Vincent v Atkinson
[2017] WADC 155
•8 DECEMBER 2017
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: VINCENT -v- ATKINSON [2017] WADC 155
CORAM: STAVRIANOU DCJ
HEARD: 20-24, 27-28 FEBRUARY, 1-3 MARCH & 30 OCTOBER 2017
DELIVERED : 8 DECEMBER 2017
FILE NO/S: CIV 28 of 2015
BETWEEN: RACHAEL LEA VINCENT
Plaintiff
AND
SIMONE MICHELLE ATKINSON
Defendant
Catchwords:
Damages - Personal injury - 22-year-old - Extent of loss of earning capacity - Turns on own facts
Legislation:
Motor Vehicle (Third Party Insurance) Act 1943 s 3C
Result:
Judgment for the plaintiff
Damages assessed
Representation:
Counsel:
Plaintiff: Mr G Droppert & Mr N F Morrissey
Defendant: Mr C C Rimmer
Solicitors:
Plaintiff: Shine Lawyers
Defendant: Jarman McKenna
Case(s) referred to in judgment(s):
Black v Motor Vehicle Insurance Trust [1986] WAR 32
Browne v Dunn (1893) 6 R 67 (HL)
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Montemaggiori v Wilson [2011] WASCA 177
Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49
Paul v Rendell (1981) 34 ALR 569
Purkess v Crittenden (1965) 114 CLR 164
Reynolds v The State of Western Australia [No 2] [2013] WADC 176
Shorey v PT Ltd (2003) 77 ALJR 1104; (2003) 197 ALR 410
Van der Velde v Halloran [2011] WASCA 252
Watts v Rake (1960) 108 CLR 158
STAVRIANOU DCJ:
Introduction
1The plaintiff, Rachael Lea Vincent, claims damages for personal injury suffered by her in a motor vehicle crash which occurred on 3 January 2002.
2Liability in negligence is admitted and the matter came on for trial as an assessment of damages.
3Ms Vincent asserts that in the crash she suffered physical injuries primarily to the head and face together with psychological injury and cognitive deficits.
4The defendant denies that Ms Vincent is entitled to the damages claimed or any damages. In the alternative, the defendant asserts that any injuries, loss and damage which Ms Vincent suffered (which is denied) were caused, or materially contributed to, by pre-existing and subsequent unrelated health complaints and what are described as psychosocial issues.
Circumstances of the Crash
5Ms Vincent was born on 18 October 1994 and is now 23 years of age. On the day of the crash she was a front seat passenger in a motor vehicle being driven by her mother, the defendant (Simone Michelle Atkinson) on the Old Mandurah Road, Falcon.
6The defendant crashed her vehicle negligently into the rear of a parked car and as a result Ms Vincent was injured. The defendant's vehicle flipped and landed sideways on the road. Immediately after the crash Ms Vincent was taken by ambulance to the Peel Health Campus and then transferred to Princess Margaret Hospital where she came under the care of a number of specialist medical practitioners.
7Ms Vincent's brother Bradley, who was also a passenger in the defendant's vehicle, was also injured.
Issues & trial
8Ms Vincent's head and facial injuries are admitted. Whilst the defendant does not admit all of the alleged physical injuries, at trial the primary focus was upon the cause of psychological injuries and cognitive deficits.
9Ms Vincent particularised the non-physical injuries as:
•Psychological injury which includes post-traumatic stress disorder and mixed anxiety depressive order;
•Cognitive deficits related to the left frontal lobe injury.
10Ms Vincent also alleged as injuries amnesia and headaches. Amnesia was not pursued except to the extent of Ms Vincent's loss of memory as to the crash. In relation to headaches, it was accepted these were a symptom and not a specific injury.
11Ms Vincent's counsel agreed with the defendant's identification of what were described as principal issues for determination as being whether Ms Vincent:
1.suffered or suffers headaches as a result of the crash;
2.sustained a psychological injury (which includes post-traumatic stress disorder and mixed anxiety depressive disorder) as a result of the crash;
3.sustained cognitive deficits related to a (or the) frontal lobe injury as a result of the crash.
12The question as to the causation of what might be generally described as the physical injuries whilst not admitted was not the subject of significant argument. By the end of the trial the defendant sought to rely upon 13 identified matters alleged to be relevant to causation. These may be broadly summarised at this stage as being Ms Vincent's pre- and post-crash medical conditions, family issues, school problems and other accidents.
13Whilst Ms Vincent accepted that some of the matters sought to be relied upon by the defendant did exist, she denied that these were separate independent causes of her permanent disabilities, loss of earning capacity or need for care, treatment and assistance.
14The heads of damage requiring assessment are:
1.Non-pecuniary loss.
2.Loss of earning capacity.
3.Loss of superannuation benefits.
4.Past gratuitous services.
5.Future needs (medical, vocational, rehabilitation, paid assistance).
6.Travelling expenses.
7.Special damages.
8.Fund management expenses.
15There are at least two matters which have made this matter more complex than a usual assessment of damages. First, the matter proceeded to trial just over 15 years after the crash. Secondly, Ms Vincent was a young child at the time. Her education pre-crash was limited to primary school and she had not undergone cognitive assessment or testing before the crash.
16The defendant's position as identified in opening written submissions was that Ms Vincent
has not given an honest account of her pre accident health complaints, psychosocial issues, symptoms, restrictions, study, and work capacity, capacity for domestic duties or his [sic] post accident absences from school and the workplace to the medical experts.
17In closing, the defendant's position had, as noted later in these reasons, moderated somewhat to a submission directed more to inconsistencies relevant to credibility and reliability rather than a suggestion that Ms Vincent had deliberately mislead medical practitioners. The defendant further submits Ms Vincent was, on occasion, an unreliable historian.
18Ms Vincent was cross-examined at length and in detail. Many aspects of her social, family, recreational, sporting and employment history from the date of the crash were explored. Further, a significant number of documents including school and hospital reports, employment records and medical reports were tendered.
19Each party engaged a neuropsychologist and a psychiatrist to provide expert opinion evidence. Ms Vincent also adduced evidence from an occupational therapist. The defendant adduced expert evidence in the form of oral evidence and reports from an occupational physician and a labour market economist. Each of the experts called produced written reports and gave oral evidence. In some cases the reports were very lengthy and summarised in some detail the material provided to the witness.
20Because of the nature of the issues and matters raised at trial, a more detailed than usual enunciation of the evidence is necessary.
Treatment
21There was no real issue as to the treatment which Ms Vincent had received over the years for her crash-related physical injuries. There was significant treatment, including operative procedures, during 2002 together with periods of hospitalisation.
22Dr D Speldewinde, paediatric consultant, reviewed the medical notes from Princess Margaret Hospital and wrote a report dated 24 December 2014 as to her findings. The report provides a log of some of Ms Vincent's treatment and relevantly states:
Rachael was admitted to ICU at 21:00 on 3/1/2002. She was a transfer from Mandurah, a young girl who had been involved in a motor vehicle accident, at 14:00 that day.
