hours per week. Prior to that date, following the plaintiff’s discharge from hospital, he had required care for varying hours per week ranging from full time 24 hour per day care, down to 25.5 hours per week.

96. Learned Queen’s Counsel for the plaintiff opened the plaintiff’s case on the basis that his claim for future care would be confined to 10-12 hours per week.

97. The defendant relied on a report from Ms Susan Dinley, occupational therapist, dated 19 December 2015, which became Ex 2. Ms Dinley was also qualified with a large number of medical reports. She assessed the plaintiff at his home on 16 December 2015 and conferred with the plaintiff and his mother. Under the heading “Plaintiff’s Academic and Employment Status”, Ms Dinley made the following comments:

“The OT noted that the plaintiff lost his fishing and driving licence, though the plaintiff needed to be prompted to discuss these offences.

The OT believes that independent of the MVA, the plaintiff has worked as a fisherman, but the OT remains guarded as to the level of work he described. Tax returns may assist in understanding this.

However, he obviously did not always have the appropriate licences over the years and could not have worked.

The OT believes that once the claim is settled, the plaintiff will be capable of returning to his premorbid career or one associated with it. The OT does not believe that he requires an upgraded work program or retraining.”

98. In assessing the plaintiff’s psychological/cognitive and emotional status, the report notes that is Ms Dinley’s belief that the plaintiff exaggerated his results, and that “once the claim is finalised, the plaintiff will return to his premorbid self-using compensation techniques to overcome any barriers”. As to past care, Ms Dinley was of the opinion that the period could be split into five stages as follows:

“Stage 1 – 8 August 2011 to 7 September 2011 (31 days in hospital). Eight hours care per day provided by mother and father.

Stage 2 – 8 September 2011 to 30 November 2011 (at home with parents). Thirty one hours per week for six weeks.

Stage 3 – 1 December 2011 to 30 November 2013 (at home by himself). Eight hours per week.

Stage 4 – 1 December 2013 to 30 November 2014 (at home with partner). Three hours per week.

Stage 5 – 1 December 2014 to 16 December 2015 (living alone at home). Two hours per week domestic assistance.

99. For the future, Ms Dinley recommended a total of 2 hours per week comprised of one hour domestic assistance and one hour lawns, garden and maintenance, at a total cost of $45 per week.

100. In addition, Ms Dinley recommended future occupational therapy (for relearning with equipment and using compensation techniques), a total of 12 hours at $170 an hour. She also recommended various items of equipment totalling $3,550.00, together with some minor alterations to the plaintiff’s bathroom at a cost of $1,980.00.

101. Ms Zeman and Ms Dinley held a teleconference on 18 February 2016, following which, they produced a joint report dated 20 February 2016 (Ex F). That report commenced by setting out their respective frames of reference, which accounted for the discrepancies in their reports. At [1.5], the joint report noted that Ms Dinley was provided with NSW Department of Primary Industries documentation which evidences past offences and the loss of the plaintiff’s driver’s licence and commercial fishing licence, which caused her to remain guarded as to the level of work the plaintiff was actually engaged in prior to the subject accident. Ms Zeman was not provided with that material.

102. Both occupational therapists were provided with the neuropsychological assessment results of Dr Boon. In addition, Ms Zeman undertook extensive standardised testing as part of her assessment of the plaintiff, whereas Ms Dinley based her assessment on her own observations rather than continuing with the standardised testing, once she had perceived some non‑compliance from the plaintiff, which led to her assessment referred to above, that he was exaggerating his cognitive deficits.

103. At [1.9], the report notes that Ms Dinley did not include the plaintiff’s difficulty in cognitive processing in her recommendations as being caused by the motor vehicle accident, as from her perspective there did not appear to be any evidence supporting that assumption. Ms Dinley considered the plaintiff’s reported temporal laceration and sequelae, along with a GCS of 15, as not being a traumatic brain injury, and being inconsistent with his demonstrated ability to maintain other tasks.

104. As to the adolescent conduct disorder, Ms Zeman noted that there was no medical records relating to its management beyond a reference to a diagnosis in his GP’s notes.

105. At [1.12], Ms Dinley opined that on the basis of the medical records, the plaintiff did not sustain a traumatic brain injury, but rather, his current cognitive deficits are reflective of, and consistent with, premorbid functioning. Further, Ms Dinley at [1.18], found that the plaintiff was a man who was always dependent on others prior to the subject accident, on the basis that at the time of her assessment, undertaken on 16 December 2015, either his mother or partner were responsible for “all banking, bill payment, shopping, meal preparation, housework, laundry and bed making”.

106. At [1.20], the report notes that Ms Zeman agreed that the plaintiff presents with a physical capacity to undertake all instrumental activities of daily living, however, she opines that he presents with cognitive dysfunction, “notably high level executive dysfunction, impacting on his ability to organise and manage behaviour and function”. On the basis of the medical reports examined by her, the plaintiff did sustain a traumatic brain injury with cognitive sequelae, despite his complicated premorbid medical history.

107. Whilst the frames of reference between the two assessors was substantially different, the 18 months period between their respective assessments was noted to account for substantial differences in their respective opinions.

108. The report then sets out the position taken by each occupational therapist in respect of the five stages set out in Ms Dinley’s report. To summarise:

1. Stage 1 – Ms Zeman concedes 8 hours per day during the hospitalisation of the plaintiff, except for the two week admission to the ICU.

