Cristine-Margaret Penn v Robert Cechet [1989] ACTSC 59 (8 December 1989)

SUPREME COURT OF THE ACT

CRISTINE-MARGARET PENN v. ROBERT CECHET
S.C. No. 368 of 1985
Negligence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Kelly J.(1)

CATCHWORDS

Negligence - Damages - No new question of principle involved.

HEARING

CANBERRA
8:12:1989

Counsel for the Plaintiff: Mr K Crispin, QC

Mr R Crowe

Solicitors for the Plaintiff: Mesdames Pamela Coward &
Associates

Counsel for the Defendant: Mr J Hartigan

Solicitors for the Defendant: Messrs Macphillamy Cummins &
Gibson

ORDER

There be judgment for the plaintiff in the sum of $481,390.52.

DECISION

This is a claim for damages for personal injuries arising out of an accident which took place on 21 December 1984 when the plaintiff, then a passenger on a motor cycle which the defendant was riding, was thrown from it and sustained serious injury. At the time she was aged 26, having been born on 31 October 1958. Interlocutory judgment for damages to be assessed was signed on 24 January 1986 so that the case proceeded as an assessment of damages only.

2. The plaintiff was educated to School Certificate standard at Cremorne Girls' High School. She did quite well as appears from copies of school certificates tendered in evidence. She was also keenly interested in sports - athletics, swimming, netball, softball and, as she put it, "everything". She represented her high school at zone and regional levels in athletics, swimming and gymnastics. She was involved in the school choir and a library monitor.

3. When she left school, she began to work as a clerk. At the same time she played basketball in the City of Sydney competition, playing for the City team.

4. In 1977 she began nursing training at the Prince Henry, Prince of Wales and Eastern Suburbs Hospitals. She completed her training in the years between 1977 and 1980. She continued to play basketball, still being involved with the City of Sydney competition. She became manager for a lot of youth teams and went away on tours with those teams to weekend carnivals in Nowra and Canberra. She then went to America where she travelled in the United States and Canada. For three months she played basketball with the San Francisco City team. She was in America for about one year, returning to Australia in 1981. Then she began a course at the Kuringai College of Advanced Education designed to lead to the award of a Diploma of Primary Teaching. She gained that diploma in 1984. During the course of her training she obtained two distinctions, 11 credits and 26 passes, passed seven practical tests in teaching which were assesed on a pass/fail basis and failed in two subjects in which she subsequently achieved passes.

5. Documents tendered as part of Exhibits "B" and "C" are laudatory in their terms and indicate that the plaintiff was likely to have proved a most capable teacher.

6. The plaintiff hoped to begin work in private schools basically in the sports and health area. It was her ambition to be a sports mistress and then to work in zone and regional levels within the private school sector.

7. In 1984 she began a course at the Canberra College of Advanced Education designed to lead to the degree of Bachelor of Applied Science in Health Education. She had to do eight or nine units to obtain the degree and aimed to do, and was successful in doing, five of them in 1984.

8. Following the accident she was admitted to Royal Canberra Hospital. Her principal injuries were to her right upper arm where she had sustained a closed fracture of the clavicle and a Galeazzi fracture of the right radius. There were bruising and facial abrasions and stiffness of the neck. X-rays of the neck, facial bones and skull revealed no fracture. Treatment consisted of open reduction and internal fixation of the fracture of the radius on 22 December 1984. Subsequent progress was excellent and she was discharged on 24 December 1984.

9. The plaintiff did not leave Canberra when discharged from hospital. She was in a lot of pain but could get around with assistance. She was unable to walk properly, shuffling instead. She could not lift herself out of bed and needed assistance to do everything. Her arm was in a sling and she was suffering from considerable swelling.

10. After having some stitches removed she returned to Sydney to the care of her parents. She was then unable to care for herself and was very confused because she could not accept what had happened. She needed a lot of attention. She had to be lifted out of bed and helped out of chairs. To walk she needed to hold onto someone for assistance which was usually given by her mother. She was unable to dress herself and rarely left the house except to see doctors. She could not get her own meals or shower unassisted. She required much attention, which could best be described as nursing attention, from her mother. Early in January 1985 she saw Dr Godding, a general practitioner. Shortly afterwards she consulted a dentist, Mr Saucis, who treated her for dental injuries she had sustained, particularly to her two upper central incisors. The dental treatment caused her some difficulty in eating for some weeks. Then, about the end of January 1985, she saw Dr Storey, and on 7 February, 1985 saw Dr Walter, an orthopaedic surgeon. When being driven back and forth to the surgeries of the various doctors and Mr Saucis she suffered severe discomfort. This situation continued for about two months when she returned to Canberra to continue her course with the Canberra College of Advanced Education. She found, however, that she was unable to do this. Travelling to the college, taking lecture notes, trying to follow what was happening in lectures, concentrating and sitting still she found difficult. She had enrolled in three subjects for the first term but could only do one major subject because of the difficulties she was experiencing.

11. Apart from those difficulties she found that she was missing concepts and could not do the classwork required to pass. There was laboratory work in which students used each other as subjects but she was unable to engage in the physical activities necessary for this. These activities required her to participate as a subject and to operate equipment for the testing. She was also required to write up results. There were a lot of calculations involved. She would think that she understood what was involved but to use her words,

"then the final result was just something
different, the numbers would not fit, they would
not work".

