Damages - Personal injury- Stroke - Psychiatric injury - Assessment - Loss of earning capacity - Need for domestic assistance and care and support - Cost of fund management - No legal incapacity - GST

Workers' Compensation and Injury Management Act 1981 s 92

Damages awarded to the plaintiff in the sum of $2,037,292.94

A v City of Swan (No 5) [2010] WASC 204

Black v Motor Vehicle Insurance Trust [1986] WAR 32

Bowen v Tutte (1990) Aust Torts Rep 81-043

Gagner Pty Ltd t/as Indochine Café v Canturi Corp Pty Ltd [2009] NSWCA 413

March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506

Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511

Mortimer v Burgess (1997) 25 MVR 463

Nicholson v Nicholson (1994) 21 MVR 125

Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49

Nominal defendant v Martin (1997) 26 MVR 474

Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167

White v Fell (Unreported, EWCACiv, 12 November 1987)

Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627

1 In May 2003 the plaintiff (Mr Reynolds) was employed in the Western Australian public service as a policy coordination officer at the Department of Planning and Infrastructure (DPI). The DPI's offices were at 441 Murray Street, Perth.

2 At about 7.10 pm on 22 May 2003 as he was leaving work, Mr Reynolds caught a lift travelling to the basement of the premises. When the lift reached the basement and the doors opened the lift stopped short of the level of the basement floor. As Mr Reynolds stepped from the lift to the basement, being unaware the lift had not fully reached the floor level, he stumbled and fell jarring his neck and back.

3 On 6 June 2003 Mr Reynolds suffered a cerebrovascular injury or stroke (the stroke). Mr Reynolds alleges, and the defendants admit, that as a result of the incident on 22 May 2003 when Mr Reynolds stepped out of the lift and fell, Mr Reynolds suffered a traumatic dissection of his left carotid artery, which in turn, led to the stroke. The stroke caused damage to the left insular cortex.

4 Mr Reynolds continued working after the incident on 22 May 2003. When Mr Reynolds suffered the stroke on 6 June 2003 he was at his home by himself. He called an ambulance and was taken to Royal Perth Hospital emergency department. He remained hospitalised at Royal Perth Hospital (RPH) until 15 June 2003. Following his discharge from RPH, Mr Reynolds underwent rehabilitation from the effects of the stroke including occupational therapy and attendances upon various doctors during which he was incapacitated for work.

5 In September 2003 Mr Reynolds commenced a graduated return to work (at DPI) with the assistance of a vocational rehabilitation service and by about January 2004 was working six hours per day. When he suffered the stroke, Mr Reynolds was employed on a full-time basis in a level 5 position in the State public service with DPI.

6 In October 2007 Mr Reynolds commenced employment with the Department of Industrial Relations (DOIR). By mid-2009 he was employed in the Department of Mines and Petroleum (DMP) in a full-time capacity as manager of strategic coordination in a level 7 position.

7 On 6 July 2009, at the request of Risk Cover, the worker's compensation insurer for the first defendant, Mr Reynolds was reviewed by a consultant neurosurgeon Professor Reilly. Professor Reilly concluded Mr Reynolds was unable to fulfil the requirements of his level 7 position. Professor Reilly was provided with a copy of a report of Mr Reynolds' general practitioner Dr Moussa of 22 February 2009. In that report Dr Moussa concluded, inter alia, Mr Reynolds suffered various restrictions at work and was not fit for his pre-accident employment. Dr Moussa thought Mr Reynolds:

Would best be suited to work in a supernumerary capacity where there is not severe work pressures, time restrictions, and constraints that would be straining his mental function and capacity.

8 Professor Reilly agreed with the limitations set out by Dr Moussa in his report.

9 Following receipt of the reports of Professor Reilly and Dr Moussa Ms Woodley, in a memorandum dated 22 July 2009 to Mr Sellers, the director general of DMP, advised 'DMP is unable to accommodate the restrictions on his medical reports in his current role' and recommended that Mr Reynolds be directed to remain home until it was established that suitable duties could be arranged. That recommendation was apparently accepted by Mr Sellers on 27 July 2009.

10 By letter dated 28 July 2009 DMP advised Mr Reynolds that two medical reports it had obtained 'raised serious concerns about your ability to undertake your duties at work' and advised Mr Reynolds:

DMP has considered the information provided and regret to inform you that we are unable to identify a suitable role for you. Therefore you are being directed to remain at home from today (28 July 2009) until a return to work programme has been facilitated ...

11 No return to work programme was ever 'facilitated' for Mr Reynolds. Mr Reynolds has never returned to work since 28 July 2009.

12 The second defendant had control over and was responsible for the day-to-day management and maintenance of the premises at which the incident on 22 May 2003 occurred. The second defendant also appointed Kone Elevators Pty Ltd, the fourth defendant, to service and maintain the lift from which Mr Reynolds stepped and fell.

13 Liability is not in issue having been agreed between the parties on the basis the first, second and fourth defendants admit liability, there being an apportionment of contributory negligence against Mr Reynolds of 10% and the action against the third defendant be dismissed. The first, second and fourth defendants have between them, agreed their respective apportionment and, accordingly, I am not required to determine any apportionment between the defendants.

14 When the trial commenced on 5 August 2013 it remained in issue whether the incident on 22 May 2003 caused the stroke suffered by Mr Reynolds on 6 June 2003. However, on 8 August 2013 counsel for the defendants formally admitted the stroke suffered by Mr Reynolds was caused by the jarring-type injury suffered by him to his neck and back in the incident on 22 May 2003 as pleaded at par 18 of the statement of claim which reads as follows:

1. Mr Reynolds was a passenger in the lift travelling to the basement of the premises;
2. The lift reached the basement, stopped and opened its doors;

1. The lift had not reached ground level, being approximately 30 to 50 cm above ground level;

1. Mr Reynolds was carrying objects in his arms in front of him;
2. Mr Reynolds disembarked from the lift, being unaware that the lift had not reached the ground level when its doors opened;
3. Mr Reynolds fell when disembarking from the lift, having extended his right leg to the ground, causing him to jar his leg, back and neck, sustained the injuries referred to in paragraph 30 herein ('the incident').

