Supreme Court New South Wales

• Medium Neutral Citation: Scott v Scott [2014] NSWSC 1814
• Hearing dates: 7-10 April 2014
• Decision date: 19 December 2014
• Jurisdiction: Common Law
• Before: Button J

Decision

(1) Judgment for the plaintiff in a sum to be determined.

(2) The parties are to confer and prepare short minutes of order reflective of this judgment.

(3) The parties have liberty to approach my Associate after 2 February 2015 to set a date for the hearing of any submissions required with regard to orders giving effect to this judgment, and with regard to costs.

• Catchwords: DAMAGES - negligence - personal injury - assessment of quantum of damages - non-economic loss - loss of earnings - out of pocket expenses - future domestic assistance or attendant care - additional travel and holiday costs - sexual services
• Legislation Cited: Civil Liability Act 2002 (NSW), s 3B(2)(b), 15C; Motor Accidents Compensation Act 1999 (NSW), ss 3, 83, 131, 134, 141B
• Cases Cited: Rosniak v Government Insurance Office (1997) 41 NSWLR 608
• Category: Principal judgment
• Parties: Blake Robert Scott (Plaintiff); Jack Robert Scott (Defendant)
• Representation: Counsel: A J Lidden SC (Plaintiff); P Khandhar (Plaintiff); R Bartlett SC (Defendant); Solicitors: Stacks Law Firm (Plaintiff); TL Lawyers Pty Limited (Defendant)
• File Number(s): 2007/265174

Judgment

1 On 2 November 2004 the plaintiff, then 10 years of age, was involved in a motor vehicle accident at Helensburgh, NSW. The plaintiff was riding unrestrained in the back of his father's utility when the vehicle collided at speed with a parked motor vehicle. As a result of the accident the plaintiff was thrown from the vehicle, and suffered very serious injuries.

2 Liability is not in dispute, and there is no allegation of contributory negligence.

3 The issue for determination by me is the quantum of damages that should be awarded. Although counsel were able to agree with regard to a large number of heads of damages, a number of them remain in dispute. I shall deal first with the agreed heads of damages, and then move to those that are disputed.

4 The parties helpfully agreed that I should provide a judgment that makes findings of fact, without quantification of monetary sums. Thereafter, the parties will undertake the various mathematical calculations to give effect to my judgment, and provide me with (it is to be hoped) agreed draft orders.

(A) The evidence generally

5 Although a great deal of expert evidence was placed before me, only some areas of dispute required oral evidence and cross-examination.

6 The plaintiff called Ms Castle-Burton, an occupational therapist. The defendant called Ms MacMaster, who has the same expertise. They gave evidence concurrently. There were a number of areas of disagreement between them. I shall come to them, and determine them, when I come to discuss disputed heads of damages.

7 Two rehabilitation specialists also gave concurrent evidence: Dr Buckley for the plaintiff and Dr Zeman for the defendant. Again, there were a limited number of areas of dispute. Again, I shall briefly summarise their respective positions when I come to my determinations.

8 As well as that, the mother and sister of the plaintiff gave brief oral evidence before me in support of their detailed documentary evidence.

9 Finally, written reports prepared by various medical professionals involved in the care and treatment of the plaintiff, along with some school reports, were received into evidence; I shall refer to them as necessary.

(B) Some preliminary findings of fact

(i) Generally

10 Before turning to the various heads of damage, it is convenient to set out various background matters, and some preliminary findings of fact.

11 The plaintiff was born on 1 May 1994. He was 10 years of age when the accident occurred, and was a few weeks away from his 20th birthday at the date of the hearing.

12 Before the accident, the plaintiff made good progress at school academically. In May 2000 he was assessed as having a full scale IQ of 86, placing him in the low to average range (Exhibit 15, p 2). He did however experience behavioural issues, a topic to which I shall return shortly.

13 The accident occurred on 2 November 2004. The plaintiff's father, who was driving, was under the influence of alcohol. The plaintiff's mother was riding with the plaintiff in the tray of the utility; she was also affected by alcohol. It is not disputed that the plaintiff suffered a compound skull fracture and an extremely severe brain injury as a result of being catapulted out of the tray of the utility in which he was sitting completely unrestrained. Nor is it disputed that he also suffered serious injuries to his right leg and knee. The plaintiff's mother was also badly injured in the accident (Exhibit AH, Exhibit AJ).

14 After the accident, the plaintiff was in hospital for almost five months. He was discharged on 23 March 2005, against the advice of medical professionals, at the insistence of his father (Exhibit 13, p 14).

15 He has undergone many operations over the years. He has also been the recipient of a great deal of rehabilitation. Most recently, in 2010 and 2012 he underwent surgery on his hips, knees and ankles to give him better mobility in his legs.

16 After the accident, school was not a success. The joint chronology that became Exhibit A establishes that in 2006 the plaintiff returned to a local public school, and later a local high school, from which he was expelled. In 2010, he began attending a Special Behavioural School in Wollongong, but ultimately left as a result of his behavioural problems. In early 2011 he commenced a transition to work program at "Essential Personnel" in Wollongong. At the end of 2013 he moved into the Essential Personnel Community Participation Program.

17 It became clear that the plaintiff finds it very difficult to tolerate group situations, especially those that feature people with whom he is unfamiliar (see for example Exhibit D, the report of Ms Heriot, a co-ordinator in disability employment with Essential Personnel of 6 December 2013).

18 The proceedings were not brought for many years, in order to permit the plaintiff's condition to stabilise. The evidence of his condition at the date of the hearing was not really in dispute. It is convenient to consider the stabilised position of the plaintiff by dividing it up into his physical condition, his cognitive condition, and his behavioural condition.

19 Physically, the plaintiff is quite disabled. He walks with a "spastic gait", and is incapable of running, or indeed walking unaided. He has been assessed as requiring the use of two "Canadian crutches" (elbow crutches), but prefers to use one. He often falls as a result of his physical condition. He also suffers from serious difficulties with the use of his arms. In the past he experienced incontinence; he continues to require assistance with toileting and personal hygiene.

20 Cognitively, the plaintiff has suffered a very severe brain injury. There is no doubt but that he is very impaired mentally. He suffers from memory loss, headaches, and speech difficulties, and his ability to concentrate and reason has been seriously impaired. He is unable to work, even in a "sheltered" work environment, despite his enthusiasm to do so. He requires assistance undertaking simple tasks such as dressing himself.

21 Behaviourally, the plaintiff is prone to frustration and anxiety. On occasion he will simply absent himself from situations that displease him by wandering away from home. He is also prone to outbursts of anger, particularly when he is confronted with change, people that are unknown to him, or large groups of people. According to the evidence of his mother and sister, he has pushed, punched and scratched his siblings in the past, and regularly throws his leg supports when he loses his temper. Thankfully, he has never seriously injured anyone. He also often makes inappropriate comments, and verbally abuses both family members and members of the public. In short, the plaintiff is highly disinhibited in his behaviour. Finally, the plaintiff has considerable insight into his disabilities, and can become frustrated and upset when he requires assistance as a result of them.

22 Regrettably, the plaintiff grew up in a very deprived home. The plaintiff currently lives in a housing commission home with five of his siblings and his parents. At one stage in 2005, the plaintiff was living with all nine of his siblings and step-siblings, and his parents, in their four bedroom home, while two of his cousins lived in a caravan in the backyard (Exhibit F).

23 The plaintiff's mother, Ms Melissa Talty, has given birth to nine children. She has not been in paid employment for many years. She has devoted herself to caring for the plaintiff. The plaintiff is extremely close to her, and she dotes upon him.

24 The plaintiff's father, Mr Jack Scott, fathered the six youngest of the children of Ms Talty, and has another older child who currently resides with the family of the plaintiff. He is of Aboriginal background, and left school at the age of 14. He spent time in "boys' homes" as a child as a result of behavioural issues. He has worked as a painter and removalist in the past, but has not been in paid employment since an accident at work in April 2001 (Exhibit AM). There is evidence that the plaintiff's father has had issues with prohibited drugs and alcohol (Exhibit H at [3.2]).