She said she was fortunate in having the assistance of other people as scribes as otherwise she would not have been assessed. She was experiencing difficulty in writing, her right hand did not have the control or the strength to write. Eventually she learned to use her left hand but this was after she had eventually attended the Mt Wilga Rehabilitation Centre.

12. She managed to cope with written assignments during the year 1985 with the assistance of her sister acting as a scribe. She was living in a group situation as part of the ANU campus and other people on the floor were always willing to help her out and did a lot of the writing for her. Apart from the physical task of getting written work down on paper she experienced difficulties of expression, finding that she would use long-winded sentences for paragraphs instead of being concise. She said she would "just waffle on and a lot of words were inappropriate as well". She had discussions with her tutor about the difficulties. Her tutor was generally supportive and she was able from time to time to submit successive drafts rather than submit one assignment which would be marked. She said that her tutor helped her to "set up her ideas" by reading what she had written and then putting into point form what she thought the plaintiff was saying so that it was more ordered. She had difficulty in concentrating in lectures.

13. In September 1985 Dr Stubbs reviewed her condition. The fracture of the radius had united and a good range of wrist and elbow movement had been restored to the plaintiff's right arm. There was still some slight weakness due to inactivity over the long period that the fracture had taken to heal but he thought that that should recover quickly. The plate would need to be removed at some time in the near future. Her fractured clavicle had healed but there was some unsightly scarring about the skin which might, he thought, settle further. He said that the only other problem that persisted was the laziness of the muscles of the right eyelid, caused by Horner's syndrome. This he described as an injury to the sympathetic nerves in the neck occasioned by a direct blow such as the plaintiff had suffered in her accident. It had been recorded on her admission to hospital but was not noted in Dr Stubbs' original report. He thought that the Horner's syndrome would probably not now recover and would leave her with a somewhat drooping right eyelid. It should not, however, interfere with her visual ability to do work.

14. Dr Stubbs' views on the Horner's syndrome accorded with those of Dr Catherine Storey, a physician, who said that the condition had improved and that the ptosis (drooping eyelid) would not be noticeable to most. Dr Storey thought the condition would stay as it was.

15. Dr Storey investigated the plaintiff's condition on two occasions, first on 22 January 1985 and secondly on 14 May 1985. She recounted a history which in part read,

"there was no actual loss of consciousness but
she does not have any recall from the time of the
accident until she "came to" in Canberra Hospital
about 2.00am."

16. Included in her injuries was extensive peri-orbital bruising. A week or so after the accident, as the bruising and swelling subsided from around her right eye, she became aware that the right eyelid drooped and there was a constriction of the right pupil which had not been present before the accident. Dr Storey found no other neurological symptoms and the only abnormal neurological sign was that of the right Horner's syndrome.

17. Dr Walter removed the plate and screws from the plaintiff's right radius in May 1986.

18. On 25 February 1986 a clinical neuropsychologist, Mrs Helen Newman, saw the plaintiff for a cognitive assessment. Mrs Newman found the plaintiff to be of sound intellectual ability but that her ability to attend to tasks was still reduced. Her commonsense reasoning was in the low normal range, she was rather over inclusive in her thinking and tended to be circumlocutery in reasoning. Visuo-spatial operations were still being performed slowly and she had to break tasks into discrete units to achieve correct solutions. This type of problem, Mrs Newman said, was usually associated with frontal lobe dysfunction. Numerical reasoning she found to be at an average level although the plaintiff, when required to perform mental operations, tended to be unable to hold information. Her auditory verbal memory was at a low average level and new auditory verbal learning was available to her. She was able to hold information learnt over time. Visual scanning was still very reduced. This was leading to problems with effective reading skills where she reported that her reading was still very slow. The plaintiff was still experiencing difficulty in being able to shift her mental set to meet changing demands. She was still not able to fully utilize and evalulate errors in her performance. At the time of the assessment she was attempting a subject at Sydney University. Mrs Newman thought that she might find that a bit challenging. Although intellectual abilities were basically intact there were still many signs of frontal dysfunction which Mrs Newman thought would make it very difficult for her to use those abilities effectively . She said that more improvement could be hoped for over the next few months.

19. Between a date somewhere in October and November 1985 and February 1987 the plaintiff attended at the Mt Wilga Rehabilitation Centre as a day-patient. She was living with her parents and catching a bus to and from the centre each day. While at the centre she learned to use her left hand to write. While there, she also began studies at Sydney University, being encouraged to do so, with a view to helping her mind become clearer. She spent three days each week at Mt Wilga and two at Sydney University. She was unable to drive a car because she was not strong enough to steer the car through corners and had difficulty in perceiving sizes accurately and judging speed. At the rehabilitation centre the afternoons were spent on physiotherapy while the mornings would be used for occupational therapy and work related courses. She did some gardening and learned one-handed keyboard work.

20. When she began to attend at Sydney University she enrolled in psychology I. She had difficulty with public transport, finding it necessary to hold tightly onto a pole in the bus and finding difficulty with negotiating bus steps. She started very slowly with her studies. She found the reading quota very difficult. She taped the lectures and would have to go over them all the time and would have to read before each of the tutorials so that she would know in what direction the studies were going. Again she received assistance and support from other students and she was given a scribe to assist her during examinations which she took in her room by herself. She had difficulty in reading and these difficulties continued throughout 1986.