15 Counsel for the defendants also admitted Mr Reynolds suffered the injuries pleaded at pars 30(a) to (c) of the statement of claim which reads as follows:

1. Cerebrovascular accident;
2. Traumatic dissection of the left carotid artery;

16 Counsel also admitted that as a result of the injuries Mr Reynolds has suffered loss of vision in the left eye as pleaded at par 32(d) of the statement of claim.

17 It remains in issue whether and, if so, to what extent Mr Reynolds has suffered and continues to suffer the residual disabilities and symptoms pleaded at pars 32 and 33 of the statement of claim and if he does suffer those residual disabilities, whether they are caused by the injuries the defendants admit Mr Reynolds suffered as a result of the incident on 22 May 2003.

18 Dr Stephen Buckley, a rehabilitation physician called on behalf of Mr Reynolds, explained the role of the insular cortex in the functioning of the brain as being a kind of a relay connecting the frontal, temporal and parietal lobes of the brain together. The insular cortex is at the base of the three lobes of the brain and connects the information from each of the three lobes. The frontal lobe is the seat of personality, the temporal lobe is where memories are housed and the parietal lobe is where perception of surroundings or environment is processed. Therefore damage to the insular cortex can cause a disconnection between the three different functions of the lobes of the brain causing a disconnection between memory, personality and perception (ts 474 - 475).

19 Dr Marjorie Collins, a clinical psychologist, was called on behalf of Mr Reynolds. She holds qualifications in and has experience in cognitive neuropsychology. She is qualified to conduct neuropsychological testing. Dr Collins described one of the primary functions of the insular cortex was to help make sense of social and emotional issues and integrate them with your own responses and then respond to another person (ts 563). In cross-examination Dr Collins said (ts 570):

... The insular cortex, because of its extensive interconnections between higher and lower brain centres, if you have damage to the insular cortex, you're going to get a much greater range of problems. Even with relatively small damage, you'll get a greater range of problems because the messages are not getting up clearly or getting down clearly from the higher brain centres, to help the person to function.

... The extent of damage to the brain is small, but the extent of impact on function is large because of the nature of the damage.

20 A psychiatrist, Dr Oleh Kay, was also called on behalf of Mr Reynolds. Dr Kay was asked by Mr Reynolds' solicitors to review Mr Reynolds. In a report dated 1 March 2011 Dr Kay concluded his diagnosis was that Mr Reynolds suffers from organic brain syndrome primarily affecting the left insular cortex and its connections to the frontal lobe and other anatomically related parts of the left brain. In his evidence (ts 610 - 612) he explained that when he originally wrote the report he did not know much about the insular cortex and has since learned more about it. He described the insular cortex as quite an important part of the brain which acts as an interconnection or a switching house between various critical parts of the brain, in particular the frontal lobe, but also integrates information from the parietal and the temporal lobes on an unconscious level. He said that a whole variety of seemingly unconnected symptoms are caused by impairment of the insular cortex. When he asked Mr Reynolds to write down the symptoms which were causing him the most concern, Dr Kay realised they were symptoms of insular cortex dysfunction.

21 Dr Kay explained the frontal lobe is where the executive functioning sits which includes the capacity to plan strategies and to inhibit impulsive behaviour. It is critical for the capacity to read maps, for the understanding of humour and for the understanding of motives of other people. He described it as 'The part of the brain that really makes us human. It's where our personality sits'.

22 Dr Kay also explained that difficulties with initiating and completing tasks were a classic frontal lobe syndrome which is also described as insular cortex dysfunction. He said there was no organic damage to the frontal lobe but there was damage to the insular cortex which was functionally connected to the frontal lobe. The insular cortex is a very important and critical part of the brain which is the area which has been impaired or damaged following the stroke.

23 Dr Kay compared the insular cortex to a modem and said that if there was damage to the modem it caused interference in messages getting to the computer comparing it to the frontal lobe. Damage to the insular cortex interfered with communication back and forth to and from the frontal lobe.

24 Dr Kay explained the temporal lobe primarily houses memory and said:

The insular cortex abuts up against a structure called the hippocampus, which is really critical for consolidating memory. If you haven't got a hippocampus then you can't lay down new memories.

25 Dr Kay described Mr Reynolds' situation, where the insular cortex alone is affected, although there was also evidence of other impairment in the corona radiata, as 'really quite unusual'.

26 Mr Reynolds' treating psychiatrist Dr Lance Risbey, who has treated Mr Reynolds since May 2009, explained that the understanding of the role of the insular cortex as an organic basis of psychiatric symptoms is fairly recent in being appreciated. He explained that over time he came to realise that the symptoms suffered by Mr Reynolds were not just simply frontal lobe disinhibition:

... But are more to do with how all these different parts of the brain are regulated and coordinated, and I think coordination of parts of the brain by the insular is probably where he's running into problems.

Okay. And what is it about the - what's the coordinating role of the - of the insular cortex? - Well, it - it's actually commensurate with its position. It's - it's tucked in between the frontal lobe, parietal lobe and the temporal lobe, and it - it's very close to some other very important areas, like the limbic system, with the hippocampus and the amygdala, which - the amygdala mediates aggression and fear responses. The hippocampus regulates emotions and ties them in with memories. The insular is close to all of these and receives fibres into and out of this area, so it's a crucial area which deserves a lot more research and study. (ts 634)

27 As I noted above [17], it remains in issue whether any residual disabilities suffered by Mr Reynolds are caused by the injuries the defendants admit Mr Reynolds suffered as a result of the incident on 22 May 2003 and the subsequent stroke. In Mr Reynolds' submission he has suffered damage to the insular cortex and associated structures of his brain. He has also suffered permanent loss of vision in his left eye. Mr Reynolds submits:

The evidence is overwhelming that the Plaintiff sustained a primary injury in the accident of 22 May 2003 with the consequential cerebrovascular stroke ... that there was damage to the insular cortex and associated structures of brain including the neuronal pathways (see Dr Terace ts 1185) and permanent loss of vision in his left eye. The injury is organic brain injury which operates both as a primary cause of his cognitive impairments and has given rise to secondary psychiatric conditions. It is the Plaintiff's case that whether the emphasis is made in respect of organic brain damage or the psychiatric conditions, the difference is one of emphasis rather than effect ... the compromise of the Plaintiff's capacity to engage in employment, attend to all of his personal needs and to have enjoyment from life or work, has been severely and irreparably damaged.

