Supreme Court New South Wales

• Medium Neutral Citation: Clegg v. Williams [2012] NSWSC 709
• Hearing dates: 18 - 25 June 2012
• Decision date: 18 July 2012
• Jurisdiction: Common Law
• Before: S.G. Campbell J

Decision

(i) The agreement of the parties to settle the dispute about certain heads of damages is approved;

(ii) I assess damages, after reduction for contributory negligence, the deduction of the s 83(5) defence and the addition of the allowance for fund management, in the sum of $2,727,251.00;

(iii) I direct the Registrar to notify the NSW Trustee and Guardian of the terms of the award I propose to make in accordance with the requirements of s.23 Civil Liability Act 2002;

(iv) I adjourn the proceedings to 27th July 2012 at 9:30 a.m. for the entry of final orders.

• Catchwords: [TORTS] - negligence - motor vehicle accident - assessment of damages - Motor Accidents Compensation Act 1999 (NSW) s126 and 128 - no question of principle
• Legislation Cited: Civil Liability Act 2002 (NSW); Civil Procedure Act 2005 (NSW); Motor Accidents Compensation Act 1999 (NSW); New South Wales Trustee and Guardian Act 2009 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
• Cases Cited: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120; Amoud v. Al Batat [2009] NSWCA 333; CSR Limited v. Eddy (2005) 226 CLR 1; Graham v Baker (1961) 106 CLR 340; Hill v Forrester (2010) 79 NSWLR 470; Kallouf v Middis [2008] NSWCA 61; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432; Leichhardt Municipal Council v Serratore [2005] NSWCA 406; Macarthur Districts Motor Cycle Sportsmen Inc. v. Ardizzone [2004] NSWCA 145; Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638.; Najdovski v Crnojlovic [2008] NSWCA 175 New South Wales v Nominal Defendant [2009] NSWCA 225; Norris v Blake (No 2) (1997) 41 NSWLR 49; Roads and Traffic Authority v Chandler [2008] NSWCA 64; Tran v Younis [2006] NSWCA 188; The Nominal Defendant v. Lane [2004] NSWCA 405; Penrith City Council v. Parks [2004] NSWCA 201; Purkess v Crittenden (1965) 114 CLR 164; Vosebe Pty Ltd v Bakavgas [2009] NSWCA 117; Watts v Rake (1960) 108 CLR 158
• Category: Principal judgment
• Parties: Jeremy Robert Clegg (Plaintiff); Marc Daniel Williams (Defendant)
• Representation: Mr. J.P. Gormly S.C. and; Mr. P.J. Frame (Plaintiff); Mr. K. Rewell S.C. (Defendant); S.P. Groves Lamrocks, Solicitors (Plaintiff); Hunt & Hunt (Defendant)
• File Number(s): 2010/00111235

Judgment

1 The plaintiff suffered significant orthopaedic injuries and a very serious traumatic brain injury in a motor accident that occurred on Sunday 27 May 2007 at approximately 7:25pm on Glossop Street, St. Marys.

2 The plaintiff was travelling as a passenger in a motor vehicle driven by his friend, the defendant.

3 The incident consisted of a single vehicle collision. Mr. Williams drove the vehicle in such a manner that it skidded onto the median strip, colliding with two trees and a 'no right turn' sign in succession, before rolling and coming to rest on the wrong side of the road.

4 Alcohol was a significant factor in the causation of the accident. The plaintiff and the defendant had consumed a large number of drinks in each other's company before and during a rugby league match they attended at Penrith. It is unnecessary to go into all of the details of this as the parties settled the question of liability on the basis of an apportionment of 75 per cent responsibility to the defendant, and 25 per cent to the plaintiff. As the plaintiff is a person under a legal incapacity, an order that his estate be subject to management pursuant to the New South Wales Trustee and Guardian Act 2009 (NSW) having been made by this Court on the 5th of March 2012, it was necessary for this compromise of the liability issue to be approved or disapproved under s.76(4) of the Civil Procedure Act 2005.

5 When the matter was called on for hearing on 18 June 2012, I was informed of the agreement and asked to consider the application for approval on the basis that whether or not I did, the trial or balance of the trial as the case may be would proceed before me, each party waiving, as it were, any objection to me continuing to hear the case if I disapproved of the settlement.

6 For reasons I gave at the time, which I will not repeat, I approved the settlement. The matter then continued as an assessment of damages.

Quantum

7 Although the hearing proceeded for five days, involving seven lay witnesses, including the plaintiff, the concurrent evidence of two occupational therapists, the concurrent evidence of two consultant physicians in rehabilitative medicine, and a great deal of medical reports from both sides, in the end, two substantial issues only were presented for determination. I have not made that remark by way of any criticism of the parties or of counsel. Quite the contrary. I had the benefit of the assistance of Mr. Gormly S.C. and Mr. Frame for the plaintiff and Mr. Rewell S.C. for the defendant. These counsel are experts in the field and the case was presented with great expertise, efficiency and persuasion. Rather, the trial process itself, as occurs when skilled and experienced counsel are at work, further refined the issues so that the parties were able to agree upon all heads of damage except the questions of future economic loss and future care, the latter in its various aspects. There is also a question about whether the plaintiff's expectation of life has been reduced by his traumatic brain injury.

8 Even in respect of the matters remaining in dispute, the parties moved closer together, neither party, in the end, contending for his most favourable position available to him on the evidence. Indeed, so far as future economic loss was concerned, the difference was reduced to an important question of emphasis.

Short Facts Concerning Post-Injury Employment

9 At the time of the accident Bob Jane T-Mart at Penrith employed the plaintiff as a tyre fitter or technician. Notwithstanding the severity of his injuries, and a high degree of ongoing disability, he was able to return to work on a casual basis from about mid February 2009 until the present time.

10 The plaintiff most recently worked on 8th May 2012 when an incident occurred involving damage to a motor vehicle resulting from inattention to detail by the plaintiff that I would attribute to the affect of his head injury on his ability to work efficiently. Mr. David Lee, his employer, and the owner of the franchise, gave evidence that he would continue to employ the plaintiff provided that the plaintiff apologises for the damage caused. The damage was in an amount of about $1000, which Mr Lee tells me is in excess of the value of the job.

11 The plaintiff's employment has been casual and 'on-call'. Essentially, he is required to relieve staff on holidays or, I infer, during busy periods. He has managed net average weekly earnings of $427.

12 The parties have agreed that his probable net weekly earnings, but for the injury, are in the sum of $840 per week. This figure is based upon a comparison of the earnings of two persons who gave evidence before me, coincidentally half siblings, Mr. Costello and Mr. Murphy.

13 Mr. Costello started work as a tyre fitter but has attained the role of sales manager. Mr. Murphy started as a tyre fitter and now works at a different franchise as the workshop manager, still a very hands on role.

14 The agreement as to probable earnings seems to me to represent the plaintiff's most likely future circumstances, but for the motor accident, in accordance with s.126(1) of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). I should say, however, that plaintiff's counsel point out that on the evidence when one considers the hours worked by Mr. Murphy, over six days per week, and applies what might be regarded as a minimum wage rate of slightly over $15 per hour, a higher figure than the agreed probable earnings is produced. Mr Lee gave evidence at 359.30-35T that he paid his tyre-fitters around $15 per hour. However, it seems to me that the actual earnings of Mr. Costello and Mr. Murphy, which form the basis of the parties' agreement, are a surer guide to the probabilities than an extrapolation based only upon the hourly rate.

The Arguments about Economic Loss

15 The difference between the parties so far as economic loss is concerned is this: the defendant says that the work performed by the plaintiff for his employer is real economically valuable work from which the employer derives a benefit, and subject to certain conditions which I will expand upon in due course, the evidence indicates the employer is likely to continue to employ the plaintiff. The defendant acknowledges that this employment arrangement has about it certain protected or sheltered features, and that if the plaintiff were to lose this job it would be very difficult for him to find another. Notwithstanding this acknowledgement, the defendant argues that because the plaintiff is performing real work there is a strong possibility that he can continue in this employ for his present, or another like, employer.

16 The defendant's approach therefore is to calculate the difference between the $840 per week net and 50 per cent of the plaintiff's past average, producing a figure of around $600 per week as representing the actual financial loss, which may be produced by reference to the diminution in the plaintiff's earning capacity caused by the accident. Perhaps to put it another way, the defendant's case is that there is a 50 per cent chance that the plaintiff will be able to continue in his present employment, or its like, for the rest of a normal working life to age 67.

17 The plaintiff's main argument is that, in truth he is unemployable and I should treat him as such for the future. His true probable earnings are $916 per week net. If I accept this argument, and apply the usual 15% discount, a figure in the order of $720,000 would be produced (see MFI 5) as the allowance for future economic loss. I have already rejected this higher pay-rate, and I will deal with the question and I will deal with the question of the plaintiff's employability later in these reasons. The plaintiff's fallback position is that the plaintiff can probably continue in his present employment for between 5 and 10 years, say 7 years, by the end of which period Mr Lee said he hoped to have retired. On the basis that his past earnings are the best guide to his likely future earnings his net past wage loss should be capitalised on the 5 per cent tables for 7 years. Thereafter, the plaintiff says his most likely future circumstance is that he will lose this job and, because of his disabilities, he will not find another on the open labour market. Accordingly, it is suggested that I should effectively treat him as totally incapacitated from that point on, but to take account of the very small possibility that he may find other remunerative work, I should increase the conventional allowance for vicissitudes from 15 per cent to 20 per cent. In advancing this argument plaintiff's counsel acknowledge that the difference between the results produced by the competing approaches is not great. Indeed the defendant's approach produces a figure for this head of damage of $469,047, applying the conventional 15 per cent discount. The plaintiff's fallback position produces a figure of $541,502, a difference of about $70,000.

18 Naturally, it would be impermissible to resolve this issue simply by splitting the difference.

The Arguments About Future Care

19 There are a number of different approaches to the care issue available on the evidence. MFI 6, a schedule handed up by plaintiff's counsel as an aide memoire, sets out four of them. Two others have been excluded. They might be referred to as the extremes of each party's original position. On the one hand, Dr. Buckley's original approach provided for twenty four hour care, seven days per week for the rest of the plaintiff's life, and on the other, Dr. Zeman's original approach provided for one hour of care per day, seven days per week, with an additional one hour per week of handyman assistance for the heavier aspects of domestic work. There may yet be a seventh, being a position raised during the concurrent evidence of Dr's. Buckley and Zeman set out from 374.40T to 375.25T, and more or less summarised as the third regime analysed in MFI 4, the defendant's schedule of damages.

20 Notwithstanding this embarrassment of forensic choices, counsel focused in the end on the differences between the respective positions of their qualified occupational therapists, Ms. Mills for the defendant, and Ms. Morris for the plaintiff, as expressed in an addendum to exhibit E - 11, their joint report (originally dated 18th May).

21 In summary, Mr. Rewell argued that two hours per day seven days a week - perhaps split into two one hour shifts in the morning and the evening respectively - represented the plaintiff's reasonable needs, if one added a supplement of an additional three hours on each day when he has the care of his young children.

