Arnott v Choy [2010] NSWCA 259 (6 October 2010)

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Arnott v Choy [2010] NSWCA 259

FILE NUMBER(S):
2009/298214

HEARING DATE(S):
22 April 2010

JUDGMENT DATE:
6 October 2010

PARTIES:
Demetrious Arnott - Appellant
Henry Choy - Respondent

JUDGMENT OF:
McColl JA Basten JA

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 07/1647

LOWER COURT JUDICIAL OFFICER:
Levy SC DCJ

LOWER COURT DATE OF DECISION:
4 March 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWDC 17

COUNSEL:
PJ Deakin QC with J Turnbull for the Appellant
CS Leahy SC for the Respondent

SOLICITORS:
Holman Webb Lawyers for the Appellant
Ron Kramer Associates for the Respondent

CATCHWORDS:
DAMAGES – motor vehicle accident – past and future economic loss – diminution of earning capacity – whether finding that plaintiff had no residual earning capacity sustainable – whether finding open having regard to medical evidence
DAMAGES – excessive – attendant care – where evidence of some capacity for independent living – where damages awarded under separate heads encompassed same services/facilities
DAMAGES – mitigation – s 136, Motor Accidents Compensation Act 1999 (NSW) – whether “reasonable steps” taken to pursue “alternative employment opportunities” – where plaintiff failed to seek employment for two years prior to hearing of case

LEGISLATION CITED:
Civil Liability Legislation Amendment Act 2008 (NSW)
Motor Accidents Act 1988 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Motor Accidents Amendment Act 1995 (NSW)
Workers Compensation Act 1987 (NSW)

CATEGORY:
Principal judgment

CASES CITED:
Brogan v McGeary (1995) Aust Torts Reports 81-342
Choy v Arnott [2009] NSWDC 17
Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Lewis v Shimokawa [2008] NSWDC 244
Mahony v Watson [2003] NSWCA 259
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382
Miller v Galderisi [2009] NSWCA 353
Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235
New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486
Saleh v The Nominal Defendant [2009] NSWDC 1
Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419
State of New South Wales v Fahy [2006] NSWCA 64; (2006) 155 IR 54
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Tuncel v Renown Plate Co Pty Ltd [1976] VR 501
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127
Wilson v Peisley (1975) 50 ALJR 207

TEXTS CITED:
Mayne and McGregor on Damages 12th ed (1961) Street & Maxwell

DECISION:
1. Appeal allowed in part. 2. Set aside the verdict and judgment entered for the respondent in the amount of $2,154,131.60, being orders (a) and (c) made by Judge Levy on 4 March 2009. 3. Direct the parties to calculate the revised heads of damage in accordance with these reasons and file short minutes of order setting out the substituted judgment within seven days of these reasons. 4. (a) Appellant to file and serve written submissions limited to five pages in length concerning costs (in this Court and at trial) within seven days; (b) respondent to file and serve written submissions also limited to five pages in length concerning such costs within 14 days.

JUDGMENT:

Heading	Par No
Summary	2
Legislative framework	5
THE PRIMARY JUDGMENT	9
Background findings	10
Earning capacity	12
Mitigation of damages	20
Past loss of earning capacity	23
Future loss of earning capacity	29
Future domestic and attendant care services	36
Case manager	45
Drop-in supervision by case manager	47
Issues on appeal	49
CONSIDERATION	51
Earning capacity	51
Overconfidence	100
Dr Veerabangsa and the Brain Injury Rehabilitation Unit (“BIRU”)	108
head2work	112
Earning capacity: conclusion	130
Calculation of future economic loss	136
Calculation of past economic loss	140
Mitigation	151
Mitigation: consideration	155
Future attendant care and case management: summary	162
Future attendant care and case management: submissions	167
Respondent’s capacity for independent living	172
The lay evidence	176
Future attendant care services	184
Case manager	195
Case managers: consideration	199
Summary	207
ORDERS	208

1 McColl JA: Henry Choy, the respondent, was severely injured on Thursday 29 January 2004 when, while driving to work, his motor vehicle was involved in a heavy impact collision at an intersection with a prime mover truck driven by Demetrious Arnott, the appellant. He sustained a severe closed head injury and facial fractures and was left with frontal lobe brain damage.

2 At a trial before Levy SC DCJ, the appellant admitted he had driven negligently, while the respondent accepted he had been guilty of contributory negligence. The parties agreed that the apportionment on account of the respondent’s contributory negligence should be 20 per cent. The matter proceeded as an assessment of the quantum of the respondent’s damages. The primary judge awarded the respondent $2,692,664.54, reduced to $2,154,131.60 to allow for the respondent’s contributory negligence: Choy v Arnott [2009] NSWDC 17.

3 The appellant challenges the amounts the primary judge awarded in respect of past and future loss of earning capacity (which were based on his Honour’s conclusion that from a practical perspective the respondent was, and would remain, unemployable), future attendant care services and case management. The challenge to the award for past economic loss also complains that his Honour erred in the figures he used to calculate that award. The respondent has cross-appealed also complaining that the primary judge erred in calculating his past economic loss both because he failed to use the correct figure for calculating that head of damages and, further, failed to calculate those damages for the full period of his loss. It was common ground that the primary judge had not carried his past economic loss calculations up to the date of trial.

4 For the following reasons, I am of the view that the appellant has made good its challenge to the primary judge’s finding that the respondent is “permanently unemployable”. In my view the respondent does have residual earning capacity, albeit not full earning capacity as the appellant contended. I am also of the view that the primary judge erred in the amounts he allowed for case management. The appellant has also made good his complaint that the primary judge erred in calculating the respondent’s past economic loss. The respondent has not made good his complaint about the figure the primary judge ought to have used to calculate past economic loss.

5 Aspects of the respondent’s claim for damages were governed by the Motor Accidents Compensation Act 1999 (NSW) (the “MAC Act”) as at 29 January 2004. The appellant complains that the primary judge erred in failing to apply properly, or at all, s 126 of the MAC Act, which governs awards for future economic loss, and ought to have found pursuant to s 136, that the respondent failed to mitigate his damages. The challenge to the award for future attendant care requires consideration of s 128.

6 Sections 126 and 128 as applicable to the respondent’s damages relevantly provided:

(a) which have been or are to be provided by another person to the person in whose favour the award is made, and

(b) for which the person in whose favour the award is made has not paid and is not liable to pay,

(a) the amount per week comprising the amount estimated by the Australian Statistician as the average weekly total earnings of all employees in New South Wales for:

(ii) in respect of the whole or any part of any other quarter—the most recent quarter occurring before the date of the award for which such an amount has been estimated by the Australian Statistician and is, at that date, available to the court making the award, or

(b) if the Australian Statistician fails or ceases to estimate the amount referred to in paragraph (a), the prescribed amount or the amount determined in such manner or by reference to such matters, or both, as may be prescribed.

["Attendant care services" are defined in s 3 to mean “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”]

7 Subsection (3) of s 128 was inserted into the MAC Act by Sch 2.2 of the Civil Liability Legislation Amendment Act 2008 (NSW) (the “2008 Act”). The 2008 Act also amended cl 2(1) of Sch 5 of the MAC Act to provide that the regulations could contain provisions consequent upon, inter alia, the enactment of the 2008 Act. Schedule 5 was also amended to provide that an amendment made to the MAC Act by the 2008 Act “extends to liability arising, and to proceedings commenced, before the commencement of the amendment but does not apply to any proceedings determined before that commencement”: Sch 5, Pt 7 cl 34. These proceedings were commenced by statement of claim filed on 26 April 2007. They were heard over four days from 28 – 31 July 2008. The 2008 Act commenced on 12 November 2008. The primary judge’s decision was delivered on 4 March 2009. Accordingly s 128(3) as amended by the 2008 Act applied to these proceedings.

8 Finally, mitigation of damages are dealt with by s 136 of the MAC Act which provides:

9 The primary judge first made general findings regarding the respondent’s background, education, pre-and-post-injury mental functioning, family and other interpersonal relationships and emotional capacity. His Honour then assessed each head of damages separately.

10 The respondent was 19 at the time of the accident and 23 at the time of trial. After having performed well in the School Certificate, he lost interest in school and left in year 11: primary judgment (at [9] - [14]). He was living at home at the time of the accident with his mother, stepfather and two younger siblings. He was working in a junior capacity in a food supply business, Green Star Enterprises Pty Ltd, operated by his mother and stepfather, as well as part time as a pizza delivery boy (at [7]).

11 The primary judge made the following unchallenged findings about the respondent’s disabilities consequent on the accident at the time of trial:

12 The primary judge made the following findings, relevant to his assessment of the plaintiff’s earning capacity pre and post-trial, about the respondent’s cognitive and emotional state.

13 The respondent’s pre-injury work history demonstrated that he had a strong work ethic: primary judgment (at [17]). Prior to his injury he had planned to enter the family business with the aim of positioning himself for a managerial role: (at [20]). This was found to reflect the intentions of his mother and stepfather: (at [69]). The primary judge accepted the respondent “was a motivated and industrious worker”: (at [77]). His Honour found: (at [63]) that “but for the [respondent]’s injury he would have worked his way up to a managerial role in the family business.”

14 The respondent’s concentration and memory were adversely affected by his injuries: primary judgment (at [29], see also [43]). After he was discharged from hospital, he noticed he was sleeping a lot. He was experiencing memory problems and had difficulty remembering names and his banking personal identification number and he began to experience difficulty concentrating. His thinking processes changed so that he found himself lingering and taking time on single ideas or issues that then became “split” into fragmented ideas or issues. He became “obsessive” about these problems, which also caused “problems with his intellectual and daily functioning”: primary judgment (at [29]). He became depressed when he started to realise the extent of the problems he was experiencing: (at [30]).

15 His mother noticed that at times he needed to be reminded to eat, to pay bills and attend doctors’ appointments. She gave evidence that “a post-injury attempt at work in the family business resulted in [him] making mistakes and mixing up different types of products that required sorting and packing”: primary judgment (at [32]).

16 The respondent gave evidence that he intended to seek work. He acknowledged that he could perform labouring work such as digging ditches. The primary judge said (at [44]) that such concessions had to be viewed in context of the respondent’s cognitive and emotional difficulties which, in his view, would “undoubtedly have an adverse overshadowing impact on his ability to gain and sustain any form of remunerative employment” and also “in the context of the [respondent’s] over-confident manner.”

17 The primary judge also accepted, and regarded as relevant to the earning capacity issue, the respondent’s description of his brain functioning after the accident in the following terms (at [45]): “[I]f you could compare [my brain] to a computer...the processor [I have now] is slower than the processor I had before.”