28 The defendants on the other hand submit Mr Reynolds has only:

... Suffered a small area of organic brain damage to the left insular cortex, but has made a very good recovery and is left with some residual problems but not of such severity as to explain the nature and extent of disabilities he has claimed to suffer from since his employment ended.

His main problem is psychiatric. There is evidence to find his psychiatric conditions were caused or contributed to by the stroke rather than the organic brain injury by itself. There are other non compensable causes of his psychiatric condition. There is ample evidence of unusual bizarre and unrelated complaints since he was hospitalized in July 2003 which he has continued to refer to. These clearly indicate an exaggeration of his psychiatric condition.

29 In his oral closing submissions, counsel for the defendants submitted that to the extent Mr Reynolds suffers any residual disabilities the major cause is a psychiatric condition rather than an organic brain injury. Further, the defendants submit Mr Reynolds' psychiatric condition is contributed to by pre-existing matters.

30 The defendants submit that I am therefore required, notwithstanding their admission that Mr Reynolds suffered the injuries pleaded at pars 30(a) to (c) of the statement of claim, to make a finding whether the primary cause of any ongoing residual disabilities suffered by Mr Reynolds is an organic brain injury or a psychiatric injury. I shall address and determine this issue later in these reasons.

31 In May 2003 Mr Reynolds was employed as a policy coordination officer at the Department of Planning. He was a designated level 5.4 State government employee but acting at a higher level.

32 Mr Reynolds often rode a mountain bike to and from work. He estimates he rode around 150 km a week on the mountain bike. On 22 May 2003 Mr Reynolds, after he had finished work for the day, caught the lift intending to change into clothes suitable for riding his bike. Mr Reynolds was unclear as to exactly what happened but recalled he fell. He thought he may have hit his head but was uncertain. He said there were gaps in his memory.

33 Mr Reynolds described the fall as very painful but without explaining where he felt pain.

34 He recalled speaking to a security guard and a building manager and telling them about the problem with the lift. He does not remember much about riding home that afternoon or what he did that night but recalled having pain all through his body and going to bed, in his words, 'feeling absolutely terrible'. He felt pain in his right ankle, right knee, hip, small of his back, his neck and particularly the left side of his head, from the left side of his forehead around to the back of his head to the bottom of his skull.

35 In the following days the pain in his ankle, knee and hip resolved but he continued to suffer from pain in his back which he likened to being kicked in the back, although the pain was getting better.

36 He also continued to suffer pain in his head especially on the left side which for a time lessened and then worsened.

37 The pain in his head continued to worsen until he woke up on the morning of 6 June 2003 and realised he was partly paralysed. When he awoke he recalled the room was swaying and he could not focus on the wall. As he went to get out of bed he could not move his right arm. He was confused and felt nauseous. The pain on the left side of his head and neck was getting worse. He attempted to get out of bed but his right leg buckled and he was unable to support his weight.

38 He managed to get to his phone intending to ring an ambulance but could not initially recall the telephone number for the ambulance. Eventually he was able to dial for an ambulance and spoke to an operator and asked for an ambulance. He recalled his speech was slurred.

39 At the time, Mr Reynolds was living by himself at 21 Armadale Road, Rivervale. Mr Reynolds married his wife in January 2003 in the United States of America where he stayed until the end of March before returning to Australia. Mrs Reynolds was unable to accompany him back to Australia at that time because her immigration documentation was still being finalised.

40 Mr Reynolds was taken by ambulance to the emergency department at RPH. By the time he arrived at the hospital he was less confused. He knew his name and his address. He could explain what had happened. He was still experiencing pain in his head and neck which he described as getting excruciatingly worse and he started screaming before lapsing into unconsciousness.

41 He next recalled waking up in the hospital and he could not move, see or hear but soon recovered his hearing but only partial sight in his left eye. He could not see out of his left eye. He recalled trying to speak to a nurse but could not. He felt trapped.

42 He said ever since then he has suffered from panic attacks and nightmares.

43 Mr Reynolds was hospitalised at RPH until 15 June 2003 when he was discharged home. While hospitalised he underwent various testing, therapy assessments, including review of his impaired vision, and was prescribed medications.

44 From a report of Dr Mason of RPH dated 11 July 2003 it was reported that Mr Reynolds was admitted on 6 June 2003 with difficulty talking, mild arm weakness and visual field defect in his left eye. Mr Reynolds also had some cognitive problems including slow information processing, slow problem solving and slow planning. Mr Reynolds' right arm weakness and speech problems resolved during his admission but he continued to have difficulty with information processing on discharge. He also remained with the left visual field defect.

45 It was also reported that Mr Reynolds had an MRI scan on 6 June 2003 which showed that his symptoms were due to a stroke affecting his left insular cortex. It also showed that this was secondary to a left internal carotid artery dissection and thrombus arising just distal to the bifurcation and extending into the cavernous portion of the internal carotid artery.

46 The report also noted that Mr Reynolds had a history of type-2 diabetes, hypertension and hypercholesterolaemia. I will later refer to these conditions in more detail when considering issues raised by the defendants.

47 The report recorded Mr Reynolds had physiotherapy and occupational therapy as well as an ophthalmology review while in hospital. He was to have further occupational therapy as an outpatient.

48 In a report dated 21 August 2003 Professor Constable said the left carotid occlusion involved the ophthalmic artery and wiped out most of the useful function in the left eye leaving a dense black field defect in the superior half which was unlikely to recover. He also noted Mr Reynolds was suffering from coordination problems between his eyes from which he thought Mr Reynolds would gradually recover.