22 Mr. Gormly and Mr. Frame argued that the plaintiff's accident created need was reasonably met by six hours per day, in split shifts each of three hours, seven days per week, but that 24-hour care is necessary when the plaintiff had overnight care of his children.

23 Mr. Rewell argued that no additional care was required when the plaintiff took a vacation, whereas Mr. Gormly and Mr. Frame put the case that 24-hour care was also required during vacation periods.

24 Both parties accept that future care will be provided on a commercial basis. This seems appropriate given the management order already made. Even were it otherwise, subject to one matter I will address later, no issue would arise about the satisfaction of the intensity and duration requirements of s 128(3) of the Act: cf Hill v Forrester (2010) 79 NSWLR 470.

Life Expectancy

25 The final issue between the parties is whether having regard to the initial severity of the traumatic brain injury, Mr. Clegg's life expectancy is likely to be reduced by a factor of 5 per cent, which represents the opinion expressed by Dr. Zeman in his report. Mr. Gormly argues not. He relies upon the oral evidence of Dr. Buckley (384.5-385.5T), which was to the effect that formerly he would have agreed with such an assessment, but his thinking has changed because of the recent research of Professor Ian Baguley. Professor Baguley's paper was not in evidence. Mr. Rewell's reply was that as the plaintiff was still within the first 9 years post injury (384.45-385.5T), Dr. Buckley thought it was too early to determine whether the pointers to the possibility of premature morbidity because of head injury could be excluded, and that a small discount was therefore called for on the application of the principles discussed in Malec v. JC Hutton Pty Ltd (1990) 169 CLR 638.

26 Although the issues are narrowly confined, their resolution will involve a more detailed review of the evidence. I should also point out that some review of the evidence is necessary to the extent to which it may be said that the agreement of the parties as to all other heads of damage as set out, inter alia, in MFI 4, requires approval or disapproval under s.76(4). It may be appropriate for me now to set out the allowances which are agreed.

Agreed Heads of Damages

Non-economic loss                                                                                                                                                        $350,000

Past out-of-pocket expenses                                                                                                                                       $146,211

Future medical treatment costs (incl OT)                                                                                                                      $62,144

Case Management                                                                                                                                                        $169,097

Equipment                                                                                                                                                                        $16,000

Past wage loss                                                                                                                                                              $115,000

Past superannuation loss                                                                                                                                                $12,500

Past gratuitous care                                                                                                                                                      $170,000

                                                                                                                                                                                        ________

                                                                                                                                                                                     $ 1,040,952

27 Additionally, as I have said, probable earnings, if uninjured, have been agreed in the sum of $840 and the parties have agreed a rate of 18 per cent on the judgment sum (i.e. damages assessed less the amount of the s.83 (5) defence) to cover the cost of fund management.

Background Facts

28 The plaintiff was born on 15th October 1985, was 21 years old at the date of accident, and a little over 26 years and six months as at the date of the trial. I should point out that the parties have agreed that uninjured he would have a further 40.3 years working life ahead of him, which translates into a multiplier on the 5 per cent tables of 919.7. His uninjured medium life expectancy is 58.5 years.

29 He has lived his whole life at St. Marys in the western suburbs of Sydney. He attended Dunheved High School until year 10 and for a short time undertook studies in year 11 at Kingswood High.

30 MFI 3 is a compendium compiled from records produced under subpoena by the plaintiff's schools. It was marked for identification to allow an opportunity for plaintiff's counsel to supplement it with additional material if they wished. No supplement has been added and I have now marked it as exhibit 4. The reports demonstrate an appreciation by the teaching staff of underutilised intelligence and, to put it very mildly, a great deal of recalcitrance when it came to observance of school rules. It is fair to say, as Mr. Rewell put it in cross-examination, that his record of behaviour in high school was atrocious (220.10-15T). He certainly seems to have exhibited resentment and gross insubordination towards those in authority.

31 The plaintiff left Kingswood High School after about one term. It is clear from the material in exhibit 4 that he was suspended because of a significant breach of discipline. He elected not to return and decided to look for work. In about July of 2002 he found full time work as a "trolley-boy" at a shopping centre in Penrith.

32 After about 12 months he left this job to work assisting a friend of his who was a roof tiler. Issues arose about the non-payment of his wages and he left. With the help of his friend Mr. Costello (105.15-25T) he was able to obtain a traineeship with Tasson Pty Ltd trading as Bob Jane T-Mart, which, as I have said, is Mr. Lee's business.

33 Mr. Mathew Costello and Mr. Michael Murphy gave favourable evidence about the plaintiff's efficiency and proficiency as a tyre fitter before the accident. Mr. Costello said that when given the opportunity the plaintiff was an effective salesman. This latter evidence was relevant to the question of the plaintiff's prospects of advancement. They each also gave evidence about the significant decline in his efficiency and proficiency post accident, after his return to work in about mid February 2009. Without discounting the evidence of these witnesses, I consider that the evidence of Mr. Lee about these matters is a surer guide. It might be said that the evidence of those who worked alongside the plaintiff would be based upon a superior opportunity for observation than normally available to the boss. However I formed the impression that Mr. Lee's outfit was not very large and that he was a particularly involved employer.

34 Mr. Lee said (at 347.30T):

Yes, he was quite a good tyre fitter for a while compared to other tyre technicians. He was very good.

He also said that the plaintiff was quite ok when Mr. Lee gave him a chance to work in the sales side of things. But the qualification for a while was clarified. At the time of the accident, the plaintiff had not been working out. Mr. Lee said:

It had nothing to do with work. He had some personal problems at home; he was not applying himself to his job.

This had been going on for some months. Prior to this he was working out (348.35T - 349.25).

35 It is convenient here to interpolate that for a number of years prior to his accident the plaintiff had been in a bona fide domestic relationship with a young woman named Rebecca Campbell. They have two children, Jayden born on 8th March 2006 and Thalia born on 20th February 2007. They were, of course, a very young couple for parental responsibilities. The course of their relationship was evidently tempestuous. Exhibit E - 34 is a short report from a general practitioner, Dr. Savithri Rao dated 14th July 2011. She saw the plaintiff on 21st June 2006 with complaints of anxiety and suicidal intent after arguments with his female partner. He had been seen the previous evening at the Emergency Department at Nepean Hospital. Afterwards, police who came upon him, I infer, on the banks of the Nepean River where he was contemplating drowning himself had questioned him.

36 The plaintiff's mother, Mrs. Denise Clegg, gave evidence. Mrs. Clegg said that the plaintiff and Ms. Campbell commenced living together when he was about 17 years of age. Ms. Campbell was somewhat younger than the plaintiff. She said they were happy, but there were ructions now and again (26T.20). Mrs. Clegg said there had been some conflict between them just before the accident and her son had come back home just over a week before the accident. He had expressed the view to her that he and Ms. Campbell would not be able to get back together (28T.25). Although, there may have been an attempt at reconciliation after the accident when the plaintiff was in the brain injury unit.

37 Dr. Patricia Jungfer, a consultant psychiatrist, recorded a history of a break-up of the relationship just prior to the plaintiff's accident. She recorded quite an acrimonious relationship causing a significant degree of distress (report dated 4 September 2009, exhibit E-12). This material bears out Mr. Lee's appreciation that the unsatisfactory aspects of his performance just prior to the accident had nothing to do with work.

38 Notwithstanding the evidence which indicates that the plaintiff had engaged in rule breaking and had been quite an unsettled young man (exhibit E-12 [10.3]) p. 10; exhibit E-15 P. 3 [1.6]; [1.10]; exhibit 4), in my judgment, as he matured, the plaintiff would have overcome these personal difficulties (but for the injury) and would have regained his previous high standard of work. My confidence in making this finding is enhanced by the evidence about the plaintiff's determination to resume employment following the accident: Mr. Lee at 350.25 - 50T; Mrs. Clegg 43T.5 - 45; 73.5 - 45T; exhibit E-32 and 33.

39 I have already stated at [14] that, in my judgment, the plaintiff's most likely future circumstances, but for the injury, are that he would have continued to work full time as a tyre fitter until the normal retirement age for him of 67, probably progressing to the position of Sales Manager or Workshop Manager in due course with his current, or another like, employer.

The Injuries Sustained

40 The following summary is from exhibit E-1, the report of Dr. Stephen Buckley of 19th November 2010. The doctor summarises the nature of the brain and orthopaedic injuries and covers the detail of the severe degree of post traumatic amnesia suffered by the plaintiff.

There was no ambulance report contained within the hospital file but the admission notes for the Westmead Hospital indicate that he arrived on 27.5.2007 with decorticate posturing, and a Glasgow Coma Score of 3/15. There is no comment upon his pre-arrival condition apart from the fact that he was transported by helicopter having been intubated and ventilated. It is possible that a Glasgow Coma Score of 6/15 is recorded en-route, but it is difficult to decipher the file.

He had severe orthopaedic injuries with an open book fracture of the pelvis including diastasis of the right sacroiliac joint, left femoral fracture, fractured left elbow, and a fractured ankle (possibly). Later, fractures of his left clavicle, and left scapula were identified and his head injury was described as a "degloving injury".

He had multiple blood transfusions. A CT scan of the brain revealed diffuse axonal injury with parenchymal haemorrhages in the left caudate nucleus and left frontal lobe with intraventricular haemorrhage and subarachnoid haemorrhage. He had an emergency neurosurgical operation for insertion of an intracranial pressure monitor and soon after surgery his ICP was well over 20 mmHg (normal less than 10). This is indicative of severe cerebral oedema and swelling.

Intracranial pressures remained in the high teens and low 20's over the next few days, and he had an operation for fixation of the left femoral fracture. He required further blood transfusions and he had another operation on 31st May for fixation of the pelvic fractures. His intracranial pressures improved a little on his fifth day and then worsened, rising to 25mmHg, and the drain therefore being open to allow cerebro-spinal fluid to flow out and reduce the pressure again.

The notes seem to indicate that the ankle injury was a left ankle dislocation.

In fact the intracranial pressures remained very high and the drain was repeatedly opened until 3rd June when ICP's remained below 25mmHG regularly, without opening of the drain.

This is indicative of a very severe brain injury.

On the 4th June the drain was removed.

He remained deeply unconscious despite cessation of sedation. On 6th June he had a percutaneous tracheostromy and remained technically unconscious until about 13th June, when he began to open his eyes and intermittently obey some commands. When transferred to the Brain Injury Unit on 28th June he was still disoriented, being described as "alert but restless", and his tracheostomy tube had been removed the day before transfer (the 27th June). PTA scoring could not be commenced because of his poor cognitive state until the 27th July when he scored 4/7 on the demographic data, and he did actually obtain a score of 12/12 for the first time on the 11th August, but subsequent scoring never achieved full scores two days in a row and he didn't actually achieve 12/12 again until the 23rd August. He was deemed out of post-traumatic amnesia after 90 days and the difficulty with completing the PTA scores appears to have been due to a specific deficit of memory. 28 days of PTA places a brain the "extremely severe" range, and 90 days is consistent with traumatic dementia.