25 The majority of the plaintiff's siblings have significant physical or mental health issues. The plaintiff's step-sister Gemma (born 10 February 1992) has had significant drug problems, and has little contact with the family. The plaintiff's step-sister Paige (born 15 August 1989) has Down syndrome and requires extensive care. The plaintiff's sister Jasmine (born 6 October 1997) has serious mental health problems, and issues with prohibited drugs. The plaintiff's sister Tamieka (born 20 May 1999) suffers from ADHD and may have Asperger's syndrome. The plaintiff's sister Chloe (born 5 September 2000) suffers from leukaemia. As one would expect, all of those facts have imposed serious financial and material burdens upon the parents of the plaintiff.

26 The plaintiff's three older step-siblings have left home; two are full-time mothers, and the third is a labourer. As for his five younger siblings that remain at home, Kaitlyn (who is aged 19 years) is undertaking a nursing course but is currently taking a year off, and the rest are undertaking some form of schooling.

27 The Department of Community Services was frequently involved with the family both before and after the accident (Exhibit 15, p 12).

28 I think that the deeply regrettable circumstances of the accident that gave rise to these injuries being inflicted on a 10-year-old boy reflect something of the circumstances in which the plaintiff was living at the time, and would have expected to continue living, if the accident had not occurred. In his report of 14 September 2009, Dr Smith described the Scott family as "very dysfunctional" (Exhibit 13, p 18). I accept that characterisation.

29 Of course, one's social background is by no means an ironclad determinant of how one's life will turn out. Many persons who are born into circumstances of great privilege suffer very deprived and disrupted lives, for example as a result of dependence upon alcohol or prohibited drugs. And many born into very deprived circumstances, as the plaintiff was, go on to achieve great personal, professional, and material success. Nevertheless, I think that one can, as a very general rule of thumb, and doing the best one can in trying to predict how the life of a 10-year-old would have progressed if he had not been grievously injured, draw inferences from his familial and social context about how his life would have unfolded, if the injuries had not occurred.

30 I think it very unlikely that the plaintiff would have attended university, in light of some pre-existing difficulties at school and the impractical circumstances in which he would have attempted to study at home. To the contrary, I think that the plaintiff would have left school at the first opportunity, that being in year 10, when he was approximately 16 years of age.

31 I think that in all likelihood the plaintiff, like his father, would have learned a trade. I do not accept that he would have been employed continuously from the time he left school until his retirement. To the contrary, in light of the employment situations of his parents and siblings, I think that he would have been unemployed, or working casually or part time, for a significant proportion of that period.

(ii) ADHD

32 ADHD was a problem for the plaintiff at one stage. It affected his schooling adversely. He was medicated for it, with some success, although his parents ceased that medication.

33 There was a controversy between the parties as to what affect ADHD would have on the life prospects of the plaintiff. I consider that his ADHD would, in all likelihood, eventually have been controlled to a very large degree by medication. I also think there is some force in the position of Dr Buckley that, although one may accept as a generality that people with that condition do less well than people who do not have it, it is hard to make predictions about the prospects of individuals.

34 Having reflected upon the topic, I do not propose to assess the future prospects of the plaintiff on the basis that they would have been harmed by his previous diagnosis of ADHD.

(iii) Life expectancy

35 The defendant originally adopted the position, based on the evidence of Dr Zeman, that the deprived circumstances of the life of the plaintiff would have an effect on his life expectancy. Eventually the defendant abandoned that position, and simply submitted that the injuries of the plaintiff must reduce his life expectancy to a small degree. Accordingly, I put the original submission to one side.

36 As for the ultimate contention of the defendant on this topic, to my mind the injuries of the plaintiff, stabilised as they are in the present and to be properly managed in the future, do not operate to reduce his life expectancy. Accordingly, I do not propose to discount it from the figure of 65.2 years, about which there was no dispute.

37 I turn now to consider the heads of damage that were agreed between the parties.

(C) Past out of pocket expenses - agreed

38 The parties were in agreement that the plaintiff was entitled to claim any amounts paid by the compulsory third party insurer of the defendant pursuant to s 83 of the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act), and any amount owing to Medicare Australia in respect of the accident.

39 I request that the parties provide me with an up to date figure with regard to past out of pocket expenses on the occasion when they provide me with their agreed mathematical calculations founded on this judgment.

(D) Past domestic assistance or attendant care - agreed

40 By the end of the hearing, the parties were in agreement that the plaintiff was entitled to $450,000 in damages for past gratuitous care. In accordance with s 141B of the MAC Act, this amount represents 40 hours per week at average weekly earnings. The parties agreed that the plaintiff was not entitled to damages for attendant care during the period he was in hospital; this amount reflects a reduction for the period of approximately five months between November 2004 and March 2005 when the plaintiff was in hospital.

41 Accordingly, I allow $450,000 in damages for the provision of past care.

(E) Vehicle modification - agreed

42 By the end of the hearing the parties were in agreement that the plaintiff was entitled to $60,000 in damages to effect vehicle modifications.

(F) Housing modification - agreed

43 By the end of the hearing the parties were in agreement that the plaintiff was entitled to $350,000 in damages to effect housing modifications.

(G) Funds management - agreed

44 The parties agreed that the plaintiff was entitled to an allowance for trustee funds management, and were content to determine the appropriate amount between themselves after the other heads of damage are quantified.

(H) Non-economic loss - not agreed

45 Section 131 of the MAC Act provides that no damages for non-economic loss may be awarded "unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%". The defendant conceded that this jurisdictional threshold has been satisfied, and that the plaintiff is entitled to an award for non-economic loss.

46 The parties agreed that pursuant to the statutory cap contained in s 134 of the MAC Act, the maximum amount of damages that can be awarded for non-economic loss is $477,000.

47 The dispute between the parties with regard to non-economic loss was in truth a circumscribed one. The plaintiff submitted that he should be awarded the maximum sum: $477,000. The defendant accepted that his non-economic loss has been very substantial, and submitted that a sum of $400,000 is appropriate.

48 Non- economic loss is defined in s 3 of the MAC Act as follows:

non-economic loss means:

(a) pain and suffering, and

(b) loss of amenities of life, and

(c) loss of expectation of life, and

(d) disfigurement.

49 Turning to my determination, the deficits that the plaintiff has suffered and will suffer from for the rest of his life are grievous ones. It is unlikely in the extreme that he will ever enjoy (amongst many other things): romantic relationships; deep friendships; fatherhood; a satisfying career; or the pleasures of engaging in sporting competition or reading an engrossing novel. Although he is able to function physically, cognitively and behaviourally to a degree, it is no exaggeration to say that his life has been damaged to the point of almost being destroyed. In the circumstances, I consider that the maximum amount of $477,000 should be awarded for non-economic loss.

(I) Past loss of earnings - not agreed

50 The parties agreed that the plaintiff retains no residual earning capacity.

51 The plaintiff submitted that the he would have entered the workforce after the completion of Year 10 in 2011. That amounts to 171 weeks in the workforce. It was submitted that during that time the plaintiff would have earned average weekly earnings. The plaintiff submitted that it was appropriate to use average weekly earnings for calculation of both past and future lost earnings, notwithstanding the fact that, in his submission, he would have entered the workforce at just 16 years of age. That was on the basis that the fact that the plaintiff may have earned slightly less than this amount as a young person is balanced out by the fact that he would have earned more as a mature worker.

52 In short, the plaintiff claimed $188,100 for past loss of earnings.

53 The defendant submitted that it was more appropriate to calculate the plaintiff's past loss of earnings on the basis that he would have commenced work at the end of Year 12 in 2013. That amounts to a period of 74 weeks in the work force. The defendant submitted that young people generally must now remain at school until completing Year 12, although counsel for the defendant conceded that was likely not to have been the case when the plaintiff was 16.

54 The defendant submitted that the plaintiff's behavioural issues due to ADHD, and the fact that he was of low to average intelligence, would have materially affected his employment prospects. The defendant submitted that there was no reasonable prospect of the plaintiff being a high income earner, and that it was therefore inappropriate to use average weekly earnings as a basis for the calculation for past loss of earnings: see Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 628. The defendant submitted that the plaintiff's weekly income would in all likelihood have been no more than $500 net per week over the relevant period.