2. Stage 2 – The occupational therapists disagree on the care needs and duration of that period.

3. Stage 3 – The occupation therapists disagree on the care needs and duration of that period.

4. Stage 4 – For this period, Ms Dinley recommended 8 hours on average care per week, whereas Ms Zeman assessed his needs at 15 hours per week.

5. Stage 5 – Both experts disagree on the care and assistance requirements over the period from 1 November 2012 to the present, and future care.

109. Ms Zeman and Ms Dinley gave concurrent evidence. As to the plaintiff’s level of premorbid functioning, Ms Zeman was asked:

“Wheelahan Q: And what role, if any, did the fact that he was able to operate a business involving a number of vessels and interaction with authorities, fishing co-operatives and the like?

Zeman A: I think the relevance of that is it demonstrates somebody who is able to cognitively plan, organise, exhibit timing skills, because obviously to do that and to be able to effectively run a business that’s highly successful, one has to have that, those executive skills.”

110. Ms Zeman gave evidence that she relied on the neuropsychological testing of Dr Boon, which included a test designed with some degree of specificity, to establish whether or not the plaintiff was malingering. She agreed there was no evidence found by Dr Boon of that, and gave evidence that she herself did not experience any concerns or qualms about the validity of the responses she had received from the plaintiff.

111. Ms Zeman gave evidence of her experience of over 20 years of assessing traumatic brain injury in patients. As to the different frames of reference leading to disagreement between the witnesses, Ms Zeman gave evidence that Ms Dinley did not undertake the same tests as she undertook, and further, that she, Ms Zeman, gave more consideration to the report of Dr Boon and her findings.

112. Ms Zeman gave evidence that the period of induced coma that the plaintiff underwent was between 9 August and 16 August 2011 at the Gold Coast Hospital.

113. Ms Zeman was cross-examined by counsel for the defendant on her assessment expressed in her report of July 2014, that the plaintiff required 36.16 hours per week care.

114. Ms Dinley outlined her experience in clinical work with brain injured patients. She adhered to her belief that the plaintiff did not suffer a brain injury. She was asked:

“Casselden Q: Why do you hold that opinion?

Dinley A: Okay. Well, first of all, Dr Boon’s report indicated that Mr Vance had a pre-existing conduct disorder and learning disorder back at school, and those symptoms are part of a cognitive processing disorders in themselves. People with those diagnoses, tend to have difficulty sensing and using their senses to be able to process and problem solve throughout their life. They tend to have problems with concentration, coping in a structured environment whereby there’s lots of sensory input.

Dr Boon in her report, indicated that the premorbid history would have an impact, and that impact they would not be able to decipher. So I read that, and I accepted that. I then read, of course, Ms Zeman’s report and realised she had undertaken to accept that a brain injury was part of the motor vehicle accident.

Now some of the reasons why I didn’t accept was just the fact that – I looked at the car accident situation, and I admit I’m not a forensic person at all, who can analyse that stuff, but, for me, I felt that Mr Vance, you know, could come away from the car accident. I believe – it sounded like he was stunned, because of his life saving techniques that he used for his friends, and being able to problem solve, to be able to get assistance in that matter so quickly, to be able to help his friends. I also looked at the Glasgow Coma Scale, and although that might have been done when the ambulance arrived, like the ambulance arrived, the fact is, it was 15. It was then 15 back at the hospital. I also looked at the PTA testing that had been undertaken …”

115. Ms Dinley was asked whether she had any consideration to any radiology, and she replied:

“Dinley A: That’s right, and the radiology also said there was no inter-cranial bleed. So even though I understood that there had been a facial laceration, I understood that there had been a fracture of the temporal lobe – the temporal bone, I also understood that there had been no inter-cranial bleed. So, from all of that, I put it all together, and as an occupational therapist working in brain injury, although causation and although diagnosis isn’t our primary job role, certainly, working in a multi-disciplinary team for many years, and problem solving, and even last week, I finished a course in cognitive processing at Sydney University, part of our role in the multi-disciplinary team is to add benefit; and that benefit is to say, ‘look, I didn’t have problems in this area, but certainly had problems in this area,’ and, ‘could we consider this may be the problem, rather than accepting that’s the problem?’ So we do have a very strong contribution to be made from the multi-disciplinary team.”

116. When asked what part of her assessment process were consistent with the view that the plaintiff was not suffering from a traumatic brain injury, Ms Dinley, in a very long answer, included the following:

“A: But we do do it, and so, you know, I would look at him walking upstairs; he could walk up and down the stairs without even holding onto a rail. He could run up and down the stairs without – he actually beat me up and down the stairs, because the stairs in his house were actually not safe, they’re not to standard, but they’re beautiful; but he actually managed to negotiate those up and down the stairs without any problems at all. He also managed to demonstrate different things in the house. He could label things, which is another part of cognitive processing; he could label. He had attention to detail when he was telling me processes …”

117. Ms Dinley explained the reason why she stopped testing the plaintiff was because during her mini-mental examination, the plaintiff said he did not know the time of day, what day of the week it was, or what month it was. She disagreed with Ms Zeman’s opinion that the plaintiff requires vocational support of 15 hours per week because he had not suffered a brain injury.

