Leon Mark Coulson v Cathy Foy and Sylvia Foy [1993] ACTSC 6 (3 February 1993)

SUPREME COURT OF THE ACT

LEON MARK COULSON v. CATHY FOY and SYLVIA FOY
No. SC 1688 of 1988
Number of pages - 43
Damages

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Master A. Hogan(1)

CATCHWORDS

Damages - Assessment - Personal injury - Abdominal - Facial - Orthopaedic - Total loss of sight - Total loss of smell - Partial loss of hearing and taste - Residual income earning capacity - Cost of administering fund - No issue of principle.

Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522

HEARING

CANBERRA, 16-20 November 1992
3:2:1993

Counsel for the Plaintiff: R.J. Stanley QC and J. Constance

Instructing Solicitors: Snedden Hall and Gallop

E.D Lardner

Counsel for the Defendant: A. Leslie QC

Instructing Solicitors: Crossin Barker Gosling
C.J. MacLachlan

ORDER

THE COURT ORDERS THAT:

1. Judgment be entered for the plaintiff in the sum of $1,849,050.
2. The defendant to pay the plaintiff's costs.

DECISION

MASTER A. HOGAN. This is the assessment of damages for personal injuries sustained by the plaintiff in a motor vehicle accident on 8 June 1988.

2. With such conventional phrases begins the recounting of a history of grievous injury, a shattered life and incomparable courage. It has happened in wartime that a member of the armed forces, not previously remarkable for any outstanding qualities, shows determination in the face of danger that compels recognition by some formal award. Here is a man who has responded, not to a sudden incident of terror and danger, but to intense and prolonged pain, the destruction of his senses, the ending of his career, the break up of his marriage and separation from his children, and the prospect of spending the second half of his life or longer with major and multiple disabilities. Yet he confronts his tragedy with bravery and determination to live a life as independent and as meaningful as he can possibly achieve, despite those disabilities.

3. The law can do nothing to compensate him beyond an award of damages. Ironically, had he been weaker, a greater sum of money would have been required to compensate him for his injury and to pay for his past and future treatment.

4. At the hearing of the action there was little contest about what his injuries were, or what the physical consequences of them have been for him. Many of the claimed financial consequences, however, are very much in issue.

5. The plaintiff was born in Tasmania on 26 September 1960. He attended school at Burnie, leaving at the end of Year 10, aged 16.

6. He had ambitions to become a chef, but was not able to obtain an apprenticeship. He started work as a porter and cleaner in a hotel, and worked in various relatively unskilled jobs in hotels in Tasmania and Melbourne for a number of years.

7. In 1981 he met his wife, whom he married on 4 June 1983. Shortly afterwards, in August 1983, he joined the RAAF as a steward. He was posted to Darwin for about two years, and after completing a flight stewards training course he was posted to 34 Squadron, which is the VIP squadron stationed in Canberra.

8. While he and his wife were in Darwin, in 1984, their daughter Alana was born. Their son, Eden, was born in Canberra about 2 years later.

9. The plaintiff's ambitions were to progress as far as he was able in his posting. He sat for any necessary examinations, and by 1988 had progressed to Corporal. One of his Commanding Officers gave uncontested evidence of his suitability for his job and his dedication to it. His more immediate supervisor confirmed it.

10. In addition to his Air Force duties he worked from time to time at the Eagle Hawk Hotel/Motel near Canberra. At first his duties were mainly to train staff working in the restaurant, which involved his working as a waiter and barman himself. As his duties at Fairbairn increased, he tended more to supervise the running of functions in the restaurant.

11. On 8 June 1988, as he was driving home from work, he was involved in an accident. He suffered retrograde amnesia, and has no recollection of the accident itself. All that matters for the purposes of this action is that it was obviously a particularly violent, head on, collision. He was taken to Royal Canberra Hospital by ambulance. He was conscious on arrival, so far as the doctors were concerned, but he now remembers very little of his early treatment.

12. Dr Fleming and a number of specialists were called to attend to him for primary care in the Accident and Emergency Department. His injuries on admission were summarised as:

- a fracture of the right femur;
- a "shock lung";
- gross facial lacerations;
- acute abdominal damage; and,
possible fractures to the left leg.

13. An endotracheal tube was placed into his lungs to enable him to breathe despite the facial injuries. The abdominal injuries were then the most life threatening. He was taken immediately to theatre, where Dr Fleming performed a laparotomy. There was a large tear of the mesentery, which is the soft tissue which anchors the bowel to the posterior wall of the abdomen, and rupture of associated blood vessels. There was also a tearing of the muscles in the ileo-caecal junction. Dr Fleming repaired the tears and the torn arteries and closed the operation site.

14. Whilst he was still under the general anaesthetic Dr Pittar, ophthalmic surgeon, examined him. Although there was a laceration of the right eye through the cornea and involving the inner structures, Dr Pittar felt there was enough tissue left to attempt a repair, which he did.

15. Dr Stubbs then operated to stabilise the long bone fractures. There was a fracture of the humerus and the two forearm bones of the right arm, fractures of the right femur and right tibia and fibula, fractures around the right ankle, a large laceration of the left knee, and a fracture of the left foot.