It should be noted that this dementia is not a progressive dementia of the Alzheimer's type and rather, denotes the severity of memory impairment rather than being a progressive feature.

Post traumatic amnesia on the other hand is, according to scientific study, the most predictive indicator of long term cognitive deficit. See references in the Brain Injury Addendum.

In the brain injury addendum of his report, Dr. Buckley pointed out that maximum improvement is achieved by two years after injury.

41 The parties appointed a single neuro-psychologist, Associate Professor Arthur Shores (exhibit E-15), to undertake a clinical neuro-psychological assessment, the results of which are in his report dated 17th July 2009. This expert administered (by an associate) the usual battery of neuro-psychometric testing, and interviewed both the plaintiff and his mother. Associate Professor Shores, like Dr. Buckley, assessed the plaintiff's traumatic brain injury as being "extremely severe". His opinions included the following points:

• The neuro-psychometric testing provided very clear evidence of residual memory impairment and some evidence of executive dysfunction.
• There is nothing to suggest deliberate underperformance.
• The tests showed the plaintiff to be suffering a significant degree of psychological distress.
• Although the plaintiff was working, formal assessment demonstrates that the plaintiff is not able to perform anything more than routine jobs which do not require normal memory function. (This is borne out by the evidence of Mr. Lee to which I will return).
• It is unlikely that he has any potential for advancement.

42 The qualified consultant psychiatrists of the parties, Dr. Jungfer, for the plaintiff and Associate Professor Jonathon Phillips, for the defendant conferred on 23rd February 2012 and produced a joint report, which is exhibit E-14. Both experts considered the plaintiff had suffered a severe traumatic brain injury. As at the date of their conference, they agreed that the plaintiff does not have a psychiatric illness related to the accident. Both agreed that he suffered residual cognitive defects, but they did not agree about their degree. Dr. Jungfer thought the plaintiff was generally unemployable on the open market. Dr. Phillips considered that if he lost his present job he may have difficulties finding a new one. Both agreed that the plaintiff had achieved a better outcome than one might have expected, having regard to the severity of the original injury. Dr. Jungfer said the plaintiff had a need for prompting, supervision and support. Dr. Phillips agreed that the plaintiff required administrative support, having regard to his cognitive impairments, but could not otherwise comment on the plaintiff's need for attendant care services. Neither psychiatrist was required to give evidence, and because their differences are of degree only I find it unnecessary to resolve them. As I understand their evidence, acceptance of one over the other would make no real difference to the disputed heads of damage.

43 The qualified orthopaedic surgeons of each party, Dr. J.S. Scougall for the plaintiff, and Dr. J. Cummine for the defendant, conferred on 17th February 2012 and produced a joint report dated 20th February 2012 which was admitted as exhibit E-7. There was no difference of opinion between them at all. In addition to the traumatic brain injury, these specialists pointed out that the plaintiff suffered the following orthopaedic injuries:

(a)Multiple unstable pelvic fractures;

(b)A fracture of the shaft of the left femur;

(c)A fractured right collar bone;

(d)A bilateral brachial plexus injury with weakness in both arms.

44 The plaintiff underwent open reduction and internal fixation for the left femur fracture. An external fixateur was applied for the pelvis fractures. These extended to the sacro-iliac joint, which was fixed with a lag screw. The fracture of the femur extended to the region of the knee and involved injury to his cruciate ligament. By reason of his injuries the plaintiff is predisposed to osteo-arthritic change in the hip and left knee joints, more so in the latter. The onset of osteo-arthritic changes in the knee would further restrict [the plaintiff's] ability to do work requiring normal mobility, prolonged standing, kneeing and squatting. Doubtless this might his affect his prospect of continuing in his present work as a tyre fitter. The orthopaedic surgeons said (exhibit E-7 page 4-5):

With respect to the injuries in our field, the brachial plexus injury will cause a permanent difficulty in his attempt to perform physically demanding manual work using his right hand. The injuries to his back and the fractures in his pelvis will make it difficult for him to do work requiring bending, lifting and working in a bent position [original delineation].

45 It will be necessary for me to deal with the evidence of the occupational therapists in resolving the care issue.

46 At exhibit E-1 page 16, Dr. Buckley said:

In my opinion Mr. Clegg's employment with Bob Jane T-Mart is at great risk. He clearly requires major supervision and any changes in the business including altered personnel, new managers, or altered company policy will result in the loss of his position. Due to the severity of his brain injury it is highly unlikely that he would obtain any other open employment.

47 In his report of 7 September 2010, exhibit 3-A, at page 12, Dr. Brian Zeman said:

Mr. Clegg is medically fit for moderate to light heavy work and for his current duties but not for all of his previous work. He has reduced opportunity for advancement in his work and less flexibility if he changes jobs. He is medically fit for light manual work of a repetitive nature after a period of training and may be able to increase to full time work. If he were to lose his current job, he would benefit from assistance of a vocational rehabilitation service and employment agency.

48 Their joint view expressed in the joint report of 16th March 2012, exhibit A-3 (page 2) is as follows:

We agree that he requires some assistance and supervision with his current work and is at significant risk of not being able to maintain his current job. He is also at significant risk of [not] being able to find suitable work in the community as a result of his traumatic brain injury. If he were to lose his job, we agree that he would benefit from assistance of a vocational rehabilitation service and employment agency. We agree that this would not guarantee that he would be able to find employment even with that... We also agree that he is not able to do heavy manual work full time due to his orthopaedic and related injuries from the accident.

I have interpolated the word "not", the omission of which was clearly a slip: 394.5 - 25T.

49 There is concurrent evidence about this topic from 376.10 - 381.15T. Although there were differences in emphasis between the experts as to the hypothetical question of the plaintiff's employment prospects should he lose his present job, neither derogated in substance from the joint position. Dr. Buckley thought the plaintiff would be very unlikely to get back to work (377T.55). Dr. Zeman agreed (377.5T). He thought the plaintiff's prospects would have to be considered quite low. Dr. Zeman preferred to stress the plaintiff's positive attributes. And, Dr. Buckley agreed that any positive attitude should be helpful. He adhered to his assessment, however, that the plaintiff's disabilities are really not compatible with employment on what I think of as the open employment market.

50 Dr. Zeman said (377.35T):

We wouldn't give up on him, but he would need some assistance to look for employment. It may be more appropriate in this context to ask for an opinion of an employment service that helps people with disabilities rather than either us two (sic).

51 My impression was that the experts remained in agreement, although Dr. Zeman remained slightly, and only slightly, more optimistic than Dr. Buckley. I think this is well illustrated by the following long passage, which I think it is necessary to set out in full (377.40 - 381.15T)

HIS HONOUR: Mr Gormly, could I bring you back into the discussion at this time.

GORMLY: There is (sic) no further questions I would like to ask on that topic.

HIS HONOUR: Mr Rewell?

REWELL: Just a few your Honour, if I could just add a few matters from the evidence that was given by the employer himself only yesterday, firstly, while it is certainly fair to conclude that he is a decent, sympathetic employer, he also made it quite plain that he is not a charity. That he spends a lot of money training a tyre fitter, like Mr Clegg, and therefore he is reluctant to lose a person that he's trained. He gets a benefit, a definite benefit from his use of Mr Clegg as an employer and he is speaking post accident, because Mr Clegg provides cover for other workers who are on vacation, ill, on compensation or simply absent.

He said that he had learnt how to get the best out of Mr Clegg. Firstly by not giving him any more than two weeks fulltime employment in one block because, as his Honour said, he became much less efficient and more liable to make mistakes after the end of the second week. Secondly, that the instructions that were given to him needed to be precise and in writing. But within those parameters, he was content for the plaintiff to work on the more common vehicles that came through the workshop but not the prestige or expensive vehicles. Now, with those additions, does that lead you, first Dr Zeman, to be any more optimistic to him obtaining other employment in the future should this employment cease?

WITNESS ZEMAN: I think it would make me feel a lot more optimistic, and he has positive characteristics. I think careful employers can find the best out of people, and there is a good chance with some assistance in the early stage or sorry, a high chance of him finding employment with that in mind, although he might need assistance to initially get started with a new employer if that were to occur.

REWELL: Does parttime employment sound more likely given the fatigue problem.

WITNESS ZEMAN: Probably.

REWELL: Dr Buckley, could you respond to the same matters?

WITNESS BUCKLEY: Yes, sure. I think that those requirements that the employer has identified suggest a really high bar for a brand new employer who has never met Mr Clegg before to leap over, to employ him on any form of consistent basis. And I still believe that the likelihood that this man has any significant amount of employment in the future, when this job finally ends, would be very limited.

REWELL: The only real bar to parttime employment would be the necessity to give him very clear, precise and probably written instructions. Would you agree?

WITNESS BUCKLEY: Well, the trouble with giving clear instructions to a person with a brain injury is that what seems clear to an ordinary employer is very unlikely in fact to really cover all the exigencies that can interfere with Mr Clegg's interpretation of clear instructions. And my experience is that people, including family members, find that the capacity to tell someone with a brain injury what is required is broken by the most extraordinary unpredictable reasons, things that one simply wouldn't predict as being a problem in the instructions and employers find that very difficult to deal with. They think they have given a clear, easy instruction and I fear Mr Clegg will fail to carry it out for some quite unusual reason.

REWELL: Dr Buckley, could I ask you to assume and Dr Zeman will listen also, that the employer gave this evidence as to this particular matter, page 356.45:

"Q. You have learned to get the best out of him and his instructions should be precise and written?

A. Yes.

Q. If that is done he follows them?

A. Yes.

Q. If he uses him on that basis there is no problem having him work for up to two weeks at a time?

A. No.

Q. Indeed he is quite useful to you presumably?

A. Yes."

Now, given that evidence, would it not be reasonable to propose that this man could, in the future, work parttime in a job much less complex than tyre fitting? Perhaps a job that is very repetitive and requires no fresh input in each task, which we have heard tyre fitting does. Would he be likely to maintain employment in such a role, for example, process work, Dr Buckley?

GORMLY: I don't formally object, but may I suggest that the problem with that question is that it is really in the nature of a form of crossexamination that inevitably leads me to have to go back to add in other qualifications. So we get into a match where Dr Buckley is giving an opinion on some facts that Mr Rewell has put and there are others I suppose I can address your Honour about in the end, but I won't necessarily have the socalled evidence from the hot tub.

I ask my friend not to ask that question because it doesn't cover, for example, the other qualifications that the employer had, he always wanted to be present, there is no reference to physical restrictions. There is a range of problems with the question.

HIS HONOUR: I understand. The question is strictly admissible.

REWELL: I do press it, your Honour.

HIS HONOUR: I will have to give you an opportunity to ask some further questions. By saying "no", you didn't shut the door entirely.

WITNESS BUCKLEY: I still believe that demands that I have understood or that the errors that I have understood get made and the kind of supervision that the colleagues say they have to provide Mr Clegg with, if he was going along to a new job where the employer, supervisor and work colleagues did not know him, I think that the risk of him being obviously incompetent would be rapidly apparent and it would be unlikely that that work place, that new work place, even in process work, would be able to deal with the mistakes that would occur.