49 Mr Reynolds said he did not feel right when he was discharged. He had difficulty locating the train station and then buying a ticket. Once home, he felt unable to cope. He described getting to the front door and not remembering whether he locked the back door and then checking the back door only to forget whether he had checked the back door by the time he returned to the front door. He described going back and forth between the back and front doors before being able to leave the house. He later started leaving himself notes at the front and back doors saying the back door had been locked.

50 He said he then re-admitted himself to hospital for another day or two.

51 However, he appears to be mistaken about that. I have read through the RPH records which were tendered into evidence (exhibit 38) and there is no record of Mr Reynolds being re-admitted to hospital. There is though a handwritten note of Dr Bala, the neuropsychiatry registrar, of 15 June 2003 which includes the following comment:

Went back to his house for [approximately?] two hours yesterday by himself and was able to tolerate this with some anxiety. Now feels that he has overcome/mastered this as well and feels quite relaxed. His periods of anxiety building up during the day which he recognises and controls by breathing.

52 Dr Bala's note goes on to record that Mr Reynolds was discharged that day, that is, 15 June, and was to be reviewed in the neuropsychiatry clinic in two weeks' time.

53 There is a subsequent handwritten entry in the notes by someone else dated 18 June 2003 which records the occupational therapist (OT) was unable to review Mr Reynolds on 16 June 2003 as planned as he was discharged to home on 15 June.

54 Mr Reynolds said he then rang a friend in Busselton seeking her assistance and stayed with her for two weeks. He said he was unable to properly function or look after himself. During that two-week period his friend provided all his needs and cooked for him.

55 He then returned to his house in Perth. His wife Pamela Reynolds arrived in Perth shortly afterwards on 8 July 2003.

56 Mr Reynolds was reviewed by Dr Bala in the outpatient clinic of the Department of Neurology at RPH on 30 June 2003. In a report of the same date Dr Bala recorded that when he first reviewed Mr Reynolds after he was admitted to RPH Mr Reynolds presented with features of an acute disorder with feelings of helplessness and terror when he had the stroke, dissociative symptoms (de-personalisation, numbing) and avoidance (not wanting to go home because of the trauma associated with it). Anxiety management strategies were commenced and Mr Reynolds improved and was able to return home where Dr Bala said he had been coping reasonably well. On review Dr Bala noted:

There is still an underlying propensity towards anxiety, driven by some of the cognitive deficits (memory, spatial orientation, visual field defects) since the stroke, but he is able to regain control over his symptoms with breathing techniques and cognitive refraining.

57 Mr Reynolds told Dr Bala he wished to continue with psychological therapy but did not feel medication was warranted with which course Dr Bala was supportive and referred Mr Reynolds to the psychological services. Dr Bala felt Mr Reynolds' anxiety was settling and the prognosis was positive from that point of view, however, adjusting to the cognitive deficits would be a challenge and would perpetuate periods of anxiety.

58 Mr Reynolds was reviewed in the Department of Neurology on 11 July 2003 by Dr Lam, a neurology registrar. In a report of the same date Dr Lam recorded that over the previous week Mr Reynolds had experienced progressive left limb weakness most marked in the left hand and left lower leg. It was also recorded Mr Reynolds had been attending a neuropsychiatric clinic with Dr Bala and that Mr Reynolds believed his anxiety had much improved. Dr Lam discussed Mr Reynolds' case with a Professor Dimmitt and in order to rule out organic causes of Mr Reynolds' symptoms recommended an MRI of the cervical region and repeat MRA of the intra and extracranial vessels to exclude any further sites of dissection be performed. Dr Lam also reported he informed Mr Reynolds there was a possibility that the symptoms may be psychosomatic and relate to an adjustment disorder following a significant injury.

59 In a report dated 14 July 2003 Ms Karren Spagnolo, a senior occupational therapist at the neurosciences unit at RPH, recorded Mr Reynolds was referred to outpatient occupational therapy on 18 June 2003 for assessment of executive function in relation to his ability to return to work and driving. It was recorded that Mr Reynolds reported he had returned to driving. Ms Spagnolo told Mr Reynolds he should inform the Department of Planning and Infrastructure about his stroke prior to returning to driving.

60 In her report Ms Spagnolo also noted that a test of everyday attention was conducted on 10 July 2003. The test indicated mild to moderate selective visual attention deficits and moderate dual attention deficits. Processing visual information was slow and attention and residual left visual field deficits, it was thought, might make Mr Reynolds inappropriate for driving or operating power tools or heavy machinery.

61 Ms Spagnolo also discussed with Mr Reynolds the nature of his pre-stroke work duties and his ability to return to work. She concluded:

Dual attention deficits may affect his ability to monitor two things at once, e.g. look at computer schedule while talking on the telephone; driving.

62 She referred Mr Reynolds to the State Head Injury Unit for facilitation of a gradual return to work programme.

63 She also recorded that Mr Reynolds reported feelings of anxiety but that Mr Reynolds had declined the offer of clinical psychology services through RPH.

64 Amongst the RPH records is a short report dated 19 July 2003 noting Mr Reynolds reported to the emergency department on 19 July presenting with symptoms of increasing confusion, nausea, altered hearing and altered sensation on the left side of his body. The diagnosis was 'Psychiatric - Anxiety'.

65 Mr Reynolds was referred by his general practitioner Dr Moussa for an MRI scan of his brain and cervical spine on 24 July 2003. In a report of 24 July 2003 Dr Davis of SKG Radiology noted there was an occlusion of the left internal carotid artery secondary to dissection. Previously demonstrated infarction involving the left insular cortex was again identified. Additionally he noted there was a region of acute or subacute infarction within the left corona radiata which had developed since the previous MRI scan of 8 June 2003.