118. As to the role that the plaintiff’s mother played in prompting him, Ms Zeman was asked whether that could be achieved by a mechanical aid, for example, a mobile phone with prompts. She gave this evidence:

“A: In some cases it can, but there’s many cases where someone will use a mobile phone prompt, or the alarm will go off, and then they’ll get half way to start the task, get distracted because distractibility is a cognitive deficit, and forget about the prompt and go off and do something else.”

119. Ms Dinley disagreed with that proposition and Ms Zeman’s opinion that the plaintiff required ongoing physical and cognitive rehabilitation or therapy in the order of 3 hours per week into the future.

120. When cross-examined about the physical aspects of domestic assistance, for example, doing the laundry, Ms Zeman made appropriate concessions as to the plaintiff’s physical ability to carry out such tasks.

121. Ms Dinley, on the other hand, relied on the history of his premorbid functioning, namely, that he had never had been responsible for doing domestic tasks such as his own laundry. Either his partners or mother did it for him.

122. Ms Zeman conceded that the plaintiff had physical capacity to undertake the vast majority of domestic and daily tasks, however, he was affected by cognitive fatigue and the psychological impairment overlaying that. In Stage 2, his physical complaint of pain was overlayed by severe cognitive fatigue and the impact of high levels of opiate based medication on his global functioning. By mid-2012, his level of physical care would have diminished.

123. In respect to that evidence, when asked to comment, Ms Dinley said as follows:

“Dinley A: No, once again, I go back to the premorbid stuff. I also – I’ve documented that he has done driving on 1 June. He had already moved into his parents’ home at this stage. He was – being in self-care, managed steps, he relocated, he had his own bathroom. He commenced a relationship with Shelly at that stage. His mother reportedly continued completing all the domestic tasks, because they were living in her house. He started reportedly continuing to maintain both homes.

Finances, his mum continued to manage the finances, a lot of that stuff was done premorbidly. His mother drove him until 31 May, and then he started driving himself. So, from my perspective, you know, I believe that he was physically capable of doing more, once again, from a cognitive question. I believe that he had never really been responsible for a lot of stuff. I believe that, you know, his pre-morbid cognitive processing limitations, his motivational status, his ability to initiate would have had an impact on that, from a premorbid point of view.”

124. Ms Zeman gave evidence that none of the cognitive screening tools that she used were subjective. They were standardised, validated and highly reliable. She assessed the plaintiff on the Disability Rating Scale at the low end of moderate.

125. Ms Zeman went on to describe the plaintiff’s care needs during Stage 2, the period immediately after his discharge from hospital, as being significant. His diagnosis with PTSD in 2014 was an exacerbating factor and was now chronic.

126. In further questioning by Queen’s counsel for the plaintiff, Ms Dinley conceded that the plaintiff was physically capable of doing everything for himself before the accident. He was independent in his personal care. She also agreed that Dr Boon had concluded that the plaintiff had suffered an acquired brain injury. She gave evidence that his pre-injury psychiatric history was that of conduct disorder, that it occurred when he was at school at age 14 years. She gave the following evidence:

“Wheelahan Q: That conduct disorder still had an operational effect upon him 16 years later?

Dinley A: Definitely.

Wheelahan Q: In what way?

Dinley A: Well, if you look up on the research of conduct disorder and all those behavioural disorders, they have a greater incidence of criminal activity, of not understanding their place in society, they lack insight into social skills and to the legalities of what society has laid down as a baseline.”

127. Ms Dinley would not accept that the plaintiff had an enviable work record, but described it as “consistent”. In explanation she said:

“A: I believe it was specific to his level of cognitive function and I believe it was quite protected in many ways, protected in terms of, he worked by himself with his family involvement and family funding of things, and at times it was supported in many ways.”

128. Ms Dinley went on to state that he had periods of time when he did not work because he did not have a fishing licence, and that that occurred on a few occasions.

129. Ms Dinley was further cross-examined about her assessment of the plaintiff’s impaired function, by comparison to that of the various specialists. In particular, Dr Darveniza had published a whole person impairment of 10 per cent to the forebrain, whereas Ms Dinley was of the opinion that he had suffered no impairment at all. When asked how she came to that conclusion, she said:

“Dinley A: As I said before, as an occupational therapist in a multi-disciplinary team, we are asked to do our screening tools and to come back and provide input into making the diagnosis. With all due respect, Dr Darveniza is a neurologist, and that’s great, okay, but I’ve also over the years been able to inform neurologists of other cognitive processing problems that people had that had never been picked up, so I do work as a part of a multi‑disciplinary team and I do have that cognitive experience to do so.”

130. Ms Dinley conceded that she had not referred to the plaintiff’s skull fractures in her report.

131. Nor was Ms Dinley aware, before she gave evidence of the report of Dr John O’Neil, who assessed the plaintiff’s brain injury as a 7 per cent whole person impairment.

132. In respect of Ms Dinley’s previous evidence, “that the plaintiff ran up the stairs at his home during her assessment”, she conceded that he did not run up the stairs. Further, she conceded that her notation that he had been “managed in an induced coma at the Gold Coast Hospital for three days”, was incorrect, when he was in fact intubated and sedated from 9 August until 16 August 2011.

