Webber by her next friend Esme Alice Nilsson v Insurance Commission of Western Australia

[2009] WADC 53

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CIVIL

LOCATION:   PERTH

CITATION:   WEBBER by her next friend ESME ALICE NILSSON -v- INSURANCE COMMISSION OF WESTERN AUSTRALIA [2009] WADC 53

CORAM:   SCHOOMBEE DCJ

HEARD:   2-20 FEBRUARY 2009

DELIVERED          :   8 APRIL 2009

FILE NO/S:   CIV 774 of 2008

BETWEEN:   LEANNE MARIE WEBBER by her next friend ESME ALICE NILSSON

Plaintiff

AND

INSURANCE COMMISSION OF WESTERN AUSTRALIA
Defendant

Catchwords:

Costs - Unexpected event occurring in the course of litigation - Whether departure from usual rule that costs follow the event justified - Discretionary decision to be exercised judicially - Where unexpected event provided conclusive defence on one issue, but plaintiff prima facie strong case on main issue in proceedings - Where issue on which defendant successfully only pleaded at late stage

Legislation:

Nil

Result:

Order that each party pay its own costs

Representation:

Counsel:

Plaintiff:     Mr M Herron

Defendant:     Mr J Staude

Solicitors:

Plaintiff:     Chris Phillips

Defendant:     Brian C Sierakowski

Case(s) referred to in judgment(s):

Donald Campbell & Co v Pollak [1927] AC 732

Inground Constructions Pty Ltd v Federal Commissioner of Taxation (1994) 94 ATC 4046

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458

Parkessv Crittenden (1965) 114 CLR 164

Trade Practices Commission v Australian Meat Holdings Pty Ltd (No 2) (1988) ATPR 40-893

Watts v Rake (1960) 108 CLR 158

Wilmoth Field Warne (a firm) v Equuscorp Pty Ltd [2007] VSCA 28

Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212

SCHOOMBEE DCJ: 

The proceedings

1. This matter only requires that I make an appropriate costs order.  The matter had a rather unusual history before this Court.  Ms Leanne Webber ("the plaintiff") by her next friend Ms Esme Nilsson instituted proceedings on 14 December 2004 against the Insurance Commission of Western Australia ("the defendant") for damages arising from a brain injury received by her in 1965 when as a 7‑year‑old child she was thrown off her bike by reason of a collision with a motorist.  The accident took place at an intersection of two suburban streets in Kalgoorlie at a time when there were no stop or give-way signs at the intersection and the wide streets only had a strip of tarmac in the middle.

2. The plaintiff's case was that as a result of the accident she suffered a serious frontal lobe injury which caused significant cognitive impairment.  The cognitive impairment made her disorganised, unable to plan and to follow through on any proposed task in a normal manner.  The plaintiff pleaded that by reason of this cognitive impairment she was of unsound mind and unable to organise herself to see solicitors or to instruct them properly with regard to legal proceedings in order to recover damages for the brain injury suffered during the accident.  The plaintiff's case was that she was unable to understand the complexities of her case and to give proper instructions in respect of the litigation and any settlement.

3. The parties were essentially in agreement that if the plaintiff was able to establish these matters, she would qualify as having been "insane" pursuant to s 40 of the Limitations Act 1935 with the result that statutory limitation would not have started to run against her while she retained that mental condition.  It is not necessary to discuss the case law in this regard as there seemed to be very little difference in the interpretation of the law by both parties.

4. Apart from the assessment of the plaintiff's damages the main issue in this matter was the question whether the plaintiff was incapable of instigating and conducting this litigation during the period from when she turned 18 on 18 February 1976 until six years prior to the institution of this action, that is, to 14 December 1998.  A related issue was the question whether the plaintiff's disabilities which caused her to suffer the loss and damage that she claimed, such as loss of earning capacity and a need for ongoing domestic and organisational care, was from the brain injury or from the development of genetically caused Attention Deficit Disorder ("ADD"), depression and anxiety.  The 10½ days of evidence in this matter were largely directed to these two related issues.

5. Apart from denying that the plaintiff had ever been of unsound mind or "insane" pursuant to s 40 of the Limitations Act and that the plaintiff's disabilities arose from the brain injury, the defendant also relied on three other defences.  The first one was that the plaintiff was unable to establish negligence of the driver of the motor vehicle, as that person was now deceased and no-one had observed the accident happen.  A neighbour only saw the plaintiff after she had fallen to the ground and saw the direction in which the motor vehicle had been driving.  The plaintiff had been riding her bicycle home after attending the local swimming pool.  It was apparent by reason of the usual route taken by her, the direction in which the motor vehicle was driving and the position that she was lying in that she had been about to cross the path of the motor vehicle at the intersection and that she had been cycling on the left side of the street.  A large tree on the corner to the plaintiff's right and the driver's left was likely to have obscured the view of both road users to some extent.  Mrs Nilsson, the plaintiff's mother, also gave evidence that sometime after the accident the driver came to their house, offered a sum of money and said that he had not seen the plaintiff.

6. The defendant further pleaded that the plaintiff had not given the appropriate notice to it as required by s 29 of the Motor Vehicle Third Party Insurance Act 1943.

7. The third defence raised by the defendant was that the plaintiff's claim had been compromised in the past and that the plaintiff had thereby lost her right to bring the current proceedings.  The plaintiff gave evidence that when she was a child of 9 or 10 years old she had been told by her mother that she would receive a sum of $1,000.00 when she was 21 years of age because of the accident.  The plaintiff said that the age of majority changed from 21 to 18 years and that she received what remained of the sum of $1,000.00, which was approximately $800.00, when she turned 18.  She said that her mother had told her that a solicitor, Mr Hartrey, had been involved in arranging the payment for her.  She knew it was related to the accident and thought that it was in respect of doctors' fees and inconveniences suffered by her, but did not believe that it was related to the brain injury, as this had not been diagnosed at that time and everyone thought that she had made a full recovery.  The plaintiff said that her understanding was that no claim for compensation had been made because "nobody ever thought that there was anything worth claiming for".  She thought that it was an "automatic" payment which "they" had to "put down" because of the accident.  It was not clear from the plaintiff's evidence whether "they" was a reference to her parents or somebody else. 

8. Mrs Nilsson was aged 77 when she gave evidence.  She said that she could not recall her daughter's accident or her attending at the scene.  Her first recollection was of the priest calling at their home that evening and telling them that her daughter would be okay.  She was not sure whether she had visited her daughter on the day of the accident, but said that she had visited her during the next few days.  She thought that her daughter had totally recovered when she came home from hospital and she did not notice anything different about her daughter's behaviour after the accident.  Mrs Nilsson said that she did not want to accept the $20 that the driver of the motor vehicle had offered her as she found it offensive.  She thought that they had already received their reward because her daughter was well.  Mrs Nilsson said that she remembered her daughter receiving a cheque for almost $1,000.00 when she turned 18.  She assumed that it was for the accident.  She stated that she had never consulted Mr Hartrey, or any other lawyer, with regard to any compensation for her daughter resulting from the accident.  Mrs Nilsson said that she did not know what a court trust was.  Asked whether her husband might have arranged for the establishment of such a trust, she said that she and her husband were separated at that time and she had never asked him whether he had claimed compensation on behalf of Leanne. 

9. I should note at this stage that Mrs Nilsson was an unusual witness.  She had an almost blunted effect, did not engage and seemed to be either unable, perhaps because of her age and lack of memory, or unwilling, perhaps unconsciously, to give a more detailed account of her daughter's history and her own interaction with her daughter.  She certainly did not come across as a witness who tried to promote or advocate her daughter's case. 

10. The only independent evidence presented at the trial with regard to a potential compromise was an index card kept by the Public Trustee which contained the plaintiff's name and a file number which started with the letters "CT".  Mr Williams gave evidence that he had been employed as a state public servant with the Public Trustee for 39 years and is presently employed as Senior Trust Manager.  He said that the index card was the only document that could be found in the files of the Public Trustee relating to the plaintiff or the driver of the vehicle.  Mr Williams explained that in the past, prior to entry of data on computers, index cards had been created by the Public Trustee in order to make it easier to find a particular file.  He said that the abbreviation "CT" stood for "court trust", but it did not necessarily indicate that the relevant trust had arisen from a court approved compromise.  The abbreviation could have referred to a trust established in some other manner.