55 In short, the defendant submitted that the plaintiff was entitled to $37,000 for past loss of earnings.

56 Turning to my determination on this topic, as I have said, I think that in all likelihood the plaintiff would have learned a trade. I do not think that he would have become a highly skilled tradesman earning a substantial income as a result of running his own successful business. To the contrary, I think that he would have been a tradesman who would have been employed by others. For a time after leaving school he would have been learning that trade. I do not accept that, from the date of his departure from school he would have earned average weekly earnings or anything like it. I think that throughout his life he would have earned 2/3 of average weekly earnings.

57 I accept that the plaintiff would have left school in 2011. But I allow for past loss of earnings on the basis that the defendant would have earned, on average since that time, 2/3 of average weekly earnings.

(J) Future loss of earnings - not agreed

58 The parties agreed that the future loss of earnings should be calculated on the basis that, but for the accident, the plaintiff would have worked until he was 67. Accordingly, at the time of hearing the plaintiff would have had almost exactly 47 years of working life ahead of him.

59 Because of the helpful approach of the parties, I shall not seek to provide a detailed discussion of a discount for vicissitudes of life and any other discounts. I accept the suggestion of the parties that it is more convenient for them to calculate such matters; if any further resolution of dispute is required, it can be brought to my attention on the next occasion.

60 The plaintiff submitted that future loss of earnings should be calculated on the basis of the average full-time weekly earnings of an adult wage, which as at May 2013 was $1,184 net.

61 The defendant submitted that, for the reasons discussed above, the plaintiff's weekly earnings would in all likelihood have been no more than $800 net per week.

62 Furthermore, the defendant submitted that this head of damage should be further discounted because the plaintiff's pre-exiting behavioural problems would likely have interfered with his capacity to obtain and maintain employment.

63 Section 126 of the MAC Act is as follows:

126 Future economic loss-claimant's prospects and adjustments

(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.

64 I have sought to assess the outcome that is most likely (to use the words of s 126(1) of the MAC Act. As I have said, I do not accept that, from the time of his departure from school, the plaintiff would have been continuously employed up until retirement at the age of 67 on average weekly earnings or anything like it. On the other hand, nor do I think that there should be an explicit discount reflecting loss of earning potential founded upon the behavioural difficulties of the plaintiff before the accident. Again, I think that the plaintiff would have earned 2/3 of average weekly earnings up until the date of retirement.

(K) Loss of past superannuation entitlements - agreed

65 Section 15C of the Civil Liability Act 2002 (NSW) applies to the claim of the plaintiffs pursuant to s 3B(2)(b) of that Act. It provides:

15C Damages for loss of superannuation entitlements

(1) The maximum amount of damages that may be awarded for economic loss due to the loss of employer superannuation contributions is the relevant percentage of damages payable (in accordance with this Part) for the deprivation or impairment of the earning capacity on which the entitlement to those contributions is based.

(2) The relevant percentage is the percentage of earnings that is the minimum percentage required by law to be paid as employer superannuation contributions.

66 The parties agreed that the loss of past superannuation entitlements should be calculated at 11% of lost past earnings.

(L) Loss of future superannuation entitlements - not agreed?

67 Although the parties indicated that they were agreed, the plaintiff submitted that the appropriate award with regard to future superannuation entitlements was 14.32% of lost future earnings. The defendant submitted that the appropriate award was 14.41% of lost future earnings.

68 If it be the case that this is a matter that is truly in contention, I do not propose to tarry over this dispute over 0.09% of the plaintiff's lost future earnings. I would split the difference and allow 14.365% for lost future superannuation entitlements.

(M) Future out of pocket expenses

69 Although the parties were in agreement that future out of pocket expenses should be awarded, the method of calculation was disputed.

70 The plaintiff put forward two possible methods of calculation.

71 The first method of calculation involved determining the average weekly out of pocket expenses of the plaintiff since the accident, and multiplying that figure in accordance with the life expectancy of the plaintiff. The plaintiff accepted that this figure should be significantly reduced because taxi expenses will markedly decrease once the plaintiff is established in a modified home with a modified vehicle. The result of this first method of calculation is damages in the order of $1,200,000.

72 The second method of calculation is based on an assessment of the plaintiff's ongoing needs, as addressed by the rehabilitation experts. Both parties provided detailed written submissions on the ongoing future needs of the plaintiff, and the likely expense of meeting those needs.

73 The defendant submitted that the likely future out of pocket expenses of the plaintiff cannot be determined by averaging past expenses. That is because the past expenses included multiple surgeries, extensive rehabilitation expenses, and other treatments that are either no longer required, or required to a lesser degree. I accept that submission: future out of pocket expenses should be determined on the basis of an assessment of the ongoing needs of the plaintiff in the future, not on the basis of his needs in the past.

74 I turn then to consider the various ongoing needs of the plaintiff, and how the expense of meeting those needs should be calculated. In doing so I shall refer to the evidence given by Dr Buckley and Dr Zeman in their individual and joint reports (notably Exhibits R and 35), and in conclave evidence before me. I shall also refer to the evidence given by Ms Castle-Burton with regard to costings in her report of 18 July 2013 (which became Exhibit H).

75 As I have said, the parties agreed that it would be appropriate for me to determine the future needs of the plaintiff, and resolve any dispute about them without going on to determine the precise amount that the plaintiff should be awarded.

(i) Taxi expenses - not agreed

76 The plaintiff submitted that I should award $60,000 for taxi expenses during the period between the hearing of this matter and the time when the plaintiff is established in modified accommodation with a modified vehicle and the assistance of carers. In written submissions, the plaintiff indicated that his current weekly expenditure on taxis is $1016.

77 The defendant submitted that, whatever the care arrangements of the plaintiff, the plaintiff will obtain a modified vehicle upon obtaining judgment. In other words, no allowance should be made for taxis during the period, if any, when the plaintiff remains at the family home.

78 I generally accept the submission of the defendant that the plaintiff will have available to him a modified vehicle even whilst he remains in the family home. However, I consider that allowance should be made for the time that will be required to provide that modified vehicle to the plaintiff after final orders are made some time after this judgment. I propose to allow three months of taxi fares from today's date at a rate of $1016 per week.

(ii) Technology assessment - seemingly not disputed

79 Ms Castle-Burton was of the opinion that the plaintiff required a one-off "technology assessment" at a cost of $1,500 (Exhibit H).

80 The defendant did not make oral or written submissions to the contrary.

81 In those circumstances, I allow that claim.

(iii) Future surgery - not agreed

82 The parties agreed, based on the evidence of the rehabilitation experts, that the plaintiff will likely need surgery in the future with regard to fractures occasioned by falls. Dr Buckley was of the opinion that the plaintiff will likely require four operations (two fractured wrists, one fractured shoulder, and one fractured hip). Dr Zeman was of the opinion that the plaintiff will likely require two surgeries (one fractured shoulder and one fractured hip). The experts agreed that those surgeries will be spread evenly across his lifetime.

83 Dr Buckley provided the current day cost of these surgeries and aftercare, with which Dr Zeman agreed (see Exhibit R):

Fractured wrist: $7,853

Fractured hip: $43,801

Fractured shoulder: $19,940

84 The plaintiff submitted that provision should be made for the four operations anticipated by Dr Buckley, with damages reduced by 50% for deferment. This amounts to $34,000. The defendant submitted, in short, that the difference between the cost of the four surgeries anticipated by Dr Buckley and the two surgeries contemplated by Dr Zeman should be split, and as a result $21,000 should be awarded for future surgeries.

85 Dr Buckley expected four operations as a result of falls leading to fractures over the years. Dr Zeman expected two. The parties agreed on the costs of those operations, and the defendant allowed for the cost of aftercare following surgery; the issue for determination by me is a prediction of the number that will be necessary.

86 It is noteworthy that the plaintiff uses only one crutch, despite having been advised to use two. It is also the case that he is in the habit of running off when he is upset or frustrated. Perhaps as he grows older he will be less prone to each habit; then again, he will become frailer in due course.

87 I think it appropriate to allow for four operations throughout the course of the life of the plaintiff, along with the aftercare for which the defendant allowed.