16. Dr Stubbs described the operative treatment as follows:

"DR STUBBS .... Because his general condition was very poor,
and because many of these fractures were compound,
that is the skin had been broken, we stabilised
all the fractures by applying what are termed
external fixators, which is a system of pins which
penetrate through the skin and screw into the
bone, and they're applied above and below the
fractures. The pins are then interconnected with
a series of frames that bolt onto the pins, so
that the fractures are stabilised and the injured
limb won't flop about, but the least possible
interference is performed to the fractures
themselves. Principally choosing this system
because his general condition was very poor and we
wished to do very little further injury to him.
MR STANLEY So that meant, what, a frame on the upper arm?
DR STUBBS Upper arm. Two on the arm and two on the leg.
Now, the injury to his left knee region was a
large soft tissue injury and that was packed open,
because it was potentially contaminated, and there
were a wire put into one of the broken bones on
his left foot. He would have plaster shells put
on both legs to keep the foot at a right angle to
the leg, to prevent any muscle contractures
developing.
MR STANLEY So far as the left knee was concerned, was
anything noted about any ligamentous damage?
DR STUBBS Well, the knee was unstable and had evidence of
damage to the ante cruciate and medial collateral
ligaments of the knee. Mr Coulson had a
tracheostomy performed too, by Dr Fleming, which
is to make an opening in his wind pipe in the
neck, so that he could have direct access or
direct airway to his lungs to avoid all the facial
bone fractures.
MR STANLEY Was it ascertained at some stage that he also had
problems with his fractures, injury to his spine?
DR STUBBS Yes. We had some x-rays taken and I'm not quite
sure whether the x-rays were done on admission,
but he certainly had one fracture to the fifth
lumbar vertebrae. I later found another one
higher up in his spine as well. Both of the
fractures were stable and didn't affect his
immediate management.
MR STANLEY Well, following those operative procedures, he was
then taken to intensive care; is that so?
DR STUBBS Yes."

17. Dr Peter Brown, plastic and reconstructive surgeon, examined his face. There was gross swelling. The mandible was fractured to the right of the midline. There was an extensive comminuted fracture of the maxilla, and it was split in two, to the right of the midline. The fracture line passed backwards through the hard palate into the soft palate and then continued up through the nasal cavity, with extensive comminution of the nasal septum and stripping of the mucosal lining of the nasal cavities on both sides. The nasal bones were comminuted, and the inner carthal region on both sides was displaced. The zygoma and maxilla was comminuted and mobile. The left maxilla was separate and mobile from the cranium. The trauma deformed the face by allowing the eye orbits to diverge.

18. When the facial swelling settled and his general condition had stabilised, Dr Brown operated on 15 June 1988. Under general anaesthetic he exposed the mandibular fracture and reduced and fixed it with a metal plate, contoured to the curve of the mandible. He reduced the maxillary fracture and closed and sutured the lacerations to the soft and hard palate. He then fixed the upper and lower jaws together by applying arch bars to the upper and lower jaws and fixing the teeth in occlusion with elastic traction. He sutured the mucosal nasal lining and aligned the fracture of the nasal septum. The widely displaced inner carthal region on both sides and the nasal bones were reduced and the position maintained with trans nasal wires tied over a broad lead plate on both sides of the nasal bones. Dr Brown described the injuries as being as "severe as I have ever seen of the maxilla in that there was such wide separation and so much comminution of bone".

19. Rather than adhere to a strict chronology, I find it convenient to summarise the subsequent treatment separately with respect to the various injuries.

ABDOMEN
20. Dr Fleming was not involved in the plaintiff's further treatment at the hospital, which was mainly conducted by the intensive care staff, orthopaedic and plastic surgeons.

21. After the plaintiff had been discharged from hospital, and his other injuries settled down, he found that he was having problems in his lower chest. In October 1991 he was referred to Dr McCaughan, a cardiothoracic surgeon. He was complaining of a prominence at the lower end of the xiphisternum which was very tender, and which caused pain when he bent over forwards.

22. Dr McCaughan admitted him to Royal Prince Alfred Hospital, and operated on 21 October 1991. He found that there was an extensively deformed xiphisternum, resulting from a fracture caused by the accident, which he excised in its entirety, and he also repaired a defect to the fibrous tissues below it.

23. The plaintiff made an uncomplicated recovery from that operation, and the symptoms had disappeared when Dr McCaughan saw him about a month later, on 19 November 1991. No further treatment was, or is likely to be, required in that area.

FACE
24. On 6 July 1988 the wires through the nose were removed in the ward. The fixation of the jaws was interrupted for a short time because of the need to employ gastric suction as a result of the abdominal injury.

25. On 15 July 1988 the arch bars were removed under general anaesthetic. In the same operation the right nasal bone was manipulated into a more satisfactory alignment.

26. By December 1988 the fractures of the maxilla, nasal bones and mandible had all united. The disruption of the hard and soft palates had healed well in satisfactory alignment. Occlusion was satisfactory considering the severity of the injury. Both nasal airways were open, though the right nasal bone was displaced medially. X-rays showed residual depression of the right zygoma and maxilla.

27. On 26 May 1989 Dr Brown operated again under general anaesthetic. A 4.5 cm segment of the right 7th rib was taken and used for an onlay bone graft to the right zygoma and infra orbital margin in order to built up the prominence of the right zygomatic region. Bilateral nasal osteotomies were performed to improve the assymetry of the nasal bones. The metal plate and screws were removed from the mandible, the fractures of which had all united firmly.

28. Dr Brown last saw the plaintiff in January 1990, when he noted some flattening of the right cheek, and some imperfection in the shape of the nose. Occlusion was satisfactory, but there were some teeth missing.

29. The plaintiff moved to Sydney soon afterwards and came under the care of Dr Pennington, whom he first saw in July 1991. Dr Pennington found a major contour deficit of the right zygomato-maxillary complex, extending into the nose. He operated on 9 December 1991, taking a portion of vascularised bone from the skull and grafting it into the right cheek area. Four days after the operation the wound became infected, requiring intravenous antibiotics and a further operation on 16 December to drain the infection. The infection delayed his discharge from hospital for two weeks.

30. On review on 21 January the infection had subsided and the appearance of the cheek area was good. The nose was still deviated, and the ophthalmologist wished that to be corrected before further surgery to the right eye orbit.

31. In May 1992 Dr Pennington found that some of the bone graft had broken down, and some metal screw heads used to fix it had become prominent.