133. As to the whole person impairment of 46 per cent made by Dr Darvineza, Ms Dinley gave evidence that that would not necessarily translate to an impairment in function.

134. Ms Dinley was also challenged as to her opinion that once the case had been finalised, the plaintiff was capable of returning to his premorbid career. She accepted that there was no other support for that proposition in the medical evidence. She also understood that Dr Boon administered the TOMM test for malingering, which demonstrated that there was no evidence of malingering and that the plaintiff had provided a completely reliable history. Based on his physical injuries, it was her evidence that the plaintiff could “basically upgrade himself straight away” to return to work. She was asked:

“Wheelahan Q: So I was putting to you that it doesn’t matter to you that the weight, the overwhelming weight of medical opinion, and the only other occupational therapy opinion in this case, is totally opposed to your view about virtually everything? …

Dinley A: Correct.”

135. Ms Dinley was also cross-examined about the plaintiff’s loss of smell. It was put to her that that would indicate the likelihood of some brain damage. She answered:

“Dinley A: If he didn’t have it beforehand, and he’s had it post motor vehicle accident, then one might assume it could be that or it could be some of the medical interventions during the induced coma.

Wheelahan Q: Namely what? What medical intervention?

Dinley A: Some of the devices they have to use for breathing apparatus.

Wheelahan Q: Could cause him to lose his sense of smell?

Dinley A: If it compresses something it might.

Wheelahan Q: That’s just a wild guess isn’t it?

Dinley A: I’m opining like your opining.

Wheelahan Q: No, but I have some basis for it … Do you?

Dinley A: No. I don’t. Except experience of 32 years working in a hospital on brain injuries.”

136. Ms Dinley accepted, somewhat reluctantly, that the plaintiff suffers a PTSD. Ms Dinley acknowledged that she did not have the qualifications to make a recommendation for counselling or medication for that diagnosis, but opined in her report:

“That the provision of copious amounts of pain care for essentially conditions involving pain and mental health issues, is not best practice for mental health intervention, empowering an individual through activity, including one’s ADL management forms, part of the OT’s framework for therapeutic interventions.”

Ms Dinley acknowledged that that was making a recommendation for which she qualified, “within her area of expertise”. When asked where the “best practice” came from, Ms Dinley gave the following evidence:

“Dinley A: Yes. Okay, I was trying to tell you that this morning. It comes from Dr Ashley, Dr Virgona, and Dr Giratona, who have met with the chosen group of OT’s for medical legal expertise for a National education program, so I was trying to tell you about it this morning, and they have discussed it with us, and we’ve invited them into our group, and they’ve indicated to us that when someone has mental health issues, or they’ve got Post Traumatic Stress, or pain, excessive pain, you do not cease them doing their everyday activities. In fact, you involve them in their everyday activities so they learn to upgrade their tolerance towards completing their own ADL.”

137. Ms Dinley accepted that the proposition was therefore based on a discussion with some colleagues for an education program. Ms Dinley agreed that PTSD can have an impact on cognitive processing, however, in this case the plaintiff had a premorbid cognitive disorder, relying on Dr Huntsman and Dr Boon.

138. It was put to Ms Dinley that the plaintiff’s work record demonstrated he had stopped having a conduct disorder, which she denied, giving evidence that a person would never really overcome that condition.

139. Ms Dinley was questioned about the 35 items which made up her assessment of the plaintiff, which satisfied her that the plaintiff had no impairment with regard to his functionality. Those tests were not tabulated or recorded in her report, and Ms Dinley said they were “probably in my home office”. It was put to her that the assessment did not happen, which she denied. Similarly, there was no reference in her report or materials to her assessing the plaintiff pursuant to the MMSE (“or mini-mental”). Ms Dinley acknowledged that those results were not recorded either.

Defendant’s objection to the report of Mr K Elsmore dated 17 September 2015

140. Mr Elsmore prepared a report as a forensic accountant on the assessment of the plaintiff’s claim for economic loss. At the conclusion of the oral evidence in the hearing, the defendant raised objections to [5.6] to [5.12], and [7.1] to [7.6] of that report, relying on various grounds. The defendant’s primary position was that the whole report was inadmissible because it did not comply with what the High Court of Australia said in Dasreef Pty Ltd v Hawchar [2011] HCA 21; 243 CLR 588. Namely, that the opinions expressed therein were not based on the qualifications of the author of the report. Secondly, the assumption upon which those opinions were based has not been established in the evidence, and thirdly, that the author had not set out the reasons for the opinions expressed therein, but relied on mere assertions.

141. As judgment was to be reserved in any event, leave was granted to the plaintiff to make a written submission in respect of the admissibility of the report of Mr Elsmore, and in particular, [5.6] to [5.12] and [7.1] to [7.6] thereof.

142. The plaintiff relied on a written submission dated 4 March 2016.

143. In respect of the paragraphs referred to above, the plaintiff submitted as follows:

1. Paragraph [5.6] – The defendant’s submission that the overheads referred to in paragraph 5.6 had no factual basis and should be treated as assumptions was incorrect. The figure were taken from the profit and loss statements which are included in Ex J and form part of the plaintiff’s tax records. They were produced under a subpoena issued by the defendant.