11. Mr Langton, an employee of the defendant, also gave evidence.  He said that he had been employed with the defendant since 1986.  He stated that he had searched the files and archives of the defendant and had not been able to locate any file relating to the plaintiff or the driver of the motor vehicle.  However, this was not surprising as all files were generally destroyed after six years from majority age.  Mr Langton explained that in the earlier years the defendant had adopted a procedure for smaller claims involving a minor pursuant to which it would approach the parents of the minor and reach an agreement under which they would accept a certain settlement sum subject to the approval of the settlement by the minor when he or she reached the age of 18. 

12. Mr Langton gave evidence that he had located a hard cover red book relating to the period between March 1971 and May 1972 which contained entries of compromises entered into by the defendant with parents of a minor.  The entries indicated the name of the claimant, the name of the person who had entered into the compromise on behalf of the claimant, the amount paid and the bank to which the amount was forwarded to be held on trust for the claimant.  This book did not indicate any entry in the name of the plaintiff.  Mr Langton said that he had been unable to locate any books containing earlier entries.  Mr Langton explained said that all matters which were compromised without court approval resulted in the settlement sum being paid to one of two banks; not the Public Trustee.  If a settlement was court approved, the settlement sum was generally paid to the Public Trustee.

13. Mr Langton gave evidence that he had also located the "day book" for the period 1962 – 1966.  Whenever the defendant had received notice of an accident, it was entered into the day book and received a claim number.  The day book for the period 1962 – 1966 did not have any entry referring to the plaintiff or the driver of the motor vehicle.  Mr Langton said that any later records were no longer available.

14. Counsel for the defendant indicated in opening of its case that his instructing solicitor would give evidence of the inquiries that had been made from the relevant courts to find out whether any of them held a file dealing with a court approved compromise.  Counsel for the defendant said that all inquiries had been fruitless.

15. On the eleventh day of the trial after the evidence by Mr Williams (Public Trustee) and Mr Langton (defendant) had been led by the defence, counsel for the defendant announced after the lunchbreak that he had just been handed a file by the court manager of the District Court which clearly showed that the plaintiff's claim had been compromised and that the compromise had been approved by Judge Good of the Third Party Claims Tribunal Court on 1 October 1970.  Counsel for the plaintiff requested an adjournment to consider the evidence that had just emerged.  When the hearing was resumed, counsel for the defendant tendered the court file relating to the compromise and formally closed its case.  Counsel for the plaintiff indicated that he accepted that the plaintiff's case had been compromised on an earlier occasion, that the compromise had been court approved and that this was the end of the plaintiff's case.  Counsel for the plaintiff consented to an order dismissing the plaintiff's claim.

The investigations regarding an existing compromise

1. The only issue remaining was the issue of costs and both parties filed affidavits in this regard.  The affidavit by Mr Phillips, the plaintiff's instructing solicitor, states that before deciding to commence proceedings he made inquiries to satisfy himself that no court compromise had been reached.  Mr Phillips says that in June 2003 he wrote to the District Court inquiring if it had any documents relating to a court approved compromise of a matter between the plaintiff or the driver of the motor vehicle (a Mr Boyes).  In July 2003 Mr Phillips also wrote to the Supreme Court with the same query.  Mr Phillips says in his affidavit that his inquiries were answered by telephone in each case by an officer whose name he could not recall, but he remembered clarifying with the officer in each case that the plaintiff's maiden name was Nilsson. 

2. Mr Phillips also made unsuccessful inquiries in order to locate the files of Mr Hartrey, who was by then deceased.  Mr Phillips made further inquiries in October 2003 from the Public Trustee.  He was advised by letter from the Public Trustee that although the Public Trustee had had a file, this was destroyed in 2000 in accordance with the usual procedures.

3. In his affidavit Mr Phillips says that he obtained a statutory declaration from the plaintiff's father in October 2006.  The plaintiff's father told him that his daughter saw Mr Hartrey in Kalgoorlie some time after the accident.  He thought that his daughter did not receive any settlement, but he was not sure about this, as he was at that stage no longer living with the family.  The plaintiff's father did not give evidence on behalf of the plaintiff at the trial. 

4. Mr Phillips says in his affidavit that Mrs Nilsson had told him that she and Mr Nilsson had separated in 1969 and that Mr Nilsson thereafter had little to do with the family.  She therefore did not believe that he had been involved in making a claim on behalf of their daughter.  As it turned out, the court file indicates that it was Mr Nilsson who had instructed Mr Hartrey and had acted as guardian ad litem.

5. Mr Phillips also wrote to the defendant in January 2003 inquiring about a potential earlier compromise.  He advised the defendant that the plaintiff had a vague recollection that she had received a sum of $700.00 - $800.00 when she turned 18.  The defendant's solicitors replied that they had no record of such a file as all their documentation had been destroyed.  The defendant advised that it did not make any admission and was of the opinion that the plaintiff's claim was statute barred in any event.  Mr Phillips states in his affidavit that Mr Sierakowski, the defendant's solicitor, kept advising him of the further inquiries that the defendant made regarding a court approved compromise, including a search of the records of the Third Party Claims Tribunal and inquiries directed at other courts which had all failed to reveal any record of a compromise.

6. Mr Sierakowski says in his affidavit, filed on behalf of the defendant, that he wrote to the District Court in February 2007 asking the Court to search its records for information regarding the potential settlement.  He advised the District Court that the plaintiff had accepted a sum of $1,000.00 in settlement of her claim and that he believed that there was a court approved compromise.  Mr Sierakowski also made inquiries with the Public Trustee, which resulted in the provision of the index card.  He was also told that the Public Trustee's file had been destroyed in 2000.  Mr Sierakowski says in his affidavit that his associate also telephoned the Kalgoorlie Magistrates Court (formerly the Kalgoorlie Local Court) and sent an email to the State Records Office in search of the relevant documents.  His associate was advised that the State Records Office did not hold any records of cases heard before the Kalgoorlie Local Court during the early 1970's.  

7. In March 2007 Mr Sierakowski wrote to the manager of records at the Kalgoorlie Magistrates Court.  The reply from the Registrar advised him that a search of the Kalgoorlie court records between 1969 and 1973 had failed to locate any file in the relevant names.  Mr Sierakowski says that in April 2007 he again wrote to the District Court informing it of the index card found by the Public Trustee and that the plaintiff had received a sum of approximately $1,000.00 in settlement of a claim.  He also advised in the letter that his understanding was that the chairman of the former Third Party Claims Tribunal had been a Judge of the District Court and that the Tribunal had the power to order that any amount of damages for the benefit of a person under a legal disability be paid to the Public Trustee.  Mr Sierakowski requested that the District Court search all its records for information as well as any Third Party Claims Tribunal documents that might be held by the District Court.  In April 2007 the District Court advised Mr Sierakowski that it held the records of the Third Party Claims Tribunal, but that an extensive search of those records had revealed no action in the relevant names.  It appears from Mr Phillips' affidavit that he was appraised by Mr Sierakowski of the additional steps taken in order to locate any compromise file.

Unexpected event which occurs during course of litigation

1. Counsel for the plaintiff submitted that in light of the rather unusual circumstances in which the court approved compromise file appeared midway through the trial after extensive inquiries had been made, it would be fair and just if the Court, in its discretion, would make an order that each party pay its own costs.  Counsel for the plaintiff referred to Quick on Costs, Vol I [4.2730] where the learned authors discuss that a court may in its discretion not apply the usual rule that the costs follow the event where "special circumstances" exist.  As one of the special circumstances the learned authors cite the situation where a party fails in litigation by reason of some event which occurs during the course of the litigation, particularly where it involves a change in the law. 

2. Counsel for the plaintiff relied on Trade Practices Commission v Australian Meat Holdings Pty Ltd (No 2) (1988) ATPR 40-893 at 49, 648 where Wilcox J held that it might not be appropriate to simply apply the "loser pays" principle where a party failed in litigation by reason of some event which occurred during the course of the litigation. In that case no order for costs was made up to a certain point in the proceedings because at that time a ministerial order was made in the United Kingdom which destroyed any prospect of the enforcement of an order in favour of the applicants. The applicants continued with the proceedings after the ministerial ruling had been made and were held liable for the costs incurred after that date.

1. In Inground Constructions Pty Ltd v Federal Commissioner of Taxation (1994) 94 ATC 4046 at 4048 Jenkinson J in the Federal Court also considered that the passing of any Act should be regarded as an event which justified the Court in leaving the parties to bear their own costs of the proceedings until each had the opportunity to consider the affect of the enactment on the litigation.