32. On 27 July 1992 therefore Dr Pennington operated again at Royal Prince Alfred Hospital, this time using coral as the material for the grafts at the right cheek and right side of the nose. The screws from the previous surgery were removed. He made an uneventful recovery from the operation, and Dr Pennington thought the results satisfactory on review on 4 August 1992. Further work in the area became the responsibility of the ophthalmic surgeon.

TEETH
33. In April 1991 the plaintiff consulted Mr Dalton, a dental surgeon in Strathfield. There were 5 teeth missing, and a marked shift of the midline of the maxillary teeth. He took advice from an orthodontist about moving the teeth back to the midline, but the advice was that the procedure would be too risky because of the amount of bone lost in the accident. Mr Dalton therefore proceeded to replace the missing teeth with bridge work of porcelain fused to gold. The result is satisfactory. There will be a need for ongoing hygiene and replacement.

SIGHT and EYES
34. On the night of the accident, Dr Pittar had sutured the right eye. After a few days it began to shrink. It would cause pain if it had been left to shrink, so on 15 September 1988 Dr Pittar operated to remove the eye, and sutured the muscles on to an implant to assist with the fitting of a prosthesis at a later stage.

35. The left eye had not been punctured. Nursing staff noticed that the pupil remained dilated, and Dr Pittar kept it under observation. The pupil did not return to normal, and later Dr Pittar could not see any intra ocular structures because of a marked intra ocular haemorrhage. As the plaintiff regained consciousness he said that he could see nothing with his left eye.

36. Dr Pittar sought the opinion of another ophthalmologist, Dr Saunders, who examined the plaintiff on 12 and 19 July 1988. His opinion was that the optic nerve might have been damaged. Dr Pittar sought a further opinion from a retinal specialist in Sydney, who confirmed that diagnosis. The plaintiff is permanently and completely blind.

37. The implant that Dr Pittar had inserted to enable the right eye prosthesis to move began to extrude. There were a number of visits to have artificial eye prostheses fitted or replaced. The plaintiff then consulted a Dr Downie while he was in Tasmania during August 1989, who did not advise any treatment other than drops, but raised the possibility that the implant might have to be removed. It was in fact removed by operation in April or May 1990.

38. On moving to Sydney he came under the care of Dr Ross Benger, an ocular plastic surgeon, who first saw him on 27 June 1991. He was suffering from dryness with the right artificial eye, and the eyelid would not close over it. Dr Benger found the socket to be contracted, with signs of chronic inflammation under the right eyelid.

39. After Dr Pennington had built up the malar and inferior orbital rim areas, Dr Benger operated on 20 October 1992 to improve the size and shape of the socket. He reported on 31 October that the plaintiff had a very good outcome from that surgery. He anticipates that two further operations may be necessary, one to place an implant into the socket and the other to repair the drooping of the right upper eyelid.

40. The left eye has developed a cataract. There is no benefit to be obtained from operating to remove a cataract from an eye that is blind. However, the cataract is already, in Dr Benger's opinion, mature, and likely to become hypermature. Dr Pittar thinks it is already hypermature. In that condition the eye is likely to become inflamed and painful. In Dr Benger's opinion, it would then be reasonable to remove the eye rather than try to treat the cataract. He thought that likely to happen more within the next ten years rather than in twenty, though it is possible that twenty years will pass before the operation is needed.

HEARING
41. The plaintiff felt that he was totally deaf in the right ear for a short time after the accident, but the hearing improved to some extent.

42. In July 1991, he was examined by Dr Crisp, an ear, nose and throat surgeon. He was then complaining of some loss of hearing and intermittent buzzing tinnitus in the right year. Dr Crisp was able to compare audiometry test results with results of Air Force tests carried out before the accident. There was no continuing deterioration in the left ear, which was practically within normal limits. There was a mild to moderate inner ear hearing loss on the right, worse in the lower tones, which he calculated at 17.8 percent. The hearing loss is permanent, and no treatment is possible.

SMELL
43. The fracture of the maxilla involved the base of the skull in an area where the olfactory nerves exist. His loss of the sense of smell is total and permanent.

TASTE
44. That fracture also caused a reduction of sensation in the upper lip, and the operations to the palate affect his ability to detect whether food or drink is either too hot or too cold. The loss of the sense of smell also affects his ability to distinguish tastes other than the simplest. For example, he had been beginning to develop a discriminating taste for wines, which was obviously relevant to his career as a steward, as well as being a pleasure in itself. It is an enjoyment now lost to him.

APPEARANCE
45. The plaintiff is not able to see his face, but he is aware that his appearance has changed. The right artificial eye is not able to move. The left eye is pale in appearance. His nose is displaced. The shape of his right cheek has been largely restored, but is still abnormal. There are visible scars on his right lower lip, the right side of his nose and between the eyebrows. There are operation scars hidden beneath the hair. Dr Brown stated that the scarring to the facial skin is not severe, but what scarring there is will be permanent, and not likely to be improved by surgery. His right leg is shortened and his right ankle has abnormal shape.

46. There is a scar at the base of the neck resulting from the tracheostomy. The laparotomy scar extends from the sternum to the pubic area. A scar over the right lower ribs resulted from the rib removal for the plastic surgery. The chest drains left a scar over the left lower ribs. The fixateurs left scars over the right humerus, right forearm, right femur and right lower leg.