2. Paragraph [5.7(ii)] was objected to on the basis that it is an assumption supported by the evidence. It relates to the periods during which the plaintiff provided unpaid assistance to his parents on their farm from 2002 through to 2011. The plaintiff’s evidence was that he in fact worked from about 2005 on the property, and from then until 2010 he worked for half a year, each year. After 2010 he went to Queensland to work. That evidence was unchallenged. Therefore, the content of [5.7(iii)], namely, that:

“ …the periods working on the farm at Micalo for his parents without pay would have significantly impacted the plaintiff’s capacity to undertake fishing work.”

is factually correct, being supported by the unchallenged oral evidence of the plaintiff.

3. The defendant objected to [5.8] on the basis that there was no reasoning set out for the conclusions arrived at. The plaintiff submitted that the reasoning process and methodology is explained at [5.9] in exhibit A at pg 382, as follows:

“(i) The net profit in table 4 is taken from appendix 7, which is a summary of exhibit J.

(ii) The true net profit is taken from schedule B. The figures and items referred to in each calculation come from the tax returns and exhibit J.”

4. The defendant objected to [12] on the basis that the conclusion was a “bald assertion without any real explanation … where I would submit a fundamental assumption of fact has not been established”.The opinion of Mr Elsmore set out there was supported by the unchallenged oral evidence of the plaintiff. It was further conceded that the income was split 50/50 in the tax returns between the plaintiff and his father.

144. As to [7], Mr Elsmore had explained the nature of his training and studying experience and his opinion was wholly based on that expertise. Further his qualifications were unchallenged. The objections to [7.2] and following were based on material contained in the tax returns and Ex J, adjusted appropriately. It was submitted that the opinions expressed in those paragraphs is wholly or substantially based on the expert knowledge of Mr Elsmore and therefore Dasreef had been complied with.

145. In a short submission in reply, counsel for the defendant submitted that the evidence relied on by the plaintiff did not establish that the plaintiff provided unpaid assistance to his parents on their farm for nine months in 2010 to 2011. The plaintiff was in Queensland for 12 months before his accident and, as his work as a fisherman was seasonal, most of his income was made in the peak season, being January through to March.

146. It was further submitted that Mr Elsmore had not sufficiently exposed the reasoning process he had relied on when arriving at his opinions, thereby rendering the report inadmissible.

147. I am satisfied that Mr Elsmore, as a chartered accountant, has relied on the tax returns, including the profit and loss statements (Ex J), in setting out the schedules and appendices to his report dated 17 September 2015. The principal assumptions upon which his opinions are based are set out in [4] of that report, and his reasoning for making adjustments are also contained in the body of the report. Mr Elsmore has set out further assumptions in [6], and in setting out the opinions expressed in the report, it is clear that those opinions are based on his training, education and experience as a forensic accountant. I have therefore admitted the report into evidence. For ease of reference, the plaintiff’s tender bundle Vol 2 was marked as Ex O in the proceedings.

Other evidence relied on by the defendant

148. The defendant tendered a number of medical reports, treatment records and clinical notes (Exs 3-7).

Defendant’s submissions

149. The defendant relied on the following schedule of damages:

Non-economic loss	$250,000.00
Past economic loss	$77,812.00
Future economic loss	$350,000.00
Past gratuitous care and assistance	$45,916.00
Future care and assistance	$43,929.00
Past out of pocket expenses	$14,700.00
Future treatment expenses	$30,000.00
Total	$812,357.00
Less 25% for contributory negligence	$609,267.00

150. Counsel for the defendant submitted that the real issues in the case were the plaintiff’s capacity for work, post the motor vehicle accident, and the nature and extent of any domestic assistance or care that he required, both in the past and into the future.

151. Counsel referred to the tax return for 2011, which showed a taxable income of $7,292.00. When that figure was averaged over a period of years, it came to the figure of $17,292.00, or a weekly income of $332.53, which the defendant relied on.

152. Counsel for the defendant submitted that his future loss of earning capacity was difficult to assess because of the uncertainty surrounding his employment, his age, and his presently untreated PTSD. Since December 2011, he had been taking his boat out on a daily basis with either his mother and father, and it was submitted that he had since that time, in a sense, been an employee of his mother or father, and in lieu of wages, he had been given free board and rent. He was otherwise able to carry out the physical activities in taking his fishing boat out.

153. In assessing the net weekly figure upon which to assess the plaintiff’s loss of future earning capacity, it was submitted that any figure would have to be discounted by 50 per cent, given the contribution made by his parents. In addition, the usual discount for vicissitudes should be increased from 15-20 per cent, having regard to the uncertainties surrounding his future.

154. In respect of the question of brain injury, and the impairment of his cognitive abilities, counsel for the defendant conceded that the occupational therapist, Ms Dinley, was out on her own in terms of her opinion. However, she deferred to Dr Boon, the neuropsychologist, and the plaintiff’s premorbid medical history. That history contained a notation in Dr Howe’s clinical notes (Ex 5), “Query conduct disorder”. Counsel could not rely on any clinical diagnosis or treatment regime in respect of that condition. It was submitted that the plaintiff did not require care in relation to cognitive impairment in circumstances where he could perform high functioning duties like driving a car, driving a boat, or giving evidence in court. The defendant’s schedule of damages was based on the opinions of Ms Dinley.