Mum had been driving at 80km/h, hit a stationary vehicle and rolled over. Rachael was an unrestrained 7 year old in the left front seat. At Mandurah she had a GCS at 14-15 and a laceration to her forehead. She had lots of contusions over both lower limbs, but no abrasions, lacerations or fractures. She had CT head done which showed a left frontal temporal fracture with orbital roof involvement.
Details are of a fracture through the left lateral orbital wall with mild posterior displacement of the posterior orbital rim on the left side. The fracture continues into the roof of the orbit where there was a fragment displaced cranially into the anterior cranial fossa. The fracture continues into the mid frontal bone. A separate fragment was displaced from the lateral aspect of the left frontal bone medially, but there is no evidence of any parenchymal haemorrhage in the vicinity of this fragment, or the region of the orbital roof fragment and the fracture seemed to pass through the region of the coronal structure and there is gas seen on both sides of the calvarium. On the right side the fracture passes through the greater wing of the sphenoid with separation of very small fragments medially and posteriorly in the anterior aspect of the middle cranial fossa. Gas is also seen in this region in keeping with compound fracture.
She went to theatre on the 4/1/2002 for left frontal temporal craniotomy with elevation of her left frontal fracture, with her orbit plated and repaired [sic] of her dural tear and her facial fracture was plated. She did have a seizure pre-operatively and she was commenced on Phenytoin, now on maintenance. CT 1 day post-op was fine. She was transferred to the ward on the 5/1/2002. Neck, chest, abdomen and limbs were fine. She was nursed 20º head upward and continued on oral Phenytoin.
Reviewed by Ophthalmology – no concerns. She was changed to oral antibiotics on 7/1/2002.
She was discharged home on the 8/1/2002, into the care of her mother.
9/1/2002 – Seen in Plastics clinic, all sutures removed.
11/1/2002 – Staples removed.
16/1/2002 – Looking well, scar on the forehead peeling therefore Kaltostat commenced.
21/1/2002 – Reviewed by Neurosurgeons – doing well. Vision okay. No diplopia.
18/1/2002 – Reviewed by Plastics. Scars healing well.
11/2/2002 – Plastics – DNA
18/3/2002 – Plastics – DNA
25/3/2002 – Reviewed in Neurosurgery. Doing okay at school but can't sleep, has headache, clinically well. For repeat CT.
15/4/2002 – Neurosurgical reviewed CT – fine. Discharged from clinic.
17/4/2002 – Craniofacial Unit. Two prominent scars in the left forehead, for removal under GA.
14/5/2002 Day case for removal of plate and screws on her left forehead, uncomplicated procedure and for a review in 1 week.
20/5/2002 – Plastics reviewed. Wound okay and massage, review in 8 weeks.
2/8/2002 – Plastics review, DNA.
16/8/2002 – Plastics reviewed. Nose not central, for review in 1 year. Tearing in the left eye. Referred to Ophthalmology.
3/10/2002 Ophthalmology review. Tearing of left Tear duct intact, Acuity good. For trial of Naphcon-A.
7/10/2002 Admitted as a Day Case for removal of 2 screws from the frontal region of her head. Uncomplicated, and was discharged home with a review in clinic in 10 days, and outpatients in 3 months.
29/8/2003 – Reviewed by Plastics. Doing well. Mild left blepharoptosis. ? benefit from levator elevation. For Ophthalmology review.
4/9/2003 – Ophthalmology review. Left eye weeping since accident. Seen by Consultant last year and given Naphcon-A without effect. Parents report no effect. She does have a slight left ptosis with quite good levator function, and her eyes were normal. Parents were keen for ptosis surgery
17/10/2003 – Plastics review – DNA
13/2/2002 – Waitlisted for revision of forehead laceration.
4/3/2004 – Ophthalmology review. Reviewed by Consultant. Pupils were equal. Full range of movement, with slight left ptosis. Put on the waitlist for operation.
4/8/2004 reviewed by Craniofacial surgeon, concerns regarding left blepharoptosis. Rachel does get some tearing related to an incomplete obstruction of her nasolacrimal apparatus. Rachel's nose is crooked and ultimately will need a rhinoplasty. However this is best left until Rachel has finished growing.
2/9/2004 – Seen at Ophthalmology clinic. Parents were very concerned re ptosis. For discussion with consultant at next appointment.
7/9/2004 Admitted as a Day Case for revision of her left forehead scar. For review in clinic in 1 week.
15/9/2004 – Seen in plastics clinic 1 week post-scar revision on forehead. Had removal of sutures. Continue with emollient over suture line. Advised to start massaging in 2 weeks and sun screen.
30/9/2004 – Seen at Ophthalmology clinic
11/10/2004 she was admitted under Ophthalmology as a Day Case for an elevation of her left levator muscle, due to a left ptosis secondary to her accident.
14/10/2004 – Ophthalmology clinic. Nothing written
28/10/2004 – Ophthalmology clinic. DNA
11/11/2004 – Ophthalmology clinic. DNA
19/11/2004 – Plastics review, DNA
23The radiological evidence notes the following:
(a)a head and abdomen CT scan of 3 January 2002 records detail of the extensive fractures of the skull and face including the nasal bone. Small gas bubbles are noted over the left frontal lobe and in the right temporal region in keeping with compound fracture;
(b)a head CT scan of 5 January 2002 noted contusional changes in the grey matter adjacent to the depressed fragment in the lateral aspect of the left frontal lobe and there is some absorption of the epidural haemorrhage on the right side;
(c)a CT brain scan of 5 August 2016 is reported to show 'a small gliotic area in the anterolateral left frontal lobe to the craniotomy level … (and) evidence of mucosal thickening in the frontal sinus with scattered mucosal thickening throughout the ethmoid complex and both maxillary antra'.
24The neurosurgeon's note of 25 March 2002 indicates that a repeat CT scan was to be performed. There was a presentation noted of headaches and of sleep difficulty. The report of a CT head scan which was performed on 5 April 2002 notes the left frontal craniotomy. It concludes by noting an area of gliosis in the left inferior frontal region in keeping with previous head trauma. Whilst Ms Vincent was discharged from the neurosurgery clinic on 15 April 2002, there is no reference in the note of that date to the developing gliosis earlier referred to and its significance, if anything.
25The inpatient progress notes record the administration of medication including morphine (3 January 2002, 4 January 2002, 5 January 2002) and regular Panadol (5 January 2002). The pre-operative nursing record dated 11 October 2004 records the administration of Panadol and ibuprofen.
26As the records indicate, on 25 March 2002 Ms Vincent was unable to sleep and was experiencing headaches. The evidence of Ms Vincent and Ms Atkinson was entirely consistent with that notation.
Cosmetic disability
27On 22 May 2014 Ms Vincent was reviewed by Dr Trevor Harris, plastic and reconstructive surgeon. He wrote a report of that date relating to scarring and deformity arising out of the crash. In his report he noted Ms Vincent received severe craniofacial injuries with multiple fractures. The report notes this includes a degree of head injury. The injuries were consistent with the incident described.