ORTHOPAEDIC
47. The detail of the plaintiff's orthopaedic injuries and the immediate treatment was described by Dr Stubbs in 1988 as follows:

"The injuries to the musculo skeletal system consist of a
comminuted fracture of the mid shaft of the femur. There are about
five major fragments with the proximal and distal thirds being intact
and the middle third being excessively comminuted. This was treated by
single frame external fixation. In the right leg there is a fracture
of the tibia and fibula with extensive comminution. This is compound.
There is, in addition, fractures of the ankle of the same leg and a
fracture of the talus. The whole fracture complex has been fixed and
an external fixateur with transfixion pins (sic). In the right humerus
there is a simple transverse fracture of the mid shaft of the humerus.
It is not possible to assess whether there has been radial nerve injury
or not. This has been treated by a single frame external fixateur.
There is also a fracture of the proximal right radius and mid shaft of
the right ulnar again fixed by single frame external fixateur. In
addition there was a fracture of the base of the first metatarsal of
the left foot treated by percutaneous K wire and a large laceration on
the left knee treated by debridement. In addition, the left knee is
unstable and there is certainly anterior cruciate and medial collateral
ligament disruption."

48. The external fixateur was holding the forearm in a position that was too immobile, so that on 24 June Dr Stubbs performed a further operation, which he described as follows:

"He was returned to theatre on 24 June 1988 where the fractured
radius and ulnar was treated by primary open reduction and internal
fixation. Due to the proximal nature of the radial fracture a plate
and screws could not be applied due to insufficient proximal bone
length. This was therefore treated by a Rush pin after the fracture
had been reduced under vision. The fracture of the ulnar was treated
by a 7 hole AO plate and screws. The laceration on the right knee was
sutured and further examination under anaesthesia of the left knee was
performed."

49. Dr Stubbs thought of fixing various fractures by internal rodding as well, but the plaintiff's general condition did not permit it.

50. The fracture of the right humerus went on to union, but the trauma had caused a radial nerve palsy. The fractures in the forearm also united, but unfortunately not only did the radius and ulnar unite in themselves, but a bony bridge also developed which joined them together. Together with the radial nerve palsy this has resulted in a marked loss of function of the right forearm, because he cannot twist his wrist or rotate his forearm.

51. In the right leg the fracture to the femur united successfully, though with some loss of length. The tibia was slow to unite, so electrical impulses were used to stimulate the growth. It eventually united in good position.

52. There was no further treatment to the left knee, which remains unstable because of the damage to the ligaments. Dr Stubbs thought that, although post traumatic arthritis could occur as a result, the limitations on the plaintiff's activities were such that it was not likely.

53. The wedge compression fractures in the spine did not involve direct damage to the intervertebral discs. But in conjunction with the shortened leg they led to postural difficulties which caused back pain. Special shoes are necessary to deal with the problems caused by those injuries.

54. As time went by spurs of bone developed at the site of the fractures in the right leg and left foot, which caused local pain. On 4 September 1991 Dr Stubbs operated to trim down the bony spurs. Dr Stubbs does not contemplate any further surgery at present. If the left knee did collapse, which he thought unlikely, a relatively simple cruciate ligament repair would be all that would be needed.

55. While in Tasmania he was referred to a podiatrist, Sue McTurk. He had an unco-ordinated gait resulting in excessive pronation of the left foot and excessive supination of the right foot. It was complicated by the leg length discrepancy, right ankle rigidity and the other foot and biomechanical problems. One result was that if unaccompanied he tended to walk in circles. She prescribed supportive footwear and corrective orthoses, which needed to be designed on a trial and error basis. Regular review of his condition and fresh orthotic devices will always be needed, not for the purposes of cure, but to prevent further pathology as well as to decrease discomfort and preserve mobility.

56. In July 1991 the podiatrist found that there had been general improvement in his gait, he was comfortable most of the time and was walking with increased confidence when wearing the orthoses.

HOSPITAL TREATMENT
57. The multiplicity and severity of the plaintiff's injuries were such that his experience of treatment, apart from the operations themselves, was particularly traumatic.

58. A number of operations were needed to clear an airway in the immediate post operative phase. He was in intensive care at first until 30 June. He had problems with chest injuries and bruising of the lungs, so that he spent 3 weeks on a ventilator. He had a number of fevers. He developed pancreatitis, which is particularly painful and made him quite ill.

59. About a week after his transfer to the orthopaedic ward he developed a systemic infection from an organism called candida albicans. The only medications capable of controlling it were themselves quite toxic. It was necessary to readmit him to intensive care. He was within 12 hours of dying from that infection. He then developed a staphylococcal pneumonia. He spent another 3 weeks in intensive care.

60. Sister Grant gave evidence of the need to move him constantly to prevent pressure areas on the skin from breaking down, whilst every movement caused a lot of pain. With the constant antibiotics and feeding into his stomach he had problems with diarrhoea, which itself caused a breakdown in skin layers, which was painful. There was ongoing nausea and vomiting.

61. After he had become more conscious he could still not communicate because his jaws were wired together. He was being fed through a tube into his stomach. He wife described the agony of a number of procedures when catheters were being removed.

EMOTIONS
62. The trauma of coming to terms with blindness while enduring such suffering can be referred to and perhaps described. It cannot really be imagined or apprehended by anyone who did not undergo it. He became frustrated, angry, depressed.

63. When he was at last discharged home from hospital he was completely dependent upon his wife. A number of the witnesses commented on the devoted care that she gave him. But he was blind, on crutches and with a leg in plaster. He suffered many minor but painful falls and collisions.

64. In 1989 the family moved back to Tasmania. It was not a successful move. The standards of the rehabilitation care that was there available were not adequate for his needs.

65. His wife perceived that their relationship had completely changed. There was no longer a husband and wife relationship. The plaintiff was moody and irritable. She felt that she had become no more than a friend who was acting as secretary, nurse and general assistant.

66. The plaintiff returned to Canberra for further rehabilitation assistance. She stayed in Tasmania with the children. When in the following December she came to Canberra to see him she had decided to separate, and she told him of her decision.

67. She and the children have since stayed in Tasmania. The children and the plaintiff get together at school holidays, either by his going to Tasmania or their travelling to stay with him.