21. At the end of 1986 she obtained a pass in psychology I. She trained in swimming at Mt Wilga during that year. She finished at Mt Wilga on 20 February 1987. She was a lot more confident then and thought that she had accepted what had happened. Until she went to Mt Wilga she was just waiting to wake up and find out that the next day everything was going to be all right. At Mt Wilga everything was put into perspective for her. She had adapted, she was mobile and in February 1987 was able to qualify once again for her driver's licence. She had improved but still had problems.

22. Early in 1987 she began a full year study program in three subjects, social theory II, fine arts I and education II. She found the workload extremely tiring and the reading more than she could cope with, so she dropped the subject, education II, to ensure she would at least pass the other subjects. The practical component of education II caused her difficulties since she was not in control of the children, was emotional and had quite a few outbursts in her attempt to quieten them down. This state contrasted radically with her former ability as demonstrated by reports placed in evidence. She organised strategies to enable her to cope with the problems of study. She taped lectures, she did a lot of pre-reading and became confident enough to go to her tutor to ask what were the most important books on the reading list. By second term in 1987 she was starting to use her own notes and was becoming less dependent upon summaries taken by other students. In third term she said something "just sort of clicked and I was able to pick up easier on the concepts". Before that she had been missing a lot and was just relying on what other people had but by third term it just seemed to her to be a lot easier. She was still having difficulty in her written work. She would join up words, get tenses mixed up, write unclear paragraphs and if she wanted to make a point would not do any lead up and have everything jumbled. Fortunately her sister was doing fine arts I and looked over a lot of her work for her. She had difficulty in writing letters of words in sequence, was repetitive and was guilty of atrocious spelling. None of these had been problems before her accident. Eventually she got through the two subjects with credit passes. She had not been able to engage in sport.

23. In 1988 she sat a special examination for disabled persons in an attempt to gain admission to the New South Wales Public Service. She passed that examination but needed all the time available to do so. She thought that she would have completed the examination more quickly had she not been injured.

24. Six months after the sitting for the examination she was offered a clerical position in the Public Service but did not accept because it was not in the department in which she was interested, Sport and Recreation. She expected she would have difficulties in carrying out clerical work because of a stiff neck and because she was likely to get headaches because of the Horner's syndrome. She was also finding fine motor work difficult. She has never become as fluent in writing with her left hand as with her right and she becomes tired writing. She has difficulty with doing photocopying, not having the necessary control, has difficulty wrapping up parcels and in putting a letter into an envelope and cannot carry too much. She relies on her left hand for everything.

25. During 1988 she began part time work as a casual fitness instructor for the Womens Sports Association at Sydney University working 22 hours a week. Her duties required her to show people around the gymnasium, how to use the equipment and how to use correct posture and breathing, to make fitness assessments and to do consultations.

26. Working with training equipment around a circuit she found difficult. She ended up with bicipital tendonitis. During one week she worked for 28 hours but just collapsed after that having found the circuit training too much. The tendonitis developed in that week when she worked for 28 hours. She was off work for four weeks which happened to coincide with the term break. She began to work again at the university beginning with 11 hours a week and building up gradually to 15 hours, a figure at which she continues to work. She manages quite well because she only does a maximum of four hours a day and can take breaks when she wants to if she is tired. The gym has natural lighting and this helps her. Fluorescent lighting causes problems with her right eye, the pupil of which dilates, apparently, differently from that of the left eye, causing her a headache.

27. She is not obliged to stand all the time. She can sit and move around. The work is not strenuous because when she demonstrates she does not demonstrate with weights. It is a good job for her, she said, because by showing people stretching she helps herself. The exercises she demonstrates to pupils are in many aspects basically the same as those prescribed for her by physiotherapists at Mt Wilga. She gave evidence that she gets "pretty tired" after working for 15 hours. She considers that she was unable to instruct large classes because of the physically demanding nature of that instruction.

28. She works during term time and not during vacations. She began therefore to work as a waitress on Christmas Day 1988 at an establishment where her sister was a banquet waitress. She managed to cope quite well with the work which would last for six or perhaps seven hours per shift. She served drinks from a tray. She did not do the full range of duties normally performed by a waitress. She welcomed the guests, invited them to the buffet, got drinks from the bar and cleared the tables. She did not open any bottles nor did she carry large trays back into the kitchen. At the end of a shift she would go home and collapse. At most she would work for three consecutive days and at the end of three such days she would be very tired. When she had difficulty with the work she would seek assistance from her fellow employees and towards the end of the work she found that she was relying more and more on her work partner. At the time of the hearing she was expecting to go back to work at the university working 15 hours a week.

29. In 1988 she began training the intervarsity women's basketball team. She said that during the period since the accident, save during the period she was at Mt Wilga, her sister generally looked after her, made her socialise, took her out, drove her places, drove her to the doctors and helped her to carry things. She prepared meals for her and did a lot of work as a scribe for her for four or five hours a day. This was on a seven day a week basis. While she was at Mt Wilga the assistance her sister gave her was limited to taking her places. Gradually the amount of time during which her sister helped her doing scribe work lessened. In 1987 it would have been two hours a week.