28Dr Harris' findings on examination were as follows:
1.The Scalp
There is a long scar (described as front-parietal bi-coronal) which commences just above the attachment of the ear on the left side behind the hairline to the right fronto-parietal region, a total of 22cm. This is a fine scar and well hidden by her hair. It is stated that this scar was originally at the hairline, but has moved backwards as she developed and is now well beyond the hairline.
2.The Forehead
She has a scar commencing just above the hairline to the right of the midline running downwards obliquely to the mid portion of the left eyebrow. This scar is 8.5cm in length. It was revised surgically on one occasion in September 2004, and this is now a reasonably fine scar which could not be improved further surgically.
On the left side of the forehead there are two fine scars, one just in front of the hairline 1.5cm in length, and one just below the hairline on the left 1.5cm in length. These are quite fine and require no treatment.
3.Left Upper Eyelid
There is a fine scar running in a crease transversely through the left upper eyelid 3.5cm in length, at the site of the operation to overcome her ptosis by operation on the levator muscles of the eyelid.
4.The Nose
The nose has a hump in its mid position, which her mother states is quite different from other members of the family.
There is a palpable irregularity at the fronto-nasal junction above the bridge of the nose. There is some indentation of the right nasal bone reducing the airway on this side. The nose is deviated towards the right measuring 0.5cm at the tip as a result of the fracture.
On examination within the nose, the nasal septum is deviated towards the right anteriorly and impinges on the airway posteriorly to the left. This results in some obstruction to a free airway on the left side.
5.Orbital Regions
a.Right Orbit
There is a step in the bony right infraorbital margin between the zygomatic bone and the maxilla.
b.Left Orbit
On the left side there is bony irregularity along the inferior margin of the orbit following the fracture in this region. No other marked irregularity is palpable around the margins of the left orbit.
There is some flattening of the left zygomatic bone when examining the fact from above.
c.On examination of the face from the front there is obvious asymmetry of the levels of the orbit when comparing the right and left. The left orbit has been displaced downwards due to the fractures in this region to the extent of 3mm – 4mm. As a result of this the left eye within the orbit lies at a lower level than the right side.
This is a feature which would be quite obvious on social occasions and obvious in photographs. She tends to accommodate for this by tilting her head towards the right for photographs.
6.Left Calf
There is an area 9cm x 4cm on the medial aspect of the posterior left calf following a superficial burn in this region. There is no thick scarring in this area, but some change in pigmentation and texture of the skin.
29Dr Harris concluded that:
1.Ms Vincent suffered multiple fractures to the skull, face and nose. There was also a degree of head injury.
2.The change in facial features was considered to be permanent. The possibility of some improvement in the facial appearance will be described below. However, even following major reparative surgery, it is unlikely that Ms Vincent's facial appearance will ever be described as returned to completely normal.
3.Ms Vincent's social mixing with others has been affected to a permanent degree by her facial appearance, and in the past she has sustained a degree of bullying at primary school and since. She is embarrassed by her appearance.
4.Ms Vincent's ability to undertake household, self-care or domestic tasks may be affected to some degree. She finds it uncomfortable/painful to comb her hair due to the surgery in that region. The wearing of safety helmets is uncomfortable due to the presence of the plates used in reconstructing her fractured skull.
30A view of the scarring was conducted during the trial. The description of Dr Harris accurately captures the nature and extent of it. Ms Vincent, on a number of occasions in the course of her evidence, referred to the impact upon her of the scarring. I accept the impact is significant. In this respect, Ms Vincent said that she would undergo surgery that would improve the look of her scars, left eye or nose.
Ms Vincent's background and family, work history and evidence
31At the date of the crash Ms Vincent was living with her parents in Western Australia. Her parents had been together for approximately 11 years when they separated in 2004. At that stage Ms Vincent was 9 years of age and remained living with her mother.
32In 2005 Ms Vincent and her family moved to Queensland where she continues to live with her mother, her stepfather, stepbrother and her sister.
33Ms Vincent's biological father is employed as a manager by a retail chain.
34Ms Atkinson, who is now aged 42 years, is currently completing a course in nursing. She lives with her current husband Ben together with her two children, Ms Vincent and Bradley, and her stepdaughter Chaise. Before Ms Vincent's birth Ms Atkinson had done some work as an ambulance officer.
35Bradley completed Year 12 and works in a retail store.
36Ben is a quarry hauling driver.
37Chaise completed Year 12 and is studying to become a veterinary nurse.
38Ms Vincent has no memory of the crash but did remember 'bits and pieces'. She quite candidly said that she did not know whether she remembered details herself or whether her memory was based upon what she had been told.
39Ms Vincent's memory in relation to her education was, in parts, lacking.
40Ms Vincent's evidence was that during high school she was subjected to significant bullying. She described that some students likened her to the fictional character Harry Potter. This was because of the scarring from her crash-related injuries. Ms Vincent gave evidence that in relation to bullying she was referred to as a 'teacher's pet' because it was necessary for her to sit at the front of the class so assistance could be provided as required. I am satisfied, based upon Ms Vincent's evidence, that she was subjected to bullying when at school. I am satisfied the bullying related to her scarring in consequence of her facial injuries suffered in the crash.
41Ms Vincent gave evidence that at school she required additional assistance and attended special classes. These were twice a week during her first two years of high school and were an alternative to participating in sport. While she described herself as being pretty good at maths, she was 'never any good at spelling or reading'. Ms Vincent's evidence was that she struggled to complete set homework when she was in high school. She said she did not want to do it. It was her evidence that she gave up trying to do it because it would just get too upsetting when she knew she could not do it.
42When Ms Vincent left school she completed a six months basic numeracy and literacy skills course. She had then tried unsuccessfully to complete a Year 10 course. Subsequently, she was able to complete an online certificate in warehousing. She gave evidence that her mother and sister had done a lot of the work required for that particular course.
43Ms Vincent gave evidence that she has an interest in motorcycles. In about 2010 she was able to obtain some full-time work experience for about three months with a Yamaha dealer in Toowoomba. Her duties mainly involved ensuring that shelves were stocked. Ms Vincent had earned an average of $200 per week.
44Ms Vincent's evidence was that the Yamaha employment came to an end when floods had struck Queensland. When questioned, Ms Vincent said the business did not re-open for some time after the flooding and the ownership changed. She therefore could not continue in the employment. Ms Vincent gave evidence that whilst her employment was described as full-time, she was able to go home if she felt tired or had a headache. Either her mother would pick her up or other employees would drive her home.
45Ms Vincent next obtained employment for a period of about three months with a small business (Udy Quad) owned by a family friend. Ms Vincent said that the employer was trying to help her because she (Ms Vincent) was upset over the loss of the Yamaha employment. Business was quiet and for that reason Ms Vincent's employment had not continued. Ms Vincent subsequently obtained employment as a retail assistant at a pet produce store. Again, this employment was in the nature of work experience. It was Ms Vincent's evidence that she was unable to do the required computer work at the store. Ms Vincent's evidence was that she then was in receipt of a disability allowance and is now on a Newstart allowance.
46Ms Vincent said she does make job applications on a regular basis. She is also taking steps to obtain further qualifications. In May 2016 she commenced a Diploma in Equine Studies. Ms Vincent said that she had difficulty in completing the work required and seeks assistance from time to time from Chaise. Ms Vincent had managed to complete some of the assignments required by the course.