68. In March 1990 he consulted Dr Tait, in Woden, as his general practitioner. On his first visit he showed signs and symptoms of anxiety, and, on a subsequent visit, of depression. She prescribed a mild hypnotic for his insomnia, and referred him to Dr Tom Sutton, psychologist.

69. Dr Sutton saw him on 22 May 1990. He had begun to make decisions about his life. He had made inquiries from the Royal Blind Society, and begun to arrange for retraining in computing and typing. He had sat the Public Service exam and was looking forward to doing a part time business management course at Reid TAFE.

70. As Dr Sutton commented, he is the sort of person to put the best face on things and act out a role that all is well.

71. However, on the one hand, he had suffered a grief reaction, genuinely described as being deep depression, which Dr Sutton saw as being a normal reaction to his injuries and the loss of his family.

72. On the other hand, by setting his own goals and initiating action to achieve them he had already achieved a measure of therapeutic success. His sleep and appetite were by then satisfactory and he was no longer on any medication.

73. He was no longer severely disturbed by the depression, but would take more time to recover fully. Dr Sutton's summary, with which I agree, was as follows:

"Prior to the accident Leon was in the hospitality industry and
very much involved with interpersonal interactions. It will be
very important for Leon to build up his social and peer support
network and enter into work situations where he can once again
interact at the social level. He requires this for his own
personality needs and for his continuing emotional health.
In terms of future treatment, I do not myself have to interfere
with his life any more than I have with the one session. I have
left it open to him to seek help from myself or others prior to
his going too deeply into any withdrawn or depressed state. He
is quite open and acknowledges that this is something that he
will do.
In conclusion, Leon has suffered a depressive reaction resulting from
the loss of his wife and family. From the available evidence this can
be attributed to the consequences of the accident. It is only due to
Leon's capacity to set his own goals and his strong desire for
independence that he is coping as well as he is. I do not believe that
he currently requires treatment for the depression, rather the natural
healing effects of time will take their effect."

74. I do not anticipate that he will need any psychiatric or psychological therapy in the future.

75. Late in 1988 the plaintiff consulted Mr Downie, who was a vocational counsellor with the Royal Blind Society. Mr Downie is blind himself, and is now a teacher consultant with the NSW TAFE. His job is to research and develop technological solutions for disabled students within the TAFE system, to educate teachers about the resources available, and to provide resources to visually impaired external students. Even in that initial interview, Mr Downie found the plaintiff to be very positive in his outlook, and keen to start doing things.

76. In Tasmania the plaintiff found that the organisation and services provided for rehabilitation were very limited. He tried, but was not able, to arrange for lessons so that he could learn to type, which he saw as an essential first step.

77. He returned to Canberra in November 1989 in order to get better assistance from bodies such as the Royal Blind Society. At that time he thought that after he had acquired the necessary skills he could return to his wife and children in Tasmania.

78. His wife came to Canberra at Christmas and told him of her decision to separate. The resulting depression set him back for some time. But by the time he went to see Dr Sutton in May 1990, he had already taken up training in typing and Braille.

79. In April 1990 he began a part time literacy course at Narrabundah TAFE, because he expected to be looking for clerical or administrative type employment. Later that year he attended a nine week course in typing and then in computer use in Sydney, organised through the Royal Blind Society. He decided to stay in Sydney. After staying with a friend for a while he found rented accommodation at Emu Plains, it seems early in 1991.

80. Through his association with the Royal Blind Society in Sydney, early in 1991, he applied for and obtained a paid position with the Society as a public speaker, to heighten awareness of the Society and help in its fund raising activities.

81. Mr Downie worked with him intensively during the time leading up to his taking up that job, and assessed his needs for equipment. Again, he found his attitude to be very positive and enthusiastic. He completed the trial period of 3 months satisfactorily, but eventually found the hours involved to be too long, and the concentration too tiring.

82. He found that there was more than just public speaking involved, as he was often drawn into counselling. As he commented in evidence, "I'm not a social worker and ... I had problems enough with my own problems let alone trying to counsel and give support to other people."

83. Travelling by public transport without a guide dog became dangerous when he was tired and his concentration was faltering. He acted reasonably, in my view, in giving up the position after six months.

84. In any event, as set out above, there were continuing operations from time to time, especially during the second half of 1991, both in Sydney and in Canberra.

85. After he recovered from these operations, in February 1992, he began a course at the Ryde TAFE in hospitality catering. He hoped to progress to an associate diploma in hospitality and management, to fit him to become part of a team in the hospitality industry, where his Air Force experience and skills would be relevant.

86. The course was interrupted by the need to go to Melbourne in April 1992 for assessment and training in the use of a guide dog.

87. In May he returned, with a guide dog, to live in Enfield, his present address.

88. In July and October there were two more operations. This litigation was pending. He was forced to defer the TAFE hospitality course.

89. As a result he spent more time at home. That fact, together with the times that he spent in hospital and recovering from operations, meant that his guide dog, not being constantly worked, began to lose skills. He voluntarily returned the dog to the Association.

90. Having thought hard about his experience in attempting the TAFE course, he has come to realise that he was over ambitious in attempting it. Partly the reasons were the operations and the pending court case. Partly they were his realisation that his experience and training did not really fit him for study of such a course. He does not at present intend to continue with the course.

91. In summary, he is completely blind. His hearing, which, as Mr Downie explained, could be very useful in helping to overcome that disability, is impaired. He has no sense of smell, and his taste is impaired, which creates practical difficulties for a blind person who is living independently.

92. He now has no pain or irritation in his eyes, but he is unable to lift his right eye lid, and there is the likelihood that at some time in the future the left eye will have to be removed and be replaced by a prosthesis - a process which is not simple.