18 The primary judge found the respondent became anxious and stressed when assigned tasks, and his coping strategies were not always successful (at [46]). The primary judge concluded that “these difficulties will remain as a permanent impairment to the [respondent]’s employment prospects and they will therefore severely and permanently impair his earning capacity.”

19 After noting that the respondent’s physical injuries had resolved without continuing disability, the primary judge found (at [47]) “[h]is incapacity for work is therefore largely influenced by cognitive, emotional and behavioural” problems. His Honour concluded (at [58]) that these problems caused the respondent “considerable difficulty and frustration” and “are permanent and will prevent him from working in the capacity of manager in the family business.” He accepted “that [the respondent] could not take on the stresses and pressures of managing the family business or its equivalent.” He found that these problems “will adversely operate on any attempts the [respondent] may make in seeking to exercise an earning capacity in the future.”

20 The appellant submitted at trial that the respondent had failed to mitigate his damages.

21 The primary judge set out (at [33] – [38]) steps the respondent had taken to seek training and employment up to January 2006. I will refer in greater detail to those steps later in these reasons. Suffice it to say at this stage that the respondent undertook a TAFE course in motor mechanics in 2004, had completed two, in effect trial, periods as an apprentice motor mechanic and had made numerous job applications in that field up to the end of 2006, but had not secured employment. He had not sought employment for the eighteen or so months from the end of 2006 to the time of trial (July 2008). The primary judge noted (at [40]) his explanation for this was:

22 The primary judge found (at [41] – [42]) that the respondent’s regular attendances at the Brain Injury Rehabilitation Unit (“BIRU”) and an organisation known as head2work, between 13 May 2004 and 17 January 2007 for work rehabilitation assistance, his post-injury attempts to work in his family’s business and at the other places he had been sent, when taken together demonstrated he had made reasonable attempts to mitigate his damages for loss of earning capacity.

23 The primary judge found (at [63]) that, but for his injury, the respondent would have worked his way up to a managerial role in the family business. He identified two relevant periods for the assessment of past economic loss: (at [79], [80]). The first period ran from the day after the accident, 30 January 2004, to 30 June 2004 and was one during which the primary judge determined the respondent would have moved from working as a pizza delivery driver to assuming greater responsibility in his parents’ business, probably as a storeman. The second ran from 1 July 2004 to 28 July 2008 (the first day of the trial) during which period his Honour found the respondent would have worked in full-time employment.

24 His Honour assessed the respondent’s past economic loss on the basis of a report dated 24 January 2008 prepared by Lance Kahler, a certified practicing accountant. The report was based on two premises. First, that the respondent would have taken over the management of the family business, Green Star, and would have derived income commensurate with that level of responsibility after a suitable period of training. Secondly, that the respondent’s loss of earnings should be calculated according to the net value of the rate specified for the Average Weekly Earnings of Full-Time Adult NSW Males.

25 The primary judge (at [74]) rejected the first premise. He considered the respondent’s lack of managerial experience cast doubt “over his ability to sustain the [family] business at a level to continue to maintain income and profits in the period leading up to the trial.” Secondly, Green Star depended for its viability on outsourcing its labour costs, and thus was exposed to “the vagaries of labour market conditions” which would undermine its profitability and viability.

26 Accordingly his Honour concluded (at [75]) that Mr Kahler’s second premise using average weekly earnings data, was a reasonable way to assess the value of the respondent’s past loss of earning capacity. There was, however, no precise evidence of the respondent’s pre-accident earnings. His Honour inferred (at [76] – [77]) that those earnings would have been no less than the rates applicable to adult storemen as identified by Mr Kahler. He found (at [79]) that during the first period the respondent would have earned, as a storeman, a gross weekly wage of $660. This amounted to $540 net which his Honour rounded down “to an average rate of $500 per week net to reflect an element of uncertainty as to precisely when the pizza delivery work would cease in favour of full time work in the employ of Green Star”. On this basis he assessed damages for lost earnings during the period 30 January to 30 June 2004 in the amount of $10,500 (at [79]). The appellant does not challenge this award.

27 As to the second period, from 1 July 2004 to 28 July 2008, the primary judge said (at [80]):

28 Accordingly, the primary judge assessed the respondent’s total loss of past earnings at $175,951: (at [81]).

29 The primary judge summarised his finding (at [83]) as to the respondent’s future loss of earning capacity as follows:

30 After reviewing the various opinions on the respondent’s future earning capacity, the primary judge in essence repeated this conclusion (at [113]) in the following terms:

31 Critical to the primary judge’s assessment of the medical evidence about the respondent’s earning capacity was his conclusion (at [90]) that by June 2006 the respondent had, in the opinion of his treating and assessing specialists, already reached his maximum state of medical improvement. The appellant does not challenge this finding.

32 The primary judge’s conclusion as to the respondent’s earning capacity was informed by his assessment of the various reports in evidence setting out the opinions of medical and allied professionals. His Honour placed particular weight (at [85]) on the reports of the respondent’s treating rehabilitation specialist, Dr Veerabangsa who, in his Honour’s opinion, had a superior opportunity to observe the respondent over a long period of time and become familiar with the respondent’s “over-confident” presentation.

33 The appellant has criticised the primary judge’s approach to the medical evidence concerning the respondent’s earning capacity in great detail. It will be convenient to deal both with his Honour’s analysis of that evidence, the parties’ submissions and my conclusions when I consider this ground of appeal.

34 Finally, his Honour rejected the respondent’s evidence in cross-examination that he was capable of manual labour and intended to get a factory job or start his own business. His Honour (at [114]) regarded this evidence as:

35 Accordingly, the primary judge concluded (at [115]) he should assess the respondent’s future loss of earning capacity as if he were “totally and permanently unemployable”. Applying what he said was Mr Kahler’s figure of $960 per week net over the respondent’s remaining working life, discounted by 15 per cent for vicissitudes, the primary judge assessed the respondent’s damages for loss of future earning capacity at $760,185 (at [116]).

36 The respondent claimed eight hours a week for future domestic or attendant care services. The claim was based on a joint occupational therapy and psychological assessment report dated 23 May 2007 prepared by Mr Mark Ravagnani (a psychologist) and Ms Suzanne Miller Ravagnani (an occupational therapist) (the “joint Ravagnani report”) which his Honour preferred on this issue to the views expressed by the appellant’s expert, Ms Zeman, an occupational therapist: primary judgment (at [154]).

37 The primary judge rejected Ms Zeman’s opinions for a number of reasons (at [150], [153]). He held, when dealing with the respondent’s claim for past domestic assistance:

38 When dealing with the respondent’s claim for future domestic assistance his Honour made further criticisms of Ms Zeman’s report (at [153]). First, he concluded she appeared to have taken at face value statements made by the respondent about his ability to complete tasks independently, “without making allowance for [his] over-confident attitude, his word finding difficulties and the other difficulties that relate to his frontal lobe disorder.” Secondly, his Honour considered Ms Zeman had not taken into account the evidence of the respondent’s primary carers after the accident, his mother and aunt. Thirdly, his Honour concluded her analysis contained contradictions between her statement that the respondent did not need assistance and her observation that his residence was messy and disorganised. Finally, he concluded that Ms Zeman had not paid regard to the respondent’s motivational problems.

39 The primary judge found that the estimates of the respondent’s needs in the joint Ravagnani report were reasonable when examined against the tasks required. That report concluded the respondent would need 414.5 hours per year (or 8 hours per week) of future domestic assistance if he were to be able to live independently of his family. This included assistance with housework, home and garden maintenance (including spring-cleaning), shopping, meal planning and preparation: primary judgment (at [152]).

40 The primary judge accepted (at [154]) the joint Ravagnani report, concluding its estimate of the time required to do the identified tasks was “inherently reasonable”.

41 His Honour made the following findings (at [155]) as regards the respondent’s need for future attendant care:

42 The primary judge costed the allowance for future attendant care from the date of judgment. Due to the tension his Honour had found existed between the respondent and others in his household as a result of his injuries, his Honour considered it desirable that the respondent commence living independently as soon as possible (at [157]).

43 The primary judge refused to discount the future attendant care award by 15 per cent for vicissitudes on the basis actuarial discount tables already incorporate a discount of five per cent (at [159]). In addition, his Honour accepted Ms Ravagnani’s concerns that the respondent may encounter problems retaining his driver’s licence, thus significantly increasing the amount of assistance he would require: primary judgment (at [156]). This served to “counterbalance the appropriateness of any discount” (at [159]). The appellant originally challenged this conclusion, but ultimately did not press that ground of appeal.

44 His Honour assessed damages for future domestic or attendant care at $284,900 (at [160]).

45 The primary judge acceded to the respondent’s claim for the cost of a case manager for the remainder of his life (at [179]) saying:

46 If unsuccessful in challenging this head of damages, the appellant does not challenge the primary judge’s refusal to discount this head of damages.

47 The respondent claimed the cost of ad hoc or drop-in supervision by a case manager for 12 hours a week at a cost of $37.95 an hour. This claim was also based on paragraph 5.2(a) of the joint Ravagnani report. The “rationale for the claim” was said to be “that the [respondent] needs to be monitored in the areas of domestic, social, financial, emotional, transport and community orientation, which I take to mean a check on his relations with those around him, as well as his medical and nutritional needs”: primary judgment (at [180]). His Honour concluded that Mrs Ravagnani’s “reasoning for this recommendation in a case such as this where the [respondent]’s brain damage affects so many areas of his life seems unremarkable and appropriate to the [respondent’s] situation”: (at [181]).

48 His Honour allowed this claim in its entirety at $463,369 (at [183]), again refusing to apply any discount, for the reasons given in relation to the case manager claim, as well as on the basis of what he said was unchallenged evidence that the respondent would need more hours of such support hours rather than less, as the years went by. The appellant abandoned his challenge to his Honour’s refusal to apply a discount factor to this head of damages.

49 As I have said, the appellant challenges the amounts the primary judge awarded in respect of past and future loss of earning capacity, future attendant care services and for both categories of case management. The respondent has cross-appealed complaining that the primary judge erred in calculating his past economic loss and seeks an increase in that head of damages.

50 It will be convenient to set out the parties’ submissions when dealing with the relevant head of damages.

51 Damages for both past loss and future economic loss are allowed to an injured plaintiff “because the diminution of his earning capacity is or may be productive of financial loss”: Graham v Baker [1961] HCA 48; (1961) 106 CLR 340 (at 347) per Dixon CJ, Kitto and Taylor JJ. The appellant complains that the primary judge erred in approaching the issue of past economic loss because he failed to address both the extent to which the respondent’s earning capacity had been impaired, and the extent to which that impairment was productive of financial loss.

52 The appellant accepts that for the period up to March 2005, the respondent suffered a complete loss of income and that the figure of $10,500 the primary judge awarded up to 30 June 2004 should be carried forward to that date. However, he contended that the Court should conclude that from March 2005, the respondent had the capacity to earn the net average wage for a full-time storeman of $540 per week.