47Ms Vincent does not hold a driver's licence. She had held a learner's permit and said she was physically able to drive. Ms Vincent gave evidence that she had little difficulty driving when there was not a lot of traffic. When traffic was heavy, she had difficulty driving. She had undertaken a defensive driving course but this had not resolved the problem. Ms Vincent was confident she could, by doing a further course, overcome her problem with driving.
48Ms Vincent gave evidence that her headaches varied in severity. Ms Vincent referred to 'a pain like what everybody gets with headaches' to 'sometimes it feels like my head's just going to explode'. She described that the pain always felt different. She takes Panadol and on occasions this is three times per day. She said that when the headaches are bad she took Mersyndol Forte and Endone. Ms Vincent's evidence was that before taking medication she attempts to deal with the pain by rest and relaxation. It was her evidence that wearing a riding helmet can be painful for her. This was particularly if it was worn for a long period of time.
49Ms Vincent said that she did not think she was 'really good at concentrating'. She referred to problems she has when watching movies and completing assignments. Ms Vincent was asked about her concentration level when working at Yamaha. She said she did not have to concentrate there unless she was watching what amounted to a demonstration.
50Ms Vincent said that she had a very bad memory and would forget a lot of things. This included routine matters such as brushing her teeth.
51Ms Vincent said that she would help in the home with cooking dinner about three nights per week.
52Ms Vincent described that, in addition to headaches, her eye would, on occasions, get sore and water a lot.
53Ms Vincent was asked in evidence to explain how she felt emotionally. She described the emotional side as being the 'hardest part'. She gave evidence that when she looks in the mirror she notices (a reference to the scarring). It was her evidence that she does not talk about the scarring and always keeps it to herself.
54Ms Vincent described in evidence how she could physically see the scarring and the difference in her eyes. She said her left eye looks closed all the time. She gave evidence that when she was in public she felt everybody was staring at her or thinking what caused it. This upset her. Ms Vincent's evidence was that some types of sunscreen make her scarring itchy. The scarring itself is across the forehead and there is also a scar through the hairline. Ms Vincent said that her nose also appeared crooked. If there was surgery that could improve her scars, her eye or her nose then she would have it done.
55Ms Vincent said that she suffers from neck pain. She was unsure as to how often she suffered the pain. She said it would come and go. She also said in evidence that she suffers back pain which was 'like tight and stiff'.
56Ms Vincent said that she attended upon her general medical practitioner when required.
57Ms Vincent's social life revolved around her family. She also enjoyed horses. She enjoyed brushing her horse and feeding him.
58As outlined, the defendant raised a number of matters in relation to causation which Ms Vincent dealt with in her evidence.
59Ms Vincent said that she was born with a medical condition known as gastroschisis. In 2010 Ms Vincent underwent a surgical procedure in relation to the condition. About a week after the surgery Ms Vincent was involved in a car accident. As a result of injury sustained in that accident, the stitches which had been inserted were removed earlier than scheduled. Ms Vincent's evidence in relation to the gastroschisis was that it meant she was unable to eat white bread and she had to be careful in relation to 'acidy food'. Essentially, her evidence was that because of the condition she had to avoid certain food types. Beyond that, there was very little evidence as to the effect of the condition.
60Ms Vincent accepted that her attendance at school through Years 8, 9 and 10 was poor. She explained this was because of bullying and being too scared to go to school. I accept, as stated, that the bullying related to the scarring as a result of the injuries suffered in the crash.
61Ms Vincent's evidence was that in high school she did have heavy and painful menstrual periods. She gave evidence that medication which she took did control her periods.
62Ms Vincent accepted that she did suffer abdominal pain. This pain was not nearly as severe as her headaches and was completely different.
63Ms Vincent's evidence as to domestic violence was that she had not been exposed to any such conduct. She had never seen any violence or heard any actual loud yelling. Ms Vincent's evidence was that she had not been the subject of any domestic violence from her biological father or stepfather. She had not witnessed any form of domestic violence.
64Ms Vincent gave evidence of an occasion when she had bumped her head in the shower. The incident had occurred when she was at high school. On this occasion she had had either a scan or an X-ray. She had not been sent to a specialist and did not notice any ongoing effects from the bump.
65Ms Vincent's evidence was that following the Queensland floods she had returned to her employment at Yamaha. The shop was messy and she helped in the tidy up. Ms Vincent described the situation as upsetting. However, she said it was more upsetting that she could not go back to work there. She had, like everyone else involved in the flooding, seen a counsellor. Ms Vincent continued to use the counsellor for a few months. Ms Vincent's evidence was that the counsellor had helped her. They had spoken about how Ms Vincent was feeling, the bullying at school and why she left school.
66Ms Vincent gave evidence that she was always upset 'because of the way I am, like the way I look and stuff which then makes me stressed ...'.
67Ms Vincent gave evidence that she helps around the house with household chores. She can get a headache from vacuuming and that is what she really cannot do. She is able to do her own laundry. Her evidence as to what she did around the home and her participation in the performance of chores was compelling. It demonstrated that she was prepared to make appropriate admissions and concessions. It was consistent with what she had said to a number of experts who had conducted examinations of her.
68Ms Vincent gave evidence that she goes with her mother when she does grocery shopping. Ms Vincent gave evidence that she does do some gardening. Ms Vincent gave evidence she is able to ride a quad bike.
69Ms Vincent gave evidence that she has a Facebook page. It was her evidence that when posting on Facebook she tried to keep things positive.
70The physical aspects of the cosmetic disability which Ms Vincent suffers may be summarised as follows:
(a)scarring to the forehead;
(b)scarring to the scalp;
(c)left eye ptosis (drooping);
(d)misalignment of nose.
71In cross-examination, Ms Vincent was taken to her school reports provided by Harristown State High School. Ms Vincent agreed that in November 2002 she had presented to a health campus with abdominal pain. She said it was likely that as a result she possibly missed 'a bit of school'.
72Ms Vincent was taken to documentary evidence concerning her attendance upon a medical practitioner on 28 May 2004. She agreed that her absence from school between 28 May 2004 and 31 May 2004 was likely as a result of abdominal pain. She similarly agreed she was absent from school during June 2004 because of constipation.
73Ms Vincent gave evidence in relation to her school absences during 2004. It was her evidence that about one-half of the absences concerned crash‑related injuries. There was no documentary evidence in relation to 2005 and 2006.
74Ms Vincent's evidence was very clear in relation to her family situation and the impact of the separation of her parents. It was her evidence that moving to Queensland and going to a new school was not a concern for her. She expressed the matter as follows, 'I've always had Ben and he's always been my father, so that's how I see it'.
75Ms Vincent's evidence was that she took steps to deal with headaches. Ms Vincent said that she simply had ceased complaining about them. In her evidence she said it got to the point where 'they just never believed me anymore'. It was Ms Vincent's evidence that she stopped saying what the pain was and started saying other things so she could go home. In relation to the treatment for headaches, Ms Vincent was asked questions concerning the issue on a number of occasions in the course of cross‑examination. At one stage she gave evidence that she could not see any point in having to return to doctors every time she had a headache 'just for the sake – for them to say take Panadol'.