93. He is conscious of his scars and changed facial appearance, and the areas of numbness, even though he can not see them. He is right handed, and the restriction of movement of his forearm causes awkwardness. His ability to type quickly is adversely affected to some extent by the nerve palsy.

94. There is changed sensation in the right leg. It is shorter than the left. He will always need orthotic equipment, and the foot can become numb or ache after long use. His back aches from time to time, especially if he is without back support.

95. He lives in a house at Enfield. A friend who helps him with the housekeeping has moved in as a flatmate. He is able to do many household tasks himself, and has devised sorting and coding systems, for example, to keep track of his clothes. But he obviously needs some help with shopping and transport.

96. His marriage, which was obviously a happy one before the accident, has broken down. After hearing all the evidence, especially that of his wife, it is clear to me that the breakup was the result of the accident, even though there is obviously still a great affection and tenderness between them. She has since formed another attachment. I accept her evidence, and I do not agree with the submission that her decision, or its timing, or her unwillingness to consider reconciliation, show that the marriage would have broken down in any event. There is simply nothing in the evidence to suggest to me that there would have been a breakup, and all the evidence tends to the opposite conclusion. He is devoted to his two children, and they to him, but he is denied the experience (to use a neutral word) of being with them as they grow up. He does not rate his chances as very high of entering into a relationship with another woman.

97. He will probably acquire another guide dog within the year, which will enable him to move about more and with more confidence.

98. He is now aged 32, and there is no suggestion that his life expectancy has been shortened. His actuarial life expectancy is about 40 years.

99. The extent and complexity of his injuries are such that it is extremely difficult to decide on a figure for general damages that will be just as between him and the defendant. There has not been a similar case in my experience to guide me. To consider each of the elements of the injury and its consequences, assign a separate sum to each, and then to add them up, would involve too much danger of double counting, especially of consequences, and would be likely to give too high a figure. I am grateful to both counsel for their assistance, which has at least helped me to mark out the upper and lower limits of a discretionary judgment.

100. In New South Wales this would not be a most extreme case. But I do not think that the limit imposed by Statute in that State affects the common law in the Territory, or gives me any real guidance about the size of a proper award.

101. Another part of the difficulty is to assign a part of the award to the past and another part to the future, for the purpose of awarding interest. He might well live for 40 years of more, on each day of which he must bear the disabilities detailed above. There is the pain and discomfort of treatment yet to be undergone. On the other hand, the experience of the first year or so as he went through the shock and agony of recovery, and of coming to terms with his injuries and the depression following the destruction of his family life, also forms the basis of a major part of his award.

102. I would award for general damages the sum of $300,000, of which I would attribute half to the past.

103. A larger part of that past experience was concentrated during the first year, so that a conventional halving of the 4 percent rate over the period in calculating interest would under compensate him, in my view. I award a lump sum of $15,000 in lieu of interest on the past component of general damages.

OUT OF POCKET EXPENSES
104. The first item in the plaintiff's submissions on out of pocket expenses is the sum of $34,834.85 paid for medical expenses by the Department of Defence, as set out in Exhibit S. It is not contested.

105. The second is the total of medical expenses paid by Comcare, extracted from Exhibit K. The only items in that schedule that were contested by the defendant were those relating to rehabilitation advice, housekeeping, computer equipment, travel and phone expenses. I assume, as did counsel for the defendant, that the rest did relate to medical treatment and rehabilitation. I allow that item as claimed at $30,965.29.

106. The medical expenses paid by the plaintiff out of his own pocket are claimed to be set out in Exhibit Q. In that exhibit they total $718.50. I was not able to find the evidence on which counsel for the plaintiff based his claim for the balance of the sum set out in his submissions, namely $2,402.50. I allow this item at $718.50. That sum is so small in comparison with the discretionary allowances that it is not appropriate to award interest on it.

107. There was no contest about the sum of $29,923.69 claimed in connection with the provision of a guide dog, which I award.

108. The sum paid in connection with rehabilitation advice, in the light of Mr Ongtong's evidence, is properly part of the damages, which the plaintiff will be required to repay to Comcare. I allow that item as claimed at $8,787.94.

109. The amount claimed for travel and accommodation did depend to some extent, as counsel for the defendant submitted, on an assumption about the marriage. As I have already decided, that breakup was the result of the injuries received in the accident. I do not agree that the dissatisfaction with the compensation authorities, or any behaviour of theirs that led to it, in any way constituted a new and intervening cause for the incurring of those expenses. I allow that item as claimed at $13,548.30.

110. The computer equipment provided for the plaintiff cost $44,999.13. Counsel for the defendant conceded that an allowance of $35,000 was reasonable. There was nothing in the evidence to indicate the purchase of anything that was unreasonable, either in its purpose or its cost. I allow this item as claimed at $44,999.13.

111. Similarly, it was submitted for the defendant that only $10,000 should be allowed for the provision of housekeeping and gardening assistance in the past. There was nothing in the evidence to cast doubt on whether it was reasonable to obtain it, or on whether the rates paid were proper. I am not constrained blindly to follow decisions made about such matters by Comcare, but neither am I inclined, in the absence of anything in the evidence to cause me to do so, to disallow any part of the sum that was actually paid. I allow this item as claimed at $18,091.59 together with phone alterations at $988.00.

112. The principal items in the claim for the balance of out of pocket expenses relate to airfares and telephone calls, which resulted from the marriage breakup. The evidence is clear about the amount incurred. For the reasons already given I allow those items in full as claimed as follows:

Taxis (Exhibit R) 544.65
Airfares (Exhibit P) 5,535.00
Telephone calls (Mrs Carmody T265) 2,588.88
Removalists (Exhibit O) 1,785.00
Gymnasium 185.00
TOTAL $10,638.53

113. Those expenses have been incurred more in the latter part of the period since the accident, rather than evenly over the whole period. I understood them to have been paid by the plaintiff. I award a lump sum of $2,500 for interest on those expenses.