88 It was not clear by the close of the hearing what approach the defendant took with regard to the submissions of the plaintiff about deferment of these sums. Again, if the matter remains in dispute, it can be brought to my attention on the next occasion.

(iv) Review by GP - not agreed

89 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff will require review by a general practitioner two to four times annually (Exhibit 35). Dr Buckley gave evidence (with which Dr Zeman agreed) that the cost of this review was $73 for a "Level B" consultation, and $134 for a "Level C" consultation (Exhibit R).

90 The plaintiff submitted that he was entitled to two Level B consultations and two Level C consultations per year. The defendant submitted that the plaintiff was entitled to three consultations per year, and damages should be awarded on the average cost of the two consultation levels.

91 The plaintiff is severely disabled in many ways. I accept the submission of the plaintiff that he should have four consultations a year, two at the higher level and two at the lower level.

(v) Specialist review - not agreed

92 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff will require review by a rehabilitation physician, psychiatrist or other relevant specialist four times annually (Exhibit 35). The experts agreed that the current cost of consultation with a psychiatrist is $335, and the current cost of a follow-up consultation with a rehabilitation physician is $260 (Exhibit R).

93 The plaintiff submitted that he is entitled to four consultations with a psychiatrist, four consultations with a rehabilitation physician, and four consultations with an orthopaedic specialist per year.

94 The defendant submitted that the plaintiff is entitled to two consultations with a psychiatrist and two consultations with a rehabilitation specialist per year.

95 Again, we are speaking of a young man who suffers from physical, cognitive and behavioural difficulties that are permanent and profound. I allow for four consultations with a psychiatrist, four consultations with a rehabilitation physician, and four consultations with an orthopaedic specialist per year.

(vi) Occupational therapy - agreed

96 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff will require two hours of occupational therapy per year. Ms Castle-Burton gave evidence that the cost of occupational therapy is $165 per hour (Exhibit H). Dr Buckley gave evidence that the cost of occupational therapy is $185 per hour (Exhibit R).

97 The defendant did not dispute that the plaintiff was entitled to two hours of occupational therapy per year at the rate of $185 per hour, and I allow it.

(vii) Medication - agreed

98 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff will require his current medication (or similar) for the foreseeable future, and that the cost of this medication was $71.42 per month, or $857.05 per year. The defendant did not dispute that the plaintiff was entitled to that amount, and I allow it.

(viii) Physiotherapist - not agreed

99 Dr Buckley was of the opinion that the plaintiff will require twelve sessions of physiotherapy per year. Dr Zeman was of the opinion that two sessions of physiotherapy per year would be sufficient (Exhibit 35).

100 Ms Castle-Burton gave evidence that the cost of an in-home physiotherapy treatment (including travel) was approximately $175 per hour (Exhibit H). Dr Buckley gave evidence that the cost of a physiotherapy session was $87 per session (Exhibit R).

101 The plaintiff submitted that he was entitled to twelve sessions of physiotherapy at a cost of $175 per session. That amounts to $2100 per year.

102 The defendant submitted that, in short, the difference between twelve sessions and two sessions per year (calculated at a cost of $87 per session) should be split, and that $10,000 was an appropriate sum for physiotherapy.

103 Dr Buckley has allowed for 12 sessions of physiotherapy per year. In contrast, Dr Zeman has allowed for two. Again, it cannot be denied that this young man has significant permanent physical injuries. I think that 12 sessions per year are appropriate, at a cost of $175 per hour.

(ix) Case manager - not agreed

104 Dr Buckley was of the opinion that the plaintiff will require eight hours per month of active involvement by a case manager for the first six months following any significant new arrangement, and thereafter four hours per month. Dr Buckley estimated that allowance should be made for a significant new arrangement occurring every five years (Exhibit 35). Dr Buckley gave evidence that the current cost of one hour of case-management by a professional person related to an agency such as an Outreach Team of the NSW Brain Injury Program is $175 (Exhibit R).

105 Dr Zeman was of the opinion that the plaintiff will require one hour of case-management per month (Exhibit 35).

106 Ms Castle-Burton gave evidence that the plaintiff will require 70 hours of case management per year until he reaches 45 years and 6 months, and 30 hours per year thereafter. She gave evidence that the cost of an hour of case-management is $165 per hour (Exhibit H).

107 The plaintiff relied on Ms Castle-Burton's evidence. The plaintiff claimed 70 hours per year for 25 years, and 30 hours per year for 40 years (postponed for 25 years), at a rate of $165 per hour.

108 The defendant submitted that, splitting the difference between the prescriptions of Dr Buckley and Dr Zeman, $100,000 would be an appropriate award for the future cost of case-management.

109 I think that the submission of the plaintiff recounted immediately above should be accepted. That is on the basis that the plaintiff has had, and will continue to have, serious difficulties with settling into his care, particularly if circumstances change over the years. Having said that, my allowance of that will effect my assessment of the need for the involvement of a registered nurse in the care of the plaintiff.

110 I allow 70 hours of case management per year for 25 years, and 30 hours of case management per year for 40 years (postponed for 25 years) at a rate of $165 per hour.

(x) Dietician - not disputed

111 Ms Castle-Burton was of the opinion that the plaintiff would require four consultations with a dietician per year at a cost of $150 per consultation (Exhibit H). The plaintiff relied on this evidence.

112 The defendant did not make oral or written submissions on this topic.

113 In the absence of dispute by the defendant, I allow this claim.

(xi) Gymnasium - not agreed

114 Dr Buckley was of the opinion that the plaintiff and his carer will require membership of a club or gymnasium with heated swimming facilities (Exhibit 35).

115 Dr Zeman was of the opinion that the plaintiff may refuse to attend a gymnasium; that there is no specific benefit flowing from use of a heated pool; and that home exercises should be implemented by the carer (Exhibit 35).

116 Ms Castle-Burton was of the opinion that the plaintiff will require membership of a club or gymnasium with a hydrotherapy pool, and personal training sessions twice a week. She gave evidence that the cost of gym membership is $2000 per annum, and personal training costs $80 per session (Exhibit H).

117 The plaintiff relied on the expert evidence of Ms Castle-Burton; that is, the plaintiff claimed $10,320 per year.

118 The defendant accepted that the plaintiff was entitled to gym membership, and estimated the cost of it at $1,380 per year.

119 I accept that the plaintiff should enjoy the physical and psychological benefits of gym membership, in light of his disabilities. However, I think that the claim of the plaintiff goes beyond what is reasonably necessary or appropriate. I do not think that allowance should be made beyond the sum of $3000 per year, that figure being intended to permit membership in a well-equipped gym and a number of personal training sessions each year.

(N) Cost of additional special equipment

(i) Agreed items

120 The parties agreed that the plaintiff was entitled to an electric toothbrush, shower chair and hose, orthotics and customised shoes, and the difference in price between a regular and industrial-sized washing machine. The agreed cost of those items, as informed by the evidence of Ms Castle-Burton and Ms MacMaster (Exhibit J), are as follows:

Electric toothbrush: $35 per year

Shower chair and hose: $300 every seven years

Orthotics and customised shoes: $1000 per year

Additional washing machine expense: $500 every ten years

121 The parties also agreed that the plaintiff was entitled to damages for the cost of various small aids. Ms Castle-Burton and Ms MacMaster gave evidence that the cost of these aids was $300-$500, with a replacement period of 5 years (Exhibit J).

122 The plaintiff claimed $500 for these aids. The defendant submitted that the plaintiff was entitled to $400 every five years, in line with the opinion of the occupational therapists.

123 I allow $400 every five years, that figure reflecting the midpoint of the opinion of the two expert witnesses.

124 Finally, the defendant submitted that the plaintiff was entitled to $500 per year for "splint allowance and other orthotics", as recommended by Ms Castle-Burton and Ms MacMaster (Exhibit J). The plaintiff did not make written or oral submissions on this point. Accordingly, I propose to allow $500 per year.

(ii) Wheelchair and its service costs - not agreed

125 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff required a light weight manual wheelchair for longer distance mobility (Exhibit 35). Ms Castle-Burton and Ms MacMaster were also of the joint opinion that the plaintiff required a manual wheelchair (Exhibit J).