30. She said that during 1988 she went out with other people three times. When she did she felt nervous trying to look like everybody else, trying to get through a whole night without her eye drooping and her speech slurring and trying to eat without missing her mouth and knocking glasses over. She said she has not had any romantic attachments since shortly after the accident. She had plans, she said, to continue to live away from home after the accident and would have done so but for it.

31. She described her difficulties in coping with university subjects as follows:-

"I just got graded passes all the way through
with the written work. It was good, though. The
comments were constructive and I was still
waffling and going off in tangents, and the final
examination was oral which I did not pass, and I
did a supplementary, a take home, and I did
eventually pass the course."
Of her oral examination she said,
"My oral expression let me down. I was - I spent
a lot of time and I carefully researched the
questions, but the phrasing confused me and I
could not answer what they wanted."

32. In 1989 she was doing only one subject, Fine Arts II. She was asked why she was only doing one subject and replied,

"That is all that I can really devote to study
plus working, because I still need - I still
wanted the - better than what I am so that I have
the option later on of pursuing a more academic
line to help education, because at the moment I
am an instructor, but I would like to go a bit further."

33. That answer illustrates some of the difficulties which the plaintiff seemed to me to have in expressing herself. She hoped that in due course she would be able to work more hours, become a bit more work tolerant and said she would like to do some research work.

34. Asked whether she still suffers pain or discomfort from the injuries she said that she suffers mainly from fatigue, lack of co-ordination, and reaction times, by which I understood her to mean slowness of reaction. She gets headaches and neck ache and frequently has to apply ice packs to her leg, shoulder and arm. This she described as just part of her work routine. She comes home, puts her feet up, packs her shoulder and does some stretches. If she does not do that, she is stiff the next day so she just has to make the time. Her headaches are very much related to lighting. Without her sunglasses she experiences discomfort and flourescent lights cause her discomfort. She can do a lot of things around the house but, for example, she needs help to take the garbage bin out and in lifting things. If something is above her head she cannot quite get control although generally she has adapted. She thinks that things take her a lot longer to do than most people require but cannot do anything about it.

35. She has another two subjects to do to complete her university degree. She has, as I have noted, got her driving licence back but she has to use a modified vehicle which has a spinner knob, a dual system braking and power steering. This is because of weakness in the shoulder and her leg. She has scars on her shoulder from the plate and the pin, on her arm, on her right thigh and on her left foot. The scarring on the right thigh is quite substantial, that on the right shoulder is prominent but not very big and the foot is scarred but not very badly. The plaintiff usually covers up the scars. They cause her embarrassment because people ask what caused them.

36. In cross-examination the plaintiff said that until she went to Mt Wilga no-one had mentioned the words "head injury" and then suddenly she had her licence suspended and people were saying, "Well, you've had a head injury", and she got so depressed and could not, as she said, "fight the system". Because of this, she undertook the course in psychology in an attempt to find out what was happening to her and what she was likely to do.

37. She agreed that she had, during the course of training the basketball team, played basketball for a couple of minutes on the court. She expected to be training the basketball teams again and to do some playing. She said that she was not a real player, that she had learned a couple of moves but did not have the reactions to play. She would be called upon sometimes to make up the team of five. In fact she trains all three teams, A grade, B grade and C grade. She needs to take special precautions when she plays. She wears a wrist brace, a polypropylene cast with wet suit material that slips over the top, which gives some mobility but also helps to lock the wrist.

38. She was questioned about her swimming activities and said that she could swim 25 metre laps of freestyle and breaststroke and might do five or six of each at intervals.

39. The plaintiff was questioned as to her ability to study. It was put to her that as she had obtained a credit in fine arts I she should not expect any difficulties in fine arts III. She replied,

"No, I think once I learn who the tutor is, and I
can approach them, let them know my problems,
that I do need help like selecting reading,
cutting down the reading lists, and that major
exams - I still need a scribe, because I just
cannot think quick enough and fatigue, because
they are three hour exams in Sydney."
Asked whether she was writing fast enough she replied,
"I am not writing with my head, I just cannot get
the - I just do stupid things when I write."
She was asked to write a sentence. The sentence was,
"Due to residual disabilities, I require a scribe
to assist in completing computer answer sheets
and extended time to complete the three essay
questions".

I attach as annexure "A" to these Reasons, a photocopy of what she wrote in response to the request. It will be seen that she repeated the word "required", missed the word "assist" and misspelt the words "disabilities" and "extended". Three times during the course of the request she asked cross-examining Counsel to "hang on". At the end of the experiment she said,

"I can write better than this though, but I am
just a bit rushed, is that all right?"

40. There was available for comparison a request for special consideration on medical grounds which the plaintiff made to the University of Sydney on 13 October 1986. I attach as annexure "B" to these Reasons, a photocopy of her application. Clearly there was marked improvement between her left handed writing in October 1986 and the date of the hearing but the errors and difficulties which she is obviously still having as she wrote in the witness box seem to me to be very significant.

41. The plaintiff gave evidence that she had completed level 2 of the sports trainers course conducted by the Australian Sports Medicine Federation. She had completed level 1 while still at Mt Wilga. The course involved attendance for instruction for three weekends at each level and a multiple choice examination at the end.

42. The plaintiff remained interested in sports science and hopes to make a career in this area subject to her disabilities.