53 The primary judge did not, with respect, expressly address the issue of the impairment of the respondent’s earning capacity prior to trial. However it is apparent from his Honour’s conclusion that the respondent’s condition stabilised at June 2006, coupled with his statement (at [83]) when dealing with future loss of earning capacity that “the [respondent] has suffered a severe diminution in his future earning capacity such that from a practical perspective he is and will remain, unemployable” (emphasis added) that, in his Honour’s opinion, the injuries the respondent had suffered as a consequence of the accident had rendered him unemployable both in the past and for the future. I would reject the appellant’s complaint in this respect.

54 The appellant also submits the primary judge failed to comply with the dictates of s 126 of the MAC Act in assessing the respondent’s claim for damages for future loss of earning capacity because he did not set out the assumptions upon which his assessment was based (s 126(3)), and took an erroneous approach to the evidence. The appellant’s challenge to the primary judge’s assessment of the evidence about the respondent’s earning capacity is fundamental to his challenge to the awards for lost earning capacity and has implications for his challenges to the other heads of damages.

55 In short, the appellant submits that the primary judge’s finding (at [83]) that the respondent was, and would remain, unemployable was not sustainable. He contends that both the respondent’s evidence, and the overwhelming weight of the medical evidence, supported the conclusion that while the respondent had a reduced earning capacity, he was capable of working full time in jobs such as that of a motor mechanic or carrying out simple labouring duties. The appellant submits this residual earning capacity can be quantified at $540 per week.

56 The appellant complained that while the primary judge referred to much of the medical evidence, he generally rejected that which suggested the respondent was fit for work. The appellant made detailed criticisms of the primary judge’s characterisations of much of the medical evidence, including that tendered by the respondent to which I will refer in the course of setting out the medical evidence.

57 I do no disrespect, I hope, to the respondent’s submissions if I describe them as joining issue with the appellant’s submissions. In short, the respondent submits that the medical and lay evidence supported the primary judge’s conclusion that he was totally unemployable. The respondent further contends that his Honour’s criticisms of the appellant’s medical evidence were soundly based, and that, even if some of the appellant’s criticisms are made good, the evidence, as a whole, did not demonstrate the respondent was capable of full time work.

58 None of the authors of the numerous expert reports the parties tendered concerning the respondent’s disabilities and future prospects was required for cross-examination. Both parties made oral and written submissions at trial dealing to some extent with the various medical reports. The respondent submitted at trial, referring to a number of medical reports, that, although he had some capacity for work, he was essentially unemployable. Neither party appears to have undertaken at trial a detailed criticism of the medical evidence called by the other party in either their written or oral submissions.

59 The parties accept the primary judge’s conclusion concerning the stabilisation of the respondent’s medical condition prior to trial. The following discussion therefore applies to both past and future loss of earning capacity.

60 The primary judge was not required to accept all the medical evidence merely because it was not subject to cross-examination. He could reject such evidence as he concluded was inconsistent with other evidence he accepted, or if it was inherently incredible: Masterton Homes Pty Ltd v Palm Assets Pty Ltd [2009] NSWCA 234; (2009) 261 ALR 382 (at [105]) per Campbell JA (Allsop P and Basten JA agreeing). His Honour could also discount the views of experts if he found assumptions they relied upon were erroneous or that the factual premises upon which they based their opinions were not supported by the evidence: Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. His Honour was also required to take into account all the evidence, including the evidence of lay witnesses, when determining the issues between the experts. In short, his Honour had to determine, on a rational basis, which body of expert evidence should be preferred, in whole or in part: Wiki v Atlantis Relocations (NSW) Pty Ltd [2004] NSWCA 174; (2004) 60 NSWLR 127 (at [68] - [69]) per Ipp JA (Bryson JA and Stein AJA agreeing). That process included subjecting the considerable body of documentary evidence to rational analysis, and, if so persuaded, concluding that initial impressions of witnesses’ evidence were misjudged: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306; Fox v Percy [2003] HCA 22; (2003) 214 CLR 118.

62 In cross-examination the respondent said he intended to look for employment “most likely a factory job or maybe run my own business. Don’t know.” (He agreed he would be capable of working as a tyre fitter or repairer, or as a council labourer.

63 The respondent’s school records revealed, as he acknowledged in evidence, that he lost interest in studying in Year 11. He left school. However he clearly retained aptitude despite his injury. TAFE records for the “Certificate II in Automotive Mechanical – Pre-Employment” he completed in December 2004, the year of his accident, showed he passed all but one course (noted “withdrawn no penalty”) and achieved five credits.

64 This evidence needs to be assessed in the light of the expert opinion as to the respondent’s earning capacity.

65 As I have said, the primary judge placed particular importance on Dr Veerabangsa’s opinion. In particular (at [86]) his Honour said:

67 As can be seen, the primary judge did not refer (at [86]) to the passage emphasised, nor is there any reference to Dr Veerabangsa’s opinion that the respondent had partial earning capacity. The appellant complains about what he submits was his Honour’s selective use of Dr Veerabangsa’s opinion, contending that, taken as a whole, that opinion was inconsistent with his Honour’s conclusion that the respondent was, practically, unemployable.

68 The primary judge accepted the opinions expressed by Dr Milder, a consultant neurologist, in his two reports of 18 July 2006 and 22 October 2007. As his Honour noted (at [89]) Dr Milder expressed the opinion that the respondent “may be able to take part in particularly simple structured activities, requiring slight concentration” and that the respondent suffered from “a markedly diminished capacity to attain his previous potential in his personal and professional affairs”. The appellant submits, correctly in my view, that Dr Milder’s report did not suggest the respondent was unable to work.

69 The primary judge placed weight upon assessment reports prepared by Dr Gilandas, a psychologist. In June 2006, Dr Gilandas subjected the respondent to neuropsychological assessment, testing his intellectual, sensory motor and visuospatial functioning, his language ability and his memory processes. Dr Gilandas concluded that although the respondent’s high cognitive functions remained generally intact, he did not have an efficient working intelligence because his potential and performance was disrupted by his low-average memory processes. In his opinion the deterioration in the respondent’s memory processes followed his head injury and was directly related to his accident. Dr Gilandas formed the view in his first report of June 2006, a view repeated in his second report of October 2007, that the respondent was “significantly disadvantaged on the open labour market and in fact may be unemployable in his current state. The primary judge regarded Dr Gilandas’ opinions as “significant” (at [90]).

70 The appellant criticises the primary judge’s reliance upon Dr Gilandas on the basis that his opinion that the respondent may be unemployable appears to relate to the fact that he remained unemployed three years after the accident. It does appear that Dr Gilandas’ view about the respondent’s earning capacity was influenced by his current employment situation. In his first report of June 2006, he juxtaposed his opinion about the respondent’s prospect on the open labour market with the fact that, at that stage, the respondent was doing light duties in his parents’ business, a job which his parents had provided in circumstances where they made allowances for his deficit. In my view, when the evidence of the respondent’s earning capacity is taken as a whole, it can be seen that Dr Gilandas’ hypothesis that he “may be unemployable” has some support insofar as the open labour market is concerned, but not insofar as work in a supported environment is concerned.

71 Dr Klug, a forensic psychiatrist, saw the respondent on two occasions. In his first report (25 July 2006) Dr Klug concluded that the respondent had “chronic psychiatric problems of a complex nature, which will never fully resolve, given the type of injury, the chronicity of his symptoms and the comprehensive treatment he has received but to which he has only partly responded.” At that stage, in Dr Klug’s opinion, although the respondent was “not totally incapacitated for work he has clearly had difficulties in the workplace and this has eventuated in the current situation in which he is unemployed and looking for appropriate work.” He opined that the respondent would require “employment in a supportive environment where the criteria for a job, as suggested by his rehabilitation team, are met.” He said the respondent’s “partial and possibly incomplete incapacity is continuing and is likely to be chronic”. He found it difficult to envisage that the respondent would return to any form of full-time work or would cope with work in which he had a “moderately high or high level of responsibility, [was] under pressure and [was] required to learn information rapidly and to make high level integrated decisions.” In his second report of January 2008, Dr Klug opined that the respondent’s neuropsychiatric state was unchanged and that his diagnosis was “a chronic and irreversible traumatic brain injury and a major depressive disorder in partial remission”. His rating of the respondent, using the AMA5/WorkCover Guidelines was:

72 The primary judge concluded (at [91]) that Dr Klug’s view was an understatement of the problem facing the respondent with regard to future employment.

73 The primary judge next referred (at [92]) to a report of 7 November 2007 from Dr Deveridge, a surgeon. Dr Deveridge’s report made it clear – and the primary judge so interpreted his report – that his area of expertise did not relate to the respondent’s severe closed head injury or his facial bone fractures, but was confined to his orthopaedic injuries. Dr Deveridge opined that the respondent should undertake a work trial either as an apprentice motor mechanic or in a similar field as, having regard to the fact that he had been leading a sedentary lifestyle since his recovery, it was uncertain whether he could cope with this type of employment having regard to his physical injuries. Dr Deveridge’s opinion was subject to any other restrictions which might arise from the respondent’s cognitive deficit and headaches, matters he acknowledged should be addressed by relevant specialists. Insofar as Dr Deveridge opined that the respondent was “unfit for all work until he made reasonable recovery from the brain injury”, a period Dr Deveridge determined, subject to confirmation by relevant specialists, was up to two years, the primary judge observed (at [92]) that what constituted “a ‘reasonable recovery’ is obviously a matter of fact and degree.” His Honour did not read Dr Deveridge’s opinion as indicating the respondent had any practical residual earning capacity.

74 The primary judge next referred to the joint Ravagnani report dated May 2007. Mr and Mrs Ravagnani interviewed the respondent using what they described as a “tandem interviewing technique” – an approach of which the appellant did not complain. In their opinion, the respondent was:

75 After referring (at [93]) to the joint Ravagnani report view that the respondent’s future vocational capacity would be limited to part-time supported employment, the primary judge said:

76 In my view the joint Ravagnani report did not support the primary judge’s conclusion that there were no prospects that the employment the joint report foreshadowed was likely to be productive of income from a practical perspective. The report clearly stated that the respondent was “capable of light repetitive activities”. Although the report contemplated that such earning capacity as the respondent retained might be exercised in supported employment, it was apparent such employment was remunerated.