REWELL: Dr Zeman, would you like to comment on the same question and then it would be over to Mr Gormly?

WITNESS ZEMAN: No, I would think that he has got prospects for employment, and the scenario that you paint with him being able to follow precise written instructions and not more than two weeks at a time would be acceptable, but I would, I know Mr Gormly was going to talk about it, but he does have some physical restrictions we need to be aware of, mainly with heavy work and some dexterous movements in the righthand or gripping stuff. So he would need, he would probably need some assistance to set up in a new job but I think he has got potential to work. It is not unreasonable on that. He has also been able to work for a number of years now. It is not as if he has been doing this for a short time. He has been doing this for several years now. That, I think, is also a good sign that his further employment is also possible.

HIS HONOUR: Mr Gormly?

GORMLY: Your Honour, could I ask each of you the same question, I am going to put to you a number of restrictions that the plaintiff's present employer said applied to his having this person employed with him and I am doing it with a view to suggesting that the opinion both of you have expressed in the sixth paragraph of the joint report with your subsequent answers to his Honour's questions is the correct position.

Now, the present employer said the following things, firstly, that he would never again have the plaintiff working on the premises unless he, the employer, was personally present and that that was something he learned to his cost and wouldn't allow to change again. Secondly, that the plaintiff was not fit to work on either expensive or heavy vehicles and he included in "expensive vehicles" upper range Holdens and Fords because of the nature of the wheels they have.

Thirdly, he found the plaintiff had difficulty with heavy work. Fourthly, he would never work him again fulltime for more than two weeks although he thought he was okay for a week at a time. Fifthly he suffered from fatigue at the end of a prolonged period of work which would lead to irritability and I think loss of focus. Next, that if he was given oral instructions, he would lose track of them particularly if they were given quickly, and that he had learned the only way to allocate work to this person was to give it to him in writing.

Next, that his fellow workers cover for him, would check his work and so would the employer because he would make mistakes. Next, that, and I suggest this is probably a fairly important one, that the employer had had pre-injury experience of this employee, and thought he was, to use his words, "a good kid" and was prepared to give him a chance.

Now, if you take all of those restrictions into account, apply them to the market, doesn't that really mean what each of you agreed to in the sixth paragraph of the joint report, together with your enlarging answers to his Honour, is really the position, that is that he is going to have significant difficulties if he loses this job of ever getting any other employment, though he may. Is that a fair summary, Dr Zeman first?

WITNESS ZEMAN: Yes.

GORMLY: Thank you.

WITNESS BUCKLEY: Yes, I would agree with that.

52 In the end, as I have said, it seems that each came back to the joint position. In my view the resolution of the difference in emphasis really depends upon what one derives from the impressions of those who have worked with the plaintiff post injury.

53 Before leaving the expert evidence on this point I should make reference to the joint report of Dr. Horace Ting, an occupational therapist, and Ms. Irinah Jurkowski, a rehabilitation counsellor, of 7th October 2011, exhibit E-16. At page 18 they express the view that the plaintiff does not demonstrate the physical and cognitive capacity to perform the full duties of a tyre fitter. They say they expect he would have significant difficulty when performing normal tyre fitters duties that require complex problem solving, monitoring of work in progress, information ordering and category flexibility. In their view, the plaintiff is not competitive for employment opportunities in the open labour market. They would restrict him to tyre fitting work or general clerical work under a Government sponsored supported wage system, which I take to be the modern equivalent of a sheltered workshop. This may be unduly pessimistic, but the lay evidence to which I now return certainly supports the conclusion that the plaintiff requires special consideration.

The Lay Evidence

54 I return then to the evidence of Mr. Lee. At 351.5T he described the process of re-integrating the plaintiff into the workplace as slow. He said:

We had to start back at basics to find out what he knew and what he didn't know. Straight away we knew his understanding from before the accident, everything he knew before the accident was working fine. The basic principles of the job he could do but it didn't take us long to work out his short term memory was very bad. We had to be very clear and precise if we were giving him verbal instructions

55 At 351.10 - 40T the following evidence is recorded:

Q. How did that develop over time?

A. It definitely improved. The more he has worked, the better he got. He is still a problem. We have basically got a 26year old apprentice that we need to keep an eye on at all times. We need to go through a check list before the vehicle leaves the workshop to make sure that he has done everything or someone has verified everything he has done is correct.

Q. Why are you doing it?

A. Jeremy was a good kid. I see a lot of young guys. This guy was a good kid. He came to me and asked me if he could get his job back. I set him a task and he achieved them (sic). He has worked very well. He is very good for short periods of time.

Q. Until he last worked on 8 May, was he of use to you?

A. Yes, definitely. He is of use to us, yes.

Q. How would you use him?

A. I use him as a casual for when I have got guys on leave. He comes in for short periods of time. Two weeks at the moment. He has just completed three weeks. I think he has done a maximum of four. He then needs time off after that usually two weeks and he needs to recover and he is good for another couple of weeks' work.

Q. In the first few months of this year, how is he coping with a day's work?

A. Earlier this year, no problem at all.

Q. What if it was more than a day at a time?

A. It's not so much days as its weeks. Jeremy can handle a week's work without any problem at all. It's after that. He can only do certain duties and he is not very good with heavy vehicles. Like, for example, SUV/4WD, vehicles with large wheels. I understand he has a sore back and he is in a bit of pain with that, so I sort of guide him through particular jobs. Sometimes he has got to do them and gets in and gets it done. There is no argument. He can only do a certain number because I think that causes him a fair bit of pain.

56 From this it can be seen that the plaintiff is a willing worker, but has cognitive and physical restrictions. He requires close supervision.

57 Mr. Lee went on to describe that he tries to keep the plaintiff away from expensive cars or top quality wheels because he is more prone to make mistakes than others. The plaintiff is a little slower than everybody else. His propensity to make mistakes increases when he is subject to time constraints. Other employees have to cover for him. Mr. Lee re-emphasised: verbal instructions are his biggest problem (352.40T). In my judgment this dovetailed with the evidence of Associate Professor Shore, to which I have already made reference.

58 At 353.45 - 354.25T Mr. Lee detailed the incident, which occurred on 8th May 2012 when the plaintiff, through inadvertence, damaged a customer's car (I have already referred to this at [10]). Notwithstanding this occurrence, Mr. Lee is prepared to give him another chance if [the plaintiff] apologises for the damage. I infer from the evidence already addressed about the plaintiff's high motivation to work that he will go to see Mr. Lee and offer the necessary apology; accordingly the previous pattern of employment will resume. The failure of the plaintiff to do so would otherwise amount to a failure to mitigate his loss: s.136 of the Act; although the onus, of course, lies upon the defendant: s.136(4); which onus, on this evidence he would have discharged.

59 Mr. Lee described how he had set himself an exit plan over the next 5 to 10 years. I bear in mind that this also is a hypothetical question.

60 During cross-examination Mr Lee said the following (356.45 - 357.35)

Q. You have learned to get the best out of him and his instructions should be precise and written?

A. Yes.

Q. And if that's done, he follows them?

A. Yes.

Q. If you use him on that basis, there is no problems (sic) having him work for up to two weeks at a time?

A. No.

Q. Indeed that's quite useful to you, presumably?

A. Yes.

Q. Because you can and do call him at short notice?

A. Yes.

Q. So he can cover periods of sickness of other workers or short term injury or vacation?

A. Yes.

Q. That has been essentially the basis on which you have been using him for the last three years?

A. Correct.

Q. It's only been recently he has done more than two weeks?

A. I wouldn't say it's rare. He has done more than two weeks on occasions.

Q. You won't do it again?

A. I won't do it if I am not there, but I will do it when I am there as happened on the last occasion. I would use him for a long period of time but if I am not on the premises, I probably won't.

Q. You are on the premises most of the time?

A. Most of the time, yeah.

Q. Overall, one would expect that he will be getting a similar amount of days per year in the future as he's had in the past, providing he comes and delivers to you the apology that is due?

A. Business will need to improve. Business is pretty tight in the retail industry at the moment so I couldn't guarantee him the amount of work over the last couple of years purely because of the way business is.

61 Mr. Costello, who as I have said is employed as the Sales Manager in Mr. Lee's business, gave similar evidence about the plaintiff's reduction in efficiency and proficiency since his return to work and his propensity to make simple errors (e.g. at 117.35T - 119.15T). Mr. Murphy's evidence was to the same effect: 282.20T - 283.20T. Mr. Murphy agreed with Mr. Rewell in cross-examination that the type of mistakes the plaintiff made were those apt to be made by any tyre fitter who was inattentive to the job. But I accept that by reason of his injuries, the plaintiff is more prone to error than others.

62 In this context it is well to point out that the lay evidence is to the effect that the plaintiff's personality is not as pleasing as it once was. He is not as quick with a joke as he used to be, can't take one, and his attempts at humour fail, sounding more rude than funny. Mr. Costello gave this evidence e.g. 107.40T - 108.5T; 123.20 - .25T and 120.20 - .45T.

63 The plaintiff's lifelong friend, Kevin Lou, who was the designated driver on the day of the accident, gave evidence. He is a panel beater by trade. In Mr. Lou's appraisal, since the accident the plaintiff is more rude (sic); more blunt (sic); not as witty, more argumentative; he doesn't think quick enough any more; you can't have a really good decent chat with him any more (264.5 - .50T).

64 In cross-examination Mr. Lou acknowledged that the plaintiff behaved badly at high school, that he wasn't short of a smart remark before the accident, his mouth got him into trouble and that his propensity to make smart, offensive or insolent remarks to teachers got him into trouble at school.

65 I should state at this point that the plaintiff gave evidence before me over part of each of two days. My impressions of him were that he was not very pleasing of personality. He came across as an angry young man type. He was argumentative and insolent, especially to the cross-examiner. At other times he was, in his way, quite articulate in his defiance. I asked Drs. Buckley and Zeman about this at 391.40 - 393.15T. Dr. Buckley, assuming my impressions were accurate, would put the matter down to frontal lobe damage. Dr. Zeman thought those matters could be manifestations of the traumatic brain injury, but he also pointed to the plaintiff's pre-injury record of antisocial behaviour. He pointed out that on the history he had received, in some respects, these aspects of the plaintiff's personality may have improved following the accident and that this sometimes occurs in the case of traumatic brain injury. He said (392.45T)

It may be that if he has had experience with the law before, some of his behaviour might be, in court now may be affected by that previous experience. So, it may not be fair to judge his presentation on that point of view. It's to be quite difficult (sic).

He pointed out that these matters might not necessarily be questions to be answered by experts.

66 Allowing for the plaintiff's pre-injury "troubles", and taking into account the lay evidence of his friends and work colleagues, whom I felt were in a position to give me an objective view, I have concluded that those dislikeable aspects of his presentation in court are, at least in large measure, due to the effects of his head injury. In my judgment these are considerations that may have an effect upon the plaintiff's capacity to find work in the labour market that was previously open to him.