126 As I have said, currently the plaintiff predominantly uses one Canadian crutch. It seems that he is able to walk a considerable distance in this way (Exhibit 15, p 9). When a wheelchair is available, he uses it to mobilise over long distances (Exhibit 8, p 7). In his report of 4 January 2013, which became Exhibit P, Dr Buckley gave evidence that presently the plaintiff only uses his manual wheelchair "occasionally". The evidence establishes that, when necessary, the plaintiff has been able to propel himself using a manual wheelchair since at least 2006 (Exhibit 7, p 4).

127 Ms Castle-Burton gave evidence that the plaintiff would require a "custom manual chair to accommodate his particular physical requirements" (T191). She gave evidence that the cost of such a wheelchair was $8,000, with a three to five year replacement period (Exhibit J). Ms MacMaster gave evidence that the cost of a manual wheelchair was $1,000, and proposed a 10 year replacement period, on the basis that the plaintiff only uses a wheelchair intermittently at present (Exhibit J; T192).

128 Ms Castle-Burton and Ms MacMaster were in agreement that the cost of tyre replacement on a manual wheelchair was $100. Ms Castle-Burton was of the opinion that that would be required each year; Ms MacMaster was of the opinion that replacement every five years would be sufficient, given the intermittent use (Exhibit J).

129 Neither Ms Castle-Burton nor Ms MacMaster was of the opinion that the plaintiff would require a motorised wheelchair, although Ms MacMaster wished to defer to medical opinion with regard to the future needs of the plaintiff. The two occupational therapists agreed that the cost of a motorised wheelchair was $13,000, with a three to five year replacement period. The cost of servicing a motorised wheelchair was agreed to be $400 per year (Exhibit J, T 193).

130 The plaintiff submitted that he was entitled to $8,000 every five years for a manual wheelchair. Additionally, the plaintiff submitted that he was entitled to $1,300 per year for a motorised wheelchair. Finally, the plaintiff submitted that he was entitled to $400 per year for service costs.

131 The defendant submitted that the plaintiff was entitled to $1000 every ten years for a manual wheelchair, and $100 every five years for replacement tyres. The defendant submitted that the plaintiff currently used an un-modified manual wheelchair, and there was no evidence to suggest that it was unsuitable. Furthermore, the defendant submitted that there was no medical evidence that the plaintiff would require a motorised wheelchair in the future.

132 Currently the plaintiff is not using a wheelchair other than rarely. Indeed, he is not using two crutches. I do not consider it appropriate to allow for anything beyond a manual, standard wheelchair and relevant service costs as described at [131] in accordance with the opinion of Ms MacMaster.

(iiI) Reclining chair - not agreed

133 Ms Castle-Burton gave evidence before me that the plaintiff would require a reclining chair "for safety in transferring from a seated position" (T194). She gave evidence that the cost of such equipment was $2680, with a replacement period of 10 years (Exhibit J).

134 Ms MacMaster was of the opinion that such a chair was not necessary, and that it was important for the plaintiff to maintain strength in his quadriceps (T194). Ms MacMaster agreed with Ms Castle-Burton's costings.

135 The plaintiff claimed damages for the cost of that reclining chair; the defendant submitted that the plaintiff was not entitled to damages for this equipment.

136 As things currently stand, the plaintiff uses one crutch. He is mobile enough to get down to the local shops and engage with the shopkeepers there. He is mobile enough to depart reasonably quickly from situations that frustrate him. He is mobile enough to be out and about in public places (a topic to which I shall return).

137 In the circumstances, I do not propose to make allowance for a reclining chair.

(iv) Mattress and electric bed - not agreed

138 Ms Castle-Burton and Ms MacMaster were of the joint opinion that the plaintiff would require a standard king-single mattress. The occupational therapists agreed that the cost of a mattress was $1,500 with a replacement period of 10 years (Exhibit J).

139 The parties agreed that the plaintiff was entitled to a mattress. The defendant submitted that this amounted to an award of damages of $1,500 for every ten years. The plaintiff submitted that this amounted to an award of damages of $1,000 per year.

140 This state of affairs appears may have been a crossed wire between the parties. In accordance with the position of the defendant, and the joint report of the two expert witnesses, I allow $1500 every ten years.

141 Ms Castle-Burton was of the opinion that the plaintiff would also require an electric bed, at an additional cost of $1,500 with a replacement period of 10 years. Ms MacMaster disagreed on the basis that the plaintiff is able to transfer himself from a regular bed (Exhibit J).

142 The plaintiff submitted that he was entitled to the cost of an electric bed; the defendant submitted that he was not.

143 In light of the evidence of Ms MacMaster that the plaintiff is able to transfer himself from and to his bed without great difficulty, I regard this part of the plaintiff's claim as going beyond what is reasonably necessary.

(v) Crutches - agreed

144 The parties agreed that the plaintiff was entitled to damages for the cost of crutches.

145 Ms Castle-Burton gave evidence that $80 should be allowed per year. Ms MacMaster gave evidence that $4.90 should be allowed per year for replacing the tips of the crutches only (Exhibit J).

146 The plaintiff submitted that he was entitled to $80 per year for crutches. The defendant submitted that the plaintiff was entitled to $50 per year.

147 I was not provided with any bases for those figures. In the circumstances, I think I should allow $65 per year.

(vi) Stationary exercise bike and weight machine

148 Ms Castle-Burton gave evidence that the plaintiff would benefit from exercise equipment at home, for use on the days that he is unable or unwilling to attend the gymnasium. Ms MacMaster was of the opinion that exercise equipment at home would not be required if the cost of gym membership were to be allowed (T196).

149 The occupational therapists agreed that a stationary exercise bike and a weight machine each cost $1,500, with a replacement period of 10 years.

150 Consistent with the evidence of Ms Castle-Burton, the plaintiff submitted that he was entitled to $300 per year (that is, $3000 over ten years) for a stationary exercise bike and weight machine for home use.

151 The defendant submitted that the plaintiff would not require exercise machines at home, in light of the allowance for gym membership.

152 Turning to my determination, I have already allowed a substantial sum for gym membership and the services of a personal trainer, albeit not to the degree claimed by plaintiff. It may be accepted that there may be occasions upon which the plaintiff will prefer to exercise at home rather than at a gymnasium, because of (for example) inclement weather. But I respectfully regard this claim as going beyond what is reasonably necessary or appropriate, and I make no allowance for it.

(O) Future domestic assistance or attendant care - not agreed

153 A number of aspects of the future care of the plaintiff were the subject of dispute. It is convenient to set out first a brief summary of the competing evidence of the experts on various topics; thereafter the competing submissions of the parties; and finally my discrete determinations.

(i) Expert evidence - appropriate care arrangements

154 By the end of the hearing neither party submitted that the plaintiff would in the future reside in a group care setting. For that reason, I will not traverse the evidence on this issue.

155 Ms MacMaster, the occupational therapist called by the defendant, accepted that the plaintiff's present care arrangements could not continue indefinitely, if only because the life expectancy of the plaintiff's mother is far shorter than that of the plaintiff. However she was unwilling to predict when a change in care arrangements will occur (T130). She was of the opinion that while the plaintiff remains at home, allowance should be made for additional outside care for two to four hours daily (T134, Exhibit 8).

156 In the witness box before me, Ms Castle-Burton, the occupational therapist called by the plaintiff, expressed the opinion that it was "not desirable" for the plaintiff and his mother to continue living together, as he requires 24 hour commercially provided care. In other words, she thought that the transition between the plaintiff living at home and living independently assisted by carers should begin immediately (T144).

157 Dr Buckley was of the opinion that the preferable option was for the plaintiff to move into private accommodation with commercially provided care immediately, as interaction between the plaintiff and other family members was difficult, and the plaintiff is currently at an age at which it is normal to move out of the family home (T217-8).

158 Dr Zeman was of the view that it would be preferable to organise private accommodation with care for the plaintiff while his mother is able to help with the transition (T218).

(ii) Expert evidence - level of care required

159 In their joint report (Exhibit J), Ms MacMaster and Ms Castle-Burton were of the joint opinion that the plaintiff requires 24 hour supervision and monitoring.