77 The conclusion that the respondent could work in a supported environment was also supported in a passage in the joint Ravagnani report to which the primary judge did not refer:

78 In a later report of December 2007, responding to a solicitor’s letter which does not appear to have been tendered, Ms Ravagnani observed:

79 Dr Mellick, a consultant neurologist, examined the respondent in December 2006 apparently for the purpose of assessing the degree of his permanent impairment for the purposes of s 322 of the Workers Compensation Act 1987 (NSW). Dr Mellick observed that the respondent revealed “impaired attention, concentration and memory”, features which were “common in frontal lobe injuries.” He referred to psychometric evidence which showed “some slowness of cognitive functioning” associated with a “mood disorder for which [the respondent] is being treated with anti-depressants.” He expressed the opinion that the respondent was “capable of resuming work but that there is some permanent impairment of his capacity to work as efficiently as he did prior to the motor vehicle accident.”

80 The primary judge (at [97]) rejected Dr Mellick’s opinion concerning the respondent’s fitness to resume employment for a number of reasons. Of these, the only one of which the appellant complains is his Honour’s conclusion that Dr Mellick’s opinion was based on an erroneous history that the respondent’s work was what the primary judge inferred was completely unskilled work packing boxes whereas, in his Honour’s view, the respondent’s work (I assume in his parents’ business) required “discrimination, concentration and sorting skills”. His Honour also rejected Dr Mellick’s opinion because he had obtained an incorrect history that the respondent had been working as a motor mechanic prior to his injuries.

81 It is not readily apparent why, assuming it was correct, these incorrect work histories undermined Dr Mellick’s opinion that the respondent was “capable of resuming work”. Even if that opinion was expressed about the respondent’s capacity to undertake unskilled employment, it was probative, in my view, of the appellant’s case that the respondent retained residual earning capacity.

82 His Honour’s conclusion (at [97]) that Dr Mellick’s “non-specific assessment of there being ‘some impairment’” had “little if any probative value” is somewhat semantic. Such a comment may have weight if that was all Dr Mellick had said. However, Dr Mellick’s observation was made in the context that the respondent was capable of returning to work. As the reports of the experts to which I have referred make clear, and experience tells, experts rarely quantify in other than adjectival terms as “partial”, “limited”, etc, the extent to which an injured person may be capable of work, save to the extent they are of the view a person is entirely unimpaired or unemployable. It is the task of the trial judge taking into account other indicia in the report (and the overall evidence) to evaluate the extent to which these opinions can be brought to bear on the issue of the injured person’s earning capacity. In my view Dr Mellick’s opinion that the respondent was capable of returning to work had some probative value, particularly when taken with other medical opinions to similar effect.

83 The primary judge next dealt with Dr Smith, a psychiatrist who prepared an extensive report dated 28 September 2006. Much of the report reviewed historical material as well as setting out the respondent’s account (apparently to Dr Smith) of his history since the accident. Dr Smith dealt with the issue of the respondent’s earning capacity briefly. He noted that the respondent’s IQ did not change after the accident, but that his “mentation is slower and he has difficulty with coping with too much information at once, and during his Driving Assessment it was noted that he lacked insight and reasoning.” Dr Smith concluded that this “constellation is consistent with damage to the frontal lobes but the degree of cognitive impairment is mild.” After recording that the respondent had regained his driver’s licence for both automatic and manual vehicles, Dr Smith opined:

84 Dr Smith provided a further report in December 2007 in which he commented on the respondent’s high school records, records from TAFE NSW and Dr Gilandas’ report of October 2007. After reviewing that material Dr Smith reaffirmed his opinion that the respondent “should be able to cope with sales work in the automotive industry.” The primary judge (at [101] – [110]) rejected Dr Smith’s opinion for eight reasons.

85 The appellant’s written submissions specifically challenge only two of those reasons. The first challenge is to his Honour’s conclusion (at [102]) that Dr Smith’s opinion – that the respondent could cope with sales work – was “a prospectively sweeping statement that is not based on a reasoned analysis.” The appellant complains the primary judge’s observation that Dr Smith’s opinion should be rejected because he did not relate aspects of the work he said the respondent could undertake to his psychological condition, was “not a criticism made of any other doctor”.

86 The appellant also challenges the eighth reason given by the primary judge for rejecting Dr Smith’s opinion. This dealt with a statement in the history Dr Smith recorded in which the respondent “denied that he was unduly anxious, depressed, irritable or moody”. The primary judge criticised that statement (at [109]) for its “apparent glibness and understatement”, because of the absence of any analytical discussion considering whether the reliability of the history given by the respondent could have been “afflicted by [his] over-confident manner” as well as the “unexplained opacity of the descriptor ‘unduly’.” His Honour inferred that Dr Smith may have been disadvantaged when examining the respondent because he did not have available to him the sort of “reference point” which could be provided by a friend or relative; a benefit his Honour had had through hearing evidence from the respondent’s mother and his aunt.

87 The particular passage that the appellant criticises is the primary judge’s statement (at [109]) that:

That statement appears to have been a reference to his Honour’s conclusion (at [102]), that Dr Smith had “simply made a prospectively sweeping statement that is not based on a reasoned analysis.”

88 There is a related, more fundamental, criticism of the primary judge’s rejection of Dr Smith’s opinion. Central to his Honour’s approach to Dr Smith’s evidence was his conclusion that Dr Smith’s opinion was given in “an entirely speculative context” and lacked a factual basis, principally because, had the respondent had the capacity about which Dr Smith opined, it would have been commented on by head2work: primary judgment (at [105] – [106]).

89 The primary judge recognised (at [107]) that the genesis of Dr Smith’s opinion about the respondent’s capacity to cope with automotive sales work was his interview with the respondent. What his Honour appears to have failed to appreciate, with respect, was that the respondent was communicating to Dr Smith a vocational goal that head2work, whose opinion it is apparent his Honour respected, had expressed was appropriate. I will return to head2work’s reports later in these reasons to set this observation in context.

90 Further, Dr Smith’s opinion about the respondent’s capacity to cope with automotive sales work accorded with Dr Veerabangsa’s. The latter had agreed with head2work in July 2006 that work as a sales assistant in an automotive retail outlet was a suitable goal for the respondent to pursue. In expressing his opinion Dr Smith was acknowledging that the inquiries for such a position the respondent had reported he was undertaking were consistent with his abilities, notwithstanding his opinion about the cognitive impairment from which the respondent was suffering. Those inquiries had been made with head2work’s approval and apparent supervision.

91 Had his Honour appreciated these matters he would not, I infer, have rejected Dr Smith’s opinion out of hand.

92 I would also, with respect, disagree with his Honour’s criticism (at [102]) of Dr Smith’s opinion as “a prospectively sweeping statement that is not based on a reasoned analysis.” In the first instance, I would note that this opinion was expressed after Dr Smith set out his opinion about the respondent’s continuing disabilities which his Honour had substantially adopted (at [55] and [57] – [58]). That appears to indicate his Honour had accepted the methodology Dr Smith applied to reach these conclusions and sits uncomfortably with his statement (at [105]) that “Dr Smith’s opinion appears in an entirely speculative context.”

93 Next, I assume his Honour’s criticisms were intended to embrace the proposition that an expert report must “comply with a prime duty of experts in giving opinion evidence: to furnish the trier of fact with criteria enabling evaluation of the validity of the expert’s conclusions” and that the “bare ipse dixit of a scientist, however eminent, upon the issue in controversy, will normally carry little weight, for it cannot be tested by cross-examination nor independently appraised”: Makita (at [59]) per Heydon JA.

94 Dr Smith reviewed Liverpool Hospital’s clinical notes, head2work’s reports for 15 July 2004 – 5 April 2006, various documents prepared on the respondent’s discharge from hospital and medical reports, including three from Dr Veerabangsa. He set out his analysis of those records in his report, as well as the outcome of his interview with the respondent. He recorded many of the matters to which the primary judge referred (at [102]). He recorded that the respondent’s IQ had not changed after the accident, that he had “mild memory problems” shortly after the accident, accepted the respondent’s statement that his memory had improved but that his mentation was slower and he could not cope with too much information at once, that during his driving assessment it was noted he lacked insight and reasoning and that while this constellation was consistent with damage to the frontal lobes, the degree of cognitive impairment was “mild”. After noting that the respondent had nevertheless regained his driver’s licence for both manual and automatic vehicles, was motivated to work but had been thwarted by taking on jobs which taxed his intellectual capacities, Dr Smith expressed his opinion.

95 In my view Dr Smith’s opinion did not fall short of the Makita requirements. It is not necessary that an expert articulate the path to their conclusion in express syllogisms. It is sufficient if the basis for the expert’s opinion can be inferred from the report in a manner which will enable it to be tested in cross-examination and independently appraised. Dr Smith’s opinion was clearly based on his evaluation of the respondent in the light of his extensive review of the latter’s history as contained in the reports of his treating medical team, Dr Smith’s interview with and observation of the respondent as well as his evaluation of his disabilities at the time of that interview. His reasoning was sufficiently exposed to meet the Makita criteria.

96 In my view the primary judge erred in rejecting Dr Smith’s opinion as to the respondent’s ability to undertake sales work in the automotive industry.

97 Accordingly, while the appellant has not made good all of its criticisms of the primary judge’s conclusions in relation to the respondent’s earning capacity, he has, in my view, made good his substantive complaint that the expert evidence supported the proposition that respondent had some residual earning capacity. First, that concerning the primary judge’s selective use of Dr Veerabangsa’s report, and in particular, his Honour’s failure to refer to that practitioner’s view that the respondent retained a partial capacity to work. The respondent has also made out some aspects of his challenge to his Honour’s rejection of Dr Smith’s opinion. Both Dr Veerabangsa and Dr Smith’s reports, properly understood, support the proposition that the respondent retains some earning capacity.

98 However the primary judge’s conclusion that from a practical perspective the respondent was, and would remain, unemployable does not deny the proposition that the respondent retained some earning capacity. It was a conclusion that, in all the circumstances, whatever residual earning capacity the respondent had, he could not practically be employed.

99 In order to test this conclusion, it is necessary to refer to the opinions of those who treated the respondent for his injuries and who sought to explore the issue of his loss of earning capacity, as well as the forensic medical evidence and the lay evidence.

100 Before turning to that material, however, I would note that a theme that underpinned the primary judge’s reasons was his opinion that the respondent was “over-confident”. This was an opinion which, as his Honour recorded (at [86]), was expressed by Dr Veerabangsa in his report of January 2008. However, despite that view, Dr Veerabangsa also expressed the opinion, in the same report, that the respondent had a partial capacity to work. His capacity to work was “partial” because of cognitive and behavioural factors. Dr Veerabangsa also opined that the respondent was:

101 The primary judge expressed the view (at [85]) that Dr Veerabangsa had a distinct advantage because of his ability to assess the respondent’s condition over time and make cumulative observations of him over the course of his recovery as opposed to those who had had a more limited opportunity. His Honour then added in a comment which I would also interpret as being an explanation for his preference for Dr Veerabangsa’s view (at [85]):

102 Despite his preference for Dr Veerabangsa’s opinions, the primary judge did not refer to the latter’s opinions that the respondent had a partial capacity to work and was capable of independent living, albeit “with support and set up of structure and services short term initially”.