66 Mr Reynolds was reviewed by a consultant neurologist, Dr David Rosen, in the Department of Neurology at RPH on 29 July 2003. In a report of 11 August 2003 Dr Rosen recorded that Mr Reynolds attended the stroke prevention clinic with Mrs Reynolds. It was also recorded Mr Reynolds had presented on several occasions since the carotid dissection. Mr Reynolds continued to report left-sided sensory symptoms, which had previously been labelled as an anxiety although not clearly diagnosed, which Dr Rosen found difficulty in reconciling. The report records that the left-sided symptoms had gradually progressed over the previous two weeks causing Mr Reynolds to become quite stressed and anxious. Mr Reynolds had presented several times to the emergency room with anxiety and symptoms consisting of altered sensation down his left side. Although Dr Rosen noted that Mr Reynolds was clearly quite stressed by the symptoms, he remained unable to reconcile them and said they were not typical for a stroke. He said it was necessary to review the results of the MRI and MRA but the scans were then unavailable.

67 Mr Reynolds was reviewed by Dr Klijn, the stroke registrar to Dr Rosen, on 12 August 2003. In a report of 18 August 2003 Dr Klijn reported the MRI of 24 July 2003 of the brain and the MRA

still showed occlusion of the left internal carotid artery secondary to dissection. ... In addition to the previously demonstrated infarction involving the left insular cortex, there was a region of acute or subacute infarction within the left corona radiata which has developed since previous MRI of 8 June 2003. No abnormalities were seen in the right internal carotid artery.

68 Based on the results of the MRI/MRA Dr Klijn ruled out any organic cause for the left-sided symptoms and felt that the cause was most likely related to Mr Reynolds' anxiety. It was recorded since 21 July Mr Reynolds had experienced three episodes of anxiety attacks and that because of the attacks he had established contact with a psychologist at the State Head Injury Unit.

With respect to the new ischaemic lesion in the left corona radiata, which was identified on the MRI, we do have to conclude that it most likely was another embolus, of the left ICA occlusion. Fortunately Mr Reynolds has not experienced any clinical symptoms from this event.

70 Dr Moussa referred Mr Reynolds to a neurologist, Dr Keith Grainger, on 27 August 2003 and Dr Grainger provided a report of the same date. Mr Reynolds described to Dr Grainger an onset of an increase in numbness down his left side, feelings of nausea and hyperventilating with palpitations. Mr Reynolds also reported feeling confused and not knowing his wife's name and having gory images of seeing blood. There were also reports of daily headaches coming on in the late afternoon and early evening.

71 Dr Grainger concluded his report by saying that the degree of symptom aetiology after the stroke with relatively good resolution as being outside his experience and that it was difficult to escape the conclusion that the episodes reported by Mr Reynolds were psychosomatic in nature.

72 Dr Rosen reviewed Mr Reynolds on 14 October 2003 and provided a report of the same date. Mr Reynolds still reported suffering from ongoing trouble with paraesthesia on the left side and some minor word finding difficulties. Dr Rosen noted that by then Mr Reynolds had been back at work for four weeks doing three eight-hour shifts at DPI. Dr Rosen also recorded that Mr Reynolds had some impairment of concentration and speed of processing but otherwise was coping well. Dr Rosen still recommended that Mr Reynolds be reviewed with the results of the MRI/MRA which apparently had still not been provided to him.

73 A neurologist, Dr Carroll, reviewed Mr Reynolds on 28 October 2003. In his report dated 26 March 2004, Dr Carroll identified the damage to the insular cortex and resulting language dysfunction, right hemi-motor dysfunction and left monocular visual impairment. Dr Carroll described the MRI scan of 24 July 2003 as showing 'additional involvement of the adjacent white matter extending through from the insular cortex to the ipsilateral lateral ventricle.'

Neurologically he has minimal residual signs of his left subcortical white matter ischaemic event. These are manifesting as subtle right-sided hyperreflexia in the limbs, over and above the mild distal sensory neuropathy. I found no evidence for significant language dysfunction at the present time, although this may be impaired when he is fatigued. There were no signs of right hemisphere involved, nor of brainstem affection to account for the left-sided sensory symptoms.

75 Dr Carroll thought nausea and dizziness and loss of balance reported by Mr Reynolds was due to an anxiety state and loss of confidence. Dr Carroll could not detect any memory impairment for short-term events but attributed any impairment to anxiety. He thought Mr Reynolds had suffered permanent subtle language dysfunction, right hemi-motor dysfunction confined to subtle loss of fine motor control when fatigued and left eye visual impairment.

76 As I have earlier noted Mrs Reynolds arrived in Perth on 8 July 2003.

77 After Mr Reynolds returned to Australia, he and his wife Pamela Reynolds were in regular telephone contact. They spoke with each other on the telephone on 5 June 2003, the day before he suffered the stroke. Mr Reynolds was complaining of a severe headache. He had been complaining about a headache for some time. They discussed him going to a doctor and he said he was planning to go a doctor the next day.

78 The next Mrs Reynolds heard was when she received a call from Mr Reynolds' former wife advising her he was in hospital.

79 Mrs Reynolds lived with Mr Reynolds at his Rivervale house.

80 Mrs Reynolds described Mr Reynolds as totally different from the man she had last seen three months earlier. In the first conversation they had together, Mr Reynolds told her that he thought he was dying and she should be prepared for that. Over time she noticed that because of the impaired sight in his left eye he would not be able to find things, particularly if he had dropped something, and he would become agitated and call out to her for help. He complained about the poor quality of light and they had to change the light bulbs in the house to increase the lighting. She observed Mr Reynolds being unable to read for long because of an inability to concentrate and because he suffered from headaches. When trying to read newspapers he would become frustrated and stop reading. She said this was different to her observations of Mr Reynolds in the short time they had been together in America. He used to enjoy reading and had 'tonnes of books' at his home.

81 Initially they slept together in the same bed. However, Mr Reynolds was intolerant to any movement in the bed and would often scream out in pain. She also observed Mr Reynolds frequently suffered from nightmares. Eventually she moved into another bedroom.

82 Mrs Reynolds said Mr Reynolds spoke differently. She described him as previously the utmost gentleman who did not swear. However, when they lived together in Perth he used a lot of foul language and verbally abused her which she found extremely painful and hurtful.