Findings About Future Economic Loss

67 The legal starting point for assessing damages for economic loss is what was said by Dixon CJ, Kitto and Taylor JJ in Graham v. Baker (1961) 106 CLR 340 at 347:

[A]n injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss. And if, notwithstanding such impairment, both his contract of employment and his right to ordinary wages continue, how can it be said that his impairment has resulted in any loss so far as his earning capacity is concerned?

68 As I hope my summary of the competing contentions in the present case makes clear, there is no issue that the plaintiff's earning capacity has been diminished, even very significantly, nor is there any issue that the diminution of his earning capacity is or may be productive of financial loss. The difference between the parties relates to the calculation of the loss. That is to say, the focus must be on "second limb" of Graham v. Baker.

69 The legal framework for calculating the loss, as I have already indicated, is s.126 of the Act, which is in the following terms:

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

70 I have also indicated that, in my judgment, the assumption that but for the injury the plaintiff would have continued to work in the tyre industry as a tyre fitter, rising to the level of sales manager or workshop manager earning, in present terms, $840 per week net, accords with the plaintiff's most likely future circumstances.

71 With respect, it has been pointed out that s.126 and the cognate s.13 Civil Liability Act 2002 are not models of clarity: Macarthur Districts Motor Cycle Sportsmen Inc. v. Ardizzone [2004] NSWCA 145 at [5] - [14] per Hodgson JA; Penrith City Council v. Parks [2004] NSWCA 201 at [55] - [57] per McClellan AJA (as his Honour then was); The Nominal Defendant v. Lane [2004] NSWCA 405 per Giles JA at [53] - [67]. One of the difficulties is identifying where in the statutory framework one fits in the circumstance, present in the instant case, in which the plaintiff has a residual earning capacity which has been exercised between the date of injury and the trial and which may be exercised in the future.

72 Considering the exposition of the learned judges in the passages referred to, it is worth bearing in mind the remark of Giles JA from Lane at [67]: s.126 is presumably intended to promote intellectual rigor. Moreover, as Basten JA (with whom Allsop P and Ipp JA agreed) pointed out in Amoud v. Al Batat [2009] NSWCA 333 at [22] and [23], s.126 does not cover all aspects of the exercise required to be undertaken in assessing future economic loss. It is clear that the Section is not a code, but assumes the continued operation of general law principles. I set out in full his Honour's exposition and explanation from [22] to [28]:

[22] The proper understanding of this provision and its counterpart in the Civil Liability Act 2002 (NSW), namely s 13, has been addressed by this court on a number of occasions: see MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145 ; (2004) Aust Torts Rep 81-744 ; 41 MVR 235; Penrith City Council v Parks [2004] NSWCA 201; Nominal Defendant v Lane [2004] NSWCA 405; Leichhardt Municipal Council v Serratore [2005] NSWCA 406; Leichhardt Municipal Council v Montgomery [2005] NSWCA 432; Tran v Younis [2006] NSWCA 188; Kallouf v Middis [2008] NSWCA 61; Roads and Traffic Authority v Chandler [2008] NSWCA 64 ; (2008) Aust Torts Rep 81-945; Najdovski v Crnojlovic [2008] NSWCA 175 ; 72 NSWLR 728; Vosebe Pty Ltd v Bakavgas [2009] NSWCA 117 and New South Wales v Nominal Defendant [2009] NSWCA 225. After initial concern expressed in Ardizzone that the section might not be capable of application in accordance with its express terms, these authorities accept two propositions, namely that the section can apply in its terms, but that it does not cover all aspects of the exercise required to be undertaken in assessing future economic loss.

[23] It is clear that the section is not a code, but assumes the continued operation of general law principles. Whether it merely encapsulates, rather than qualifying, the general law, and if the latter to what extent, is less clear. Subsection (1) is formulated as a prohibition on an award of damages for future economic loss, unless its terms are satisfied. The section imposes a burden of proof on the claimant to satisfy the court as to the matters identified in the provision. Those matters are twofold, namely:

(a) the claimant's most likely future circumstances but for the injury, and

(b) the assumptions about future earning capacity (and other events) which will form the basis of calculation.

[24] It appears that subs (1) deals only with the baseline earning capacity which might have been achieved but for the injury. Of course, an assessment of post-injury future earning capacity will also be required, but if subs (1) were addressing the assumptions necessary for that part of the exercise it would be unlikely to require them to "accord with" the most likely future circumstances but for the injury. The operation of this provision will vary from case to case and will depend in part on the level of particularity or generality at which the exercise is undertaken. Because there is no challenge in the present case to the findings by the trial judge in respect of the most likely future circumstances, or the assessment of future earning capacity, but for the injury, the operation of this provision need not be addressed further.

[25] Subsection (2) requires an adjustment to an otherwise appropriate amount to take account of the possibility that "the events concerned might have occurred but for the injury". There is clearly a step between the exercise addressed in subs (1) and that required by subs (2). That step must be to identify the departure from the baseline earning capacity (calculated in accordance with subs (1)) caused by the injury. The third step is to calculate, as a monetary amount, the present value of the difference between the baseline and the assessment of post-injury earning capacity. The diminution caused by the tortious injury will provide a figure for assessing the appropriate award of damages. It may not be the final figure, because the diminution caused by the accident might have occurred, in part or in whole, in any event, within the working life of the claimant. Some allowance must be made for that circumstance: it is that allowance which constitutes the adjustment required by subs (2).

[26] Subsection (3) is designed to ensure transparency in respect of the two steps in the process identified in subss (1) and (2). In the course of the missing steps, namely the assessment of the extent of the disability caused by the accident, further findings will be made as to hypothetical future circumstances. Whether or not those findings must be identified and stated in the Court's reasons, pursuant to subs (3), is largely immaterial: they should in any event be stated in accordance with general law principles.

[27] One issue which has given rise to debate in the case-law is whether the court, in making an assessment of future economic loss, is entitled to take into account the possibility of departure from the baseline calculation derived from the claimant's most likely future circumstances. For example, the most likely future circumstances might be that a claimant would remain in his or her pre-accident employment but would achieve two levels of promotion over a working life. In accordance with general law principles, in assessing the loss caused by the accident, the court would be entitled to take into account the possibility that a further promotion might have been achieved (with resultant higher earnings) and the possibility that no promotion would have been achieved. The approach under the general law is commonly identified by reference to the principles stated in Norris v Blake (No 2) (1997) 41 NSWLR 49; a different (and more typical) factual example, which arose under the statutory regime, may be seen in Nominal Defendant v Lane. Although s 126(1) requires that the assumptions underlying the baseline calculation should "accord with" the claimant's most likely future circumstances but for the injury, it does not expressly preclude taking into account possible variations from those circumstances. Further, the form of the section is inconsistent with any clear implication excluding other considerations. The facts and arguments in this appeal do not require the resolution of these issues.

[28] A further significant uncertainty may arise with respect to a pre-injury susceptibility. Such matters have conventionally been treated in a different way to the general vicissitudes of life: see, eg, Watts v Rake [1960] HCA 58 ; 108 CLR 158 and Purkess v Crittenden [1965] HCA 34 ; 114 CLR 164 and cf Malec v J C Hutton Pty Ltd [1990] HCA 20 ; 169 CLR 638. The notice of appeal in the present matter originally contained a ground asserting that the trial judge had erred in finding that the appellant had a prior psychiatric or psychological condition. That ground was, however, not pressed and accordingly this issue does not arise.

73 From this it is clear that sub-s (1) does not deal with all necessary steps in the fact finding process that needs to be taken before one can turn to the requirements of sub-s (2). In particular, in the present case, an assessment must be undertaken of the plaintiff's post injury future earning capacity and the extent to which that may bear fruit by way of the generation of earnings. Indeed, this is the critical issue affecting the assessment of economic loss in the present case.

74 I have already set out the competing arguments. I have no doubt that the plaintiff is capable of performing useful work, and generating income thereby, however, because of his injuries and disabilities caused by the negligence of the defendant, he requires special consideration in the work place. I would not go so far as to hold that he can only work in a sheltered environment, but I accept what seems to be the preponderance of the evidence - bearing in mind that the plaintiff carries the onus of proof (Adams v. Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 at 132-133 per Sugerman JA) - that if the plaintiff loses his present job for any reason, he will certainly struggle to find another to the extent that the probability of him succeeding is very low. I do factor in, however, the evidence of Dr. Zeman, to the effect that modest optimism is appropriate, especially if the plaintiff has assistance to find work, which is likely to be available to him given the significant amounts allowed under the agreed heads of damage for occupational therapy and case management. I appreciate that these latter services are directed to assisting the plaintiff to maintain a better quality of life generally, rather than maintaining him in the workforce. But in my judgment their availability will assist also in this regard. In arriving at this conclusion I have given significant weight to the plaintiff's own motivation to work, which undoubtedly has impressed Mr. Lee.

75 Accordingly, I am of the view that there is a good chance of the plaintiff holding down a job of the type he presently has for the rest of his working life, but of course, the matter is far from certain.

76 For these reasons, the approach urged by the defendant seems better adapted to produce a result - in the context of what is reasonable between the plaintiff and the defendant in determining the defendant's liability in damages - that better reflects the probabilities than that contended for by the plaintiff.

77 The difficulty with the plaintiff's approach is that it treats as certain matters that can only be determined hypothetically on the probabilities. One prospect, perhaps a significant one, is that the plaintiff will continue in his present employ until Mr. Lee retires and then lose his job and be unable to find another. But this is only one of the possibilities.

78 On the other hand, the defendant's approach of allowing a 50 per cent probability that the plaintiff's present circumstances will go on more or less uninterrupted with his present or another like employer is unduly optimistic, in my view, having regard to the evidence to which I have referred and which I accept. To my mind, the continuation of the present pattern into the future is subject to a lower degree of probability, which I would assess at 30 per cent.

79 As I have said, the plaintiff's net average actual earnings on a weekly basis for the past are $427. My finding is tantamount to holding that in the future he is likely to earn until age 67, on average, the amount of $128 per week. This produces a net differential of $712 per week, which adopting the agreed 5% multiplier of 919.7 produces a figure of $654,826.40. It is to this figure that s.126(2) must be applied. In my judgment, there is no reason to adopt a discount figure other than the conventional 15 per cent. Given that I have rejected the plaintiff's approaches, I do not understand any party to submit, on the approach that I have taken, any greater or lessor percentage discount should be taken into account. Reducing the figure I have just mentioned by 15 per cent for the vicissitudes, the final figure, rounded down slightly, is $556,600.

80 The a foregoing analysis seeks to make clear the assumptions on which the award is based and the relevant percentage by which the damages have been adjusted as required by s.126(3) of the Act.

81 The parties agree that the appropriate rate for calculating the loss of future employer superannuation contributions is 14.28 per cent. This results in allowance under that head of $79,482, again rounded down slightly.

Future Care

82 As the parties have done, I will deal with general future care, any additional care during child care periods, and vacation care separately. Before providing any calculation of the allowances I make, I will resolve the life expectancy issue.