103 The primary judge returned to the issue of the respondent’s overconfidence in several passages in his judgment. Thus, he criticised Dr Mellick’s account of the respondent’s presenting problems which he described (at [97]) as “probably due to the [respondent]’s over-confident presentation, a degree of depression and limited insight on the day”. His Honour also criticised Dr Smith (at [109]) for failing to consider whether the reliability of history the respondent gave him “could have been afflicted by the [respondent]’s over-confident manner.” A similar criticism was made of Ms Zeman (at [150]) insofar as she relied on the history the respondent gave without allowing for the factor of his “over-confident presentation” (see also [153]).

104 The primary judge also appears to have discounted the evidence the respondent gave about his intention to seek work and his acknowledgement of the nature of the work he could perform because of his Honour’s view (at [44]) that such concessions had to be “viewed in the context of the [respondent]’s over-confident manner.”

105 The respondent embraced the primary judge’s use of the “over-confidence” factor in evaluating the respondent’s earning capacity and in rejecting his assessment of his domestic abilities. He drew attention to Dr Veerabangsa’s opinion about the respondent’s overconfidence and impulsiveness, and the opinion of BIRU clinical neuropsychologist, Ms Ferry, about his “grandiose ideas which make him overconfident about his own potential and current skill level.”

106 The latter submission has to be considered in each relevant context. As I have said, despite Dr Veerabangsa’s opinion about the respondent’s overconfidence, he concluded the latter retained a partial capacity for work and was capable of independent thinking. Similar views were expressed by numerous medical specialists who examined the respondent – all of whose opinions were rejected by the primary judge. They had expertise in analysing the effect of the respondent’s brain injury, including such factors as overconfidence.

107 The primary judge was not, with respect, qualified to discount/reject expert evidence because of his own view about the respondent’s over-confidence: Strinic v Singh [2009] NSWCA 15; (2009) 74 NSWLR 419. His Honour’s use of that factor is also troubling in light of the fact that those who had the closest contact with the respondent (Dr Veerabangsa and head2work) who were in the best position to form an opinion about the respondent’s earning capacity, were all of the view that he had some such capacity. I turn to that evidence now.

108 When the respondent was discharged from the BIRU in April 2004 the discharge summary prepared for Dr Veerabangsa noted that he was independent with self care, demonstrated good organisational ability and managed to perform assigned tasks independently, had good receptive language skills and demonstrated a good understanding of abstract expressions. He displayed some difficulty with memory retrieval and tangentiality.

109 The Occupational Therapy Discharge Report of 8 April 2004, prepared by Acting Senior Occupational Therapist Bronwyn Macfarlane of the BIRU relevantly stated:

110 The BIRU’s Clinical Neuropsychologist, Kim Ferry, noted on 5 April 2005, that the respondent’s general level of cognitive functioning appeared to be within the average range with sound general problem solving and reasoning skills. Whilst he was challenged by complex spatial construction tasks, he was able to perform them adequately, albeit at a slower rate. Ms Ferry noted that the respondent tended to assume tasks were too easy and would be distracted by his “self talk and expectation that he would do well, which then resulted in errors.” She observed that his verbal memory skills were good, he was able to retain verbal information for appropriate retrieval following a time delay but performed more poorly when presented with less structured information. She also noted several aspects in performing higher order cognitive tasks which she concluded were consistent with other “subtle behavioural features of poor self-monitoring and impulsiveness.”

111 Ms Ferry concluded that the respondent appeared to have the cognitive abilities that could be assumed necessary for pursuing and completing a TAFE course and a motor mechanic apprenticeship although, considering his mild cognitive weaknesses, she opined he would benefit from having appropriate supports and strategies to assist with his work. While she concluded that the subtle features of poor self-monitoring and grandiose ideas which made the respondent over confident about his own potential and current skill level could be more problematic, she also stated that having a direct supervisor to reinforce all of the stages involved to become a qualified mechanic, including the simple tasks and base knowledge, would help to support the development of appropriate work habits.

112 Soon after he was discharged from hospital, the respondent was referred to head2work for assessment of his capacity to resume his pre-injury work and to conduct a return to work (RTW) programme accordingly. Head2work appears to have been part of the BIRU team. It is apparent that its representatives liaised with Dr Veerabangsa about the respondent’s work capacity.

113 As at July 2004 (shortly after his discharge from the BIRU), Dr Veerabangsa had certified the respondent as “totally unfit for work” and did not recommend a work programme at that stage. In October 2004 Dr Veerabangsa indicated that the respondent was fit for suitable duties.

114 As at October 2004, the respondent was working one day a week in the office of his parents’ company, Green Star. He had also enrolled in a pre-employment motor mechanics course at Mount Druitt TAFE which was described by head2work as part of his pre-employment phase of rehabilitation. He finished that course in December 2004.

115 The respondent then secured an apprenticeship with a motor mechanic in Liverpool commencing in early January 2005. The employer, Henry Wilson Autos, was a small motor mechanic business in which the respondent was the only employee. Head2work observed that the respondent was required to do more than a first year apprentice would normally have to do, was required to work at a fast pace and across a number of vehicles at once, routines he had difficulty keeping up with. He had difficulty recalling where parts of the engine belonged and was getting the details of cars confused. Dr Veerabangsa advised head2work that these problems were consistent with the results of the respondent’s neuropsychometric testing where cognitive impairment was evident in the areas of memory retrieval and visuospatial search skills. Head2work suggested to Dr Veerabangsa that a large dealership could provide the respondent with the opportunity for more structured training and allocation of more suitable duties within the industry the respondent was interested in, a proposition with which Dr Veerabangsa agreed.

116 Head2work encouraged the respondent to resign from Henry Wilson Autos in order to seek more appropriate employment. He did so in February 2005. It appears he then went to work in his parents’ business again on a casual basis (four to ten hours a week) while attempting to re-gain his drivers’ licence. Head2work noted that he had “apparently not had any difficulties in performing work at this level” and commented that this “is an insufficient number of hours for Henry to manage in the longer term.”

117 In October 2005 head2work recorded that work trial searches had found that many mechanical workshops in the respondent’s area were not large enough to participate in a work trial. This had limited the opportunities for the respondent to participate in a work trial close to home.

118 In November 2005 the respondent commenced an eight-week work trial at a mechanical workshop, Midas Mufflers, in Liverpool. He stopped working at Green Star. Head2work observed that by the fourth week of the trial the respondent was enjoying the work and was not experiencing any problems in managing the 20 hours per week it entailed, the employer was happy with his work performance and had not raised any concerns. At the end of the work trial, however, the employer advised head2work that it did not have a vacancy for the respondent. The employer advised head2work that while the respondent’s level of knowledge was good, he worked at a slow and steady pace and did not seem to be able to adjust his speed to get jobs done more quickly when the business was busy. The employer suggested that a large dealership where work for junior apprentices would be more structured, less changeable and more evenly paced would be more suitable for the respondent than a small mechanical workshop.

119 Head2work’s research indicated that dealerships generally did not recruit for apprenticeships by public advertisement. Rather, they tended to recruit through group training companies such as the Motor Traders Association (“MTA”). In order to be recommended by the MTA the respondent had to undertake an aptitude test. He apparently performed poorly in it, skipping or incorrectly answering a number of numeracy and comprehension questions. The MTA suggested he practise aptitude tests as they considered this would improve his performance and ultimately allow them to recommend him for to employers.

120 In the meantime the respondent’s driver’s licence was suspended for three months from 15 March 2006 because, while driving his manual vehicle, the police pulled him over for a breath test and observed that his licence permitted him only to drive an automatic vehicle. As it was a requirement of a mechanic’s position to have a driver’s licence, the respondent was prevented from securing an apprenticeship position. He regained his licence in July 2006 and started looking for work again.

121 However at this stage the respondent’s mood deteriorated according to head2work, both as a function of him stopping anti-depressant medication and his licence suspension. He went back to work at Green Star, working two hours a day, Monday to Friday.

122 In July 2006 Dr Veerabangsa suggested that motor mechanics may be too challenging for the respondent and that alternative goals should be considered. The only one of those alternative goals in which the respondent evinced any interest was to act as a sales assistant in an automotive retail outlet, a goal Dr Veerabangsa considered suitable.

123 By October 2006, head2work reported that while the respondent was still interested in working as a motor mechanic, his doctor (I assume Dr Veerabangsa) had developed concerns regarding safety issues in relation to the respondent working as a mechanic in particular if he were to overlook important details while working. He was unwilling to support the option of the respondent working as an apprentice mechanic, but advised he would be supportive of him working as a mechanic’s assistant – a role it was suggested would provide a greater level of supervision and involve less complicated tasks. Head2work noted that the respondent would start looking for work both as a trades assistant and as a customer service officer within the automotive industry.

124 It appears that over the period July-December 2006 the respondent was diligent in looking for work in both areas head2work identified, but was unsuccessful. By December 2006 head2work concluded he was demonstrating a reduced commitment to job seeking although, when this was discussed with him, he assured head2work he was committed to securing employment. By February 2007 head2work reported that significant problems had been encountered with the respondent “failing to attend job seeking appointments, complete set job seeking tasks and maintain contact with head2work.” Head2work formed the opinion that the respondent’s stated commitment to his job seeking programme was not reflected in his level of participation. It concluded:

125 Accordingly, in January 2007 head2work suggested to the respondent that it would suspend the provision of assistance and advised him to continue job seeking independently in order to secure employment.

126 The respondent did not seek work following this advice nor prior to the trial for the reasons explained when dealing with the appellant’s complaint that the respondent had failed to mitigate his damages (see above at [21]). In short, this was the period the respondent stopped looking for work because he was concerned the litigation would interfere with his search for a job.

127 The primary judge used head2work’s reports in a variety of manners. The sixth reason he gave for criticising Dr Smith’s opinion that the respondent “should be able to cope with sales work in the automotive industry” was because, his Honour observed (at [106]), if those at the BIRU and head2work had held that opinion in September 2006 they “would have had the [respondent] trialled in such work” and, further, he inferred “this would have been commented upon in the extensive series of detailed reports that were issued by head2work.”

128 In fact, as the foregoing recitation of head2work’s reports makes apparent, and as I have said (at [122] – [123]), in July 2006 Dr Veerabangsa had considered that a suitable goal for the respondent was to seek employment as a sales assistant in an automotive retail outlet, a matter recorded in head2work’s report of 19 July 2006. Head2work regarded such a position as suitable for the respondent because of his customer service experience gained when he worked at a fast-food outlet and his good general knowledge of car accessories.