160 However, in a subsequent report, and in the witness box before me, Ms MacMaster stated that she did not agree that direct supervision was necessary all the time, and in fact it would be in the best interests of the plaintiff to have some time to himself (Exhibit 10; T132-3). Although she expressed the opinion that the plaintiff would not require supervision overnight, she later clarified that this would only be the case if he were in supported independent living accommodation or a group home (T142, 155).

161 Ms Castle-Burton remained of the opinion that 24 hour supervision was necessary (T133). She was of the opinion that the plaintiff required individual supervision by a carer overnight, and when attending community participation programs or other similar activities (T139-142, 182-3).

162 Ms Castle-Burton was also of the opinion that the plaintiff required a second carer for four hours three days per week to carry out domestic activities (Exhibit H, T182). Ms MacMaster's opinion was that a second carer was not required (T183).

163 Dr Buckley was of the opinion that the plaintiff required 24 hour care provided by a registered nurse, as well as an additional 16 hours of care during "waking" hours (Exhibit 35, T216-7). That amounts to 40 hours of care per day. In evidence before me by telephone from overseas, Dr Buckley gave evidence that a second carer would also be required, in order to assist or relieve the first carer from time to time (T227-30).

164 Dr Zeman was of the opinion that the plaintiff does not require overnight care, and that 24 hour care would be intrusive. He stated that the plaintiff "does require prompting and supervision three hours per day, by carers with training in disability management" (Exhibit 35, T215-6). In the witness box, Dr Zeman clarified that the plaintiff would also require some additional domestic assistance, and assistance with transport and recreation, which would amount to six to twelve hours of care per day. Dr Zeman was of the opinion that a second carer was not necessary (T230).

165 Dr Zeman was of the opinion that, while the plaintiff remains in the family home, two to four hours of commercially provided care per day was appropriate (T 223). Dr Buckley was of the opinion that 24 hour care should be provided if the plaintiff remains in the family home.

166 Finally, Dr Buckley was of the opinion that the plaintiff would require "handyman" assistance for three hours per week once he moves into his own accommodation. Dr Zeman was of the opinion that he would require two hours per week, depending on the characteristics of the property. Ms Castle-Burton and Ms MacMaster were of the joint opinion that the plaintiff will require 24 hours of home and garden assistance per year, at a cost of $50 per hour.

(iii) Expert evidence - level of qualification of carer

167 In her report of 9 December 2011 (Exhibit G), Ms Castle-Burton expressed the opinion that a registered nurse should undertake a minimum of two eight-hour shifts per week. In the witness box, Ms Castle-Burton clarified that the remainder of the active care could be provided by a care worker with experience and training in dealing with somebody with an acquired brain injury (T173). In her report of 4 January 2013 (Exhibit H), Ms Castle-Burton expressed the opinion that a registered nurse should provide one of the two active eight hour shifts per day. In the witness box, Ms Castle-Burton explained that this change in opinion was based on the fact that since finishing school and ending his involvement in a structured program, the plaintiff's behavioural problems had become more pronounced, and it was apparent that he would need more highly qualified supervision than she initially thought (T179).

168 Ms Castle-Burton explained that the registered nurse would function as the head of the team, and would be responsible for assessing the client's needs, completing necessary health records, and training, supporting and supervising the other carers (T175). Ms Castle-Burton stated that the plaintiff "does not require [the involvement of a registered nurse] for medical purposes but he requires it because of the complexity and the amount of care that I believe that he requires" (T176). Ms Castle-Burton acknowledged that it could be difficult to obtain a registered nurse willing to carry out the various domestic and care activities that the plaintiff would require (T179).

169 Ms MacMaster was of the opinion that it was unnecessary for any of the plaintiff's care to be provided by a registered nurse (T178).

170 As stated above, Dr Buckley was of the opinion that the plaintiff required the care of a registered nurse 24 hours per day. In the joint report that became Exhibit 35, it was explained that this opinion was premised on the fact that the skills and training of registered nurses equip them to engage in "clinical decision making"; to "sensitively implement decisions for the obstinate brain injured person"; and to "make morally and ethically appropriate decisions based upon a professional ethical standard". In evidence before me Dr Buckley stated that a registered nurse would be better able to "react to [the plaintiff] in a professional way at all times and even under great provocation" (T218).

171 Dr Zeman was of the opinion that the plaintiff does not require care from a registered nurse; that a registered nurse would not be professionally fulfilled by undertaking the care of the plaintiff; and that using a registered nurse in the circumstances would be a waste of resources (Exhibit 35). In the witness box before me, Dr Zeman emphasised that professional care is only required where the patient requires specific medical treatment, and it is not normal practice for direct personal care of brain injury patients to be provided by registered nurses (T218). Dr Zeman also stated that a case manager could co-ordinate and supervise the care of the plaintiff (T230).

(iv) Expert evidence - cost of care

172 The joint report of Ms Castle-Burton and Ms MacMaster included a table of the current rates of different levels of care (Exhibit J, p 3). The report also included a page entitled "Updated Costings for Master Blake Scott". Although Ms MacMaster signed this page, in the witness box before me she stated that she did not agree with these updated costings (T170-1).

(v) Submissions

173 The plaintiff submitted that he will require 24 hour care provided on a wholly commercial basis. The plaintiff submitted that eight hours of care per day would need to be provided by a registered nurse at a cost of $209,835 per year. The plaintiff submitted that allowance should also be made for a relief registered nurse for 5 weeks per year while the primary nurse is sick or on holidays, at a cost of $4032 per year. The remaining 16 hours of care would comprise eight hours of active care per day, and eight hours of inactive overnight care, at a total cost of $192,109 per year. Again, the plaintiff submitted that allowance should be made for 10 weeks of relief care at a cost of $3694 per week.

174 As well as that, the plaintiff submitted that he will require a second active carer for three hours a day, four days per week. The cost of this second carer is $530 per week.

175 The plaintiff submitted that the plaintiff's mother will also provide gratuitous care over and above that provided on a commercial basis. The plaintiff claimed $1,032,212 ($27.20 per hour for 40 hours per week over the 42 year life expectancy of the plaintiff's mother) for this gratuitous care. In oral submissions, counsel for the plaintiff accepted that it is possible that the plaintiff's mother could play the role of a second carer to some degree (T274).

176 Finally, the plaintiff submitted that he was entitled to $62.50 per week for home and lawn maintenance, which roughly equates to one hour per week.

177 The defendant submitted that, in the circumstances of this case, it is difficult to determine the care arrangements that are likely to be implemented in the future.

178 The defendant submitted that it is unlikely that the plaintiff will agree to move out of the family home in the near future. The defendant submitted that it is likely that the plaintiff will live at home for the next 10 to 15 years. With regard to this period, the defendant adopted Dr Zeman's opinion that two to four hours of commercially provided care per day is appropriate.

179 The defendant submitted that, when the plaintiff does move into his own premises, he will require between 12 and 16 hours of care per day. The defendant submitted that the plaintiff would not require overnight care, or periods of time with multiple carers.

180 The defendant submitted that it was not necessary for any of that care to be provided by a registered nurse.

181 Finally, the defendant submitted that the plaintiff was entitled to $100 per week for gardening maintenance, postponed for the duration of time that it is determined that the plaintiff will remain in the family home. This equates to two hours per week.

(vi) Determination

182 Speaking generally about this topic, the fact is that the mother of the plaintiff has undertaken extraordinary - and no doubt utterly exhausting - steps to care for him herself over many years. That will inevitably come to an end, at the latest on the day of her death; I put the remote prospect of the plaintiff predeceasing his mother to one side in that regard. In other words, there must come a time in the life of the plaintiff when his mother will cease to care for him: the question is when.

183 The plaintiff and his mother are extremely close. I accept that she does her absolute best for her disabled son. He is very dependent upon her, not only with regard to practical matters but also emotionally. Even when a very substantial sum of damages is available to him, I by no means think that he will immediately leave the family home. To the contrary, I think that he will only do so very reluctantly and gradually. Nor do I think that his mother will encourage that course. On the other hand, I think that she, along with the rest of the family, will come to see that it is in the interests of the plaintiff, and of his mother and the family generally, for him to depart to a location where he can be the recipient of care that can be provided professionally, and without his mother becoming physically and psychologically exhausted.