2. Counsel for the plaintiff further referred to Wilmoth Field Warne (a firm) v Equuscorp Pty Ltd [2007] VSCA 28 at [12] where Chernov JA quoted from Donald Campbell & Co v Pollak [1927] AC 732 at 811-812 and emphasised that a court had an absolute and unfettered discretion to award costs. This discretion had to be exercised judicially and a judge ought not to exercise it against the successful party except for some reason connected with the case. However, where a judge, deliberately intending to exercise his discretionary powers, had acted on facts connected with or leading up to the litigation which had been proved before him or which he himself had observed during the progress of the case, a Court of Appeal could not interfere with such a discretionary judgment even if it deemed the judge's reasons insufficient and disagreed with his conclusion. Counsel for the plaintiff submitted that in light of the extensive investigations undertaken by both parties with regard to the existence of a court approved compromise and the unfortunate events which meant that the court file only turned up halfway through the trial, there were special circumstances which entitled the Court to depart in its discretion from the usual rule as to costs.

3. Counsel for the defendant on the other hand submitted that the surfacing of the court file was a risk that the plaintiff had taken in commencing the proceedings and that it was no different to a situation where a defendant produced an unexpected witness.  Counsel for the defendant argued that any litigation was subject to risk and unknown events and that the circumstances of the case did not provide any reason to depart from the usual order as to costs.

4. Counsel for the defendant further submitted that in this case there was no unexpected event which "occurred during the course of the litigation".  The "event" was the order made by Judge Good in October 1970 and the production of the court file was simply the discovery of evidence confirming this event.

5. I do not agree with counsel for the defendant.  The surfacing of the compromise file despite the extensive investigation made by both parties was a rather unusual and unfortunate event which occurred two-thirds of the way through the trial.  It was unusual, not so much because it was an unforeseeable risk, but because it followed after both parties had made extensive inquiries, the plaintiff in 2003 and the defendant in 2007, from a number of government instrumentalities.  In my view this is not dissimilar to the situation in Trade Practices Commission v Australian Meat Holdings Pty Ltd, where the parties had presumably researched the law and accepted that it reflected one position and were then advised of a ministerial ruling which had occurred midway through the trial and changed the position. 

6. I note that in Yilan v Minister for Immigration and Multicultural Affairs [1999] FCA 1212 at [3] – [4] the Court was not satisfied that there was any reason to depart from the usual order for costs because the applicant's failure on appeal was to a substantial extent the result of a decision of the High Court which was handed down after the argument on the appeal had concluded. The Court came to the conclusion that an unsuccessful party in a lower court should also not be relieved from his obligation to pay costs where a point of law had been clarified by the High Court after argument but before judgment. In the absence of binding precedent this was a risk arising from the litigation.

7. In my view the situation in this case is somewhat different.  If the plaintiff had only been told by the Public Trustee and the defendant that it was impossible to say whether a compromise had been entered into on her behalf because the files dating back to the relevant period had been destroyed, there may have been a more forceful argument that the plaintiff knew that the situation was unclear and that she was taking a risk.  However, in this case the plaintiff's solicitors were told directly, and through the defendant's solicitors, that all possible custodians of potentially relevant court files did not have a file in the plaintiff's name or that of the driver of the motor vehicle.  The plaintiff's next friend instituted proceedings on the basis of that information and it was a rather unusual and unexpected event that the court file surfaced after all despite the earlier fruitless investigations.

Whether plaintiff's fault

1. Another issue that should be considered is whether the plaintiff or Mrs Nilsson as the next friend can be blamed in any way for the incorrect assumptions made about the existing compromise.  This matter was not raised by counsel for the defendant, but I have given it some thought.  The parties agreed that any costs order should be made against Mrs Nilsson, as the plaintiff's next friend, and referred to the commentary in Seaman, Civil Procedure Western Australia, at [70.2.1] where the learned author says that one of the purposes of appointing a next friend for a person under disability is to have a person on the record who is personally liable for the costs.  Counsel for the defendant indicated that the costs order was largely academic as Mrs Nilsson did not have the means to pay any costs.  However, the impecuniosity of a plaintiff is not in itself a ground for the Court departing from the usual order: Yilan v Minister for Immigration and Multicultural Affairs (supra) at [5] and Minister for Immigration and Multicultural Affairs v Zamora (1998) 85 FCR 458.

2. As I have indicated earlier, Mrs Nilsson was unable to recall a number of important events that occurred at the time of the accident and thereafter.  She was recalled for further cross-examination after the plaintiff had given the evidence about Mr Hartrey's involvement in obtaining the money paid to her on her 18^th birthday.  Mrs Nilsson said that she had never dealt with Mr Hartrey and had no knowledge of any proceedings instituted by him on her daughter's behalf, but that he had been her husband's solicitor in the family law proceedings relating to their divorce.  There was no indication that Mrs Nilsson might have wanted to feign absence of knowledge in order to assist her daughter's case.

3. I was not provided with any reason why Mr Nilsson was not called on behalf of the plaintiff.  However given the information that he supplied to Mr Phillips as set out in Mr Phillips' affidavit and Mrs Nilsson's advice that he had not been involved in any family activities after the separation, there may not have been much that Mr Nilsson could have added to shed light on the situation.

4. I do not believe it reasonable that the plaintiff be blamed for her lack of memory or misunderstanding of the position.  As will appear from the further reasons, the plaintiff was incapable of correctly recalling relevant information by reason of her brain injury and was in any event only aged 12 when the compromise was entered into.

5. Order 36B r 13 of the Rules of the Supreme Court 1971 provides that a party who seeks production of a document in the custody of a court should direct a request in writing in this regard to the Registrar of the Court.  Accordingly, it cannot be said that the plaintiff by her next friend was at fault in not issuing subpoenas to the registrars of the relevant courts from which enquires were made.

6. In my view the fact that the compromise file surfaced at such a late stage in the proceedings, and after so many inquiries had been made from government instrumentalities by both parties, is a factor that the Court should take into account in exercising its discretion.  This factor alone, in the unusual circumstances of this case, would have persuaded me to make no order as to costs.

Evidence presented over 10 days

1. Another factor that can in my view not be ignored is the evidence presented over the 10½ days.  This evidence dealt mostly, save for three brief witnesses, two of whom gave evidence on the last morning, with the issue of the plaintiff's brain injury, her cognitive impairment, the manifestations of that throughout her life after the accident and her capacity to instruct solicitors and understand the legal proceedings.  In my view the evidence was prima facie strongly in her favour.  I do not propose to provide full reasons, as this would be a waste of court resources and counsel for the plaintiff did not ask me to do so.  However, in my view, this does not mean that I should ignore the evidence that has been presented over the 10½ days.  I therefore propose to refer to the salient aspects of the evidence.

2. The defendant closed its case after the compromise file surfaced and counsel for the defendant indicated that he had done so on purpose so that the Court was in a position to make findings in the defendant's favour.  Counsel for the defendant clearly took a totally different view of the evidence led over the 10½ days than I did.

Dr Edis

1. The medical evidence was reasonably straightforward.  Dr Edis is a neurologist who first saw the plaintiff in November 2001 because she had experienced episodes of fainting.  Dr Edis broke the news to the plaintiff that a CT scan and MRI had shown that she had suffered a significant brain injury in the past.  Dr Edis said that it was obvious that this was an injury of long standing.  Dr Edis explained that there was significant loss of tissue and scarring of the right frontal lobe.  This was very likely to result in cognitive and behavioural difficulties such as lack of attention, concentration, the inability to sequence and organise information, to problem solve and exercise judgment and a difficulty in seeing the consequences of certain behaviour.  Dr Edis explained that because the damage was to the lateral aspect of the frontal lobe and only on the right side, this was not likely to give rise to social disinhibition or inappropriate behaviour.  On the contrary, it was more likely to have made the plaintiff more quiet and withdrawn, less responsive and apathetic, disinterested and unable to initiate matters.  At the same time, there was nothing wrong with the plaintiff's ability to use language, do calculations or make appropriate emotional responses, as the control centres for these capabilities were located in a different part of the brain. 

2. Dr Edis further explained that the frontal lobe area still develops between the age of 15 and well into a person's mid‑20s. Any problems that the plaintiff may therefore have experienced with capabilities controlled by the frontal lobe area may readily have been put down to a lack of maturity and development.  As long as the plaintiff received directions and was told what to do in the context of her school and home environment, it may not have been obvious that she had difficulty in organising and planning.  Her disabilities would only have manifested themselves once she had left home and was dependent on her own resources to organise her life.  Dr Edis said that patients with frontal lobe injury would often be able to understand a task that was explained to them and could perform it in a controlled environment, but if they had to apply it in the real world, they would be unable to deal with the organisation or sequencing of tasks.