129 The primary judge found reinforcement for his conclusion (at [113]) that the respondent had “no significant or measurable residual earning capacity” in “the documented lack of success experienced by the rehabilitation provider head2work ... in trying to place the [respondent] in mitigatory employment between 2004 and 2007”.

130 In my view the primary judge erred in concluding that the respondent had, in effect, no residual earning capacity. The weight of medical opinion was to the effect that he did. That opinion, as I have said, included Dr Veerabangsa, his treating specialist who was well aware of the respondent’s tendency to overconfidence. I would also add that the primary judge’s frequent invocation of the notion that the respondent’s overconfidence was a disqualifying factor in him obtaining employment defies common experience which tells that there are many people in the workplace, and in society generally, who might well be described as overconfident but who manage to hold down successfully positions of employment more aligned with their practical demonstrable ability to work, and engage in social interaction.

131 Throughout the period head2work sought to secure employment for the respondent (with the exception of the periods when he was otherwise engaged, or was depressed or deliberately chose not to seek employment) the respondent demonstrated that he was highly motivated to work. The objective evidence pointed to the fact that he retained his IQ but that his emotional, behavioural and cognitive residual disabilities inhibited his ability to “perform in a competitive way in full employment” as Dr Veerabangsa opined in January 2008.

132 Nevertheless as the joint Ravagnani report demonstrated, the respondent was capable of work in a supported employment area where wages, albeit described by the authors as “very low” of $500 per week before tax, could be obtained.

133 Further, the primary judge’s broad statement that head2work had been unsuccessful in trying to place the respondent in employment between 2004 and 2007 failed to take into account a number of factors. The first was that 2004 was the year of the accident and was, as might be expected, the period when the respondent was still in a recovery phase. Nevertheless he demonstrated significant ability in that year as evidenced both by the Occupational Therapy Discharge Report of 8 April 2004 to which I have earlier referred (at [109]) and the fact that in April 2004 (very soon after he was discharged from hospital) he enrolled in, and completed, the motor mechanic’s course at Mt Druitt TAFE. It is true that he was not awarded a certificate of completion because he failed to attend a number of classes and had not completed some of the course work or obtained necessary work experience, but nevertheless he achieved passes and credits in some of his subjects. Next, the respondent undertook two work trials where he appears to have been able to work at least 20 hours a week albeit, it must be accepted, that the outcome of each trial was, in substance, that he would be best suited working in a structured environment with supervision.

134 During the periods when the respondent was unable to obtain work experience in one of the mechanical environments for which head2work thought him suitable, he worked at Green Star. While there was evidence from the respondent’s mother that the respondent made some mistakes in undertaking that work, these were the sorts of issues, in my view, which could be resolved if the respondent was working in a supervised environment.

135 I also cannot accept the primary judge’s rejection of the respondent’s evidence that he was capable of labouring work by reason of his cognitive and emotional difficulties and his overconfidence. The respondent suffered no continuing physical limitations. There was no evidence that his cognitive and emotional disabilities made him behave in an antisocial manner. Indeed, the evidence from the two work trial periods was that he apparently worked harmoniously with his co-employees and management. Dr Veerabangsa did not suggest that the respondent would suffer from any difficulties in working with others. Indeed it is difficult to discern the basis for his Honour’s conclusion that such difficulties would have “an adverse overshadowing impact on [the respondent’s] ability to gain and sustain any form of remunerative employment”: (at [44]).

136 In my view, the primary judge’s conclusion that the respondent lacked practical residual earning capacity was based on findings which were not open to his Honour having regard to the medical evidence: cf Wilson v Peisley (1975) 50 ALJR 207 (at 209) per Barwick CJ. The respondent retains a partial earning capacity, albeit that that capacity will be exercised in a supported environment. Whether that environment be one where his employment is supervised in work found on the open labour market, or in a supported environment, the best evidence available of what his earnings might be in such an environment is the figure advanced in the joint Ravagnani Report. I would not accept the appellant’s submission that the evidence demonstrated the respondent was capable of working full-time as a storeman. The preponderance of medical opinion was to the effect that it would be difficult for the respondent to work in the open labour market.

137 Accordingly, in my view, the evidence demonstrates that the respondent did retain residual earning capacity. The appellant did not adduce evidence of the net wage the respondent would earn assuming he obtained supported employment at around the $500 per week figure mentioned in the joint Ravagnani Report. The parties should calculate the future economic loss on the basis of the net wage the respondent would earn if paid $500 per week gross. That figure should be calculated from the date of judgment to the date when, on the conventional actuarial tables, the respondent might be expected to have retired. It should also be calculated on the basis of a 30% discount for vicissitudes to take into account the uncertainties of supported employment referred to in the joint Ravagnani Report (see [74] above).

138 For the reasons that follow in the section headed “Calculation of past economic loss”, the other limb of the calculation should be based on the premise that, if uninjured, the respondent would have earned $620 net per week. These calculations will replace items (d) and (f) in his Honour’s summary at par 216.

139 The primary judge discounted the damages he awarded the respondent for future loss of earning capacity by applying the conventional discount of 15 per cent (at [116]). The appellant did not suggest that the Court, were it minded to interfere with his Honour’s award for loss of earning capacity, should apply any different discount on this account.

140 One of the appellant’s complaints is that the primary judge erred in the figure he used to calculate the respondent’s past economic loss because he misinterpreted the figures in Mr Kahler’s report.

141 As I have said, the primary judge found (at [77] and [80]) that had he not been injured, the respondent would, prior to trial, have worked in full-time employment earning no less than the industry average wage for a full-time storeman. He sought to use Mr Kahler’s report to calculate past economic loss in the light of that finding.

142 Mr Kahler’s report sought to calculate, inter alia, the respondent’s past economic loss on the basis of two possible scenarios. The first was based on the hypothesis that, but for the accident, the respondent would have commenced employment as a storeman but, in due course, would have progressed to a managerial position. He set out in his report (at par 8.3) the Average Weekly Full-time Earnings of Storepersons which, but for the accident, the respondent would have received as at 1 July 2004. This was $660 gross per week. He then identified the average rates of pay for General/Sales/Distribution Managers. Table 3 of his report was based on the assumption that, but for the accident, after 1 July 2004 the respondent would gradually have progressed to being the sole manager of a business, that his income would have increased in equal annual increments over a five year period to 30 June 2009 until he was deriving income in line with industry average rates of pay earned by General/Sales/Distribution Managers. Schedule A to his report compared the income the respondent had actually earned to the date of trial with the notional income he would have earned on the aforesaid assumptions. The primary judge rejected the managerial scenario (at [74]).

143 The second scenario Mr Kahler modelled assessed the respondent’s notional income on the basis of the Average Weekly Earning of Full-time Adult NSW Males. The results were set out in Schedule B.

144 There was some tension between the primary judge’s findings about the respondent’s likely past (and future) employment but for the accident. Having rejected Mr Kahler’s first scenario, his Honour first said (at [75]) that the second scenario, that is to say, using the yardstick of rates for Average Weekly Earnings of Full-Time Adult NSW Males, represented a reasonable approach to assessing the value of the Plaintiff’s past loss of earning capacity. He discussed the absence of precise evidence of the respondent’s net earnings whilst he was working in the part-time position of storeman with Green Star, then said (at [77]) that absent such evidence, and accepting that the respondent was a motivated and industrious worker, he inferred that his earnings would be no less than the rates applicable to adult storemen as had been identified by Mr Kahler. His Honour concluded (at [80]) that between 1 July 2004 and 28 July 2008 the respondent would have worked full-time earning no less than the industry average wage for a full-time storeman. His Honour was of the view that Schedule B set out the wage for such a person and calculated the appellant’s past economic loss on that premise.

145 That was, with respect, an error. Schedule B set out the Average Weekly Earnings of Full-Time Adult NSW Males. The average weekly earnings for full-time storepersons appeared in Mr Kahler’s report at par 8.3 as $660 gross per week as at August 2004. That figure, it was agreed on appeal was $540 net per week which, by the time of trial, had increased by inflation to $620 net per week as set out in the table below (at [147]).

146 The respondent submitted that the judgment should be read on the basis that the primary judge intended to award the respondent the figures set out in Schedule B – and that when correctly averaged out over the relevant period, his Honour actually intended to award him past economic loss of $877 net per week. It is unnecessary to explore the mathematical basis for that calculation. The submission must be dealt with on the basis of his Honour’s finding (at [80]) that the respondent would have worked as a full-time storeperson – and that he should have had regard to par 8.3 of Mr Kahler’s report to source that figure. If necessary the submission is also met by the appellant’s submission that it was apparent from his Honour’s calculation of the last four weeks of the respondent’s past economic loss at $566 net per week, that his Honour did not intend to award the respondent weekly economic loss in the figure for which the respondent contends.

147 Mr Kahler’s report did not extrapolate the average weekly full-time earnings of storemen simpliciter over the period the respondent claimed for past economic loss. The appellant handed up a schedule setting out his calculation of the respondent’s income loss based upon a storeman’s wage with annual increases based upon the percentage increases in the average weekly earnings Mr Kahler identified for storemen. The respondent did not disagree with the percentage increases. The calculations were:

Year ended June	Gross p/w	Net p/w	Net Annual	Reference
30.01.04 – 30.06.04	660	540	10, 500	Red 54H
2005	660	540	28,080	Red 54C
2006 (6% increase)		573	29,796
2007 (3% increase)		590	30680
2008 (5% increase)		620	32,240
TOTAL			131,296

[The percentage increases in the left-hand column were based on Mr Kahler’s report.]

*The multiplier of 85% was used to reflect a deduction of 15 per cent for vicissitudes.

148 The appellant submitted that the Court should use the figures set out in the table as the base figures from which should be deducted from March 2005 to trial any amount reflective of the respondent’s residual earning capacity.

149 In my view there should be no deduction from the past economic loss calculations to reflect the residual earning capacity I have concluded the respondent retains. It is apparent from head2work’s reports that during the period to the end of 2006 the respondent was undergoing rehabilitation with a view to returning to full-time employment. This meant undergoing work trials, seeking to regain his driver’s licence and, generally, accepting head2work’s assistance in securing employment. Those steps were necessary because of the disabilities he suffered in consequence of the accident. While he had, in my view, some earning capacity during this period, he failed to exploit that capacity as part of his reasonable attempts to return to employment in the open labour market. Further, as I explain below, the appellant has not made good his challenge to the primary judge’s finding on mitigation – in short it was not unreasonable for the respondent not to seek employment during the two years preceding the trial.

150 On the basis of the appellant’s table the respondent’s past economic loss to the date of trial is $131,296 and past loss of employer funded superannuation contributions calculated at 11 per cent amounts to $14,442.56. Those figures must be reduced by 20 per cent to take into account the agreed deduction on account of contributory negligence. The parties should undertake the latter calculation and replace the figures in items (b), (c) and (e) in his Honour’s summary (at [216]).