184 Doing the best I can to predict highly variable emotional and personal matters, I think that the plaintiff will not leave home before 2020; that is, five years from the date of the parties presenting me with draft orders to reflect this judgment. I think that the likelihood is that he will be living away from home in 2020.

185 Before then, his mother will require very substantial help to care for him at home. I think that there should be allowance assistance from a single domestic helper for three hours of each day, seven days per week. I accept that allowance should also be made for gratuitous care by his mother whilst he is in the family home between 2015 and 2020.

186 I also think that, for many years after his departure, his mother will continue to care for her son, thought to a decreasing degree as the plaintiff and his mother get used to their separation and as she becomes more frail with age. Averaging that out over the extent of her life expectancy (which the defendant did not dispute was 42 years), I think that allowance should be made for the likelihood that she will provide, from 2020 until 2056, three hours of care for her son per day.

187 When the plaintiff does leave home, I do not consider that he would be able to live in a group home. Past experience shows that that would not be a success, either from the perspective of the plaintiff, the other residents, or indeed the staff. I accept the joint position of the parties that the plaintiff will need individual accommodation. I also think that he will require 24-hour a day care. Whilst it is true that at the moment he very often sleeps through without interruption, in light of his cognitive impairment I think it is unreasonably dangerous for him to be left alone throughout the whole of the night. If there were a fire, for example, or some other emergency, I think that the plaintiff could be placed in serious danger.

188 On the other hand, I do not accept that he requires more than one carer at any one time.

189 Nor do I accept that at all times his carer must be a registered nurse. Whilst it may be the case that membership of a professional body causes persons such as lawyers, doctors and nurses to maintain ethical standards to a greater degree than persons (such as carers) who are not members of such a body, I regard the provision of a full-time registered nurse as not reasonably necessary.

190 On the other hand, I accept that it would be appropriate for a registered nurse to play a role as coordinator and overseer of the regime of care of the plaintiff. Having said that, that need will be substantially reduced by the extensive involvement of a case manager for which I have made allowance. I think allowance should be made on the basis that a registered nurse will spend two hours a week in performing that role.

191 As for home and garden maintenance, I would have thought that one hour per week at a rate of $50 is ample.

192 In short, I make allowance for 24 hours of care per day to be provided by a personal care attendant, with an additional two hours of care per week provided by a registered nurse, and one hour per week of gardening maintenance. I also make allowance for three hours of care by the plaintiff's mother from 2020 until 2056. I accept the rates set out at pp 3 and 7 of Exhibit J, the joint report of Ms Castle-Burton and Ms MacMaster. All of that is to apply from 2020.

(P) Additional travel and holiday costs - not agreed

193 The parties agreed that the plaintiff was entitled to allowance for the additional cost associated with travel and holidays that he will take in the future as a result of his injuries. The quantum of this additional cost was disputed, as was the submission of the plaintiff about the costs he would have incurred of vacations within Australia and overseas if he had not been injured.

(i) Expert evidence

194 Ms Castle-Burton and Ms MacMaster were of the joint opinion that the plaintiff's care needs on holidays are no different from when he is in his normal routine at home, and that accommodation that is suited to his disabilities, and that includes accommodation for his carer, would be required (Exhibit J).

195 The occupational therapists disagreed about whether an additional carer would be required when the plaintiff travelled. Ms Castle-Burton expressed the opinion that, if the plaintiff is travelling away from home overnight, two commercial carers would be required to allow both carers to take ample breaks. Ms MacMaster expressed the opinion that the plaintiff is likely to travel with a family member or friend, and it is only if this is not the case that a single commercial carer would be required to accompany him (Exhibit J).

196 The occupational therapists also disagreed about the class of travel the plaintiff would need on an aeroplane. Ms Castle-Burton expressed the opinion that the plaintiff would need to travel with one carer in premium economy class at a minimum, because of the greater seat width and functionality, better access to the toilets, and the smaller number of passengers in this area. In the witness box before me, Ms Castle-Burton explained that it was preferable for the plaintiff to be in a smaller, more exclusive cabin so that in the event of a "behavioural disturbance" there were fewer spectators and less disruption to other passengers. Ms Castle-Burton also stated that, if the plaintiff were agitated by crowds of people, he would be reluctant to travel in economy class (T185).

197 Ms MacMaster expressed the opinion that the plaintiff was able to travel in economy class as he would be able to walk without the use of aids while on an aeroplane, and in any event does not need to use the toilet frequently (Exhibit J). In the witness box before me, Ms MacMaster conceded that the plaintiff would be more comfortable with the larger seating provided in premium economy or business class, but stated that it was unlikely that physical discomfort on the part of the plaintiff would provoke behavioural issues. She also noted that it is her experience that people with a disability are given priority access to the toilet on commercial flights, and if necessary are assisted when entering and exiting their seat, regardless of which class they are travelling in (T185-7).

198 Dr Zeman and Dr Buckley were of the joint opinion that the plaintiff's carers should travel with him on holidays, and that he would require accessible accommodation (Exhibit 35). This issue of travel and holiday expenses was not dealt with when the two specialists gave oral evidence in conclave before me.

(ii) Submissions of the parties

199 The plaintiff submitted, based on the evidence of Dr Buckley, Dr Zeman and Ms Castle-Burton, that the plaintiff should travel in business class because it would afford greater leg room, better accessibility to toilets, and a smaller audience in the event that the plaintiff did lose his temper (T 277).

200 The plaintiff submitted that it was not appropriate to use the current frequency of travel by the Scott family as an indicator of how often the plaintiff would have travelled in the future, as it is unlikely that the plaintiff would have had the domestic responsibilities that his parents have had due to their large family (T279). The plaintiff submitted that he was entitled to additional travel and holiday costs with regard to the following:

• five international holidays spread evenly over the plaintiff's life expectancy;
• two short stay (five night) holidays within Australia per year; and
• a four week holiday within Australia per year (less the five years that the plaintiff travels internationally).

201 The plaintiff submitted that the costs of an able-bodied person undertaking these holidays, as stated in the travel report of Mr James that became Exhibit AQ, were as follows:

International holiday (on average) $12,665

Four week domestic holiday $7,665

Five day domestic holiday $1,491

202 The costs of a disabled person undertaking these holidays were as follows:

International holiday (on average) $109,255

Four week domestic holiday $29,143

Five day domestic holiday $8,678

203 Applying the 5% multiplier for 65 years, the plaintiff claimed $705,949 for travel within Australia, and $141,588 for overseas holidays. These amounts include allowance for two carers to accompany the plaintiff.

204 The defendant submitted that there was no evidence of the plaintiff or his family ever having gone on a holiday before or after the accident. The defendant conceded that, if the plaintiff did go on a holiday without another family member, he would require a carer, and is therefore entitled to the additional expenses that this would involve. The defendant submitted that it was appropriate to allow five four-week interstate holidays and two four-week international holidays over the course of the lifetime of the plaintiff. In short, the defendant allowed $50,000 for additional travel and holiday costs.

(iii) Determination

205 The submissions of the plaintiff were, I respectfully consider, based on incorrect assumptions about what the plaintiff would have done with regard to vacations if he had not been injured, and also about what he would require or seek now that he is injured.

206 I have already expressed the view that the plaintiff would have, throughout his life, earned two thirds of average weekly earnings from the time he left school until the time he retired. Quite apart from that, as the defendant submitted, there was no evidence that any family member of the plaintiff had ever enjoyed a holiday, let alone an international holiday. In the result, I do not consider that the plaintiff, if uninjured, would have been going on expensive domestic or international holidays.

207 To the contrary, I think that realistically he would have often gone camping, or stayed in holiday houses near a beach, or at modest regional guesthouses or motels. I think that he would have flown to such places as the Gold Coast or Melbourne on holiday quite rarely: on average every four years. And when he did so, he would not have stayed in expensive five star hotels. He would have stayed in three star accommodation for two weeks.

208 I do not accept that, if he had not been injured, the plaintiff would have been spending, on an annual holiday within Australia, $7665 per year or anything approaching that figure. I think that he would have been spending something in the order of $2000 each year on an annual domestic holiday.