3. Dr Edis was of the view that the evidence of the plaintiff not having paid her power bills on a regular basis was typical of a victim with frontal lobe injury, as such persons often did not understand the consequences of their conduct or did not care about them.  It was put to Dr Edis that the plaintiff had been able to conduct two sets of family law proceedings without any apparent difficulty when she first separated from her husband and later obtained a divorce.  Dr Edis responded that it was likely that the plaintiff would have been able to give straightforward directions and would have been able to understand and deal with any particular step that was not too complicated.

4. The defendant's case appeared to be that the plaintiff's inability to organise herself and her lack of concentration was due to the ADD with which she had been diagnosed in 1994 and the depression and anxiety that she had developed after she had been told in 2001 that she had lived with a brain injury ever since the accident.  The plaintiff's three children had also been diagnosed with ADD, as well as her sister, and it was put to Dr Edis that this was a genetic condition in the plaintiff's case.  Dr Edis expressed the view that it was unlikely that the plaintiff's problems with organisation, judgment, sequencing and understanding consequences were the result of ADD.  In any event, if she had been correctly diagnosed with ADD, this was likely to be related to her brain injury.  The plaintiff's children had all responded well to the dextamphetamine that had been prescribed, whereas in the plaintiff's case she found it helpful, but it did not resolve her problems regarding organisation, sequencing and understanding consequences. 

5. Dr Edis further explained that according to the Diagnostic and Statistical Manual of Mental Disorders IV ("DSM‑IV") criteria, ADD should manifest itself before the age of 7 years.  Although there was no diagnosis for ADD in the 1970s, children with that disorder usually stood out as being quite obviously disruptive and inattentive.  There was no history of the plaintiff having behaved in that manner.  Dr Edis was also of the view that the plaintiff's depression and anxiety were related to her brain injury, although these conditions might have been triggered by social distress such as a marriage breakup.  Dr Edis said that he noticed that the plaintiff was very disorganised in her thought pattern when speaking to him and repeatedly went off on a tangent.

Dr Main

1. Dr Main is a psychiatrist who took over the treatment of the plaintiff in 2003 after she had first been diagnosed with ADD by Dr Patterson in 1994.  Dr Main diagnosed the plaintiff with ADD in partial remission and depression.  Dr Main was of the view that the plaintiff had developed ADD and depression because of the biological vulnerability created by the frontal lobe injury and also because of a developmental vulnerability created by her adverse life events such as her social disadvantage, her relationship breakdown and her parenting problems.  Dr Main conceded that there was likely to have been an interaction between this biological vulnerability and the developmental vulnerability, but was of the opinion that it was probable that the brain injury had made a significant contribution to the development of the plaintiff's ADD and depression.

2. Dr Main said that the plaintiff's cognitive impairment had manifested itself in his treatment of her as she had an inability to keep on track during a conversation, a tendency to become easily frustrated with too many questions, a tendency to defer decisions and impulsiveness.  He noted that as the plaintiff became frustrated with questioning, she became more flippant and the reliability of her answers decreased.  Dr Main was of the view that the plaintiff's capacity to assimilate and organise information, make reliable judgments and manage the psychological and emotional stresses of legal proceedings were all limited.  He was therefore of the opinion that she lacked the capacity to manager her affairs in relation to a legal claim resulting from her accident.

3. Dr Main said that the plaintiff would have been capable of executing a power of attorney as this involved a fairly discreet decision.  The plaintiff was able to cope with information and make a rational decision, but this depended on the degree of complexity of the information.  Dr Main was also not surprised that the plaintiff's limited cognitive function was not picked up when she instructed two sets of solicitors with regard to two different Family Court property settlements.  Dr Main explained that the plaintiff's verbal abilities were reasonably good and in a general conversation, even one dealing with specific issues, she would most likely not have stood out as overly impaired.  Her tendency to go off on a tangent during a conversation could easily have been attributed to nervousness.  He also did not find it unusual that none of her treating general practitioners had picked up any cognitive impairment.  He said that the plaintiff's cognitive impairments were subtle and only manifested themselves in certain respects which may not have become apparent during a medical consultation which focused on a particular issue.

Dr Skerritt

1. Dr Skerritt is a psychiatrist who has 23 years experience in treating people with head injuries.  He was asked to perform a psychiatric assessment on the plaintiff in 2002.  He explained that the frontal regions of the brain were devoted to organising the complicated actions of the rest of the brain and presenting them to the outside world.  The frontal regions had a so‑called "executive function" which allowed a person to apply knowledge to real life situations.  The problem for a person with frontal lobe damage was not to perform individual tasks, but to be able to perform a number of tasks in a coordinated way which allowed the person to adapt to the outside world.  Dr Skerritt said that this is why the eyewitness descriptions found in the reports of Ms Dival, occupational therapist, and Ms Bayliss, registered nurse, were very important and confirmed that the plaintiff had exhibited the behavioural difficulties typically experienced by people with frontal lobe deficits.  Dr Skerritt also found it difficult to get a clear history from the plaintiff.

2. Dr Skerritt came to the conclusion that the plaintiff's symptoms of being disorganised, her inability to concentrate and her having muddled thoughts were the result of her brain injury.  He based his opinion on his clinical assessment of her, the eyewitness descriptions of her functioning in her own home, the neuropsychological tests performed on the plaintiff and the evidence of a significant brain injury on the MRI scans.

3. Dr Skerritt said that he would not have diagnosed the plaintiff with ADD.  He explained that ADD was a complicated condition, that the diagnostic criteria were not very specific and that there was quite a variance of opinion held by professionals working in the field regarding the criteria necessary for such a diagnosis.  The guidelines provided in DSM‑IV indicated that ADD should only be diagnosed if the symptoms could not be better described by another condition.  In the case of the plaintiff, the significant brain injury was an obvious explanation of her symptoms.  The fact that the plaintiff had obtained some benefit from the use of dextamphetamine did not necessarily mean that she had ADD.  Dextamphetamine had been proven to be beneficial in improving concentration of people who had suffered less complicated brain damage.  Dr Skerritt was of the view that the plaintiff's symptoms of lack of concentration and attention were a direct result of her brain damage.  However, he acknowledged that it was also possible that the plaintiff's brain damage had provoked a disorder that could be said to fall within the wider criteria of ADD.

4. As regards the anxiety and depression experienced by the plaintiff Dr Skerritt was of the opinion that these mental conditions could have been caused by the brain injury if they had manifested themselves at the time that the injury occurred.  However, he understood from the plaintiff that her anxiety and depression had started at a later stage, after she had been advised of her brain injury.  Dr Skerritt said that the symptoms arising from anxiety and depression overlapped to some extent with the symptoms arising from frontal lobe injury, as people with anxiety were often disorganised.  On the other hand, it was possible that the anxiety and depression were provoked by the cognitive difficulties experienced by the plaintiff as a result of her brain damage.  Dr Skerritt came to the overall conclusion that the main areas of handicap that the plaintiff had experienced throughout her life could be ascribed squarely to the frontal lobe injury.

1. Dr Skerritt was also asked to make an assessment as to whether the plaintiff was able to manage her affairs in respect of the current legal proceedings.  He was asked to comment whether she would have the attributes and skills necessary to understand the relevant issues, to collate and recall relevant information, weigh the physical, emotional, financial and legal factors relevant to the litigation, to devise and communicate competent instructions, to understand legal advice and to make decisions based on the relevant facts and legal advice given to her.  Dr Skerritt said that the plaintiff was not able to take these steps.  When he had interviewed the plaintiff in this regard, she indicated that she thought that her lawyers would take control and instruct her.  She did not seem to understand the concept that she would have to provide them with instructions.  Dr Skerritt stated that the plaintiff had told him that her approach was to trust the lawyers and hope for the best. 