83 She noticed that he would become very fatigued by mid-afternoon. When they were out they would have to stop what they were doing and go home so Mr Reynolds could rest.

84 Their intimacy also suffered, mainly because Mr Reynolds complained of headaches which often lasted for days.

85 Mrs Reynolds was not employed for the first eight months following her arrival in Perth. When they were together in the United States they had discussed that Mrs Reynolds would take about three months after her arrival in Perth to acclimatise herself before seeking employment. However, because of Mr Reynolds condition she was preoccupied with caring for him. She said Mr Reynolds was reluctant to go anywhere without her. She accompanied him to all his appointments. She managed his medications. She went shopping with him. She did all the cooking, the cleaning and the general housekeeping. She paid all of the household bills.

86 She said that when they were together in the United States she was not always good about paying her bills on time and he used to get onto her about her domestic financial management and was very particular about making sure all bills were paid on time. He explained to her how much money she was wasting from late fees. However, in Australia she observed he was not focused on his financial affairs and was not ensuring bills were paid on time.

87 They decided they would sell the Rivervale property and buy another property. It was necessary to undertake a considerable amount of gardening to prepare the property for sale but because Mr Reynolds tired easily, Mrs Reynolds undertook the greater amount of the gardening. However, in the end it became too much for her and they ended up deciding to sell the house without finishing the gardening.

88 She also observed Mr Reynolds suffered from panic attacks which occasionally necessitated having to take him to hospital. At such times, Mr Reynolds was unable to verbalise what he wanted and at other times he would descend into verbal abuse.

89 On many days, Mr Reynolds did not get out of bed until early afternoon.

90 In September 2003, when Mr Reynolds returned to part-time work on a rehabilitation programme, he rode his bike to work but she would accompany him on her own bike and then in the afternoons she would meet him back at his office and accompany him on the ride home. She said she did this because he was afraid to ride by himself. She was also afraid he might fall off his bike because after he had returned to bike riding following the stroke he had occasionally lost his balance and fallen off his bike.

91 Eventually Mrs Reynolds obtained and commenced her own employment in March 2004. She was employed on a full-time basis. However, she continued to ride to work with Mr Reynolds. She would ride to his work and leave her bike at his building, change into her work clothes and go to her own place of employment. At the end of the day she would meet Mr Reynolds back at his place of employment and they would ride home together.

92 Mrs Reynolds said that when they were both working he would often ring her during the day disrupting her work. She continued to undertake all of the domestic duties at home.

93 In November 2005 she gained a position with the WA Department of State Development. By this time Mr and Mrs Reynolds had moved into a house at 27A Mort Street, Rivervale. They moved into that house in August 2005.

94 Mrs Reynolds described thereafter, while they continued to ride to and from work together frequently, it was not all of the time. She said that by the time Mr Reynolds arrived home he was exhausted and would go into his bedroom without talking to her and have to rest for several hours before he could eat dinner. Occasionally Mr Reynolds would arrive home before Mrs Reynolds and she would normally find him resting in the bedroom. On numerous occasions she asked him to help with the dinner but he was unable to. That was to be contrasted to the short period of time when they lived together in the United States when they cooked dinners together often for guests.

95 After Mr Reynolds returned to work, he prepared resumes for the purpose of applying for other positions within the public service. Mrs Reynolds reviewed the résumés he had prepared. She described the résumés as containing mistakes and as being very wordy. She corrected the mistakes and made the résumés more concise.

96 Mrs Reynolds said that in March/April 2005 they took a holiday together to Hawaii to visit her son who was then living in Hawaii. Mr Reynolds insisted on organising the trip but it took him much longer than she would have expected and the plans were so disorganised it took them many more flights than it should have to travel to where they had to. She contrasted that with how Mr Reynolds had attended to the necessary arrangements for her to move to Australia.

97 Mrs Reynolds described Mr Reynolds' sleeping patterns as abnormal and disrupted. He roamed the house at night. After she moved into another bedroom and Mr Reynolds had returned to work he would often wake her up at 1.00 or 2.00 o'clock in the morning telling her that he needed to find something for work and would be agitated, insisting whatever it was be found straightaway. Often when she did get up and look for whatever it was Mr Reynolds could not find, she found it very easily.

98 When they were together in the United States, Mr Reynolds enjoyed Mrs Reynolds' cooking. However, after she moved to Perth in July 2003 he no longer enjoyed the things she cooked, especially flavoured or spicy food.

99 She described how friendships Mr Reynolds had when she first came to Perth dropped away. People who used to visit, stopped visiting. Mr Reynolds is no longer comfortable in group situations. If they did go to events with a number of people he would not want to stay for very long and would start becoming stressed.

100 In social conversation, Mr Reynolds talks too much and will not let anyone else talk. She would often touch him on the arm or give him some indication so that he understood he was saying too much.

101 She said there were three occasions when they had dinner parties after she moved to Perth. Although Mrs Reynolds was very experienced in arranging parties for large groups of people, Mr Reynolds felt as though he had to direct everything and got to the point where he had to write everything down including a timeline by which things had to be done by. This caused the preparations to become stressful for both her and Mr Reynolds.

102 Mr Reynolds then went into the bedroom before the guests arrived and refused to come out and meet anyone. They therefore stopped inviting people over for dinner. Other than on those three occasions, except for intermittent visits from Mr Reynolds' son Thomas, they did not have anyone over to visit them.

103 She also described an incident when an automatic gate on their driveway was damaged when Mr Reynolds accidentally backed into it. Mr Reynolds asked Mrs Reynolds to contact the people who originally fitted the gate but she was unable to because it was a weekend. He then said he would repair it himself but never did. Thereafter it remained continually opened and tied back so it would not fall over. It was not until the house was recently sold that the gate was repaired.

104 She described Mr Reynolds as being able to dress himself, shower and shave. However, he has a tendency to wear the same clothes over and over again.