155. It was submitted that the plaintiff did not require 24 hour care on his discharge from hospital. Within a short time of his discharge, and by mid December 2011, he was taking his fishing boat out on a daily basis. Rather, he was restricted in doing heavy cleaning work and his care claim should be confined to that activity.

156. Counsel conceded that the plaintiff required treatment for his psychological injury. The plaintiff had made little complaint of neck or back pain to his general practitioner, Dr Hope.

The plaintiff’s submissions

157. The plaintiff submitted the following schedule of damages:

Non-economic loss	$350,000.00
Past out of pocket expenses	$14,700.00
Future out of pocket expenses	$127,548.00
Past economic loss	$201,682.00
Future economic loss	$658,192.00
Past care	$224,186.00
Future care	$1,412,872.00
Total	$1,989,180.00

158. Learned Queen’s Counsel for the plaintiff referred to the MAS Certificates and their effect pursuant to s 61(2) of MACA as being conclusive evidence as to the matters certified therein. Of particular importance was the certificate issued by Dr O’Neil, who certified that the plaintiff had suffered a brain injury and impairment to the forebrain, constituting 7% Whole Person Impairment (“WPI”). He had also certified a loss of sense of smell and allocated 4 per cent WPI, giving a total of 11 per cent WPI.

159. It was further submitted that the induced coma in which the plaintiff was placed at Gold Coast Hospital, led to an overwhelming inference that the sedation related to the plaintiff’s head injury. It was further consistent with the deep laceration he suffered over his frontal scalp, and fracture to the right temporal bone.

160. On the life expectancy tables, the plaintiff had 50 years of life ahead of him in which he had to endure the sequelae of his injuries. The injuries to his spine, his chest, and his PTSD, led to a very grave and permanent set of injuries and disabilities.

161. It was submitted that prior to the motor vehicle accident, the plaintiff had a 15 year work history, which demonstrated a capacity and willingness to involve himself in a very labour intensive occupation. For part of each year he bartered his labour with his parents by working on their farm. For six months of the year he derived his income from fishing. He had worked from the time he left school and had never stopped. The weight of the medical evidence was that he was not capable of returning to that employment.

162. Counsel referred to Penrith City Council v Parkes [2004] NSWCA 2001. It was submitted that the evidence of Ms Dinley, to the effect that he was fit to return to his work, should be rejected. It was submitted that her demeanour and her assertions were extravagant and that the court would properly conclude that she was nothing more than an advocate for the defendant in these proceedings.

163. The plaintiff’s claim for economic loss was based on a net loss of $1,000.00 per week, based on the report of Mr Elsmore.

164. On the question of care, and in particular, the level of care required in the future, it was submitted that the evidence of Ms Zeman would prevail over that of Ms Dinley. It was submitted that Ms Zeman gave her evidence in a calm and reflective way.

165. The plaintiff submitted that the evidence of Mrs Vance provided ample evidence supporting the claim for past care and domestic assistance of 20 hours per week.

166. The plaintiff agreed with the defendant’s assessment of eight hours per day for the time the plaintiff spent in hospital. Counsel submitted that a legitimate approach to the question of future care was to allow 10-12 hours per week, particularly as there had been no challenge to the evidence of Mrs Vance as to the 20 hours per week she spent.

167. The plaintiff, in a written outline of submissions, submitted that his earning capacity has been destroyed, and that could not be the subject of legitimate debate, in light of the overwhelming medical evidence upon which the plaintiff relied. The lone, contrary medical opinion was that of Dr Maxwell, whose reports were admitted late in the trial. The plaintiff had no relevant capacity to generate any income in any activity for which he was qualified by training or otherwise suitable. The lone voice contradicting that submission was that of Ms Dinley, whose evidence the court should reject.

168. The plaintiff submitted that the plaintiff’s claims for past and future economic loss should be in accordance with the calculations set out in the report of Mr Elsmore. The calculation for economic loss should be further discounted by 15 per cent for vicissitudes. Similarly, counsel submitted that the assessment of past care should be accepted as calculated by Mr Elsmore, and future care calculated on the same basis. Whilst that calculation was clearly substantial, in the absence of credible evidence to the contrary, the claim was legitimately and professionally sustainable. The evidence of the plaintiff’s mother was compelling as to the extent of care required to be provided. Further, although the evidence of Ms Zeman may constitute a counsel of perfection, nevertheless, her prescription was based on sound occupational therapeutic bases, and constituted the upper limit of an ideal prescription for the care of the plaintiff. It was conceded that the claim of 15 hours per week for emotional/motivational support could not be sustained in the light of the evidence that Mrs Vance receives a pecuniary reward in respect of the services so rendered.

Determination/Assessment of damages

169. In the motor vehicle accident on 11 August 2011, the plaintiff sustained the very severe injuries outlined above. At the date of that accident, he was 30 years of age, and had been gainfully employed for the previous 15 years as a commercial fisherman. I am satisfied that he was so licenced, by various means, for the whole of that period, and notwithstanding two minor motor vehicle accidents prior to 2011, that he was a fit and healthy man, capable of carrying out all of the physical work involved as a commercial fisherman.

170. I am satisfied that the plaintiff suffered a brain injury as assessed by Dr O’Neil. He has ongoing pain from his physical injuries to his spine, has developed a PTSD which has become chronic, and he is likely to suffer these ongoing disabilities for the rest of his life.