151 The appellant submits that from at least 2007, the respondent failed to mitigate the damage caused by his loss of earning capacity, and that such damages as were awarded to him should be reduced accordingly.

152 As earlier noted, at the start of 2007 head2work ceased to assist the respondent in seeking employment. Thereafter, and prior to the trial, it appears he made no attempt to seek work. He was asked during examination in chief why he had not sought employment in 2008 and said:

153 In response to questions from the primary judge as to why he thought he had to get the case out of the way before he started looking for work, the respondent said:

Asked in cross-examination about the “experience” to which he had referred, he said:

154 The appellant submits the primary judge erred in not reducing damages to reflect the respondent’s failure to mitigate his losses by seeking employment or training in the two years preceding the trial

155 At common law a person injured by the tortious act or omission of another must take all reasonable steps to mitigate the loss consequent upon the defendant’s wrong and cannot recover damages for any such loss which he or she could have avoided, but has failed, through unreasonable action or inaction, to avoid: Mayne and McGregor on Damages, 12^th ed (1961) Sweet & Maxwell (at [144]), referred to with approval by the Full Court of the Supreme Court of Victoria (Gillard, Menhennitt and Dunn JJ) in Tuncel v Renown Plate Co Pty Ltd [1976] VR 501 (at 503). The burden of proving a plaintiff has failed to mitigate his or her damages rest on the defendant: Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 (at 159) per Dixon CJ; Munce v Vinidex Tubemakers Pty Ltd [1974] 2 NSWLR 235 (at 239) per Glass JA (Moffitt P agreeing). The reasonableness of a person’s decision in respect of steps which might have mitigated damages is judged on the basis of the information he or she knew at the relevant time. A person will not have acted reasonably to avoid loss if he or she allowed baseless factors to outweigh cogent ones: Fazlic v Milingimbi Community Inc [1982] HCA 3; (1982) 150 CLR 345 (at 350); see also State of New South Wales v Fahy [2006] NSWCA 64; (2006) 155 IR 54 (at [140]) per Basten JA (Spigelman CJ and Campbell AJA agreeing) – a decision reversed in the High Court, but not insofar as the issue of mitigation was concerned: New South Wales v Fahy [2007] HCA 20; (2007) 232 CLR 486. If a defendant establishes the plaintiff has failed to mitigate his or her loss, the tribunal of fact is required to assess the plaintiff's damages on the footing that he or she had taken the hypothetical action and been endowed with its hypothetical benefits: Munce v Vinidex Tubemakers Pty Ltd (at 239).

156 The issue of the respondent’s obligation to mitigate was governed by s 136 of the MAC Act, set out earlier in these reasons. Counsel did not refer the Court to any authorities dealing with s 136, nor have my researches uncovered any consideration of that provision in this Court either at first instance or on appeal. Apart from its mention in this case, s 136 has been referred to in two other District Court cases, both decisions of the primary judge in this case, without discussion of principle: Lewis v Shimokawa [2008] NSWDC 244 and Saleh v The Nominal Defendant [2009] NSWDC 1.

157 There is some authority dealing with s 39 of the Motor Accidents Act 1988 (NSW) (the “1988 Act”), which governed mitigation of damages under the legislative regime in force prior to the introduction of the MAC Act. When enacted, s 39 did not impose a duty on an injured person to mitigate damages: cf s 136(1). However the 1988 Act was amended by the Motor Accidents Amendment Act 1995 (NSW) to impose such a duty and, relevantly, to include “pursuing alternative employment opportunities” as among the steps to be considered as those an injured person might take to mitigate his or her damages.

158 Section 39(2) placed the onus of proving that all reasonable steps to mitigate damages had been taken by the injured person on the claimant, thus reversing the common law position: Brogan v McGeary (1995) Aust Torts Reports ¶81-342 (at 62,420) per Kirby P, Priestley and Meagher JJA agreeing.

159 That difference does not, in my view, affect the utility of decisions concerning that part of s 39 which is virtually on all fours with s 136, namely the requirement that the court give “consideration ... to the steps taken by the injured person and to the reasonable steps that could have been or could be taken by the injured person to mitigate those damages”.

160 In Brogan v McGeary (at 62,421) Kirby P observed that s 39 “... must be given a construction to encourage the taking of reasonable steps by injured persons to promote their restoration to economic capacity.” In his Honour’s view (at 62,422 – 62,423) the word “consideration” in s 39(1) required the court “to reflect upon the energy with which [the injured person] pursued opportunities to find, amongst other things, alternative employment” as well as to take into consideration the steps reasonably available to the injured person to find employment, taking into account his or her physical and emotional disabilities following the accident. Similar observations were made in Mahony v Watson [2003] NSWCA 259 (at [53]) per Sheller JA (Young CJ in Eq and Gzell J agreeing). Another factor clearly bearing on the issue of reasonableness is, as was said in Munce v Vinidex Tubemakers Pty Ltd, what would have occurred had the hypothetical steps been taken.

161 In my opinion the primary judge did not err in concluding the respondent had not failed to mitigate his damages. Dr Smith concluded, in that part of his report which the primary judge adopted (at [55]), that “[the respondent’s] mentation is slower and he has difficulty coping with too much information at once” and (at [57]) that he “has some problems with insight and reasoning”. A person with such disabilities might reasonably, in my view, be overwhelmed by the prospect of having to deal both with seeking employment and complying with the demands of an impending court case, particularly where many demands are made on the person to attend medical examinations. In this respect it should be noted that the period in which the respondent did not seek work coincided with the commencement of the proceedings in April 2007 and the hearing in July 2008. In my view it was open to the primary judge, having regard to the disabilities he concluded afflicted the respondent, to conclude the latter’s explanation for not seeking work in the eighteen or so months prior to trial was “cogent” rather than “baseless”.

162 The respondent’s claim for future attendant care services was based on the joint Ravagnani report and its survey of “the activities of daily living that would ordinarily be expected of a non-disabled person and which in her opinion requires the provision of regular paid services were the [respondent] to live independently of his family”. The primary judge identified the question to be determined in respect of this claim as whether the respondent in fact required such assistance and to the extent the report postulated (at [152]).

163 The claim for an independent case manager was also based on the opinion in the joint Ravagnani report (Section 5.29) that the respondent would require such assistance to ensure that he had adequate access to “services and assistance to address his needs in a comprehensive, co-ordinated and consistent manner to meet his changing needs over time”: primary judgment (at [179]).

164 The claim for “ad hoc or drop-in supervision” by a case manager was also based on the opinion in the joint Ravagnani report. The rationale for the claim as described by his Honour was that the respondent “needs to be monitored in the areas of domestic, social, financial, emotional, transport and community orientation, which I take to mean a check on his relations with those around him, as well as his medical and nutritional needs.” The report suggested that that “drop-in vigilance be initially staged at 4 hours per visit on three days per week with the possibility that the need for this service will increase in the future”: primary judgment (at [180]).

165 In summary the primary judge awarded the respondent damages for future attendant care and case management assistance as follows:

(a) 8 hours per week (414.5 hours per year) for future domestic assistance (at [152] - [156]);

166 Thus the total award under these claims reflected his Honour’s conclusion that the respondent would need 21.8 hours a week of assistance in one form or another for the rest of his life.

167 The appellant complains that in addressing the respondent’s needs for future attendant care and case management, his Honour failed properly to address the respondent’s evidence, failed to deal with the medical and other evidence dealing with the respondent’s capacity to engage in domestic chores and carry out his day to day activities independently and, insofar as the issue of future attendant care is concerned, erred in rejecting the report of Ms Zeman, the expert the appellant retained to deal with this issue.

168 As to future attendant care, the appellant submits that his Honour’s allowance of eight hours per week for this head of damages was excessive in the light of the evidence and repeats the submission made at trial, that the evidence supported, at best, an award not exceeding two hours per week.

169 As to case management, the appellant submits there was no proper basis for the primary judge’s conclusion that the respondent needs the services of a case manager, on either an ongoing or a drop-in basis.

170 Finally, the appellant submits the cumulative effect of the awards for future attendant care, a case manager and a drop-in case manager over-compensates the respondent.

171 The respondent submits the primary judge’s findings were open on his assessment of the expert opinion and further, that in light of that opinion it was open to his Honour to reject the respondent’s evidence of his capacity to care for himself as unreliable.

172 As is apparent from the brief description I have given of the nature of these claims (at [162] – [164]), the respondent’s capacity for independent living was critical to these heads of damages.

173 As I have said, Dr Veerabangsa opined on 22 January 2008 that the respondent was:

174 Dr Veerabangsa also pointed out in his 22 January 2008 report that the respondent’s traumatic brain injury had been stable since June 2006, from which period he had remained on the same medication. Dr Veerabangsa advised that the respondent should continue on his then medication for the next 12 months but at that stage, after a review, it was possible the medication could be reduced and gradually withdrawn depending on external factors and how he was affected. In his view there was no indication for new treatment for the respondent other than routine follow up by the Brain Injury Service. In Dr Veerabangsa’s view, the respondent’s prognosis was good and there was no indication his condition would deteriorate in the future. (

175 The respondent’s general practitioner, Dr La, whose assessment of the respondent’s depression and emotional problems the primary judge accepted (at [88]) as reasonable, also expressed the opinion in his report of 9 April 2008 that physically, the respondent was “well and independent”.

176 Before the accident the respondent’s parents had done the majority of cooking in the home. That was still the position at the time of trial, although his sister also did some of the cooking. The respondent said he could cook instant noodles, fried eggs and “simple stuff” and although he was not responsible for washing his own dishes, he could and did wash his own dishes if he wished.

177 The respondent’s mother, Wai Ling Lo, gave evidence through an interpreter. Mrs Lo said that before the accident the respondent cooked for himself if she came home late. He also did his own laundry and cleaned his room in a “generally OK fashion”. Sometimes he made his bed and sometimes he did not.

178 It is unnecessary to refer in any detail to Mrs Lo’s evidence concerning the first three or four months after the respondent’s discharge in respect of which it is common ground he was still in the recovery process. Indeed, Mrs Lo said that the slow reactions she noticed in that early period were “getting a little bit better” as was his bad memory.

179 The respondent gave evidence that if he lived on his own without his mother and others being available to assist him, he could vacuum, mop and sweep his own room. He said he would be able to carry out those activities in relation to the whole house. While he had not cleaned his own bathroom for a while, he said he had cleaned it before. He agreed, that if he lived by himself, he could cook simple meals, but said he would prefer to get take-away because he did not like cooking. He also agreed that if he lived on his own without parental assistance, he would be able to clean floors, mop and vacuum, but would take his washing to a laundromat because he regarded washing as “very time consuming and boring”.