105 He is able to wash his own clothes but does not like to hang them on the line or take care of them afterwards.

106 Since the stroke, Mr Reynolds, particularly after he had returned to work, regularly rode a bike to and from work. When a bike required repairs, even minor repairs which he should have been able to do himself, he would not be able to and ended up buying another bike so that at one point he owned seven or eight bikes. Mr Reynolds would often bring bikes home which he found on the tip or from bins on the verge. He would try and repair his own bikes using parts off the bikes he had brought home.

107 Mrs Reynolds said that celebrating anniversaries such as birthdays, Christmas and wedding anniversaries is important to her and she would always make a fuss and decorate the house particularly at Christmas. However, Mr Reynolds never remembered the dates and did not seem to enjoy them or care about them so she just stopped celebrating them.

108 When they were together in the United States they often talked about all of the restaurants Mr Reynolds wanted to take Mrs Reynolds to when she moved to Perth. They also talked about going to movies and movie festivals together. However, most of the things they talked about doing never happened.

109 Mrs Reynolds said that Mr Reynolds' long-term memory seemed okay but his short-term memory did not. On occasions he would become upset with her when he would tell her he had told her something when he had not and when she would question him about it he would become upset. He does not remember where he puts things and he is constantly asking her to find things for him whether it be keys or books. He also forgets his appointments. It has gotten to the point that even though he will put an appointment into his smart phone he will also give it to Mrs Reynolds and ask her to make a note of the appointment and to remind him.

110 Mr and Mrs Reynolds decided to separate on 17 November 2007. However, they continued to live in the same house until September 2009 when Mrs Reynolds moved to another house. Mrs Reynolds said that although they had separated but still living in the same house, Mrs Reynolds continued to provide the same level of care and assistance to Mr Reynolds she had provided after she first arrived in Perth. She continued to cook for him and undertake all of the domestic chores. Mr Reynolds was still coming home from work exhausted. He still suffered from fatigue. He continued to suffer from headaches. He continued to be argumentative and abusive towards Mrs Reynolds.

111 They were formally divorced on 10 October 2010.

112 Mrs Reynolds said that after Mr Reynolds ceased working his level of exhaustion did not change even though he did not seem to do much, except make a lot of lists, during the day.

113 Mrs Reynolds moved to a house in Belmont not far from the house she had lived in with Mr Reynolds. Even after she lived in her own house, she continued to cook for Mr Reynolds on a regular basis, sometimes at his house and sometimes she invited him to her place. They did their grocery shopping together. She did not have a car and Mr Reynolds would drive them to the shops. She also continued to provide some help with his house cleaning and with some of the landscaping that still needed to be done at his house. She helped him with some of his paperwork.

114 When they went shopping together, Mrs Reynolds decided what they would buy. When she returned to Mr Reynolds' house, other than the food she bought for him, the only food he bought was snacks and biscuits, sausage rolls and other junk food.

116 Eventually Mr Reynolds employed a house cleaner to clean his house.

117 In February and April 2010 Mrs Reynolds travelled with Mr Reynolds to Melbourne. The first time was because his father was critically ill. The second time was for his father's funeral. Mrs Reynolds accompanied Mr Reynolds because he asked her to and because she did not think he could go by himself.

118 Mrs Reynolds took it upon herself to help with various matters associated with his father's death including packing up and cleaning the large house of Mr Reynolds' parents and finding another place for his mother to live. She felt Mr Reynolds was unable to attend to these matters by himself, which was to be contrasted with how he helped her and her brother deal with matters in relation to her own father's death.

119 Between June 2010 and March 2011 Mrs Reynolds took leave and returned to the United States. Before she left she cooked and pre-prepared a number of dinners for Mr Reynolds and put them into the freezer.

120 They continued to have contact while Mrs Reynolds was in the United States, either by telephone or email, two or three times a month. He would often tell her he could not find things and ask her where to find them.

121 After she returned to Perth in March 2011, Mrs Reynolds checked in Mr Reynolds' fridge. She saw that much of the food she pre-prepared had not been eaten and the fridge contained half-eaten junk food. There was a mouldy hamburger still in the fridge from the time when she was previously in Australia in May 2010.

122 After her return to Australia, although it was less frequent, she continued to cook for Mr Reynolds sometimes at his house and sometimes by inviting him to her house. She also still helped with his grocery shopping.

123 Although she did not help him as much as she did previously, she helped Mr Reynolds with paying his bills which she saw he was behind in paying.

124 They discussed the possibility of Mr Reynolds moving into a retirement village which they both thought would make things easier for him because there was a minimal need for gardening and, because the house was smaller, there was less cleaning involved. There was also a service provided and medical facilitates on site.

125 Although they started discussing the possibility of Mr Reynolds moving into a retirement village in 2010, it took until mid-2013 for a decision and arrangements to be made for him to move into Collier Park Retirement Village. Mrs Reynolds described Mr Reynolds as going back and forth and continually contemplating whether he would move into a retirement village. She returned to the United States between November 2012 and April 2013. During that time, Mr Reynolds often telephoned her asking her questions about what he should do.

126 Mrs Reynolds described Mr Reynolds' indecision as in contrast to how he was before he suffered the stroke when they lived together in the United States, when he took charge and organised her and her brother.

127 Mr Reynolds was able to explain how much money he had in superannuation and how much money he had in the bank. As at 31 December 2012 he had $229,751 in superannuation invested. He had a term deposit in the Commonwealth Bank of $500,000.

128 He had recently sold his house for $585,000 and after the sales expenses were deducted, he expected to receive somewhere in the vicinity of $560,000.

129 It was going to cost him $400,000 to move into the Collier Park retirement village.

130 Mr Reynolds also said he had bought a new car. The reason he bought a new car was because his previous car needed to be replaced because he had not properly maintained it. He said he had not checked the oil on the old car for a number of years and had not put the car in for service because he kept forgetting to, or remembered to do it but was unable to do it.

131 The reason he decided to move to the retirement village was that although he liked living in his house, he was having difficulty coping with the normal upkeep of a house and the home maintenance. He thought moving into the retirement village where somewhere else would take care of the house maintenance would overcome those issues.