2. When it was put to Dr Skerritt that the plaintiff had conducted two sets of Family Court proceedings and that the lawyers involved in those proceedings had not picked up that she was incapable of managing these proceedings, he explained that because the symptoms of frontal lobe damage were so subtle he would not have expected the most alert lawyer to have realised that the plaintiff had brain damage or an incapacity to conduct her own affairs.  He would not have been surprised if the plaintiff had communicated reasonably normally and had been able to answer simple questions without her lack of organisational skills becoming apparent.  The same situation would have applied when the plaintiff saw her general practitioners.  Dr Skerritt said that it was very common for general practitioners to miss a frontal lobe injury.  Dr Skerritt agreed that disorganisation of a person considered in isolation could be regarded as idiosyncratic.  However, he explained that every symptom in psychiatry was an exaggeration of what normal people did.  A psychiatrist took into account clusters of symptoms in order to make a diagnosis of a psychiatric condition.

Dr Hayward

1. Dr Hayward is a clinical psychologist who has a PhD in psychology and has been working in the field of neuropsychology since 1983.  Dr Hayward assessed the plaintiff on two occasions, firstly in 2007 and again in 2009, and administered a variety of neuropsychological tests.  Dr Hayward compared the results of the tests administered by her with the results from neuropsychological tests administered by Ms Coxon, a psychologist, in 2002 and 2005.  Dr Hayward said that the tests indicated that the plaintiff was functioning within the average range of intelligence and that her performance on intellectual assessment remained reasonably consistent across time.  The only variability in the test results was in the area of working memory performance.  Dr Hayward explained that working memory allowed a person to take up information, hold it briefly, do something with it such as a simple arithmetic calculation, and then reproduce the information.  She said that it was not unusual that a person with frontal lobe damage would show variability in performance.  Dr Hayward relied on a publication by Stuss, DT, et al (2003) "Staying on the job: The frontal lobes control individual performance variability", in which it was reported that damage to the frontal lobes impaired the stability of cognitive performance.

2. Dr Hayward explained that the neuropsychological testing had indicated that the plaintiff had problems with her executive function.  A person's executive function included the ability to formulate goals with regard to long term consequences, to generate multiple response alternatives, to choose and initiate goal directed behaviours, to self‑monitor the adequacy and correctness of the behaviour, to correct and modify behaviours when conditions changed and to persist in the face of distraction.  Dr Hayward explained that a person with a frontal lobe injury might still have full intellectual capabilities but have problems with executive function.  Such a person could understand the rules and know what he or she was supposed to do, but could not apply them in a given situation.  The test results in the plaintiff's case indicated that she had problems with attention, dealing with novel tests, finding a strategy to complete the task quickly and effectively and maintaining the rules of a task.

3. Dr Hayward also tested the plaintiff's psychological status.  The test showed that she had significant anxiety and depression in 2007.  On re‑testing the plaintiff in 2009 her anxiety and depression had improved to the extent that she only returned readings in a mild to moderate range.  Dr Hayward was of the view that the plaintiff's depression and anxiety was related, directly and indirectly, to her brain injury.  She explained that damage to the frontal lobe area could in itself create difficulties with a patient's emotional regulation and in combination with cognitive problems resulting from the brain injury could have an impact on personality development.  She referred to a publication by Cooper, E (2002), "Adaptive behaviour and moral reasoning in children with front lobal lesions", in which the author came to the conclusion that children with frontal lobe damage often appeared to demonstrate remarkable recovery with few apparent signs of impairment immediately after the injury.  However, over time many of these children developed increasing deficits in self-regulation, attention and executive function.  Dr Hayward said that the literature also suggested that children with frontal lobe injury experienced worsening behavioural and social problems over time, as well as lack of moral reasoning and reduced social understanding.  Dr Hayward explained that a child who had sustained significant brain damage might have difficulties with normal personality development because the cognitive deficits and poor emotional regulation would make it difficult for the child to think through, clarify and solve problems arising in its daily life.

4. Dr Hayward was of the view that it was likely that the plaintiff's cognitive difficulties in combination with her poor emotional regulation created problems in her life to which she reacted with significant anxiety and depression.  Her current symptoms were therefore likely to have been caused to a large extent directly by the frontal lobe injury and to a lesser extent indirectly by the depression and anxiety which also resulted from the frontal lobe injury.

Ms Coxon

1. Ms Coxon is a clinical and forensic psychologist.  She has a master's degree in clinical psychology and wrote her master's thesis on "Cognitive rehabilitation with brain damaged patients".  Ms Coxon performed neuropsychological assessments on the plaintiff in 2002, 2005 and 2009.  These tests indicated that the plaintiff was of average intellectual capacity but had significant impairment across a number of cognitive domains, particularly in the area of frontal lobe functioning.  The tests administered to assess executive function and problem solving had returned a score indicating moderate to severe impairment.  Ms Coxon said that this demonstrated that the plaintiff had extreme difficulties in implementing and applying strategies in order to effectively problem solve.

2. Ms Coxon also tested the plaintiff's emotional state in 2002 and found that she displayed a high state of anxiety, severe stress symptoms and severe depressive symptoms.  However in 2005 there was a substantial improvement, as the plaintiff's emotional state only showed minimal anxiety, mild to moderate stress and mild depression. 

3. It was put to Ms Coxon that the results of the neuropsychological testing could be explained by the plaintiff's elevated state of anxiety, depression and her diagnosis of ADD.  Ms Coxon did not agree with such a finding.  She said that the fact that the plaintiff's scores on the neuropsychological testing had remained relatively stable from 2002 to 2005, whereas her emotional state had improved considerably during that period, indicated that her emotional state had not had a significant effect on the test results.  Further, the neuropsychological test results were quite normal in many areas of intellectual functioning, except in those that related to frontal lobe functioning.  Ms Coxon acknowledged that the plaintiff's anxiety and depression could have had some effect on the test results.  However, she had not tried to distinguish between the biological frontal lobe damage and the depression and anxiety as potential sources for the deficits in executive function, because there was ample authority for the proposition that depression and anxiety was a common feature of frontal lobe injury.  A recent longitudinal study in New Zealand by McKinlay with over 1,000 individuals who had suffered mild childhood head injuries also showed increased ADD symptoms and other coping difficulties as adults.

The plaintiff's evidence of the manifestations of her cognitive disability

1. The medical expert evidence explaining the cognitive deficiencies that were likely to have arisen from the plaintiff's frontal lobe injury and the effect that this injury was likely to have had on the developmental process from child to adult was well supported by the evidence given by the many witnesses who described the plaintiff's behaviour in her daily life.  The plaintiff herself said that she realised after the accident that she was different, but when she came out of hospital she was told by her family "not to try and play on the fact that there was something wrong with my head".  She described her life after the accident as uneventful and said that she and her family never thought that there was anything wrong with her.  The school reports that were tendered on her behalf indicated that at the end of Year 2, just prior to the accident, the plaintiff had obtained almost full marks across all areas.  When the plaintiff left school, midway through Year 10, at the age of 14, the school report indicated that she was working well in class but needed to put in more effort.  Her results varied from having achieved only the basic level in what appears to be science, an elementary level in mathematics and an intermediate level in English.

2. The plaintiff described in some detail the many employment positions that she had held after she left school.  She initially worked as an assistant in aged care and subsequently mostly as a barmaid.  She did not seem to stay at any job for longer than a year and mostly only for a few weeks or a couple of months.  She moved all over Western Australia and also to Melbourne on one occasion, but in-between came back to Kalgoorlie because she said she was homesick.  Dr Skerritt said that it was significant that the plaintiff's many jobs prior to her marriage had been of such a short duration.  This indicated a lack of persistence and organisation.

3. The plaintiff married her husband in 1984.  They had three children, two boys born in 1985 and 1987, and a daughter born in 1989.  The plaintiff said that they initially lived in a smaller house in Kalamunda and she had home help who came in regularly to assist her.  In 1990 the family moved to a larger house in Stoneville and the plaintiff no longer had outside home help.  She said that her mother came to see her about once a fortnight and spent substantial time with her helping to clean and tidy.  The plaintiff recalled that she hardly took the children out to visit or to go to movies, because, as she said, they were too energetic and hyperactive.  Her husband worked away from home on a fly-in fly-out basis.  In November 1994 she and her husband separated and she rented a house in Mahogany Creek.  She said that a friend who was a real estate agent assisted her with this.  The friend also assisted her at a later stage to purchase a house in Chidlow where she lived with the children until mid‑1997 when she and her husband reconciled.  In early 1999 they went to live in Busselton.  The plaintiff ended the relationship after another four years.