43. It was put to the plaintiff in cross-examination that she had a clear recollection of events on the night of the accident. She had, for example, given details of an accident in which she was involved in 1977. She had given other details accurately. The information was taken from her, it would seem, at 4.00 am on the morning of 22 December 1984. She was referred to the history which she apparently gave to Dr Storey which resulted in that doctor saying that there was no actual loss of consciousness but that the plaintiff did not have any recall from the time of the accident until she came to in the Canberra Hospital at 2.00 am.

44. I found the plaintiff to be a witness of truth and I accept her evidence concerning the disabilities from which she suffered and continues to suffer.

45. The critical question on which the parties are at issue is the nature of the injuries suffered by the plaintiff. There is no doubt that she suffered the fractures earlier described. There is no doubt that she sustained bruising and facial abrasions and stiffness of the neck. There is no doubt that she suffered an injury which gave rise to Horner's syndrome with resultant ptosis. There is no doubt either that she suffered abrasions to the right thigh and to the left foot.

46. A detailed examination of the plaintiff was carried out by Dr Grace Bryant. She found that on presentation the plaintiff complained of lower neck pain at rest and with activity; increased perspiration below the neck and limited function of her right shoulder and arm and right knee pain.

47. On examination of the plaintiff's cervical spine Dr Bryant found her tender over the C5/C6 and C4/C5 levels. The range of motion was good. Old scars were present over the anterior shoulder and acromioclavicular joint. Examination of the right shoulder and arm showed the range of movement to be good but there was wasting of the biceps, supraspinatus and deltoid muscles. Weakness was demonstrated on resisted rotation (internal and external), abduction and flexion. Pain was elicited with abduction over 90 degrees. The anterior gleno-humeral glide was increased with an audible clunk. Sensation to touch and pin was decreased over the anterior shoulder to the thumb and index finger.

48. On examination of the operative scar on the right forearm, hypersensitivity was demonstrated. Forearm flexors and extensors were weak. Intrinsic muscles of the hand were also weak. Contracture of the right 5th finger was noted.

49. On examination of the right knee, the range of movement and stability was good. The vastus medial muscle was noted as being decreased in size and tone. The plaintff was tender along the inferomedial patella edge. That examination was carried out on 19 June 1987.

50. The plaintiff was reviewed in April 1988 when her lower neck pain had improved although she was still using ice after training and experiencing some stiffness. She was still actively doing exercises. Right knee pain was also reduced. Again she was still using ice after exercise and the quadriceps muscle still felt fatigued easily but more control had developed on ascending and descending stairs. Right shoulder control had improved although she still had symptoms of instability.

51. By 31 May 1988 her right shoulder muscular control had moved so that the "clunking" was virtually gone but she was still experiencing problems in quick movement changes of the arm. Her right knee was also demonstrating more stability and only occasionally giving way and there was no tenderness along the patella border.

52. Mr Petroni, a clinical psychologist, examined the plaintiff on behalf of the defendant. On 19, 20 and 24 August 1986 he carried out a number of tests. He estimated her pre-accident IQ at 114 or 115. He concluded that her intellectual capacity had not been impaired by the accident, that it fell between the 55th and 60th percentile rank in the general population and was consistent with her scholastic achievement level. He thought that all her memory functions appeared to be intact and that her visual perceptual ability was within normal limits. He thought that there was some mild residual psychological difficulties as suggested by the content of the personality profile but these were certainly not pathological nor significantly debilitating and should resolve.

53. In evidence he said,

"I do not deny that there was a trauma, that she
had a shock to the brain, that there was some
problem causing diffuse, some diffuse change in
the brain, but with close head injury, you
usually get resolution ... by the end of 2 years."

54. He calculated her pre-accident IQ on what he called statistics. None of these statistics were produced and it appears that they were the product of his observations of a number of pupils at three large Canberra schools over a period of about 11 years. He said that he had conducted thousands of tests with children both in primary school and in years 11 and 12. He added,

"...so the impressions that I have gained are -
and this is what I am talking about, are the
impressions - the statistics that I got from the
tests I administered over a period of 11 years."

He was then asked on what he based that and he said,

"On just statistics."

The source of the statistics appears from what I have earlier said.

55. I was unable to accept his estimate of the plaintiff's pre-injury intellectual capacity. I preferred Dr Bell's approach and accept his criticism of Mr Petroni's estimate of the plaintiff's pre-morbid IQ. I am the more content to reach this conclusion having regard to his answers to two questions put in cross-examination. They were:-

"Well, how does it come about that you estimate
her IQ at 114 to 115 and you put her intellectual
capacity between the 55th and 60th percentile,
given the answer you have just given, that the
60th percentile which is the top of the range,
would be about 108?"

He replied,

"Yes. That is a good point, I will have to look at
that."

He was then asked,

"Well, I do not want to take a lot of time about
it but you would agree that those two assessments
are not consistent?"

He replied,

"Just looking at it very quickly, yes, they seem
to be inconsistent although the 60th, round the
60th, would be close to the 108 IQ but - that is
only an assessment anyway - we can allow four or
five points of IQ, assuming that some specific
conditions that entered that assessment, that
made me come up with that score, you can allow
for error, say, another five points of IQ."