76Ms Vincent gave evidence that in April/May 2008 she was a keen motorbike rider. She agreed that in about May 2008 she probably fell off her motorbike. She agreed that absence from school in May 2008 was likely following that occurrence.
77Ms Vincent was questioned at length in relation to absences from school as a result of her menstrual periods. It was her evidence that they became more controlled in about November 2007. She agreed she was still seeing her doctor in relation to that problem in 2008.
78Ms Vincent denied in cross-examination that she was playing down her 'motor cross riding a little bit'. The questioning in that respect was detailed and focused upon Facebook posts made by Ms Vincent. Ms Vincent agreed in evidence that she did ride a motorbike and quad bike. She also agreed that when she rode her motorbike she wore a motorbike helmet.
79Ms Vincent gave evidence that in terms of future employment she was interested in working with animals.
80Ms Vincent in cross-examination was asked about the problems which arose from the crash. She readily accepted that pains in the stomach, neck and back were unrelated to the crash. She agreed that resolution of the claim will remove a burden on her.
81Ms Vincent said that in a 2010 motor vehicle accident she suffered an injury to her back and neck.
82Ms Vincent was asked in re-examination about the taking of time off school at Harristown. She said there were absences caused by factors other than period pain and stomach aches. It was her evidence that
90 per cent of the factors were from being bullied. Not necessarily being headaches and school and having to leave, but more the fact of not wanting to be there because of the bullying.
Simone Michelle Atkinson
83Ms Atkinson gave evidence as to Ms Vincent's pre and post-crash condition. She described in some detail Ms Vincent's early childhood. She said that because of Ms Vincent's gastroschisis it had been necessary to carefully manage her diet. Other than that condition, she described Ms Vincent's health as being amazing. She said she was very proud of her.
84In response to a question as to the type of childhood she wanted for Ms Vincent she said she 'wanted her to give everything a go and she was – she was a smart kid'.
85Ms Atkinson said that when Ms Vincent began school she was still having problems with her bowel. Ms Atkinson said that in the first two years of school Ms Vincent did not have any developmental problems or learning difficulties and loved to read. The overall impression created by Ms Atkinson's evidence was that before the crash Ms Vincent was a keen and enthusiastic school student. I accept that to be the case.
86Ms Atkinson said that when Ms Vincent was in hospital after the crash she or her partner were with her '24 – seven'.
87Ms Atkinson said that, upon Ms Vincent's discharge from hospital after the crash, she was suffering headaches and needed to be careful of the stitches and staples. She also said that Ms Vincent had a sleep problem initially related to her left eye not closing properly.
88Ms Atkinson gave evidence that Ms Vincent did return to school in 2002. This had been initially for half days. Ms Atkinson gave evidence that she would receive a call from the school when Ms Vincent could not manage or was too tired and she would then collect her. Ms Atkinson's observation of Ms Vincent following her return to school after the crash was essentially that she had headaches and dizziness as well as 'a lot of tiredness'. Ms Atkinson gave evidence that at that stage Ms Vincent was taking medication in relation to her headaches.
89Ms Atkinson gave evidence that her relationship with her husband Mr Vincent came to an end just after the crash and this was following a physical altercation.
90Ms Atkinson's evidence was that Ms Vincent is able to perform tasks provided they are of a routine nature. She gave as an example how she could readily feed her pets. She said that Ms Vincent was able to cook. When asked about the time she had spent over the years, she quite candidly said that it was hard to quantify. What she did say, however, was that sometimes it was a full‑time job. She explained that following surgical procedures it was necessary to spend more time with Ms Vincent. She referred to it on occasions being seven or eight hours per day. She said that subsequent to Ms Vincent leaving school she would spend four or five hours per day on tasks which were different to normal parenting.
Ms Vincent's educational background and performance
91Ms Vincent's pre-primary assessment report dated December 1999 notes that Ms Vincent is 'a very conscientious and cooperative member of class'. At that time Ms Vincent was 5 years of age.
92Ms Vincent was cross-examined in relation to her Year 2 primary school report dated December 2001. Reference was made specifically to a notation of 84 half-day absences. It was put to Ms Vincent that this related to absences in the year before the crash. The documents were unclear in this respect. Ms Vincent's evidence was that the absences were for the year of the crash not the year before. I accept that to be the case. It accords with the evidence generally of treatment received in the year after the crash. There is no evidence as to significant periods of absence from school before the crash.
93The evidence of Ms Atkinson establishes that Ms Vincent attended the Glencoe Primary School in Mandurah for Years 1 to 3. She then moved to Westminster Primary School for Year 4. In Year 5 she had attended Quinn's Beach Primary School until the family moved to Queensland where Ms Vincent had completed Years 6 and 7. She had then attended Harristown Senior High School in Toowoomba which she left during the course of Year 10 when she was about 15 years of age.
94There was evidence adduced of some of Ms Vincent's educational reports.
95In the course of Ms Vincent's evidence a number of pre-crash school reports were tendered without objection. It is of note that all of the reports were written without any cognitive assessment of Ms Vincent having taken place. As one would expect, there are broad generalised assessment categories contained in the reports. For example, in the Year 1 report (December 2000), there are four categories of assessment for skills, namely outstanding, very good, satisfactory and developing.
96Ms Vincent's pre-crash school records demonstrated that she was at least a reasonable student. There are limitations on the school reports particularly for young children. They are not a detailed analysis of the students' cognitive functioning. They are not, and do not, purport to be any form of detailed assessment of learning ability. There are many factors which could influence the usual assessments made in the reports. However, what is apparent is that there is no evidence of any pre-morbid cognitive problems or disability. That is consistent with the evidence of Ms Atkinson's which was, in summary, that Ms Vincent was a good student and able to deal with school.
97Ms Vincent participated in a national testing scheme for school students in Years 3 to 5. That testing demonstrated, to some extent, a decline in performance. The school reports relevantly refer to problems with concentration and homework. The evidence as to homework is consistent with Ms Atkinson's evidence.
98Ms Atkinson described how subsequent to the crash Ms Vincent began to have more and more problems with her schoolwork. The completion of homework became increasingly difficult for her. She gave evidence that this was in contrast to her son Bradley who was enthusiastic about completion of his homework. Ms Atkinson described how she had thought the difficulty with Ms Vincent doing homework was because she was lazy.
99Ms Atkinson gave evidence that when the family moved to Queensland problems with Ms Vincent's homework continued.
100Ms Atkinson gave evidence that Ms Vincent would complain about the screws and plates hurting. She said that Ms Vincent hated primary level school in Queensland and would not go.
101Ms Atkinson said that when Ms Vincent attended high school she would come home upset about being teased a lot. She described in her evidence the difficulty which she had in getting Ms Vincent to attend school.