83 In her second report dated 20th March 2012 (exhibit E-10) at page 45 [7.5.7], Ms. Morris, the plaintiff's qualified occupational therapist, prescribed a care regime of 6 hours per day to be delivered in two shifts of three hours each. She said the morning shift could be omitted when Mr. Clegg worked. In her second report dated 28th September 2011, exhibit 3(G), the defendant's qualified occupational therapist Ms. Dawn Mills revised her prescription upwards to a total of thirty hours per fortnight, including two hours allocated to heavy domestic work. Ms. Mills effectively recommended two hours of domestic and cognitive assistance per day.

84 The occupational therapists met in conclave on 18th May 2012 and produced a joint report. Although they agreed on most issues, they did not agree on the care prescription. Ms. Mills maintained her previous position whilst Ms. Morris revised her position downwards to three hours per day of care plus six hours per week of domestic assistance. I understood this to be effectively four hours per day.

85 Before the occupational therapists gave concurrent evidence, I was informed that both experts want to vary from aspects of the joint report (295.20T). I expressed my strong disappointment at this apparent necessity, but on the basis that experts have an obligation to inform the Court of changes in their position (see Rule 31.27(4) Uniform Civil Procedure Rules 2005), I adjourned to enable the supplementary report contemplated by the rules in those circumstances to be prepared. The handwritten addendum was tendered (299.25T) as part of exhibit E-11. I included it in the plaintiff's tender bundle and numbered the pages 197A - 197D.

86 There were two changes of opinion. First, Ms. Morris for reasons I will discuss reverted to her previous position recommending 6 hours per day in split shifts. The second matter related to the topic of childcare. Although the original joint report had expressed agreement about the matter, it was attended by a great deal of ambiguity of expression. It transpires there was no agreement at all, but I will return to this topic when I deal with the question of additional care during periods of childcare. Although the addendum, or supplementary report, contains opinions about holiday care, those opinions are a restatement of what appeared in the original joint report.

87 To understand and evaluate what caused Miss Morris to revert to something like the position set out in her report of 20th March 2012, it is necessary to set out some of her evidence as follows (311.40 - 312.25T):

HIS HONOUR: ...Can I ask this question of you, Miss Morris. What's changed since the original meeting which has caused you to up the basic hours that you have suggested for care?

WITNESS MORRIS: I think initially I have lumped in child care and daily living support all together and come up with a calculation, and I think that's got very confusing. I think the initial joint report, Miss Mills was confused as well in the end when we reread it.

HIS HONOUR: What I wanted to know, in the original report you have said Mr Clegg requires six hours per day (sic) [3 hours per day] of daily living support plus six additional hours per week but in the addendum that's provided today, you have said that he requires six hours per day of daily living support. Now my first question is, is that still in addition to the six hours of domestic assistance?

WITNESS MORRIS: No. What I have said, that's including everything. That 44 is inclusive of domestic assistance. The child care I have separated out as something entirely different. There is a couple of things that came to light. I think one was Jeremy actually physically assaulting his partner, and I think for him to have taken his behaviour to that next level of physical assault requires greater monitoring of his behaviour in the community, and also the fact that these social sponges or whoever they are I don't know but I am hearing about sponges who are circling means that Jeremy is not busy enough to be away from that and engaged, so if he had the greater six hours a day, he would be occupied doing something that's meaningful for him, therefore he would be more exhausted and tired and his routine would be more structured, or if it was broken up where he had three hours in the morning, three hours at night, that situation would also be monitored as well. He is incredibly vulnerable, your Honour, and that's my thought, and that's not going to change.

HIS HONOUR: When you saw him twice, I think, in March of 2012, did you get any history at that time of the sponges?

WITNESS MORRIS: No.

...

This evidence continued at 315.25 - 315.50T:

HIS HONOUR: I think, Miss Morris, what Mr Rewell is trying to find out, if your understanding was wrong, would what that change the prescription? If your understanding of the events that we are speaking of is wrong, would that change the prescription?

WITNESS MORRIS: I think the response is, that's the other side of the situation: His vulnerability, his behaviour. Having a brain injury means that he has done something that's violent against another human being, but also the sponges are circling which means he is apparently drinking alcohol. He is becoming more and more socially isolated and withdrawn and these people are taking advantage of him. Without structured care programmes in place, he is going to continue down in a spiral.

REWELL: Who told you about sponges?

WITNESS MORRIS: It was from counsel today.

REWELL: When you went there to the home in August 2011, you didn't hear anything about sponges from anyone, did you?

WITNESS MORRIS: No.

REWELL: Neither from Jeremy, nor his mother, nor his partner?

WITNESS MORRIS: (Witness shook head.)

88 Ms. Mills also gave evidence on this topic (316.40 - 317.40T):

HIS HONOUR: Miss Mills, do you have a view about this topic. There are two sets of assumptions. You have put one set of assumptions and you have heard the assumption that Miss Morris made. If Miss Morris' assumption that she was asked to make by Mr Clegg's lawyers is proven in this Court, does that make any difference to what you think should happen by way of care?

WITNESS MILLS: Are you referring to both issues of the vulnerability and the inappropriate aggression?

HIS HONOUR: Let's take them one at a time. Let's take the assumption that Jeremy was aggressive with Jacqui, his former partner.

WITNESS MILLS: And whether that's an issue of brain injury requiring extra care?

HIS HONOUR: Yes?

WITNESS MILLS: Again, it's very hard to comment on, of course, without knowing all the facts and evidence and that sort of thing, but in these situations and I know of course we are talking about somebody with a brain injury, but I try and also look at the bigger picture of society as a whole and these things happen whether you have a brain injury or not in normal daily life, unfortunately so whether it was related to his brain injury and therefore equals more care, no, I couldn't say that on just the information that I have just been given because again, these things happen in day to day life.

HIS HONOUR: The other issue as a means of linguistic shorthand, we will talk about the sponging. If I accept the evidence which suggests that sponging is going on on pay day or pension day, does that make any difference to the prescription that ought to be put in place in this case?

WITNESS MILLS: So we will theoretically say there is sponging going on one day a fortnight on pension day?

HIS HONOUR: Particularly then?

WITNESS MILLS: Certainly vulnerability is an injury in brain injury. When I assessed Jeremy, that wasn't mentioned at all as a problem. This is the first time this has been brought up, even in the other psychiatric and rehab specialist reports, there wasn't that particular issue raised as a particular risk for Jeremy needing care or supervision. Again, I couldn't say that it was a particular issue that would create the need for more care. What I would say is that as a case manager myself, if these issues come up when managing a programme, you are aware of it. Your role as a case manager is then to get to the bottom of what that problem is, go and meet with the family or the person and the carers and work out strategies to address that problem, so it would be things like when does this happen? If it seems to happen more when Jeremy has some cash on him, perhaps organise his environment or his days so that he is less likely to be vulnerable to those people dropping around. Also in cases similar to Jeremy's and his carers, there is often a whole set of issues in terms of boundaries. There are certainly other ways to deal with it that don't always equal providing more care.

89 These extracts are not intended to be exhaustive, but rather representative of the evidence given on this topic by the experts. It's obvious that neither Ms. Morris nor Ms. Mills received a history of the particular aspect of vulnerability constituted by acquaintances sponging money from the plaintiff at the time they carried out their assessments. Both experts separately attended upon the plaintiff in the plaintiff's home for the purpose of carrying out their assessments. None of the medical practitioners received any such history. The plaintiff, who as I have said was in some respects quite articulate, gave no evidence to support the concern underpinning the opinion of Ms Morris.

90 The evidence which, if accepted may support a concern about this aspect of vulnerability, came from the plaintiff's mother, Mrs. Clegg, and from his brother, Mr. Jamie Clegg. I consider it fair to remark that Mrs. Clegg attended upon the medical examinations with her son.

91 Mrs. Clegg's evidence is at 48.5 - 30T; 57.5 - 58.5T; 58.30 - 59.5T and 60.35T. Mrs. Clegg said that as many as five new friends turn up around payday if he is working, or pension day if he is not, and hang around until the money is gone, by which she meant they look to the plaintiff to buy them alcohol and perhaps pot. In cross-examination Mrs. Clegg said that this had been going on for at least eight or nine months. She thought that the group were sponging off him (75T.30 - 45).

92 The plaintiff's brother gave evidence about this topic from 148.20T - 151.20T. Mr. Clegg said there were between 15 and 20 in the group who induced the plaintiff to buy alcohol and pot.

93 The brother's evidence was rather different from that of Mrs. Clegg. He said that he thought his brother was a target for them to use and abuse. He numbered these people as between 15 and 20. He said they come as often as they can when they know he has money. They induce the plaintiff to buy alcohol and pot. He said this goes on almost every night between the hours of 9 and 3 or 4 in the morning. They disappeared when the money ran out. This situation had been going on since Mr Jamey Clegg moved back into the house sometime during 2010.

94 He also gave evidence that the plaintiff was drinking every day to the point of intoxication, when he became very aggressive (153.30 - .50T).

95 In cross-examination Mr. Rewell put it to Mr. Clegg that his evidence about these matters is exaggerated as to simply be false, a proposition Mr. Clegg denied: 161.25T; 168.20 - .30T. Mr. Clegg denied that the plaintiff was simply being a mate who might be prepared to buy a box of beer for the group when he had more money than the rest.

96 Notwithstanding Mr. Clegg's description of his brother's incapacity and vulnerability, he agreed that whenever he was working the plaintiff, was up, organised and at work on time. He was out the door before the witness: 164.20 - .35T.

97 The plaintiff's evidence varied from that of his mother and his brother on this topic. Having given evidence that he did not see much of his old friends except my best friends including Mr. Kevin Lou, whom he regarded as a brother. He gave evidence about seeing two younger fellows who live across the road from him aged 16 and 17 respectively every day: 189.10-25T. These two young fellows were amongst the new friends his mother and brother had described as being of concern. The plaintiff was not asked any further questions in chief that might have elicited evidence of the kind given by his mother and brother. At 189.30 - 35, the following evidence appears:

Q. Are you seeing other people than those two people as well apart from your old friends? Are there other people in the area?

A. My exgirlfriend's sister, I speak with her a lot. She is a really nice girl and her boyfriend and then, that's it.

Q. You are seeing people these days with whom you will have a drink?

A. Yeah

Q. Who are they?

A. Just like all of them really. Like everyone I know drinks except Kevin [Lou].

Q. I'm not talking about your old friends but other people in the area?

A. Other people in the area? No.

98 In cross-examination (228.5T) he confirmed that he did not drink with those young fellows. He said there were no friends or acquaintances with whom he had a drink on a regular basis. He did see the two young fellows across the road on a payday, but he said they don't actually come over, it's a rhythm for me to go over there on payday, like its just what I am used to.

99 He gave evidence that he did have a beer or two around the barbeque with his brothers. This was occasionally (228T.45). His evidence was that he drank if I am lucky, once a fortnight. One or two or three is a lot of beers for me. Initially he told me he drunk infrequently and that he never got completely drunk especially with my brain injury (229.20 - 230.5T). He then changed his evidence slightly and explained that he didn't limit his drinking all the time. He maintained that he only drank too much occasionally. At 230.30T he said:

I mean by a standard six-pack I am splattered

At 231.10-15T he confirmed that after four or five beers he was splattered.