56. Dr Colin Andrews, a neurologist, who saw the plaintiff on behalf of the defendant on 1 December 1986 described her injuries as follows:-

"1. Fracture to the right clavicle.
2. Fracture to the right radius with dislocation of
the ulna bone.
3. Injury to the neck with what appears to be
contusion to the mid-cervical spinal cord region.
4. Facial bruising.
5. Minor lacerations to the arms and legs."

He thought her post accident amnesia time was about six hours. He agreed with an opinion expressed by Dr Peter Bloom, a Neurosurgeon from the Prince of Wales Hospital who said that she had damage to the cervical cord. He thought that the clinical signs fitted very well with a central canal necrosis due to trauma to the cervical cord at the C5 level, extending out mainly on to the right hand side. He said that was supported by a right Horner's syndrome, some pyramidal weakness in the right hand and arm, and, to a minor degree the right leg. There was some minor impairment of temperature sensation in the right hand.

57. He noted Mr Petroni's report of 29 August 1986 which he had read. He said that this did not reveal any evidence of a significant head injury. He believed that the central neurological signs and symptoms were not cerebral in origin but cervical cord in origin. He thought that further recovery of the neurological deficit would only be slight. He thought she was fit, at the time of examination, for employment that did not involve any significant use of the right hand.

58. When giving evidence, Dr Andrews was questioned about the amnesic period. He said there was a fairly general rule that post-accident amnesia time is a fairly good measure of the severity of a head injury in general terms and that normally one would expect with a duration of six hours that there would be some temporary problems which would make a good recovery from a head injury.

59. He then said that he was not saying that she did not have a head injury. She had had one. It was consistent with that injury that the problems she had would be present initially but that she would be expected to recover. He agreed that he would be the last to say that one could pick up everything on psychometric tests such as those carried out by Mr Petroni.

60. In re-examination he was asked,>

"...it was put to you that your examinations and
indeed, coupled with the psychometric testing,
might miss out on subtle changes as a result of
brain damage and you replied, "Fairly subtle, I
guess." If we are getting down to that field of
subtleties would one expect any significant
interference with the patient's performance
pre-accident and post-accident?"

He replied,

"Well, I have not detected on the evidence
available that there has been a significant
deficit following that head injury."

He was then asked the following questions and gave the answers recorded:-

"Yes, and this fairly subtle - - -?---It has to
be fairly subtle.
This fairly subtle to the sign that you might
miss is it of any significance?---Yes.
Is it - this fairly subtle sign that you might
have missed, right, for the concession you made,
is it really of any significance in relation to
future assessments or performance?---I am sure
some people's abilities in certain areas could be
affected and they would be aware of it but it may
not come up in testing or be obvious to others.
I mean that is about the best I can answer the question."

61. Dr Blum, to whom I have earlier referred, thought that from a physical point of view, the spinal cord injury was unlikely to improve significantly, that is, the difficulty with her hand and leg was unlikely to improve significantly. He thought too that the Horner's syndrome was unlikely to improve. He referred to a report by Dr Cant, a neuro-physiologist. Dr Cant said that the nerve damage was due to a conduction block and that he thought it might be due to cerebral lesion and a right upper limb weakness. Dr Blum estimated that the plaintiff had a functional disability of some 20% of the right leg. He based this on her lack of co-ordination. He thought that unlikely to improve. He was not certain whether the plaintiff's right side injuries stemmed from a brachial plexus or from the spinal cord at the level where the nerves originated. He said that the injuries from which the plaintiff suffered made it possible that she had suffered some brain damage but he was not certain that this was so. He thought she had some minor weakness only of the right hand. He could not see any reason why, given the orthopaedic findings, she could not write with her right hand. He said that the difficulty in writing had either a local or a cerebral cause. He did not think any local injury would have been responsible for that inability to write which I am satisfied exists. It would follow that it is cerebral in origin.

62. Mrs Helen Newman, a clinical psychologist and clinical neuro-phychologist, expressed the opinion that the plaintiff would not be able to tolerate a lot of noise and would also find it difficult to tolerate an excessive amount of movement. She thought that, left to her own devices, she would probably have problems organising and planning herself effectively in that she would need supervision to assist her in this regard.

63. Dr David Bell, a psychiatrist, saw the plaintiff alone and together with her sister on 3 February 1989. He reviewed reports from Dr Stubbs, Dr Godding, Dr Storey, Dr Walter, Dr Blum, the Mt Wilga Rehabilitation Centre, Mrs Newman, Mr Petroni, Dr Vance, Dr Andrews and Dr Bryant. He described the plaintiff as representing the clinical dilemma of assessing an injury which at first appeared to be peripheral and relatively trivial, but which with the passage of time, was recognised to have further ramifications. He dealt with the reports by summarising them and then commenting upon them. I find his argument in respect of the several reports which he reviewed persuasive. Admittedly he seems to have over-estimated the time during which the plaintiff suffered from amnesia after the accident but it seems to me more probable than not that the plaintiff suffered a head injury with resulting brain damage which was not diagnosed at an early stage and which was eventually dealt with by rehabilitation at the Mt Wilga Rehabilitation Centre.

64. Dr Bell described the interview which he had with the plaintiff. He said that she gave an unembellished account marred only by problems she appeared to have with recall and of placing time sequences. He found her speech to be slow and hesitant and her sentence construction simple and more rudimentary than would be expected of a person with her level of education. She made little movement of the right upper limb, gesticulating with the left upper limb only. On walking, she had little associated movement of the right upper limb. He said that while he was obtaining information from the plaintiff she found it difficult to follow questions and at one stage forgot what had been the previous question. She was convinced that she had spent Christmas day in Royal Canberra Hospital but this was plainly not so since she was discharged on Christmas eve as appears both from Dr Stubbs' report and from the records of the Royal Canberra Hospital.