102Ms Atkinson gave evidence as to what in effect was her frustration with the response from school authorities to Ms Vincent's lack of progress. She said that she wished that she had 'pushed harder or got her a tutor'. Ms Atkinson gave evidence that when Ms Vincent was in Year 7 she had asked teachers to have her kept back because she did not believe she was ready for high school. The response she received was that her progress was satisfactory. Ms Atkinson gave evidence that she was not happy for Ms Vincent to continue on in Years 7, 8 and 9. Ms Atkinson gave evidence of how when Ms Vincent was in high school she would complain of headaches. Ms Atkinson's response was to force her to go to school. In her evidence in relation to Ms Vincent's attendance at high school, she said:
What was the routine in relation to Rachael going to school, when she started going to Harristown High School and you're still at home studying? – Well, I'd have to get Rachael ready first, because I'd have to take Bradley back to – to Newtown for primary school. But Rachael would – she'd go kicking and screaming. It went from, 'Bye, mum. See you' to she will refuse to get out of the car.
103Because of problems at Harristown Senior High School, Ms Atkinson had looked for alternatives for Ms Vincent's education. Ultimately, she arranged for the attendance of Ms Vincent at a special school called DISCO. She said DISCO was an organisation from which people obtained traineeships and assisted with obtaining employment. The Yamaha employment had been obtained through that organisation.
104Ms Atkinson's evidence was that most of the times she had picked up Ms Vincent from Yamaha was because of headaches.
105There is nothing to suggest, as submitted by Ms Vincent's counsel, or any of the evidence that she was not going to perform in the average range. In the circumstances, I accept, and find, that but for her injuries, Ms Vincent would have fallen into the average range.
Credibility
106The opinions expressed by the medical practitioners and other experts rely upon assumptions of fact. There was disagreement in the views expressed by Ms Vincent's experts and the defendant's experts in relation to some issues. The defendant raised doubts in relation to the consistency of the history provided by Ms Vincent. For example, Dr Tay considered that there were inconsistencies in Ms Vincent's history. I will refer later in these reasons to that evidence.
107Any identified inconsistencies in Ms Vincent's evidence do not cause me to doubt the truthfulness and reliability of her evidence. She was a reliable historian. There was no attempt by her to exaggerate her symptoms or to overstate the case or claims she made. She presented as a relatively unsophisticated person. Quite apart from a favourable presentation, there are a number of reasons why I have concluded she was a truthful accurate and reliable witness.
108The evidence of Ms Vincent is consistent with other evidence in the case. It is consistent with the description of the crash. She was involved in a crash of such force as to cause the vehicle she was a passenger in to flip over. The preponderance of the medical evidence is that this was a significant incident. Ms Vincent required a craniotomy and insertion of a metal plate and screws into her skull. Whilst in hospital, and before the craniotomy was performed, Ms Vincent had suffered a seizure.
109The evidence of Ms Vincent was internally consistent and consistent with the evidence of Ms Atkinson.
110There was considerable cross-examination of Ms Vincent in relation to posts made by her to a Facebook account. Ultimately, the defendant's submission as to Facebook was that:
1.Dr Antoce expressed the view that the posts on Facebook were unlikely to provide a meaningful insight into clinical aspects such as fluctuating dissociative or effect symptoms and even less so in a person with Ms Vincent's presentation.
2.For all of the evidence in relation to Facebook posts it is unlikely that much turns on it. Ms Vincent conceded a level of activity in respect of motorbike riding, attending rodeos and interaction with her horses which was arguably greater than what she had told some of the medical practitioners (for example, Dr Antoce). See also the evidence of Simone Atkinson as to Ms Vincent's level of activity pre and post her motor vehicle accident in 2010.
111Ms Vincent's submission in relation to Facebook was:
1.As a general description, Ms Vincent explained that she tried to post all positive stuff but that a few negative things did come out. If she was having a bad day that is when she may take a photo, edit it and put a positive caption because she did not want anyone to know that she was depressed and that she tried to keep it as happy as she could. She also explained that amongst her so-called Facebook 'friends' there were none that she would see in person, they were horsey friends, they were friends from school but none that she would have seen since she left school.
2.She further explained that photographs of her on a horse were very rare because normally they would just be of her cuddling them or brushing them and if she was having a bad day she would post one of the (old) photographs of her on a horse.
112Ms Vincent's recollection of Facebook posts at times was not completely accurate. However, in all the circumstances, any such demonstrated inaccuracy or inconsistency is not material or significant. The Facebook cross-examination does not advance the matter so far as the defendant is concerned. I am satisfied the Facebook posts do not significantly impact upon the view I have formed as to Ms Vincent's evidence. The explanations given for the posts are reasonable. There are numerous posts over a period of years.
113Ms Vincent was also examined in relation to her non-attendances at school. She was being asked to recall events many years ago. The very distinct impression formed was that Ms Vincent was an honest and truthful witness. I am satisfied that she was someone who was doing her best to provide the court with accurate and truthful evidence.
114Matters raised in cross-examination of Ms Vincent included the accounts she gave in evidence and to expert witnesses in relation to boyfriends, motorbikes and horse riding. She made frank admissions and gave appropriate and reasonable explanations for any inconsistencies. For example, she admitted abdominal and period pain. She admitted involvement with horses. There was no issue about that. She would like the capacity to be more involved. She enjoyed motorbikes and horse riding and again wanted to have more significant participation in these activities. What is very clear from all the evidence is that Ms Vincent is dependent upon her family for social, cultural and domestic support. They are very much the focus of her life.
115The incidence of headaches was another matter specifically raised by the defendant with respect to Ms Vincent's evidence. The defendant's position is summarised in written submissions as follows:
1.Ms Vincent's evidence as to her headaches was inconsistent (see, for example, her evidence-in-chief at ts 54 – but compare ts 290 – and what she told Ms Rutkin).
2.There was scant information in the hospital records or GP records to suggest that complains were an ongoing cause for concern. Ms Vincent's assertion that she stopped seeking medical treatment for headaches should be treated with caution.
3.Dr Flahive opined that Ms Vincent was suffering from tension headaches and that the medication that she was taking could be 'potentiating' her headaches. He also identified other possible causes including anxiety and neck pain.
4.Even if the court accepts Ms Vincent's account to her GP in late February 2007, that she had suffered headaches on and off for years, not only is there no evidence linking those headaches to the accident but they are clearly of insufficient severity or frequency to warrant medical attention until the shower injury. Ms Vincent did not undergo any further imaging of her brain between 2002 and 2007, and then only after she hit her head in the bathroom.
116As to the headaches, I accept Ms Vincent's explanation in relation to lack of treatment. Further, it is the case that she was a child for a significant period of time after the crash and under the care of Ms Atkinson. The defendant originally pleaded, and at trial abandoned, a plea in relation to causation that 'lack of parental support for recommended treatment of Ms Vincent's significant health issues' was a factor.
117The defendant's submissions as to the credibility and reliability of Ms Vincent's evidence were unconvincing. In closing, defence counsel referred to one aspect of Ms Vincent's evidence (the effect of bullying on school absences) as having a ring of untruth about it. That said, the submission was then made that:
That's not to say that this is a case involving - or at least the defendant is going to allege that, or does allege, that the plaintiff is deliberately misleading doctors and that sort of thing with a view to benefitting in the long run in terms of her award of damages, but they're inconsistencies that I think are relevant and that your Honour needs to take into account in assessing credibility.