4. The plaintiff gave evidence that throughout her years of housekeeping she had found it very difficult to keep her house in order and put in place any systems for organising items.  She said that she had tried to create order but never managed to finish anything because she got distracted.  She found that the more she tried to sort out the family's belongings, the messier they became.  The plaintiff said that she tried to sort things into boxes, but would get confused as to what could be thrown out and what had to be kept.  She found her inability to cope very frustrating.  The plaintiff also stated that she had no system for keeping important documents and sometimes left them in the car, hoping that it would be a reminder for her to pay the bills.  She said that she had tried various systems in order to keep track of bills, but that none of them had worked for her.  The electricity had been cut off on one occasion and on another her son had paid the bill at the last moment.  The telephone had been discontinued on a number of occasions because of lack of payment.  A letter from Telstra which was tendered indicated that this had occurred on eight occasions between the period November 2000 to July 2006.

Mrs Nilsson's evidence

1. Mrs Nilsson gave evidence that when her daughter's family moved to the larger house in Stoneville she noticed that her daughter was not able to cope with keeping the house clean and organised.  She then visited her daughter on a weekly basis and helped out with the housework for about six hours at a time.  The house was always in a shambles.  Mrs Nilsson said that when her daughter had to move house other members of the family assisted her with the move.  The plaintiff was unable to do the packing on her own.  She started something, but then did not complete it.  When Mrs Nilsson asked her daughter what she wanted to keep and what could be thrown out, her daughter was unable to make a decision.  Her daughter did not have a routine for anything.  She did a little bit of this and a little bit of that, but never finished anything.  Mrs Nilsson admitted that the plaintiff had always looked well after her children and had managed to arrange doctors' appointments for them.  She said that the children were her daughter's priority. 

2. Mrs Nilsson also gave evidence that her daughter was unreliable and said strange things.  She had a very good memory with regard to some matters, but not with regard to others.  She considered her daughter to have been "eccentric", and did not realise prior to the diagnosis of the brain injury that there was anything wrong with her daughter's brain functioning.

Ms Lahne's evidence

1. Ms Lahne has a Bachelor of Social Science and is now a self‑employed counsellor working in relationship education.  When she first met the plaintiff at the end of 2001 she was working as the project coordinator and a youth work practitioner at the Busselton Youth Service.  She came into contact with the plaintiff because the plaintiff's middle son had come into strife with the law.  When Ms Lahne first visited the plaintiff's house she was struck by the state of the house.  The front door had been blocked off and Ms Lahne had to enter the house via the carport which was full of boxes, bags and rubbish bins.  When she walked into the kitchen she noticed that the bench was totally covered with various items and the floor space was taken up with at least eight laundry baskets full of clothes.  There was clutter lying around everywhere, including magazines, paperwork, sporting equipment, stuffed toys and clothes.  The floor space in the remainder of the house and the whole entry hall next to the front door was equally stacked with plastic bags, boxes and baskets full of items.  There was no order or relationship between the items that were grouped together. 

2. Ms Lahne regularly visited the plaintiff during the period November 2001 until the end of 2005 and tried to assist her in putting systems into place to organise her domestic affairs.  Ms Lahne also obtained outside help from government agencies and home community care organisations to assist the plaintiff with domestic tasks and to organise her life and children.  Ms Lahne observed the plaintiff functioning in her own home environment on a number of occasions.  She said that it took the plaintiff 45 minutes to make a cup of tea.  She constantly became distracted and could not complete a simple step.  At times she would leave the room while talking to Ms Lahne and start to feed her dogs or attend to the bird feeder outside or start to look for something or tidy up things and then get distracted again.  On one occasion Ms Lahne tried to help the plaintiff sort some of the items in the many baskets, but the plaintiff was unable to make a decision as to what to do with any particular item.  She raised complicated variables of what could happen in future and what to do with each item and eventually became upset. 

3. Ms Lahne also tried to teach the plaintiff how to put rules and stated consequences in place with regard to disciplining her children.  She said that after each discussion the plaintiff indicated that she understood the rules and would apply them, but this never seemed to translate into action.  Ms Lahne further attempted to teach the plaintiff how to have a system of keeping track of bills and other important documentation.  The plaintiff was always agreeable to putting systems into place, but did not seem to be able to stick to them in practice.  On one occasion Ms Lahne noticed a "final notice" from the Shire of Busselton in respect of land rates.  She explained to the plaintiff that she had to pay it urgently as otherwise the Shire might repossess her house if she did not pay it.  However, when Ms Lahne next visited, the notice was still in the same place.  Ms Lahne said that it was not the case that the plaintiff was unconcerned about the chaos in her house or was too lazy to try and deal with it.  The plaintiff was constantly busy attempting a particular task, but she was unable to finish anything and created more disorder by starting a task and leaving it uncompleted.

Ms Dival

1. Ms Dival is an occupational therapist who has specialised in assessing and treating patients with neurological dysfunction and has worked in this area for 27 years.  She was first asked to assess the plaintiff in 2005 and re-assessed the plaintiff in 2007 and in 2008.

2. Ms Dival described the disorder and chaos in the plaintiff's house in very similar terms to that of Ms Lahne.  She explained in detail why it took the plaintiff 45 minutes to make a cup of tea.  Ms Dival described how the plaintiff would go to the cupboard, move things around, but not take out the required objects, walk back to the kitchen bench, move a teacup backwards and forwards, start to clear a space on the bench, go back to the cupboard, take out other things, but not the tea, try to fill the kettle above a sink stacked to the brim with items, give up and later struggle to find the kettle.  Ms Dival confirmed that the plaintiff's disorganisation was not because of a failure to try and bring order to her house.  The plaintiff was incapable of doing so.  On one occasion Ms Dival asked the plaintiff what she intended to do with a large number of recyclable items that were filling the laundry sink.  The plaintiff then started to sort the items, but repeatedly picked up the same object, unable to ascertain where to put it and rinsed it repeatedly.  Ms Dival said that the plaintiff never stayed still for more than a couple of minutes.  She repeatedly attempted to tidy various items but got distracted and did not complete any task.  The plaintiff was only able to deal with the most pressing activity at any one time, such as making a sandwich for lunch for her son.

3. Ms Dival gave evidence that the plaintiff had good insight and understanding that her processes were inadequate and that she was not managing, but she had poor ability to identify how to resolve any particular problem and what steps to take.  She suffered from inadequate planning ability in that she could not identify amongst all the tasks which one to address first and then to follow through on the completion of the task.  As she started various tasks at the same time and left them partly completed, she created more chaos in her house.  The plaintiff also had difficulty in organising a particular task.  She could not access and engage the cognitive processes required to effectively work through a task.  She was unable to deal with more than one input at a time and to sequence her thought processes properly.  The plaintiff was also not able to learn from her failures and was unable to re‑organise her approach.

1. Ms Dival was of the view that the plaintiff was able to respond to instructions that were limited in scope but she could not process more than one piece of information at once or properly comprehend multiple pieces of information such as those contained in forms and documents.  Ms Dival was of the opinion that the plaintiff was unable to manage her financial and legal affairs.  She said that the plaintiff could appear quite capable in certain circumstances.  Where there was a structured environment with a specific task to focus on, the plaintiff could present quite normally, particularly when involved in social interaction.  In ordinary conversation the plaintiff could present as sharply intelligent, witty and able to engage in meaningful exchange.  However, when she was confronted with complex, multi-level tasks in an unstructured environment she performed poorly.  This was why it was critical to assess her within her normal home environment and not just with regard to any particular task which was seen in isolation.

2. Ms Dival said that in her experience patients diagnosed with ADD reacted differently.  They also showed a lack of concentration and erratic behaviour, but the reason why they interrupted their task was to focus upon themselves and talk about themselves.  The plaintiff became distracted by seeing other matters that needed attention.  Ms Dival said that in her experience people with depression also acted differently.  These patients had an inability to get started, because they were overwhelmed by the task.  This was not the case with the plaintiff.  She regularly started new tasks, but was unable to focus on them and to work out the steps that were required to complete the task.

Ms Bayliss

1. Ms Bayliss is a clinical nurse who specialises in neurology.  She was employed with the Neurological Council of Western Australia and visited the plaintiff in that capacity in 2001 after having been asked by Ms Lahne to do so.  At that time Ms Bayliss arranged outside assistance for the plaintiff to manage her home and family.  In 2006 Ms Bayliss was requested to provide a report to the plaintiff's solicitors and again visited the plaintiff's house for three hours.  Ms Bayliss described the plaintiff's inability to organise her house, to concentrate on a particular task, to plan and complete a task and to organise paperwork in very similar terms to that recounted by Ms Dival.  Ms Bayliss also said that she found it difficult to get the plaintiff to sit down and talk to her.  The plaintiff repeatedly got up, walked around the house, fed the dog outside, fed the bird, folded washing, packed away a jigsaw puzzle and started to complete parts of it again.  She also constantly skipped from one topic to another.  Ms Bayliss emphasised that it was not the case that the plaintiff did not try and keep her house in order.  The plaintiff was well able to recognise her problems with organisation but she was simply unable to plan, focus on a task and to evaluate the consequences of not doing a particular task.