65. Dr Bell concluded that the plaintiff has serious physical limitations from the need to shift to left-handed writing. He thought that, considering that she also had impairment of reading and speech, this disability was much more than could be brought about only by a pyramidal lesion in the neck. He thought this disability would be a handicap to the plaintiff in attempting a great range of occupations. She had been able to proceed with training but only in courses which had been geared to her handicap. He said that in effect these courses were much the same as sheltered employment. She had shown an ability to learn, but the ability was much less than she had had before the accident. He thought that this impairment of learning and memory would prevent her from progressing to positions of responsibility or supervision as she became older. He gave as a prognosis that she will remain static at her current level of limited employment and not enjoy the advancement she would have seen had she not been injured.

66. He thought that she may improve socially but the danger is that her handicap will prevent her from enjoying the comforts of friendship and marriage which in any event he said would be at a more primitive and less satisfactory level than they would have been had she not been injured.

67. Dr Corry, a specialist in rehabilitation medicine, examined the plaintiff on 13 February 1989. He referred to some things she had told him concerning persisting problems relating to intellectual and cognitive capacities. He said she had been diagnosed as suffering from a dysphasia and still has some, although decreasing, problems with that. She usually finds now that if she slows herself down she can find appropriate words for what she wants to express but difficulties with expression have led to failure in oral examinations at university. Her reading was very slow at first and she had difficulty concentrating. Now she is methodical and takes notes and makes summaries so that comprehension is improving. She has difficulty with writing and running words together, reversing letters and generally misspelling. She finds her memory to be still a problem. She writes herself an agenda for the day and will tick each task off as she completes it. She finds also that she becomes confused in situations where rapid choices are required or where there is a lot of information which needs sorting. Occasionally she will go into a room looking for something and become quite overwhelmed and not be able to find it or even visualise what it is that she is looking for. Usually if she can calm down and try again she will sort it out.

68. She found face to face contact with a group of children, in practical teaching, overwhelming. She felt confused and as though her mind was going blank. Her only response that she could manage was to become irritable and demanding of the children.

69. Dr Corry said that he concluded that her primary continuing disabilities relate to a head injury with residual slight dysphasia, effect on short term memory and learning capacity and of right hemiparesis with residual Horner's syndrome due to traction injury in the neck.

70. As to her work capacities he said that he could only talk in general terms at this stage. He said,

"To be more definite, more information is
required. Particularly required would be reports
from her employers as to her coping capacities as
well as more detailed psychometric assessment and
possibly observation of some of her difficulties
over a period of time. She has attempted to
assess her capacity in a classroom teaching
situation with young children and it did not work
at all well. She could not handle multiple
inputs and decision making required. She reacted
emotionally rather than intellectually in that
situation. There was nothing to suggest that the
situation has improved or is likely to
significantly improve in the future. I think it
reasonable to conclude that she would have great
difficulty to continue to work as a classroom teacher.
Her learning capacity is impaired and her present
study results are below expectations of her
pre-morbid level. It would appear, however, that
she is coping quite well in a structured work
situation, both at the Women's Sports Centre and
at the Taronga Park Zoo as a waitress. It is
possible that she may be able to build up an
endurance capacity so that she can manage this on
a full working week basis. She has shown some
capacity to complete a study programme,
particularly where oral examination is not a
part. With careful course selection, she may be
able to satisfactorily complete her qualification
and it seems reasonable to think that she could
work towards employment in the sports education
or fitness assessment areas."

71. On consideration of all the evidence, I am satisfied that Miss Penn suffered brain damage and that the effects of the brain damage continue. The signs of such damage may be subtle and may not, as Dr Andrews said, be obvious to others or come up in tests. I am supported in my view of the plaintiff's condition by the fact that I had the opportunity of observing her give evidence over a lengthy period. The impression I gained was that she was lacking, that she was not a person whose intellectual capacity was that of the person who had done as well as she had been doing in her studies and in her general living before the accident. I am satisfied that the severity of her head injury was simply not detected at the Royal Canberra Hospital after the accident. The injuries she suffered, in my opinion, tended to mask her brain damage.

72. I refer also to the report of Dr Keiller which supports the view that the plaintiff suffered brain damage which has and will have a continuing effect.

73. I think the plaintiff would have qualified easily as a teacher but for the accident and would have been able to obtain a position as sports mistress, as was her ambition, in the private school sector. I also think that she would have gone on from such a position to work at Zone and Regional levels in that sector. Her nursing background, her interests and experience in a variety of sports and her educational qualifications would have fitted the plaintiff well for the positions which she had in mind.