118I am not satisfied that the identified inconsistencies either alone or collectively affect the view formed as to Ms Vincent's evidence. Gaps in treatment periods when there were no complaints to practitioners can, in some circumstances, be of significance. I have carefully considered these matters and the defendant's submissions. I do not regard these matters or, indeed, any of the matters raised by the defendant as affecting Ms Vincent's credibility.
119I accept the evidence of Ms Atkinson. She was a reliable and honest witness. The impression I formed was that whilst she was very concerned for Ms Vincent's wellbeing, she was trying her best to give an accurate account in her evidence. Her evidence supports in all material respects the evidence of Ms Vincent.
Psychological evidence
120Neuropsychological opinion evidence was adduced by each party in relation to Ms Vincent's allegation that she suffered cognitive deficits related to injuries suffered in the crash. Ms Vincent adduced evidence from Shelley Keane who had written four reports, which were tendered in evidence. Mandy Rose Vidovich gave evidence on behalf of the defendant and wrote three reports. In the course of trial there was an objection by Ms Vincent's counsel to a report of Dr Vidovich which commented upon a report of Dr Keane on the grounds of late disclosure, alternatively a breach of the rule in Browne v Dunn (1893) 6 R 67 (HL). Ms Vincent's expert had an opportunity to respond to the report and did so. There is no basis for either objection and the report was received as an exhibit.
121The provision of a neuropsychological opinion involves the administering and interpretation of a number of tests in combination with an assessment of the patient. There are therefore quantitative and qualitative considerations to the formation of the opinion. The overall assessment necessarily is reliant upon the history and information provided. An accurate and detailed history is important.
122Dr Keane has a doctorate in clinical neuropsychology and has worked in hospitals and private practice. She is highly qualified. She first saw Ms Vincent on 4 November 2014. The history obtained by her was thorough and detailed. In her first report she particularised complaints of cognitive, physical and emotional problems. She noted that there were problems with memory, attention and concentration. This was consistent with the evidence which I accept of Ms Vincent and Ms Atkinson. Ms Vincent had provided to her an example of difficulty following instructions for the making of a bridle. Dr Keane further noted a history of Ms Vincent being scared, sad and lonely. Ms Vincent told her that the sadness was because she has screws and metal plates in her head that prevented her from being involved in horses and riding.
123Dr Keane administered a series of tests which in her opinion demonstrated that Ms Vincent suffered cognitive deficits. The tests included memory and executive functioning. It was her opinion that the assessment of Ms Vincent's general level of cognitive functioning fell within the borderline range of her abilities. She qualified that view by expressing that it was not an accurate reflection of her abilities. She assessed her full scale IQ at 78, which fell in the borderline range.
124Dr Keane opined that Ms Vincent has a number of cognitive deficits that appear to be outside the normal range of variability that would be expected for her level of functioning if development had not been interrupted. In her opinion, the neuropsychological profile was consistent with frontal lobe dysfunction with left hemisphere involvement.
125It is, of course, the case that Ms Vincent suffered significant physical injury to the left side of the skull.
126Dr Keane identified the traumatic brain injury, psychological factors associated with the crash and absences from school which may be contributing to deficits in vocabulary, word reading and spelling.
127Dr Keane opined that the deficits elicited on assessment and, in particular those related to verbal and executive functioning, were consistent with an acquired brain injury and also consistent with the medical information and the history obtained. She added that the deficits, particularly the verbal deficits, had been exacerbated by psychological and social factors (reports 19 November 2014 and 15 December 2016).
128Dr Keane opined that Ms Vincent's job prospects were significantly restricted in the absence of a sympathetic and understanding employer. She required referral to a specialised employment agency and would benefit from initially working part-time.
129On 25 October 2016 Dr Keane again saw Ms Vincent. The history obtained on this occasion was not dissimilar to that obtained on the earlier assessment. The problems identified included memory, attention and concentration, headaches, anxiety and depression. Further testing was carried out by Dr Keane who assessed Ms Vincent's IQ at 85, which was within the borderline range. The result, whilst an improvement on the previous score, was still only at the 16th percentile.
130Dr Keane noted that the configuration of the clinical scales suggested a person with significant thinking and concentration problems, accompanied by prominent distress and dysphoria. She was likely to be quite withdrawn and isolated and have feelings of being estranged from the people around her.
131Dr Keane noted that Ms Vincent's reported difficulties were consistent with a significant depressive experience.
132In the summary to her report dated 15 December 2016, Dr Keane opined as follows:
6.0SUMMARY AND OPINION
The following opinion is based on results of a formal test administered, as well as on information obtained during the interview and provided through various reports made available to me at the time of the assessment. I reserve the right to review the opinions expressed hereafter should additional relevant information be made available to me.
6.1As I noted in the previous report, Ms Vincent is a 22 year old woman who was involved in a motor vehicle accident in January 2002 when she was seven years of age. GCS at the scene was noted to be 14. CT head (3 January 2002) reported that gas bubbles were noted in the left frontal lobe and in right temporal region in keeping with compound fractures. Ms Vincent suffered a seizure on 4.1.2002. She underwent a left frontal craniotomy on 4.1.2002.
6.2According to Ms Vidovich's report (2015) a review CT (5.4.2002) identified area of gliosis in the left inferior frontal region.
6.3Ms Vincent had just completed Grade 2 at the time of the accident. There were no reported reading problems at that time.
6.4Currently, Ms Vincent said that she would like to find work, however, she said that it is difficult to find a sympathetic employer who will understand that she will require longer to learn the requirements of job and that she will work slowly.
6.5Ms Vincent has had three neuropsychological assessments in three years. In 2014, I was of the opinion that the deficits elicited on assessment in particular the verbal deficits and executive functioning deficits are consistent with an acquired brain injury. I also thought that the deficits particularly the verbal deficits have been exacerbated by psychological and social factors.
6.6In 2015, Ms Vidovich noted that comparative review of the test scores across assessment revealed relative stability in her profile. She noted that variability in performance appeared likely influenced by psychological/non-organic factors together with test retest issues. Ms Vidovich(sic) deficits in language ability with reduced attentional capacity and slowed processing speed. She noted history of closed head injury as well as high degree of absenteeism from school and lack of intervention. She also noted the evolution of her symptoms in adolescence. Ms Vidovich was of the opinion that the delay made it more challenging to confidently ascribe Ms Vincent's current symptom complex as being entirely attributable to the effects of the accident.
365The need for Ms Vincent to undertake future rehabilitation and receive vocational assistance is established by the evidence of Dr Keane, Dr Antoce and Ms Rutkin. The defendant, in submissions, referred to the evidence of Dr Flahive who opined that Ms Vincent had capacity to engage in various occupations. As noted, I generally prefer the evidence adduced as part of Ms Vincent's case as to incapacity.