114. I accept that the plaintiff would, to the present time, have remained in the Air Force and would have received a rental subsidy. The assumptions referred to in "Section F - Rental Subsidy" at page 8 of the second part (dated 4 November 1992) of Exhibit G therefore seem justified to me at least so far as concerns the past. To the figure given there I have added 10 weeks at $232.00 ($300.00 - $68.00) to bring it approximately up to date. I allow $30,345 for past loss of rental subsidy. Interest was not claimed on that element.

115. The accountants report, Exhibit G, made calculations about loss of salary on two hypotheses. The first, career path A, was based on average times spent in particular ranks by members of the force generally. The second, career path B, was based on the plaintiff's hopes, as given in evidence. I think he was well above average, but may not have done as well as he hoped. But it was rightly conceded that he would probably have been promoted to Warrant Officer within the not too distant future. Calculations based on career path A would, in my view, clearly favour the defendant.

116. I think that the detailed figures set out in the accountant's report are a more sure guide to me than the calculations submitted by counsel for the defendant. On the basis of the evidence given by Mr Paul when he was recalled, I am satisfied that the plaintiff would have continued to receive the flight duties allowance referred to. As suggested by counsel for the plaintiff, a proper allowance for contingencies is made by making a calculation based on career path A, which gives a figure for past loss of salary of about $83,000 to 16 November 1992. To bring that approximately up to date I allow a further 10 weeks at about $500.00 a week, to give a total of $88,000.

117. For the purpose of awarding interest on that component, I take into account that he received Comcare periodical payments totalling $4,386. Interest on $84,000 at 7.5 percent from the date of the accident would total $29,325. I award $29,000 for interest on past loss of salary.

118. The Fox v Wood component is conceded at $425.00.

119. The assessment of a figure for loss of future income earning capacity involves a number of considerations. Even on a conservative approach, I think that the plaintiff would by now have been promoted at least to Sergeant, that he could well have reached Flight Sergeant in about 2 years time, and Warrant Officer about 3 years after that. However the evidence and the calculations submitted do not proceed on the basis of exact arithmetical calculations based on such a hypothesis. Both counsel seemed content with a broader approach.

120. I do not think that over the rest of his time in the service he would have continued with weekend work. The need for the extra money would have decreased as his salary increased, and his ability to spare the time would have decreased with increasing family and service obligations. But the past shows that he would now have an income earning capacity greater than his net salary as a Sergeant would be.

121. A convenient starting point for what must be a discretionary judgment is a figure of $510.00 a week nett, which is not much more than that suggested by counsel for the defendant, based on a Warrant Officer's salary.

122. He intended to leave the service at age 55, and there is no reason to think that thereafter his capacity to earn would be less. There is good reason to expect that it would have been increased by the years of experience, especially with retirements benefits behind him. He would be expected to earn until 65.

123. The present value of $510.00 a week for 33 years at 3 percent is $560,689.

124. It is possible that the plaintiff will eventually find employment. His efforts since the accident demonstrate his genuine motivation to find it. But in today's labour market, and for the future, there will be many more able bodied and sighted people, with experience and abilities at least equal to his, against whom he would be competing. I think that on a realistic assessment his chances of finding regular paid employment are not very great.

125. Weighing up the chances that he would not have continued casual work for many years, the normal contingencies, and the possibility that he might from time to time obtain paid employment, I think that a sum of $425,000 is a fair figure as between the plaintiff and the defendant for loss of future income earning capacity.

126. The figures relating to the cost of operations in the future as claimed by counsel for the plaintiff are set out in the transcript of counsel's submissions at pages 325 and 326. Suffice it to say that I accept those submissions. The submissions of counsel for the defendant at the foot of page 314 did not analyse the evidence in any way that would lead me to reject them. I award a round sum of $25,000 for the present value of the cost of future operations.

127. I agree that an allowance should also be made for other attendances upon doctors for treatment arising from his injuries over the rest of his life. But I do not think that needs to be a large sum in addition to the costs of the identified operations just referred to. I do not think, for example that it would be more than $500.00 a year. The present value of $10.00 a week for 40 years is $12,237. I award $10,000 for this item.

128. On the matter of future dental expenses, I accept the submissions made at page 327 of the transcript, and award $15,000.

129. The next batch of future expenses is that comprised in Section D of Exhibit G, there called "Present Value of Designated Capital Expense Items". The full present value of providing them is calculated by the accountant at $241,195.

130. Counsel for the plaintiff conceded an adjustment for the cost of the TAFE course, which will not now be taken, and claimed extra for phone costs, orthoses and shoes, as disclosed by the evidence but not taken into account by the accountant in his report. He then reduced it for contingencies to $230,000. Counsel for the defendant submitted a figure of $100.00 a week, which he justified as "a visceral feeling". I think that the calculated figure is a more sure starting point. It is likely that the computer equipment will not be upgraded as frequently as the calculations suggest, and that the cost of such equipment may well decline. But the sort of equipment that is needed for the blind is not the same as that designed for the ordinary consumer market, and the cost of it may not decline as markedly as that of the ordinary PC. The airfares have been calculated to reasonable ages for the children, though there is a possibility that they might move to Sydney. There is nothing in the evidence to suggest that such a move is likely.

131. The present values used by the accountant assumed mortality according to the Australia Life Tables. I therefore think that the figure suggested by counsel for the plaintiff is the appropriate one. I award $230,000 for the items listed in Section D of Exhibit G.

132. Next there are the items of anticipated future expenditure listed in Section E of that Exhibit. There is no contest about the rate at which an allowance should be made for the costs of housekeeping and gardening assistance. There is about the number of hours for which it is reasonably needed.