Ms Stokes

1. Ms Stokes gave evidence that in 2003 she did some volunteer work.  She was asked to assist the plaintiff with organising her house and teaching her some organisational skills.  She visited the plaintiff's house twice a week for approximately four to five months.  Ms Stokes gave evidence that the plaintiff's house was totally chaotic and that she found lots of bills and paperwork that had not been attended to.  She placed them in a particular file, but the next time she would come to the plaintiff's house the paperwork was all over the place again, or the plaintiff could not find the file.  Ms Stokes said that she did not make any progress in teaching the plaintiff to organise her house and her bills.  She also noticed that the plaintiff was unable to sit still and to focus on a basic conversation.  She would drift off onto different topics and also not take in exactly what Ms Stokes explained to her.

Dr Roberts

1. The evidence about the manifestations of the plaintiff's cognitive impairment in the earlier days prior to the diagnosis of her brain injury was not as detailed as the evidence given by the professional and semi‑professional persons who observed the plaintiff after 2001.  However, in my view the bits and pieces of evidence that were offered by the various witnesses, some in cross-examination, were quite telling and indicated that the plaintiff had problems with organisation, planning and recalling the correct piece of information throughout her life. 

2. Dr Roberts was the family general practitioner in 1965 and treated the plaintiff after the accident.  He said that he had no independent recall of the accident itself or the injury that the plaintiff had suffered, but he was surprised when shown the hospital records which indicated that he had kept the plaintiff in hospital for three weeks.  He said there must have been a reason why he kept her in hospital for so long without transferring her to Perth.

3. Dr Roberts stated that he recalled the plaintiff as a bright and active young girl before the accident and that after the accident she was not the same child.  She was dull, dumb, more submissive and overwhelmed by her environment.  He said that he remembered telling her father at some stage not to push her too hard after the injury.  The description of the plaintiff as dull, more submissive and overwhelmed by her environment, fits in perfectly with the evidence given by Dr Edis when he explained that a person with lateral frontal lobe injury to the right side only was likely to be quiet and withdrawn, less responsive and apathetic, disinterested and unable to initiate things.

Ms Stubley

1. Ms Stubley is currently an aged care provider and has known the plaintiff since 1969 when they went to school and played basketball together.  She said that the plaintiff was always an outsider and a loner, although she was friendly.  She thought that the plaintiff was intelligent, but she was not quick to respond to things and could not coordinate herself.  Ms Stubley said that the plaintiff's bedroom was always a mess and the plaintiff usually did not know what her next school period was.

2. Ms Stubley said that she kept in contact with the plaintiff and in about 1985‑1986 visited her from time to time in her house and asked her to babysit her young daughter.  Ms Stubley described the plaintiff's house as "a nightmare because of all the mess".  She said that the plaintiff indicated to her that she was ashamed of how she lived, but she was unable to improve things.  She merely moved items from one area to the other.

3. Ms Stubley recounted that at some stage the plaintiff told her repeatedly that she needed to buy a new car.  However, she never seemed to do anything about it.  She never made any inquiries about cars that she could buy and did not speak to her husband about it.

4. In my view this is again evidence which provides examples of the plaintiff's cognitive impairment when she was still at school and in the early days of her marriage.  It also shows that the plaintiff was incapable of carrying through any decision that she had made such as buying a new car.

Ms Thomas and Mr Nilsson

1. Ms Thomas is a sister of the plaintiff and approximately three years older than her.  She said that the plaintiff acted a bit bizarre at times when she was a child and other children called her an idiot.  The family called her "Cloudi" because she was "up with the clouds".  Ms Thomas said that at times her sister seemed to be as clever as Einstein and the next minute she was "the greatest dill you ever meet".  Mr Peter Nilsson, the brother of the plaintiff, confirmed that the family called her "Cloudi" as a child, because she sometimes said smart things and sometimes quite dumb things.

Mr Carl Webber

1. The eldest son of the plaintiff, Mr Carl Webber, who is now 23 years old, also gave evidence.  He described that throughout his childhood there was clutter everywhere and that his mother had no system and no step‑by‑step process to complete any tasks.  Ordinary tasks would take her a long time and she could not finish things.  She also had no organised approach to dealing with bills.  Mr Webber said that whereas his mother took him to sporting events or training when asked, he had to organise the purchase of school books and stationary himself.

Ms Astrid Webber

1. Ms Astrid Webber, the plaintiff's 19-year-old daughter also gave evidence.  Ms Webber performed very well at school and received a number of awards, including the Edith Cowan University Award for outstanding achievement, and was appointed a student councillor.  She said that her mother was very proud, but when she told her father or friends about her daughter's achievements, she got them mixed up.  For example, when Ms Webber had received the Edith Cowan University Award, her mother told others that she had been made head girl or student councillor.  When she was appointed as a student councillor, her mother told people that she had been made head girl.

2. Ms Webber gave evidence that her mother did not come to the ceremony at which she received the Edith Cowan University Award.  She said that her mother was always late for school events or forgot about them.  In later years she stopped telling her mother about school functions, because she did not want her to feel embarrassed.  Ms Webber also described an occasion when as a 12 or 13 years old she had told her mother that she would make dinner for the family.  Her mother forgot about this and did not turn up for dinner until much later in the evening.

3. Ms Webber described how the house was cluttered with boxes, baskets, buckets and bags anywhere and everywhere.  She also recounted that her mother had acquired a mobile phone at some stage but gave up using it because she could not learn how to operate it.

4. In my view the evidence given by the plaintiff's siblings and her children is also telling in that it fits in with the medical evidence and the recognised symptoms of frontal lobe damage.  The fact that the plaintiff seemed to function well with regard to certain intellectual capacities, but was incapable of dealing with executive tasks fits in with the medical evidence that frontal lobe injury is likely to lead to very selective cognitive deficiencies.  The fact that the plaintiff became confused about the awards that her daughter had received and provided the wrong information also accords with the findings made by Dr Hayward.   Dr Hayward gave evidence that the plaintiff had a tendency to introduce incorrect material into a recall of a story.  She explained that it was not so much a question that the plaintiff could not remember information; it was more a question that her brain could not select the right piece of information and instead selected an associated bit of information.

Mrs Fisher

1. Mrs Judi Fisher is a real estate agent whose two boys went to the same class as the plaintiff's boys for the first few years of primary school.  Mrs Fisher said that when the plaintiff separated from her husband she acted as agent for the plaintiff and her husband in selling the house.  Mrs Fisher said that she helped the plaintiff to organise her home so that it was in a suitable state to be sold.  The plaintiff had no idea what she had to do first and Mrs Fisher had to remind her of what she was going to do, because the plaintiff forgot what she was meant to do.  Mrs Fisher said that the plaintiff's family also came to help the plaintiff de‑clutter her house as the plaintiff was very disorganised.

Strong prima facie case

1. In my view the evidence of the lay, professional and semi‑professional witnesses regarding the plaintiff's cognitive deficiencies and demonstrated symptoms fits in perfectly with the medical expert evidence of the symptoms that are likely to arise from this type of frontal lobe injury.  The medical and lay evidence provided a strong prima facie case that the plaintiff's cognitive disabilities had been caused by the brain injury and that the brain injury was also a significant contributor to the plaintiff's symptoms of depression, anxiety and ADD. 

2. In any event, even if the plaintiff's depression, anxiety and ADD had developed at a later stage and were unrelated to her brain injury, the cognitive deficiencies arising from the brain injury still appear to have made a significant contribution to her inability to organise her house and life, to concentrate on a particular task, to plan a task and carry it out step‑by‑step and not to get distracted.  The plaintiff would have been entitled to damages in respect of all of her losses as long as she could prove that the driver's negligence and the resultant brain injury were a material cause of her losses.  The plaintiff did not have to prove that the brain injury was the only or dominant cause:  Medlin v State Government Insurance Commission (1995) 182 CLR 1 at 20.