171. The plaintiff gave his evidence with a flattened affect, and tended to understate the impact of what were very severe injuries on him. I accept him as a witness of truth as to the ongoing sequelae of those injuries. Further, the plaintiff’s mother, Mrs Vance, was a most impressive witness, whose evidence painted a clear picture as to the plaintiff’s life prior to the motor vehicle accident, and the effect of the injuries he suffered on his daily life activities following that accident. The plaintiff was indeed fortunate that both his parents were able to dedicate themselves to his therapeutic welfare, following his discharge from hospital, by assisting him both in respect of his domestic care and assistance, and by allowing him to get back out on the water on one of his fishing vessels. To do so, both of them, at various times, gave up the opportunity to earn their own livelihood. In the case of Mrs Vance, that meant closing down a long-running, successful business. I accept the evidence of Mrs Vance as being entirely reliable evidence of the plaintiff’s disabilities arising from his injuries.

172. The assessment of non-economic loss pursuant to the MACA is at large, and in order to properly compensate him for his significant pain and suffering, and loss of amenities, I assess his damages for non-economic loss at $300,000.00.

173. Past treatment expenses have been agreed at $14,700.00. For future treatment expenses, I am not persuaded that the plaintiff will require future surgery, nor will he require a gym membership for the balance of his life expectancy. There is no evidence establishing the need or reasonableness of such expenditures. The other claims are set out in the plaintiff’s schedule as follows:

1. Ongoing therapy for his life expectancy of 50.24 years, as per calculations of Vincent’s Forensic Accountants in their Care Report (“Care Report”) dated 21 December 2015 - $27,275.00.

2. Mobility/household equipment for his life expectancy of 50.24 years, as per the same report - $24,934.00.

3. Medical consumables for his life expectancy of 50.24 years, as per the Care Report - $15,721.00.

4. General practitioner costs for his life expectancy of 50.24 years, as per the Care Report - $5,618.00.

5. Core stabilising program for his life expectancy of 50.24 years, as per the Care Report - $2,700.00.

6. Total - $76,248.00

174. I intend to round out the award for future treatment expenses to $75,000.00.

175. The plaintiff’s claim for past economic loss is based on the report of Vincent’s Forensic Accountants dated 17 September 2015, and comprises claims for two periods, namely, 9 August 2011 to 30 September 2015, and 1 October 2015 to 15 February 2016. Both awards are based on a notional earnings after tax, arising from $793.00 in 2012 to $916.00 in 2015.

176. The defendant’s position, as advocated by its counsel, was that the plaintiff should be awarded past economic loss based on a net weekly loss of $332.53, which however, did not take into account the correct averaging figure for the plaintiff’s income as a primary producer. I have considered the evidence of Mr Elsmore carefully, and find that the notional earnings he has attributed are somewhat high, and do not reflect the true position as outlined in the plaintiff’s tax returns. I do find, however, that the plaintiff has been totally incapacitated for work since the accident, and I have averaged his loss over the entire period, to a net figure of $650.00 per week. For the period 9 August 2011 to 13 May 2016, the calculation is $650.00 net per week x 248 weeks, equalling $161,200.00.

177. For future economic loss, I find that the plaintiff is wholly incapacitated for his work as a commercial fisherman. He has no other qualifications or training other than unskilled farm work, and therefore, having regard to the extent of his physical and psychological injuries, is fully incapacitated for work. In so finding, I reject the opinions relied on by the defendant to the effect that the plaintiff is capable of undertaking a range of work that falls into sedentary or semi-sedentary work categories. I also reject the opinions of Dr Maxwell as to the plaintiff’s earning capacity, and, for the reasons set out below, the opinion of Ms Dinley on that subject. The complexity here arises as to the value of the plaintiff’s diminished earning capacity, and for that reason, the defendant has advocated a substantial buffer of $350,000.00. To approach the matter on that basis, for a man of relatively young age, would undercompensate him, bearing in mind that the purposes of damages is to place the plaintiff in the position he would have been, but for his injuries. Pursuant to s 126 of the MACA, the assumptions I make on which my award for damages for future economic loss are based, are that the plaintiff’s most likely future circumstances would have been to continue to work for the rest of his life as a commercial fisherman. He had the licences, and a number of vessels to carry out that work. He had no other qualifications, training, or experience to do any other work. Whilst that work was somewhat seasonal, I accept his evidence that he continued to do it throughout the year, as well as spending time assisting on his parents’ farming property, prior to the accident.

174. Again, I do not accept the notional weekly income calculated by Mr Elsmore, but discount that amount, and find that an appropriate figure on which to calculate the plaintiff’s future loss of earning capacity is the sum of $750.00 net per week. The multiplier is 844.69, which provides a total of $633,517.00. Applying 15 per cent vicissitudes to discount, that amount becomes $538,490.00.

175. I do not accept the defendant’s submission that the vicissitudes in this matter should be larger than that usually applied in such a calculation.