100 Although the evidence I have recounted is not entirely clear, I have concluded that the account given by the plaintiff probably represents the true situation. From this I infer that there is no particular problem with groups of people sponging off the plaintiff. Generally he is reasonably abstemious, imbibing only two or three beers a fortnight. Occasionally he drinks more perhaps as many as six stubbies of beer which makes him very drunk. This has to be looked at in the context of his brain injury. Before the accident he was a young man who may have been able to tolerate significantly greater quantities of alcohol.

101 The plaintiff did not give any evidence from which it could be inferred that there was a real problem with people sponging from him. That matter does not figure greatly in the histories recorded by the experts he has seen for the purpose of the case. The differences in degree between the evidence of Mrs. Clegg and Mr. Jamey Clegg makes it difficult for me to accept the accuracy of the evidence of either of them on this point. I think there is force in Mr. Rewell's submission that Mr. Jamey Clegg was exaggerating to assist his brother's case. This is probably an understandable human trait born out of a genuine concern for his brother's welfare, but I felt his evidence about this topic was unreliable and I will not act upon it.

102 Moreover, both occupational therapists agreed that the care prescription should include a large component of both occupational therapy and case management. Ms. Mills gave evidence that it was part of the role of the case manager to get to the bottom of what [the] problem is, go and meet with the family or the person and the carers and work out strategies to address that problem. Her evidence was that there are other ways of dealing with the sponging issue that don't always equal providing more care: (317.25 - 40T). Although maintaining that a greater number of hours was required by way of care, Ms. Morris seemed to me to agree with this general approach: 318.15 - 30T. Furthermore, I observe the parties have agreed that an allowance should be made for fund management to reflect the orders already made by the Court. I would envisage that proper attention to duty by the fund managers will involve the adoption of effective strategies to guard against acquaintances sponging money off the plaintiff. I do not accept that Ms. Morris' reasons for reverting to her original prescription (or something like it) are firmly founded in the evidence that I accept.

103 On the other hand, although I found Ms. Mills to be an impressive, measured and thoughtful witness, her prescription of two hours a day struck me as overly optimistic. Inherent in the nature of the exercise of assessing future care is the need to assess future probabilities and strike averages which have a certain artificiality about them. This is unavoidable.

104 The evidence of the occupational therapists was not the only evidence touching upon this matter. As I have already pointed out both Dr. Buckley and Dr. Zeman had much to say about the matter, appropriately, although their starting points are very different. The following evidence appears 374.40T - 375.50

.... I want you to assume that for three years he worked and may continue to work on a call in basis, in other words when his employer needed him he was called in either at very short notice or something less than that, and reasonable notice, and that he came into work for up to three weeks at a time fulltime. During that period he would get himself out of bed in the morning without any prompting, that the remaining family members would stay asleep while he organised for his alarm to go off, got out of bed, showered, dressed, had his coffee, walked to the railway station, got the train, got on the of train at Penrith, walk to the work place and arrived punctually, all without the slightest prompting and supervision. Doesn't that sound against a need for any more than some short period of daily checking on how he is going with his routine?

WITNESS BUCKLEY: I must say that that scenario is more persuasive than I had received previously. If I make that assumption, then I think 24 hours a day is probably not required and I would need to look at a revision of how many hours a day of care and supervision he would need.

HIS HONOUR: Can I ask you a question about that. If those assumptions that Mr Rewell has just put are accepted by me as being soundly based on the evidence, Dr Buckley, and we were looking at some revision of your prescription, how does something along these lines sound to you, everyday, seven days a week, somewhere between two and six hours on average, maybe in some sort of split shift so there is more than one attendance during the day. On occasions when he has contact with his young children there is substantially more provided to assist with the needs of the children. That you have, as well, the rather extensive and intensive regime of case management and occupational therapy that Mr Rewell has asked you about, as well as devices in the home particularly in the kitchen, to guard against things being left on. Now, how does that regime sound as a potential revision of what you have been saying if the assumptions Mr Rewell has made are correct.

WITNESS BUCKLEY: Your Honour, I think that would probably be close to the mark. The issue I would want to cover to ensure this man has a reasonable quality of life would be personal care type supervision because I do think that his capacity, for example, to independently have his alarm right and independently get out of bed and do those things must be at risk from time to time. I believe that that structure is likely to breakdown very easily, and he therefore requires someone to cover the, particularly the mornings in terms of ensuring that he is getting out of bed, getting dressed, that he is eating something decent, that the place is clean. And in the second side of his requirement, for an activities programme and presuming, in the absence of work, where an activities coordinator type person would ensure that he has physical exercise, and then mentally stimulating activities regularly through the week.

Now my usual view of prescriptions in that type of scenario would be four hours a day, five days a week of the activities coordinator, two hours a day, seven days a week of the personal care type supervisor, and then the additional childcare supervision.

HIS HONOUR: Thank you, Dr Zeman, we know you have been there patiently for a long time, do you remember the question I asked? I assume from your point of view you think what I have asked Dr Buckley about is too much, but if one was a bit more pessimistic than you have been about the capacity of the plaintiff to cope on his own, is the type of regime I have described in the ball park?

WITNESS ZEMAN: I would agree your Honour, I think that would be reasonable because I also consider he would need some additional help anyway for say some shopping and cooking and paying bills and if you include all of that that would very much fit in with what you have just suggested as a general plan.

105 This evidence came at the end of the case when the issues had been fully explored over five days of evidence. I find it persuasive. Doing the best I can, I am of the view that I should allow on average future attendant care services on a commercial basis of four hours per day, on the basis of a split shift. Additionally, I allow one hour of gardener/general handyman services per week. This will be calculated in accordance with scenario three of MFI 4.

Additional Care When the Plaintiff's Children Spend Time With Him

106 At the time of the accident the plaintiff had separated from his then partner, the mother of his two children. Although his evidence was that the relationship had not irretrievably broken down (185.20T), his mother's evidence was that when he moved back home not long before the accident he had said that he would not be able to get back together with his partner. The evidence was that after the plaintiff's release from hospital he and his former partner had made an arrangement about him seeing the children. Initially he saw them at the home of his partner's parents. Later, however, when he was back at work the arrangement was that he could pick them up on alternative Saturdays after work, take them back to his mother's house where they would stay overnight and he would return them to their mother on Sunday evening. It is clear that this arrangement has not worked satisfactorily because the children's mother does not co-operate. I was left with the impression he had not seen the children over many weekends since his discharge from hospital.

107 At 186T.10, the plaintiff said that his former partner's present attitude is to deny him seeing the children. He has a strong desire to see them at least every second weekend and I am satisfied that, if necessary, once he receives the proceeds of his damages action, with the assistance of his financial manager and case manager, he will be able to bring proceedings, if necessary, to secure a parenting order from an appropriate court giving effect to his minimum expectation.

108 As I have already stated, both occupational therapists agreed that additional care of the plaintiff is required when he is in that parenting role. The experts disagree about the intensity of that additional care. I emphasise that no issue was raised before me about the replacement of services which the plaintiff would have provided to his children, but for his injuries, as disallowed by the High Court of Australia in CSR Limited v. Eddy (2005) 226 CLR 1. That topic is, of course, now dealt with by s.15B Civil Liability Act 2002, which by dint of s.3(2)(a)(1) applies to motor accidents.

109 As I have stated each party accepts the services are to be provided to the plaintiff himself by way of prompting and supervision of him as necessary to enable him to provide services to his children.

110 As originally expressed in their joint report, as I have said, the position of the occupational therapists was somewhat ambiguous. This ambiguity was removed by the provision of their addendum. Ms. Morris' position is that the plaintiff requires 24 hour care when his children are with him. Ms. Mills took the view that an extra 3 hours on each day is sufficient.

111 The plaintiff's son, Jayden is only 6, and his daughter Thalia, only 5. Given the plaintiff's cognitive deficits, I accept that there is some need for overnight care of the plaintiff when he has his children. In my judgment, for the reasons explained by Ms. Morris at 329T.20 - 331T.45, at least initially the plaintiff will need some overnight assistance when the children are young, and there would have to be a phasing out approach of care (333T.40) as they age and approach their teenage years. I acknowledge the strength of Mr. Gormly's argument that one's experience of life suggests that parenting difficulties do not resolve as children enter their teens, they merely change. But the particular concerns expressed by Ms. Morris in my view address the difficulties of the plaintiff being an effective parent whilst his children are young. Moreover, I think Mr. Gormly is correct to submit that given the probable need for a court order, the prospect of someone in the plaintiff's position obtaining an order permitting him to care for his children, because of his brain injury, would be reasonably enhanced by the availability of assistance for him to care for his children overnight.

112 At the same time I accept the defendant's submission that it introduces an unreasonable air of unreality into the situation to work on the basis that this overnight care is likely to be provided by commercial carers. Rather, the probabilities seem to me to be that Mrs. Clegg, who seems to be an active and concerned person, will fill that role as she has done in the past when the children have stayed at her place. Again, if the plaintiff forms a new relationship, which he seems to have a desire to do, that role may well be filled by his new partner.

113 My findings are that I accept Ms. Mills evidence that the plaintiff requires six hours per fortnight (for calculation purposes 3 hours per week) of commercial care during the day time to enable him to care for his children. However, in my judgment he also requires 10 hours of overnight care in each alternate week, at least initially while his children are younger, to cover the matters identified by Ms. Morris, which care in all probability will be provided on a voluntary basis. (For calculation purposes only I will quantify it as five hours per week). I assess that initial phase as being during the next five years.

114 I appreciate that my finding of a need for 10 hours per fortnight of voluntary care may raise a question about the plaintiff's legal entitlement to damages so calculated. The question is whether that finding satisfies the intensity requirement provided for by s.128(3)(a) that no compensation is to be awarded unless the services are .... (.. to be provided): (a) for at least 6 hours per week. No question arises about the duration threshold as I have found that the services are to be provided for five years. In any event, by their agreement as to past care the parties have accepted that the duration threshold has already been crossed: Hill at 488 [105] per Sackville AJA with whom Tobias JA agreed at 473[10] - [12]; Handley AJA contra at 477[44] - [46].

115 The present issue did not precisely arise in Hill. However, the effect of my finding is that in every alternate week the plaintiff will be provided with services for at least six hours i.e. 10 hours. Does the expression for at least six hours per week bespeak an average; or does it mean six hours a week? In my judgment the latter is the preferable interpretation and a plaintiff, after the duration threshold is crossed, is entitled to recover damages for each week during which services will be provided for at least six hours. I think this follows from the following passage in the judgment of Sackville AJ in Hill, at 486 [96] and [98]:

[96] Once it is accepted that the intensity requirement is a separate precondition from the duration requirement imposed by [s 128(3)(b)], there is no textual reason to confine the six hours per week to the six months period specified in [s 128(3)(a)]. On the contrary, the words in parentheses "(or to be provided)" suggest that the intensity requirement is intended to be ongoing, since they refer to the provision of services in the future.

...

[98] For these reasons, I conclude that the intensity requirement in [s.128(3)(a) of the Act] is ongoing. It follows that the respondent is not entitled to recover damages in respect of any period during which the gratuitous services were not provided (or are not to be provided) to him for at least six hours per week.