3. The plaintiff therefore made out a prima facie case that she was entitled to all losses arising from her inability to organise her life, as these losses resulted, at least in a material respect, from her brain injury.   It would then have been for the defendant to lead evidence to disentangle the disabilities resulting from the depression, anxiety or ADD from the disabilities caused by the brain injury:  Watts v Rake (1960) 108 CLR 158 at 160 and Parkessv Crittenden (1965) 114 CLR 164 at 168. It would have been a very difficult task for the defendant to differentiate between the effect of the brain injury on the daily problems experienced by the plaintiff and the effect of the other conditions in this regard.

4. I am also of the view that the plaintiff presented a very strong case on the issue whether her cognitive impairment prevented her from managing her affairs in respect of the current proceedings.  Ms Lahne gave evidence that when she suggested to the plaintiff that she should approach lawyers to find out whether she was entitled to any compensation arising from her brain injury, the plaintiff replied "Lawyers – good luck!"  It was only when Ms Lahne offered to assist her in this regard that the plaintiff agreed to approach a solicitor.  The evidence by Ms Stubley that the plaintiff appeared incapable of taking a specific step in order to implement her decision that she needed a new car also indicates that it is unlikely that the plaintiff would have had the capability to organise herself to see solicitors regarding compensation for her brain injury. 

5. Further, even if the plaintiff had been able to take the step of making an appointment with solicitors, I have serious doubt that she would have been able to understand the complexities of the current proceedings and to instruct her solicitors with regard to the various steps that had to be taken along the way.  The plaintiff did not only have to comprehend that she was claiming compensation in respect of a brain injury which she had received more than 40 years ago, she also had to understand the various hurdles that she had to overcome, such as the statutory limitation period, the possibility of an earlier compromise, the issues regarding liability and the lack of notice given to the defendant.  The plaintiff would have had to understand in general terms the evidence that was required on each issue, the risks involved with each issue and how succeeding on one, but not on another, would impact on the overall result of her case.  In light of the evidence that the plaintiff was unable to process complex information or information requiring a number of mental steps to be taken, it is highly unlikely that the plaintiff had the capacity to understand, absorb, retain and think through the various issues relevant to this case and to properly instruct her solicitors in that regard.

6. When the plaintiff was asked whether she understood anything about the limitation period that applied to the current proceedings she answered:

   "Yes, I do.  Statute of limitations, I thought it was 10 years; but someone said it was seven but anyway."

7. This answer surely indicates that the plaintiff still has no idea that the limitation period is six years.  There was then the following further exchange:

   "Well, the accident happened in 1965?---Yes, but I thought that the law was – the law was adaptable.  The fact that since I didn't know I had brain damage until I went to see Dr Edis, that that's when I found out I had brain damage, that that is what should be the point of starting, when I found out, but it's pure negligence, the fact that they knew that I had a fracture in the skull, that they didn't inquire as to the fact that there would be brain damage.

   Pure negligence of what?---People that were supposed to be looking after me and supposed to be sort of out there to get people like Tom Hartrey to make a claim for something that we didn't even know anything about, so that we would – a fracture in the skull and being unconscious for three days is – it should have been more looked into."

8. This answer further illustrates that the plaintiff had no idea what she had to prove in order to successfully resist the defence of statutory limitation.  The plaintiff seems to be of the understanding that statutory limitation only started to run when she found out that she had brain damage.  Further, she then became confused and thought that the negligence of the medical practitioners who treated her at the time of the accident and thereafter was relevant to her case.

9. There was no indication that the plaintiff purposefully gave an answer that was incorrect.  She came across as open and willing to please and she did not seem agitated while giving evidence.  In fact, her body language was informal, for example, she placed her head on her chin from time to time and seemed quite unconcerned with the whole process of examination, as if it did not have much to do with her.  Her speech appeared normal and she was able to express herself clearly and did not go off on any tangents.  It was only when she was asked questions about what her legal proceedings involved that she stopped in mid sentence and seemed to search for words or thought processes.

Potential apportionment of costs

1. Although I was not asked by counsel for the plaintiff to make final findings with regard to the evidence, and would have provided more detailed reasons if asked to do so, it does not seem fair and just to the parties to ignore the plaintiff's strong prima facie case and the fact that approximately 10 days of the trial were spent on the issue of the plaintiff's cognitive impairment and her ability to conduct legal proceedings.  If final findings had been made, it would have been open to the plaintiff to submit that, although she was ultimately unsuccessful with regard to the issue of a court approved compromise, she was successful with regard to the issues of her cognitive impairment resulting from the brain injury and her inability to conduct legal proceedings which issues took up most of the time of the trial and that she should have the costs relating to these issues.

2. Order 66 r 1(3) of the Rules of the Supreme Court 1971 provides as follows:

   "Where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs the Court may order such party to pay the costs of such issue or issues."

3. Hughes v Western Australian Cricket Association (Inc) (1996) ATPR 40–748 at 48,136 - 48,137 is often cited with regard to the principles applicable to an apportionment of costs. In that case Toohey J held in reference to the Federal Court rule, which provides that the costs follow the event unless the Court otherwise orders, that where a litigant had succeeded only upon a portion of his claim, the circumstances might make it reasonable that he bear the expense of litigating the portion upon which he failed. Toohey J referred to the warning sounded by Jacobs J in Cretazzo v Lombardi (1975) 13 SASR 4 at 16 to the effect that such an order should be made with caution as the ultimate ends of justice might not be served if a party was dissuaded by the risk of costs from canvassing all issues, however doubtful, which might be material to the decision of the case. In Jamal v Secretary Department of Health (1988) 14 NSWLR 252 at 271F Kirby P (as he then was) stated that the ordinary rule that costs follow the event should only be departed from if the increase in costs relating to the issue on which the successful party was unsuccessful was of "sufficient significance to warrant a special order".

1. It is not necessary for me to make a decision whether the plaintiff would have been entitled to her costs in respect of the issues concerning her cognitive disabilities and her capacity to conduct these legal proceedings, as I have not been asked to make final findings or to make such a costs order.  However, it seems to me that this is the type of case where the Court in exercising its discretion should not ignore the fact that nearly 10 out of 10½ days were spent on issues in respect of which the plaintiff presented a very strong prima facie case and that the defendant succeeded in respect of one issue, not on the basis of the evidence led by it, but on the basis of an unexpected event such as the surfacing of the court approved compromise file. 

2. I am not persuaded that on the evidence presented the defendant would have proven the existence of a court approved compromise if it had not been for the location of the actual file.  The evidence presented by the defendant indicated that it was likely that the Public Trustee was appointed in respect of a trust in the name of the plaintiff at some stage, but it was not clear whether this trust resulted from a court approved compromise with the defendant or a trust created on the plaintiff's behalf by her parents or by the driver of the car wishing to provide some money for her future.  There was no evidence that the Public Trustee only deals with court approved compromises.  The defendant would have born the onus of proving the compromise.

3. It also seems to me unlikely that the defendant would have been successful on the other two defences raised, that is, the absence of negligence on the part of the driver of the motor vehicle and the failure by the plaintiff to give notice of the accident to the defendant.  The latter defence would have fallen away as soon as it came to light that a compromise had been entered into with the defendant.  As regards the liability of the driver, no further evidence was foreshadowed by the defendant on this issue.  As I have not heard counsel's submissions, I prefer not to make final findings with regard to these issues.

4. However, even if the defendant had been successful on any of its defences, the argument that most of the 10 days was spent on the matters dealing with the plaintiff's cognitive disfunction and her capacity to conduct legal proceedings would still apply.  The only evidence led in respect of the liability issue was the brief evidence of the neighbour who saw the plaintiff lying on the side of the road and a written report by Professor Stevenson tendered by the plaintiff with the defendant's consent which dealt with the limited cognitive ability of a child to make a correct assessment as to whether a road can be safely crossed in the face of oncoming traffic.

5. It should also be noted that the defendant only pleaded the court approved compromise at a late stage in the proceedings.  A minute of amended defence was filed in September 2007, but the order that it stand as the amended defence was only made on 1 February 2008.  The reason for the delay was that the defendant had in the meantime made an application for summary judgment and it was thought expedient that the issue of summary judgment be decided first.  However, at least prior to September 2007 the plaintiff would have prepared its case on the basis that the defendant was not relying on a previous court approved compromise.

6. Taking into account all of the matters that I have mentioned, there is in my view more than ample reason to make an order that each party pay its own costs, as requested by counsel for the plaintiff.