366The evidence, which I accept, is that Ms Vincent requires vocational rehabilitation assistance. That was the evidence of Ms Rutkin, which I accept. The sum claimed of $13,117.60 is reasonable and established by the evidence. The sum includes facilitation of return to work and coordination of rehabilitation. The sum claimed is fully particularised in Ms Rutkin's evidence and is allowed.
367Ms Vincent will require an occupational therapy assessment, driving assessment and driving lessons in the sum of $4,212.80. The requirement for driving lessons is accepted. I would allow the sum claimed of $4,212.80.
368Ms Vincent also makes a claim for specialised case management/rehabilitation services from an independent organisation specialising in ABI (acquired brain injury) and mental health. Ms Rutkin's evidence was that the role of a care manager was to help a person access services and enable them to move forward.
369The claim is particularised as follows.
370Ms Vincent will require two hours per month at the cost of $178.20 per hour.
371Ms Vincent claims the sum of $4,276.80 per year for the rest of her life.
372The total amount claimed by Ms Vincent is $72,080.52: ($4,276.80/52 = $82.24) x 76.4 = $72,080.52. The total claimed is $76,293.32.
373Ms Rutkin suggested there be a review of services undertaken after two years or if Ms Vincent's situation changes significantly (following treatment). I am not satisfied that it is reasonable to make an allowance for a case manager. As noted subsequently in these reasons, Ms Vincent has been able to conduct the proceedings without a next friend. She has been able to apply for employment and participate in an online course. Further, an allowance has been made for rehabilitation including driving lessons. She has also received an allowance for future services.
374In all the circumstances, I do not consider any amount should be allowed for case management.
375I would, accordingly, allow $17,330.40 ($13,117.60 + $4,212.80) in relation to further vocational assistance and rehabilitation.
Future paid services
376Ms Vincent makes no claim for the cost of future gratuitous services. However, there is a claim made for what is described as paid domestic assistance. The proposition underlying this head of damage is that in the event Ms Vincent did live independently, she would have a requirement for paid services.
377In the particulars the claim is outlined as follows:
Ms Vincent will require paid domestic assistance if she is to live independently to assist with cooking, general cleaning shopping (including transport) of three hours per week for three years and two hours per week on an ongoing basis but claimed at no less than:
Hourly rate Hours per week Weekly Cost Multiplier Total $45 Two $90 876.4 $78,876
Ms Vincent claims the sum of $78,876.00.
Ms Vincent will require assistance with personal care from a support worker to assist with hygiene, grooming and medication management for one hour per week:
Hourly rate Hours per week Weekly cost Multiplier Total $45 One $45 876.4 $39,438
Ms Vincent claims the sum of $39,738.00.
Ms Vincent will require a support worker to assist with independent living, recreation activities and socialisation of three hours per week for three years and 1.5 hours per week on an ongoing basis but claimed at:
Hourly rate Hours per week Weekly cost Multiplier Total $45 1.5 $67.50 876.4 $59,157
Ms Vincent claims the sum of $59,157.00.
A total of $177,471.00 is claimed for future paid assistance services.
378Whilst it is unclear, as the defendant submits, if or when Ms Vincent would seek to live independently, I am satisfied that there is a need created for the provision of services. The defendant's submission is that an allowance of $35,595 is appropriate based upon assistance of two hours per week at a rate of $45 per week for a period of 10 years. Again, in my view, only a broad assessment can be made. I would allow $70,000. That sum, again, cannot be the subject of precise calculation. For the period of Ms Vincent's life expectancy it would equate to a little under two hours per week. As already noted, Ms Vincent's condition and the need for services may diminish with treatment.
Travel
379Ms Vincent makes a global claim for past and future travel expenses of $5,000.00 which is reasonable and allowed.
Special damages
380Special damages are agreed and allowed at $2,000.
Fund management expenses
381The plaintiff claims $497,199 in relation to fund management. That sum was calculated on the basis of an assumed fund of $1.5 million, life expectancy of Ms Vincent of 88 years and a discount factor of 6%.
382In Reynolds v The State of Western Australia [No 2] [2013] WADC 176 [509] – [523], Herron DCJ, in considering a claim for fund management costs on a damages award, conducted an extensive review of authority, which I gratefully adopt, and then identified [517] the following questions:
1.Is Mr Reynolds capable or does he have the insight and understanding he needs advice in relation to his financial affairs and management of a large award of damages;
2.If he does have that insight and understanding is he capable of seeking advice from an appropriate adviser and instructing the adviser with sufficient clarity to enable the adviser to advise Mr Reynolds appropriately;
3.Is Mr Reynolds capable of understanding any financial advice given by the adviser and capable of making decisions based upon that advice and giving effect to it.
383His Honour quoted extensively from the decision in Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49, and, in particular, the reasons for decision of McHugh J. The decision in that case establishes the proposition that if a defendant's negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day-to-day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and the expense of managing those tasks.
384Christopher Ian Robert Marshall is an employee of Perpetual Trustee Company Limited. He said that Perpetual provided management services to a variety of funds including to trusts established as the result of an award of compensation.
385Mr Marshall gave evidence that there were three components to the fee: first, an establishment fee; secondly, ongoing advisory fees; and, thirdly, portfolio administration fees. Mr Marshall said that there was also a further fee component related to external fund management.
386Mr Marshall agreed that the calculated fee was charged over the life of the fund and did not take into account the fact that there might be an immediate or an early drawdown of the capital sum.
387Dr Keane considered that it would be preferable for any judgment sum to be independently managed. As a matter of common sense also, it would be preferable for advice to be obtained in relation to investment. Dr Antoce's view was that, whilst it may be preferable to have assistance in funds management, she did not consider it necessary for Ms Vincent's affairs to be externally managed.
388One factor identified in the evidence is the possibility of some inappropriate influence. No such person is identified. In any event, given Ms Atkinson's obvious caring approach towards Ms Vincent, I am not satisfied that this is a significant consideration which would justify an award.
389Whilst it is accepted that Ms Vincent has suffered non-physical injuries, these are not such as to justify the award sought. She has been able to prosecute her claim. No next friend has been required.
390Ms Vincent has been able to attend for and seek employment. She is now enrolled in an online course. She is capable of making decisions based upon advice received. She has indicated that she would like to buy a house and horses. She has sufficient insight to appreciate the need to obtain advice. To the extent there is any real difference between Dr Antoce and the other experts as to the issue, I prefer Dr Antoce's evidence. Her views as a psychiatrist on the issue are to be preferred to those of a neuropsychologist. Her expertise and qualifications are more relevant to the assessment of capacity. In all the circumstances, I would make no allowance in relation to this claimed head of damage.
Interest
391I will hear counsel, if required, as to the appropriate calculations noting that interest should be allowed on past loss and expenditure at 3% per annum.
Summary
Non-pecuniary loss: $206,000
Past loss of earning capacity $162,000
Future loss of earning capacity $307,924
Past loss of superannuation: $13,023
Future loss of superannuation: $34,935
Past gratuitous services: $75,000
Future commercial assistance: $70,000
Future medical expenses: $52,000
Vocational assistance and rehabilitation: $17,330
Travel:$5,000
Special damages: $2,000
Interest:To be calculated
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