133. Dr Jones has vast experience and is eminent for his expertise in rehabilitation medicine. He gave evidence and was cross examined. He thought that while there is a great deal that the plaintiff can do for himself, it was not reasonable to expect him to do heavy domestic chores that would be required on an intermittent basis, and felt that 2 to 3 hours of assistance per week would cover them. He did not agree that there was any need at all for gardening assistance as such, and included keeping the yard clean as part of the 2 to 3 hours he had estimated. He also thought that in order to keep fit some simple equipment at home was all that was needed.

134. Against that, the plaintiff's evidence is that he had housekeeping assistance for 20 hours a week, and has at times had it for more hours. He does not strike me as the sort of man who relies on others more than he needs to. In cross examination it became fairly clear that Dr Jones was speaking in broad general terms rather than with any real consideration of the plaintiff's actual situation. I also think that if he is living in a house with a yard more is required than merely keeping it clean, and that some gardening assistance is needed. I think however that averaged over a year it would be less than 2 hours a week for the normal Sydney allotment.

135. The figure for a guide dog was not contested at about $45.00 a week. I think a figure of $14.00 a week for accountancy services is also reasonable.

136. The present value used by the accountant already allows for mortality, but was calculated from October 1991 in the first report. I could not readily identify it from the updated report. I have therefore approached the problem by first calculating the arithmetical value of the $334.00 claimed by the plaintiff for 40 years without allowance for mortality. That gives $408,732. Allowing then for usual contingencies and the considerations set out above, I award $325,00 for these items.

137. As a member of the Air Force the plaintiff would have been entitled to free medical and dental care. Because of the accident he has lost that benefit. It is reasonable for him to provide for such care as does not result from the accident by membership of a health care fund. That fund will not reimburse him entirely for such services as he needs, but it may be that he incurs expenses in some years less than the cost of subscription. On balance it is reasonable to compensate him for the loss of the service benefit by allowing the cost of membership to age 55, which gives a figure of $15,283 (Exhibit G Section C).

138. Dr Jones conceded that it is reasonable for the plaintiff to exercise constantly to keep fit. I agree that it is reasonable for the plaintiff at present to achieve that objective by regular attendance at a gymnasium, but I do not think he will always continue to do so at the same frequency as he does now. Counsel for the plaintiff put figures based on different hypotheses ranging from $9,000 to $17,000. I think that $10,000 is a reasonable provision.

139. For the loss of rental subsidy in the future I would discount the figure of $97,467.61 given in Exhibit G to $85,000, on account of contingencies to age 55.

140. Finally, following Treonne Wholesale Meats Pty Ltd v Shaheen (1988) 12 NSWLR 522, I would make allowance for the cost of administering the fund. The plaintiff is not intellectually disabled. But it is clear that his blindness, caused by the accident, makes it impossible for him to collate the information and make the informed decisions that would be needed to administer a fund of the size indicated by the figures that I have set out above.

141. It is true that this plaintiff, even if he had not been blinded, would have acted reasonably in obtaining professional assistance to manage a fund of the size that he would have been awarded for his other injuries. I respectfully and gratefully attempt to follow the approach set out in the judgment of Clarke J.A. in Treonne's case (supra). As I understand it, that requires me to assess the cost of the management of the fund which flows from this judgment, and then to make an adjustment to cater for the cost of expert advice which would have been incurred by the plaintiff even if he had not been blinded.

142. The accountant's evidence in Exhibit G is that for a fund of about $1,000,00, an initial fee of about $21,750 would be charged, and thereafter an annual fee of .5 percent per annum, or about $5,000 a year. Appendix F shows the present value of that fee, based upon an actuarial life expectancy, and calculated at 3 percent, is $82,550. The total present value is therefore of the order of $100,000, in broad terms.

143. On the one hand, I think that more than half of the cost of managing the fund would have been incurred by this plaintiff if he were not blind. On the other hand the fund to be administered, now that I have quantified it, is considerably more than $1,000,000, even after repayment of the past expenses. On balance therefore I think that an allowance of $50,000 is reasonable.

144. After rounding off a number of items, which is reasonable when so many large sums are matters of judgment, the total award is therefore made up as follows:

General damages $ 300,000
Interest 15,000
Medical expenses - Defence Department 34,835
Medical expenses - Comcare 30,965
Medical expenses - Plaintiff 719
Guide Dog 29,924
Rehabilitation 8,788
Travel and accommodation 13,548
Computer and other equipment 44,999
Housekeeping and gardening 18,092
Phone alterations 988
Taxis airfares etcetera 10,639
Interest 2,500
Past loss of rental subsidy 30,345
Past loss of salary 88,000
Interest 29,000
Fox v Wood 425
Future income earning capacity 425,000
Future operations 25,000
Future medical expenses 10,000
Future dental expenses 15,000
Periodic equipment items 230,000
Housekeeping, dog, accountancy 325,000
Loss of medical benefits 15,283
Gymnasium and fitness expenses 10,000
Future loss of rental subsidy 85,000
Attributable PV of costs of
administering fund 50,000
TOTAL $1,849,050

145. I have checked carefully again through the submissions and findings, and am not conscious of any risk of double counting. Many elements of that very large sum are themselves quite large, and in the nature of discretionary awards. In some I may have erred in favour of one party or the other. But when I review the whole case, and reflect on the injuries and losses inflicted on this plaintiff, and compare them with the life he would have hoped to lead, it seems to me that, as a global figure, that sum is within the boundaries of a sound discretion. In case I have made any errors in calculation or misunderstood the evidence in some way that can be dealt with under the slip rule, I would grant to both parties liberty to apply before formal judgment is entered up.

146. I direct the entry of judgment for the plaintiff in the sum of $1,849,050.

147. I order the defendant to pay the plaintiff's costs.