74. She is plainly a determined and courageous young woman and has, in my opinion, done her best to rehabilitate herself. Yet I am satisfied that she will not be able to take her place in the work force in any position where she will not receive a substantial amount of support from those working with her. I think she has got as far as she has with her studies because her lecturers, very sensibly and humanely, if I may say so, have done their best to assist her to overcome the handicaps caused by her injuries. Similarly, the work she is now doing at the University is work which she is able to deal with on a very systematic basis. It is because the work is capable of systematisation that I think she is able to do it apparently satisfactorily. The other factor which one has to take into account is that she is not able to work full time at the work. I accept her evidence in this regard. I accept that at the time of the hearing she was able to work for only about 15 hours a week. I take into account the fact that some of her energies were directed towards her studies but I think on the whole that she is unlikely for a long time to be able to work satisfactorily in any ordinary job for more than 20 - 25 hours in a week with 25 hours as the upper limit. This necessarily involves a serious diminution of her earning capacity since I think it unlikely that she will be able to obtain a suitable position readily should she chance to lose her present one. The combination of the availability of such a position and of a sympathetic employer willing to employ her despite her disability will prove, I think, hard to find.

75. It remains to translate the loss, which I am satisfied she suffered, into damages.

76. So far as past economic loss is concerned, I am satisfied that the plaintiff would have been able to obtain a teaching position in 1986. I am satisfied too that thereafter she would have been fully employed as a teacher. In assessing the level which she would probably have reached, I take into account her character and achievements as they appear to have been before the accident. She was obviously an impressive young woman who would have done well. I think she would have achieved the top level available (it was referred to as "Year 12" during the hearing) as a Level 1 teacher and I think more probably than not she would have attained the position of a Level 2 primary teacher at about the age of 40. In monetary terms there would be little difference in her loss, some hundreds of dollars only, whichever position she obtained when she retired at 65. The same situation would apply were she to retire at 60 although, of course, the amount of her future economic loss would be then quite substantially less than were she to retire aged 65.

77. I can see no reason why the plaintiff would not have continued to work as a teacher at whatever level she achieved until her 65th birthday.

78. A Schedule of details of estimated wages lost, given various assumptions, was tendered in evidence and became Exhibit "M". Mr Boland, the Accountant who prepared the Schedule, worked off the Commonwealth Teaching Service award, a copy of which was tendered and became Exhibit "K". He assumed that the plaintiff would continue to earn the net amount which she was earning when he made the calculation and, amongst other assumptions as to date of retirement and the level which she would achieve, assumed that she would reach "Year 12" as a Level 1 teacher or a Level 2 position at age 40.

79. In Exhibit "M" Mr Boland assumed that the plaintiff's net weekly income would continue at $178.75. I think this assumption too favourable to the plaintiff since I think it probable that despite her handicap she will eventually be able to do more work than she is currently doing. I think an appropriate basis for estimating her future economic loss would be to proceed on the assumption that she will earn a net $200.00 per week. On this basis her future net economic loss, whether she reached year 12 at Level 1 or Level 2, would be a figure slightly in excess of $290,000.00 and, deducting a conventional 15% to allow for future unfavourable contingencies, I reach a total of $246,500.00. For net economic loss to 31 December 1988 I allow $50,800.00 and from 1 January 1989 to date $9,700.00. For past economic loss, therefore, I allow $60,500.00. I have given consideration to the possibility that child bearing might further reduce her capacity to earn in future but reject it because of the present and likely availability of maternity benefits.

80. Out of pocket expenses were agreed at $25,748.92.

81. The plaintiff makes a claim under Griffiths v Kerkemeyer [1977] HCA 45; (1976-77) 139 CLR 161. This claim to date falls to be considered in respect of assistance from two sources. The first was the assistance rendered her by her mother. As to this I accept the submission that I should allow for a period of intensive care following the plaintiff's return home after her accident. I assess the number of hours during which the plaintiff's mother gave such assistance at 504 and accept that the rate of $8.80 per hour is an appropriate figure. The total is $4,435.20. To that should be added a figure in respect of the assistance rendered the plaintiff by her sister. I assess this at 3 hours per week over a period of five years to date. For four of those years I allow an hourly rate of $8.80 in accordance with the submission put by senior counsel for the plaintiff, a total of $6,406.40. For the fifth year, really 50 weeks, I allow $10.00 per hour for the same period each week, a total of $1,750.00. The figure to date in respect of this component of the plaintiff's claim is therefore $12,591.60. Counsel for the plaintiff also submitted that I should make a continuing allowance under this heading based on the plaintiff's requirement for assistance for four hours per week at $10.00 per hour. It was put, cogently as I think, that it is unlikely that she would be able to do things such as gardening, lawn mowing and heavier cleaning. I accept the submission and, making some allowance for unfavourable contingencies in this regard also, balanced to some extent by the fact that the requirement for assistance will extend beyond her retiring age, allow a sum of $40,000.00.

82. For general damages, which I see as compensation for the grievous loss she has suffered in her social life, the likelihood that she will not, if she marries, make as satisfactory a marriage as she might reasonably have expected before her accident, the grievous diminution of her sporting activities and generally the fact that she has suffered a serious head injury, the effects of which continue, scarring with its attendant embarrassment and her pain and suffering, I allow $70,000.00.

83. For interest on past economic loss I allow $10,420.00 representing a rate of 7% for almost five years on $30,000.00. For interest on damages in respect of general damages to date I think it appropriate to increase the rate to 10% on an equal amount for that period of almost five years since the general damages in respect of her condition in the first two years after her accident must necessarily be set at a figure disproportionately higher. I therefore allow $15,630.00.

84. There will be judgment for the plaintiff for $481,390.52.