180 The respondent said he did not touch his bed after he woke up, but did change his own sheets from time to time. He agreed that physically there was nothing to stop him mowing a lawn. It appears the respondent’s father mowed the lawn at the family residence.

181 In re-examination, the respondent said he had washed his own clothes before the accident, but did not clean his own bathroom and before the accident only used a vacuum cleaner or cleaned his bathroom “once in a blue moon”. He had rarely washed dishes or cleaned up after a meal and only sometimes cooked himself a meal.

182 Mrs Lo said she did not think the respondent could manage on his own because he sometimes forgot to take his medication and “sometime he is under pressure, there’s just no-one to console him.”

183 Mrs Lo thought that the respondent could feed himself simple meals for breakfast, lunch and dinner, could shop for himself, do his own laundry and wash his clothes. She did not know whether he would be able to clean his house or his flat. She said he sometimes remembered to keep appointments with doctors and sometimes she had to remind him. He was bad at finding his way. However, she accepted he was capable of driving a car, and could drive himself to places like the BIRU. Mrs Lo agreed that the respondent washed his own clothes.

184 Although the primary judge used the language of s 128 (“attendant care services”) in dealing with this head of damages, it is apparent that the respondent’s claim for damages for future domestic assistance was not based on s 128 but, rather, on the proposition that once he was living independently, he would require commercial domestic assistance, which is an available head of damages: Miller v Galderisi [2009] NSWCA 353 (at [18]). The primary judge accepted that the respondent would start living independently both because of family frictions brought about by his changed behaviour consequent upon his brain injury (at [157]) and also because it was, in any event, his right to do so (at [207]).

185 Even if the primary judge had been approaching this issue on the basis of s 128 of the MAC Act, there was no dispute that if his Honour was correct, the respondent had established the need for such care services for the period of six hours a week over at least six consecutive months: s 128(3). There would, however, be a problem on the appellant’s approach on a s 128 basis, because the effect of s 128(3) is that an injured plaintiff has to satisfy the threshold requirements of both requiring attendant care services for six hours a week and for six consecutive months. Once both thresholds are established, a plaintiff still needs to demonstrate a continuing need for attendant care services for six hours a week to obtain a s 128 order. Accordingly the appellant’s submission that the respondent should be awarded two hours a week could not be entertained.

186 The factual basis of the respondent’s claim for future attendant care services was found in the joint Ravagnani report, section 5.7 of which concluded the respondent required assistance with housework (two hours a week), meal preparation (three and a half hours a week), menu planning and shopping (three hours a month), garden and lawn care (two hours a month), home maintenance (three hours a month) and spring cleaning (three hours a month) – leading to the total of 414.5 hours a year the primary judge accepted.

187 The joint Ravagnani report recognised that the respondent was physically and intellectually capable of performing most aspects of his daily routine apart from heavy housework, gardening and home maintenance. It questioned the discharge report prepared by the BIRU occupational therapists, noting what the authors of the joint Ravagnani report described as the “vast difference” between the ability to undertake a task in a clinical setting and actually performing it to a safe and satisfactory standard on a day-to-day basis.

188 The joint Ravagnani report concluded that while the respondent was “able to attend to light tidying around the home, [if] left to his own devices he would simply leave the bulk of his housework undone”. In the authors’ opinion:

189 Ms Zeman’s report cognised that the results of neuropsychological testing indicated the respondent experienced “some level of impairment in relation to high level executive function” and that:

190 When she came to look at the respondent’s capacity to undertake housekeeping she noted “poor maintenance of the environment”, but thought this could be attributed to the respondent’s age. However she also noted that the respondent “presented with poor motivation in relation to task performance, along with poor planning and organisation of tasks. She was uncertain “as to what degree this relates to a pre-morbid lack of engagement in functional task performance, as compared to the impact of ABI on task performance and task initiation”. However she assessed the respondent as likely to experience difficulty in maintaining a residential environment to an appropriate standard and concluded he required supervision and monitoring in relation to the performance of household cleaning and maintenance activities. She also recognised that the respondent’s difficulty in planning and executing task performance was likely to cause him difficulty in recognising the need to undertake household maintenance tasks, plan non-routine tasks and complete tasks to an acceptable standard within an acceptable timeframe. On this basis she assessed him as requiring supervision and/or monitoring in relation to the execution of household maintenance activities. When it came to assessing the time attributable to the respondent’s altered domestic abilities as a result of the accident she merely allocated assistance for 30 minutes a week.

191 In my view, leaving aside his other criticisms of Ms Zeman’s report, the primary judge was entitled to conclude (at [150]) that this assessment paid insufficient attention to the cognitive, emotional and behavioural issues that generated the respondent’s need for domestic assistance. At the very least, he was entitled to prefer the opinion expressed in the joint Ravagnani report in this regard and I discern no error in his Honour having done so.

192 There is also force in his Honour’s observation that Ms Zeman’s assessment was limited because she did not have the opportunity to interview his mother. The joint Ravagnani report clearly drew on Mrs Lo’s advice, inter alia, that prior to the accident the respondent had been “ ‘very tidy’ and helpful”, whereas afterwards he was “ ‘very messy’ and very unmotivated to help around the house.”

193 The primary judge’s third criticism, that Ms Zeman’s report postulated that the respondent was living “in a structured family environment which allows him to function with appropriate prompting” is valid, although, with respect, that limitation appears more related to the assumptions Ms Zeman was asked to make in preparing her report. In short her focus does not appear to have been as much on the prospect of the respondent living on his own as the joint Ravagnani report contemplated.

194 In my view the appellant has not established that the primary judge erred in his assessment of the respondent’s need for future attendant care services.

195 Both awards for case management were based on para 5.2 of the joint Ravagnani report which stated:

196 The appellant submits that the finding that the respondent needed case management on either basis, or to the extent allowed by the primary judge, failed to have regard to the weight of the evidence to the effect that the respondent was capable of independent living, including the absence of reference in most, if not all, of the medical reports to the respondent needing any sort of case manager, the respondent’s own evidence about his capacity to organise his life (which the appellant submitted his Honour was not entitled to discount) and the fact Ms Zeman did not say he needed case management.

197 The respondent submitted that again, the primary judge was entitled to discount his own evidence about his capacity to manage his affairs. He contended that Dr Veerabangsa supported his need for case manager assistance pointing to Dr Veerabangsa’s statement in his 22 January 2008 report that the respondent was:

198 The respondent also relied on Dr Gilandas’ statement that he was “in complete agreement with” the joint Ravagnani report. It is convenient to note at this stage that that opinion was expressed to be in response to specific questions apparently posed by the respondent’s solicitors which do not appear in the evidence. When read in context, in my view, Dr Gilandas was expressing his agreement with that part of the joint Ravagnani report (at par 5.2(c)) that hypothesised that individuals with a significant traumatic brain injury developed an increased risk for developing dementia or future psychiatric illness.

199 It is convenient to deal with the challenge to the awards for case management together. Both were based on the premise, according to the joint Ravagnani report, that the respondent “requires a comprehensive care regime which should follow a supported accommodation and community living model ... the type of care that is usually provided to adults with physical disability, intellectual disability or psychiatric illness”.

200 In my view the evidence did not support this premise. Throughout the period he was engaged in rehabilitation the respondent had demonstrated a capacity to attend his TAFE course, had regained his driver’s licence both for automatic and manual vehicles, had worked satisfactorily, albeit slowly, at two mechanic’s workshops. He retains, as I have found, residual earning capacity, albeit such that will be exercised under supervision. His treating medical practitioners, Dr Veerabangsa and Dr La, both opined that he was capable of independent living – in the case of the former with some initial monitoring. There was no medical evidence to support the proposition that the respondent was not capable of functioning safely within the community.

201 I would accept that the cognitive difficulties identified in the medical reports and acknowledged by both the joint Ravagnani report and Ms Zeman, as well as the respondent’s mother’s evidence that he needed some reminding about taking his medication and medical appointments indicated he may need some assistance of that nature if living independently. However in my opinion the evidence did not support the conclusion that he required that assistance on the scale the primary judge allowed. Nor, in my view, was there any evidence that the respondent required drop-in assistance of the nature of that identified in the joint Ravagnani report.

202 Further there is, as the appellant submits, over-compensation in the amounts the primary judge allowed. It is difficult, for example, to understand why the respondent needs domestic monitoring, if he is paying for domestic assistance as part of the award for future attendant care. The same comment can be made about the need for a case manager to deal with nutritional needs, another area which should be covered by the domestic assistance in respect of meal preparation.

203 As to the award for a case manager for eight hours a month to ensure the respondent had access to “appropriate services and assistance”, the joint Ravagnani report did not explain what services this was for. However the primary judge found (at [161] – [178]) that the respondent would need future treatment by way of consultations with a general practitioner (three consultations per annum), a psychologist (twelve visits per annum) and occupational therapy assessment (four hours per annum) – findings the appellant does not challenge. There was some evidence that the respondent’s mother was prompting him for task execution and task initiation. For example, the respondent gave evidence that his medication was organised in a Webster-Pak prepared by his pharmacist, although his mother said he sometimes forgot to take it.

204 Even if it was accepted that prompting was required to ensure the respondent took his medicine and attended these various treatments, it is apparent that an award allowing for eight hours a month was manifestly excessive. There was no explanation in the joint Ravagnani report for the different hourly rates allowed for the cost of the drop-in case manager (para 5.2 (a) - $37.95 per hour) and the amount allowed for the case manager (para 5.2(b) – $135 per hour). In my view an allowance of one hour a week at $37.95 per hour for this form of prompting which could be done by telephone, including SMS, is adequate to address this need. The parties should calculate this amount over the period allowed by the primary judge with no deduction for vicissitudes in accordance with the primary judge’s approach – no longer challenged by the appellant – but discounted by 20 per cent to reflect the agreed contributory negligence.

205 Thus, the amounts set out in the summary (at [216]), letters (j) ($247,252) and (k) ($463,369) should be removed and replaced by a single figure calculated as indicated above.

206 Finally, I would observe that another way of testing the proposition the respondent was over-compensated is to look at the total award for the heads of attendant care and case management: 21.8 hours a week – more than half a working week. In my view the evidence did not support the proposition that the respondent needed paid assistance to such an extent.

207 The effect of these reasons is that the judgment will have to be set aside and a judgment entered based on the calculations the parties have been directed to undertake, namely:

The calculations should be undertaken to the date of judgment below and the new judgment will be expressed to take effect from that date.

208 The parties asked the Court to reserve the issue of costs whatever the outcome of the appeal with the intention that that issue be dealt with by written submissions and on the papers.

Supreme Court of New South Wales - Court of Appeal

Arnott v Choy [2010] NSWCA 259 (6 October 2010)