209 Other than that, I think that he would have gone away on perhaps three long weekends or short stays per year, each one of those trips costing no more than $750 in total. I do not think that he would have flown to those destinations, but rather would have undertaken a drive of several hours.

210 As for the future, I accept that the plaintiff would need to be accompanied by a carer whilst on domestic vacation. That person would require his or her own plane seat, and three star accommodation in an adjoining hotel room or in one bedroom of a two bedroom holiday apartment. I am also prepared to allow for reasonable incidental daily costs of the carer, to be agreed by the parties if possible. Those extra costs should be calculated on the basis of my findings in [207]-[209].

211 As for international travel, if the plaintiff had not been injured, again I respectfully do not consider that the plaintiff would have been in the habit of flying to, and staying in, such cities as Paris or New York City. I think that he would have, on occasion, flown to Bali for a summer holiday, or Christchurch for a skiing holiday. I do not think that, if uninjured, the plaintiff would have holidayed overseas more regularly than every eight years. Again, he would have stayed in three star accommodation, for a period of two weeks. I estimate that such a holiday would have cost no more than $4000.

212 As for travel now, it may be seriously doubted whether the plaintiff would desire to spend many hours on a long haul flight surrounded by strangers in a claustrophobic setting. As I have said above, the plaintiff does not enjoy meeting unknown people, or being in group settings. I reject the proposition, on the evidence placed before me, that the plaintiff would enjoy or be capable of a flight of longer than five hours.

213 Nevertheless, on the basis that I consider that, over the years, the plaintiff may well become more tolerant of groups of people, I am prepared to allow for four international trips throughout the rest of his life. I do not believe that any such trip would extend beyond two weeks. Again, the plaintiff would need to be accompanied by one carer. I respectfully regard the suggestion that his physical, cognitive, and emotional difficulties mean that either the plaintiff or the both of them must travel in business class or premium economy as being beyond what is reasonably appropriate. I consider that two seats in an exit row of economy class would be sufficient.

214 In short, I allow, as extra costs of travel that will be incurred by the plaintiff as a result of his injury with regard to four international trips of two weeks duration throughout the life of the plaintiff, an extra seat for a carer in economy class, an exit row surcharge for the plaintiff and his carer, an extra room for the carer in a three star hotel for the periods that I have indicated, and the reasonable incidental daily costs of the carer.

(Q) Sexual services - not agreed

215 In her report dated 18 June 2013, Ms Castle-Burton stated that the mother of the plaintiff is "concerned about [the plaintiff's] preoccupation with sex and sexuality and is concerned about his appropriateness around the younger children [and] therefore does not allow them in [the plaintiff]'s room." She expressed the opinion that the plaintiff required "the services of a disability trained sex worker at least once a week to engage with him enabling him to experience normal sexual intercourse and intimacy" (Exhibit H). In a supplementary report of 11 April 2014, Ms Castle-Burton stated that the cost of this service is generally around $350 per hour (Exhibit AR).

216 In his report dated 7 February 2014, Dr Buckley noted that history, and stated:

I am usually reluctant to prescribe sexual surrogacy assistance, in the absence of clear evidence that such provision significantly reduces the incidences of unwarranted sexual behaviour by a person with brain injury.

In so far as it seems that such a trial has not been conducted, I would have difficulty recommending this, based on the mere possibility that it may assist. In my experience, sexual therapy is not universally of assistance in such circumstances.

If evidence arose which suggested that it was particularly helpful in this regard, then I would be prepared to support the proposition.

217 The plaintiff's mother said the following in her evidentiary statement of 11 September 2013 (Exhibit B):

In the last year or so Blake has begun to be obsessed with sex. He mentions it every day. He mentions it in inappropriate circumstances. He mentions it to me and I will often say to him that those sorts of comments should not be made in front of women. He has even suggested to me that he would like to be with a woman and that he would like to attend a brothel. ... I have observed him to make grossly offensive comments to young women including friends of my daughters.

218 The sister of the plaintiff, Ms Kaitlyn Scott, gave evidence that the plaintiff regularly made inappropriate sexual comments to her friends, and in the presence of strangers (Exhibit C, T 93). In the witness box before me she gave evidence that the plaintiff had seen a sex worker at least once approximately two months ago. She stated that the sexual comments "picked up slightly" before the plaintiff saw the sex worker, but that after the visit the comments decreased and he was more respectful towards her friends (T 93-94). However Ms Kaitlyn Scott noted that, just prior to her giving evidence, the plaintiff had noticed a woman outside the court building and said "Damn" within her hearing (T 94). I understood her evidence to be that she inferred that the plaintiff was thereby remarking on the attractiveness of that woman.

219 Dr Buckley was informed of the evidence of Ms Kaitlyn Scott in the witness box before me. He stated that "that is evidence that it may assist in reducing the sexual forwardness of this boy", but emphasised that the degree of sexual aggression in the plaintiff's case is "fairly low" (T 242).

220 Dr Zeman added the following comments:

... [I]f that's the case it provides some evidence. I suppose it's only one episode and it was only short-lived, my understanding would be that provision of a sexual worker, although pleasurable, is not really considered to be normal treatment for inappropriate behaviour. If it works in him, I'm willing to change my opinion, but I don't know whether there's enough evidence on that to suggest that at the moment.

221 The plaintiff submitted that he was entitled to allowance for two hours of sex services per week. He submitted that that allowanced could be lessened as time progresses. In discussion between Bench and Bar table, senior counsel for the plaintiff agreed that this head of damages was, in effect, compensation for lost enjoyment of life, akin to making allowance for a person to attend football games if they had a particular interest in football (T281-2).

222 The defendant submitted that no allowance should be made for this head of damage. The submission was founded on the evidence of the rehabilitation specialists that it was unclear whether using sexual services would have a positive effect on the behaviour of the plaintiff generally, and the fact that the evidence of his sister that seeing a sex worker in the past ameliorated the plaintiff's behaviour was based on one instance alone.

223 The defendant also submitted that general damages for non-economic loss adequately compensate the plaintiff for loss of enjoyment of life, and that there should not be a separate allowance for this particular loss. Counsel for the defendant submitted that there was no reported decision in which damages had been separately awarded in the way for which counsel for the plaintiff contended.

224 In the event that I was inclined to make an award for this head of damages, the defendant submitted that it should be for one hour every three months.

225 Turning to my determination, the evidence shows that, due to his cognitive and emotional deficits, the plaintiff sometimes engages in inappropriate conduct in public places with regard to women whom he regards as sexually attractive. He will sometimes make lewd comments about them, comments that are audible to the woman concerned and her companions. Quite apart from the inherently anti-social nature of such behaviour, the concern is that one day a woman or her companions may take violent exception to what the plaintiff has said.

226 It is true that there was some evidence that attendance upon a sex worker served to alleviate the problem to a degree. But the evidence was quite equivocal, and I do not consider that an allowance should be made for the plaintiffs seeing a sex worker as part of his treatment or management. As for the loss of the his enjoyment of sexual contact with others occasioned by his injuries, that is reflected in my assessment of non-economic loss. To be clear, my assessment of this issue is not based upon moral determinations about the desirability of persons paying other persons for sexual services; it is based upon the evidence, including that provided by Dr Buckley, a witness called by the plaintiff.

(R) Conclusion

227 I trust that this judgment determines every matter that remained in dispute between the parties by the end of the hearing. If I have overlooked any specific area of dispute, that can be brought to my attention on the occasion of the provision of draft orders in this Court.

(S) Costs

228 The plaintiff has enjoyed a large measure of success with regard to the issues that were in dispute by the end of the hearing, but it has by no means been complete. I would be obliged if the parties were in a position to provide me with very brief written and oral submissions on the topic of costs on the next occasion.

(T) Orders

229 I make the following orders:

(1) Judgment for the plaintiff in a sum to be determined.

(2) The parties are to confer and prepare short minutes of order reflective of this judgment.

(3) The parties have liberty to approach my Associate after 2 February 2015 to set a date for the hearing of any submissions required with regard to orders giving effect to this judgment, and with regard to costs.

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Decision last updated: 19 December 2014