116 If there is no minimum length of period provided the duration requirement is once satisfied, then a period as short as one week during which the intensity requirement is satisfied is sufficient to support an award of damages. Indeed, it may be that if the nature of a plaintiff's disability is such that his needs are satisfied by the provision of ten hours of care all of which will be provided on one day per month then the intensity requirement would be satisfied.

117 I appreciate that this conclusion may seem odd. Why should a person whose needs are to be met by 2.5 hours of care per week, week in and week out, be excluded and one whose care is to be provided for ten hours all in one day of each month be included? The answer is that Parliament has drawn a line (or rather two lines). On the facts of any given case, the lines are either crossed or they are not. This may be arbitrary, but sometimes there is efficiency in arbitrariness, and s.128 is obviously a measure designed to curtail costs in the interests of economic efficiency.

Vacation Care

118 It seems that there is no difficulty with organising carers on location when the plaintiff is actually on vacation. That is to say it is not necessary that carers accompany him on vacation from Sydney: 340.15T; 388.35 - .45T. The issue seems to boil down to additional needs arising because the plaintiff on holidays is required to operate in an unfamiliar environment: 340T.20; 388.30T. I should say there was common ground that the "usual"care regime should continue on holidays. The real question is whether more is required. Ms. Morris and Dr. Buckley said yes, Ms. Mills and Dr. Zeman seemed to say no. I say seemed to say no because on closer exploration of the issue, Drs. Buckley and Zeman agreed that additional care to take account of the unfamiliar environment encountered on vacation need not be additional commercial care. Indeed, both said the care could be provided by a family member or friend: 389.20 - 389.15T. Both Dr. Zeman and Dr. Buckley seemed to agree that the family member or friend might provide one hour, or two hours or whatever. I think the evidence is quite clear that this is a requirement additional to the ordinary care he requires whilst at home: 390.20 - 391.40T.

119 Whilst on vacation, I find that the plaintiff requires an additional 14 hours per week care.

120 It follows from the evidence I have referred to, which I have accepted, that in all probability, this care will be provided by a close family member or friend and accordingly needs to be dealt with at the s.128 rate.

121 Holidaying with his children whilst they are young presents additional difficulties and if it is assumed his children will accompany him on his annual holiday for the next five years, for the reasons I have expressed already, the close relative or friend will need to provide the 10 hours of overnight care I have held is necessary when the plaintiff has the care of his children during the next five years. This means that for five years vacation care exceeds the maximum rate provided for by s.128(4) of the Act. Thereafter s.128(5) applies i.e. an additional 14 hours per week. I will take judicial notice of the statutory rate and refresh my judicial memory by reference to the Furzer Crestani Assessment Handbook.

122 Given that it will be necessary for a family member or friend to accompany the plaintiff on holidays to provide this care, an allowance should be made for the costs of that persons air travel, accommodation and sustenance. I will calculate this in accordance with item L, MFI 5, the plaintiff's synopsis of damages.

Life Expectancy

123 I have summarised the evidence concerning this issue at [25] hereof. I accept Dr. Zeman's evidence that there has been a 5 per cent reduction in the plaintiff's life expectancy. I accept this evidence because, from what Dr. Buckley said at 384.10T, it is consistent with generally held views of specialist rehabilitation physicians. Departure from such generally held views is only justified by reference to the research of Professor Ian Baguley of Westmead Hospital whom, as I understand the evidence, has published a recent paper, which is not before me. Dr. Zeman differs in his interpretation of this research, and in any event the gravamen of the paper is that the risk to life expectancy in the case of traumatic brain injury reverts back to within statistical error contained within the data within eight or nine years (384.35T). Furthermore, Dr. Buckley agrees that some account must be taken of the general view given that the plaintiff has not yet survived the period of risk: 385.5T.

124 Accordingly, I accept the defendant's argument that I should make an allowance in this regard in respect of all additional heads of damage.

Approval of Agreed Heads of Damage

125 Having reviewed the evidence for the purpose of this judgment I am satisfied, in all the circumstances of the case, that the agreement for the settlement of the Heads of Damage previously in dispute set out in [26] hereof is an appropriate one and I approve the agreement of the parties.

Calculation of Additional Heads of Damage

126

(a) Future economic loss brought forward from [79]                                                                                            $556,600.00

(b) Employer's superannuation contribution brought

forward from [81]                                                                                                                                                        $79,482.00

(c) Future commercial attendant care services

in accordance with my findings calculated by

reference to scenario 3, MFI 4, the defendant's

contentions as to damages. This includes the

additional commercial care allowed by Ms. Mills

during child care periods                                                                                                                                     $1,396,721.00

(d) Voluntary attendant care services during

child care periods. For calculation purposes only

I will treat the allowance as 5 hours per week.

I have drawn the hourly rate of $25.65 from the

Furzer Crestani Assessment Handbook, 2011 Edition,

Page 4. The multiplier for 5 years for the 5 per cent

tables is 231.5, that equals                                                                                                                                       $29,689.88

(e) The first five years of vacation care at the s.128(4)

rate as per Furzer Crestani Handbook $1,026 x 231.5                                                                                         $18,270.00

(f)Thereafter 14 hours x $25.65 x $1,000

(MFI 4)                                                                                                                                                                       $359,100.00

Less 25.65 x 14 x 231.5 $83,131.65                                                                                                                       $27,098.00

(g) Carers' costs calculated in accordance with MFI 5                                                                                        $125,949.00

                                                                                                                                                                                   __________

                                                                                                                                                                                $2,233,810.00

Final Assessment of Damages

127 (a) Agreed Heads of Damage                                                                                                                            $1,040,952.00

(b) Additional Heads of Damage                                                                                                                        $2,233,810.00

                                                                                                                                                                            _____________

subtotal                                                                                                                                                                   $3,274,762.00

less 25 per cent for contributory negligence

as agreed and approved                                                                                                                                         $818,690.00

                                                                                                                                                                                 ___________

                                                                                                                                                                                $2,456,072.00

Less s.83(1) defence (agreed)                                                                                                                               $144,842.00

                                                                                                                                                                            _____________

                                                                                                                                                                                $2,311,230.00

Plus Fund Management at 18 per cent as agreed                                                                                               $416,021.00

                                                                                                                                                                                 ___________

TOTAL                                                                                                                                                                    $2,727,251.00

S.23 Civil Liability Act 2002

128 Section 23(2) of the Civil Liability Act 2002 requires me to notify the parties of the award I propose to make where damages in respect of future loss exceed $100,000. From the material handed up before me during addresses on the 25th of June last, it was obvious that this provision would be engaged and I then raised the matter with counsel to provide the parties with the statutory opportunity to negotiate a structured settlement. Mr. Gormly and Mr. Rewell informed me that the parties had considered the matter and did not wish any further opportunity to negotiate a structured settlement.

129 Because the Court has already made an order that the plaintiff's estate be subject to management pursuant to the NSW Trustee and Guardian Act, the plaintiff may be a person in need of protection for the purpose of s.23 and the Court is required to notify the NSW Trustee and Guardian of the terms of the award it proposes to make. For this reason I will direct the Registrar to provide the relevant details as required by the section, and I will adjourn the matter to 27th July to enable that notice to be given. In the circumstances I make the following interim orders:

(i) The agreement of the parties to settle the dispute about certain heads of damages is approved;

(ii) I assess damages, after reduction for contributory negligence, the deduction of the s 83(5) defence, and the addition of the allowance for fund management, in the sum of $2,727,251.00;

(iii) I direct the Registrar to notify the NSW Trustee and Guardian of the terms of the award I propose to make in accordance with the requirements of s.23 Civil Liability Act 2002;

(iv) I adjourn the proceedings to 27th July 2012 at 9:30 a.m. for the entry of final orders.

130 Today, 7 August 2012, I make the following final orders:

(i) I order paragraphs 126, 127 and 129 of my reasons published on 18 July 2012 will be amended in accordance with exhibit K.

(ii) There will be judgment in favour of the plaintiff in the sum of $2,727,251.00;

(iii) The defendant is to pay the plaintiff's costs on the ordinary basis and pursuant to s.77(3)(b) Civil Procedure Act 2005.

(iv) I order the whole of the judgment to be paid to Australian Executor Trustees Limited, the manager of the plaintiff's estate.

**********

Amendments

07 Aug 2012	The amount for assessed damages of $2,952,352.41 has been deleted, and the amount of $2,727,251.00 has been inserted in its place	Coversheet - Decision part (ii)
07 Aug 2012	The amount of $275,968.35 has been deleted and the amount of $27,098.00 has been inserted in its place.	Paragraphs: 126(f)
07 Aug 2012	The amount of $2,488,162.13 has been deleted and the amount of $2,233,810.00 has been inserted in its place; the subtotal of $3,529,114.13 has been deleted and the subtotal of $3,274,762.00 has been inserted in its place; the amount for contributory negligence of $882,278.53 has been deleted and the amount of $818,690.00 has been inserted in its place; the subtotal of $2,646,835.60 has been deleted and the amount of $2,456,072.00 has been inserted in its place; the amount of $2,501,993.57 for the s.83(1) defence has been deleted and the amount of $2,311,230.00 has been inserted in its place; the amount of $450,358.84 for funds management has been deleted and the amount of $416,021.00 has been inserted in its place; the amount for judgment of $2,952,352.41 has been deleted and the amount of $2,727,251.00 has been inserted in its place.	Paragraphs: 127(b)
07 Aug 2012	The amount of $2,952,352.41 has been deleted and the amount of $2,727,251.00 has been inserted in its place.	Paragraphs: 129(ii)
07 Aug 2012	Final orders entered by consent	Paragraphs: 130

Amendments

07 August 2012 - The amount of $23,751.90 has been deleted and the amount of $18,270.00 has been inserted in its place.
Amended paragraphs: 126(e)

07 August 2012 - Final orders entered by consent
Amended paragraphs: 130

07 August 2012 - The amount of $275,968.35 has been deleted and the amount of $27,098.00 has been inserted in its place.
Amended paragraphs: 126(f)

07 August 2012 - The amount of $2,952,352.41 has been deleted and the amount of $2,727,251.00 has been inserted in its place.
Amended paragraphs: 129(ii)

07 August 2012 - The amount of $2,488,162.13 has been deleted and the amount of $2,233,810.00 has been inserted in its place; the subtotal of $3,529,114.13 has been deleted and the subtotal of $3,274,762.00 has been inserted in its place; the amount for contributory negligence of $882,278.53 has been deleted and the amount of $818,690.00 has been inserted in its place; the subtotal of $2,646,835.60 has been deleted and the amount of $2,456,072.00 has been inserted in its place; the amount of $2,501,993.57 for the s.83(1) defence has been deleted and the amount of $2,311,230.00 has been inserted in its place; the amount of $450,358.84 for funds management has been deleted and the amount of $416,021.00 has been inserted in its place; the amount for judgment of $2,952,352.41 has been deleted and the amount of $2,727,251.00 has been inserted in its place.
Amended paragraphs: 127(b)

Decision last updated: 09 August 2012