176. It was very clear at trial that the major point of difference between the parties, and point of contention between the occupational therapists, was the plaintiff’s need for past and future domestic care and assistance, and the extent of it. I have set out the hypotheses of both Ms Zeman, on behalf of the plaintiff, and Ms Dinley, on behalf of the defendant, and substantial extracts of their concurrent evidence, to demonstrate the points of divergence between the two witnesses. I find that Ms Zeman gave her evidence in support of the propositions set out in her report, in a thoughtful and reflective manner. She made proper concessions in her evidence, and had appropriate regard to the medical evidence with which she was qualified. The same cannot be said for Ms Dinley. Her evidence was based on a number of false assumptions, which she refused to concede when it was plain that she should do so. The evidence did not establish that the plaintiff had lost his fishing licences at all during the whole time of his working history, whereas she adhered to her belief that he had lost it on a number of occasions. Her reliance on the plaintiff suffering a “conduct disorder”, which would affect his whole of life activities, including his employment, was just not made out on the evidence. Other than a note in the clinical notes of Dr Hope, there was no medical evidence of the clinical diagnosis or the basis for it, or any treatment regime administered. Rather, the plaintiff did not get on at school, he left at an early age, and quickly adapted to life as a commercial fisherman. I accept the submission by learned Queen’s Counsel, on behalf of the plaintiff, that her evidence in relation to the plaintiff not suffering a brain injury, left her “out on a limb”, and was not supported by any other evidence in the case. She became an advocate for the defendant. Her opinions as to the plaintiff’s care needs could not be accepted.

177. On the other hand, the plaintiff has made appropriate allowances from the assessment made by Ms Zeman, both as to the past and future care needs.

178. For the past, I do not accept the calculation relied on by the plaintiff, as set out in the report of Vincent’s Forensic Accountants dated 17 September 2015. Rather, I find that over the whole of the period from 9 August 2011 to 13 May 2016, the plaintiff required attendant care services in excess of 6 hours per week, so as to satisfy the threshold in s 141B of the MACA. Dividing that period into five stages, as was adopted by the occupational therapists, all of that care was provided by the plaintiff’s parents, except for that period of time when the plaintiff’s then partner provided those services (during Stage 4). It is impermissible to average out the amount of care provided over the whole of that period – see Sampco Pty Ltd v Wurth [2015] NSWCA 117, per Basten JA (Meagher JA and Adamson J agreeing), at [91]. I therefore assess the award of damages for past care for those five periods at the proscribed rate relevant for that period as follows:

Stage 1 – 8 August 2011 to 7 September 2011

Eight hours per day x 31 days x $25.41 per hour = $6,302.00.

Stage 2 – 8 September 2011 to 30 November 2011

Six weeks at 4 hours per day x $25.41 per hour = $4,269.00.

Stage 3 – 1 December 2011 to 30 November 2012

52 weeks at 20 hours per week x $26.37 per hour = $27,425.00

Stage 4 – 1 December 2012 to 30 November 2014

104 weeks at 15 hours per week x $27.70 per hour = $43,212.00

Stage 5 – 1 December 2014 to 13 May 2016

80 weeks at 10 hours per week x $28.87 per hour = $23,096.00

183. I therefore intend to allow damages in the sum of $104,300.00 for the plaintiff’s past domestic care and assistance.

184. For the future, the evidence establishes a need for the plaintiff to be provided with household domestic care, particularly involving heavy activities, but also monitoring of his activities. I accept the evidence of his mother, Mrs Vance, to the effect that he also requires prompting as to matters of organisation and the like. I find that he will require 10 hours per week care for the rest of his life. That care will have to be provided on a commercial basis, given the age of his parents – see Miller v Galderisi [2009] NSWCA 353. Given the life expectancy of 50 years, the multiplier is 976.2, and the commercial cost of care agreed at $40.00 per hour. I therefore intend to award the sum of $390,480.00 for future care.

Summary of award of damages

185. I have therefore assessed damages as follows:

Non-economic loss	$300,000.00
Past treatment expenses	$14,700.00
Future treatment expenses	$75,000.00
Past wage loss	$161,200.00
Future economic loss	$538,490.00
Past domestic care and assistance	$104,300.00
Future care and assistance	$390,480.00
Total	$1,584,170.00

186. From that amount, 25 per cent will be deducted for the plaintiff’s contributory negligence as agreed, leaving a judgment sum of $1,188,128.00.

Conclusion and Orders

187. I make the following orders:

1. There will be a verdict and judgment in favour of the plaintiff against the defendant in the sum of $1,188,128.00.

2. The defendant will have credit for expenses paid pursuant to s 83 of the MACA in the sum of $805.00.

3. The defendant will pay the plaintiff’s costs of the proceedings.

4. The exhibits are to be returned forthwith.

5. The parties have liberty to apply for any special costs order, by way of Notice of Motion, together with any affidavit evidence in support, on seven days’ notice.

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Amendments

15 July 2016 - [176] - Figure 238 is now amended to 248.

[176] - Amount of $154,700.00 is now amended to $161,200.00.

[185] - In the table, the amount of $154,700.00 under Past wage loss is now amended to $161,200.00.

[185] - In the table, the total amount of $1,577,670.00 is now amended to $1,584,170.00.

[186] - The amount of $1,183,250.00 is now amended to $1,188,128.00.

[187] - The amount of $1,183,250.00 in (1) is now amended to $1,188,128.00

20 May 2016 - In [182] the dated 3 June 2016 is deleted and replaced with 13 May 2016

20 May 2016 - Paragragh 176 the date 3 June 2016 is deleted and replaced with 13 May 2016.

Decision last updated: 15 July 2016