132 He also considered that the difficulties he had experienced with buying and eating healthy food could be addressed where there was a hostel which provided healthy food to residents.

133 He also thought that the senior citizens club in the retirement village would arrange social outgoings and functions for him even though he does not know whether he was up to socialising. He said he has attempted to socialise and tried to meet a few women. He went out on a few dates but even though they were nice people, he could not relate to them.

134 In relation to cooking for himself, he said he cannot seem to get started and cannot explain why. On one occasion when he put some ingredients in a frying pan it caught fire so he started to use the microwave. He said between the time he separated from his second wife Linda in about 1987/1988 to when he met Pam (Mrs Reynolds), he cooked for himself. He also cooked for his son. He rarely cooks for himself now.

135 At the time of the trial he had someone else preparing his meals (which I assume was Mrs Reynolds) but after Mrs Reynolds stopped cooking for him he only ate pre-prepared or snack food. Although he enjoyed eating vegetables and fruit, he found it difficult to go to the supermarket and buy such food and then organise himself to cook and eat it.

136 Mrs Reynolds reorganised his pantry for him when she returned from the United States. She found multiple things of everything such as multiple peanut butter jars which were not placed in any order.

137 He said he sometimes forgets to take money with him when he goes shopping.

138 She helped initiate the move into the retirement village. She has been packing for him, sorting through everything, getting rid of things and selling other things.

139 Before Mrs Reynolds returned to the United States, she bought extra things for him and put them in the pantry. She also prepared food for him and left it in the freezer. He said because the packages were not labelled, he did not know what they were and instead, bought takeaways and pre-prepared meals from the supermarket. He is able to heat up meals in the microwave.

140 He found he was unable to maintain his garden. He replaced an area of lawn with artificial lawn because it had become too burdensome for him to maintain.

141 He continues to suffer from headaches which come and go and vary in intensity. At their most intense he has to stay in bed without any movement or noise.

143 Mr Reynolds conceded he had not kept up with his tax affairs since 2003. He put all of his papers in boxes but was unable to sort through them. It is only within the last 12 months that he has engaged an accountant and prepared income tax returns for the last six years to 2007.

144 Mr Reynolds said he is not very good at managing to pay his household utility bills. He is often late with paying them, not because he has not got the money, but because he procrastinates.

145 He tends to put all of his correspondence and bills into plastic boxes which he put into his front room. At one stage his front room was filled with 14 different boxes of papers.

146 He also put a lot of his possessions and 'boxes of stuff' in his garage and for a time was not able to use his garage for his car.

147 At one stage he bought an air-conditioning unit but was never able to have it installed and has ended up selling it in the process of selling his house and various possessions for the purpose of moving into Collier Park.

148 He said he is not very good at managing his cash and often loses his cash or accidentally throws it away.

149 He has, he says, greatly disturbed sleep. He has difficulty getting to sleep. He has difficulty differentiating between night and day and sets various alarms to tell him when to prepare for sleep and when to wake up in the morning. He has been prescribed medication by Dr Risbey to assist in sleeping.

150 While he was working he bought a gym pass, but clashed with a staff member and stopped going to the gym. He said he was not up to organising to go back to a gym and thought he needed someone to assist him to organise that.

151 Before his stroke he said he was very active and regularly walked. He also regularly rode. He does not exercise now. He has not ridden a bike for a long time.

152 In the short time he spent with Mrs Reynolds in the United States prior to the stroke, he had a very strong and loving relationship with her and had an active sexual relationship with her. Since the stroke, he has been unable to cope with any movement in the bed and their sexual relationship fell away. In the end he asked Mrs Reynolds to sleep in another bed.

153 He often suffered from panic attacks, which had started in the hospital, which mainly occurred in the evening or the early hours of the morning and which he found terrifying and frightening. When that happened, he would go into Mrs Reynolds' bedroom and wake her up because he needed to talk to someone.

154 Prior to the stroke, Mr Reynolds had planned to continue to seek promotion and advancement within the public service. He saw his employment in the public service as a secure position. He always enjoyed his work and enjoyed interaction with people through his work.

155 He first engaged people to assist him at home when Mrs Reynolds left on the first occasion to return to the United States. He said that after she moved out of their home she continued to assist him. He engaged various companies to assist with cleaning and maintaining the house and organising things such as his pantry, fridge and linen closet. These people re-ordered and re-stacked everything, putting labels on boxes in the pantry which he found helped him know where to find things and when to buy more products when they had run out.

156 Mr Reynolds said when he and Mrs Reynolds were living in the same house, even when they were separated, she provided continual assistance to him which he estimated at 14 or 15 hours a week. He clarified that estimation by saying Mrs Reynolds probably spent 5 - 6 hours on a Saturday and a further 5 - 6 hours on a Sunday providing assistance to him. She cleaned and cooked and helped him find things. He thought she spent three hours each day, Monday to Friday, providing assistance.

157 She regularly provided assistance with organising his papers. When she returned to the United States he regularly phoned her asking where he could find things. Sometimes when he was in distress he called her and she provided comfort.

158 Mrs Reynolds returned to Perth on 26 April 2013. When she left for the United States in November 2012 she was not intending to return to Perth. She resigned her position with the State government and told Mr Reynolds she would not be coming back. However, while she was away she became concerned as to how Mr Reynolds was coping and caring for himself. On one occasion he was admitted to hospital and she was concerned about his health and whether he was eating properly. She was also concerned he was not able to make a decision whether to move into the Collier Park Retirement Village, nor sort out everything which needed to be done if he did decide to move, including selling his Mort Street house.

159 In the two or three years they had been discussing Mr Reynolds moving into Collier Park, which would also involving having to sell the Mort Street property, Mr Reynolds had not done much in preparing the house for sale. Therefore because of her concerns about Mr Reynolds' health and how he was coping, and because she was of the view he needed assistance to attend to various matters including moving into Collier Park, she decided to return to Perth.

160 Since returning to Perth in April Mrs Reynolds has lived in the same house with Mr Reynolds, although separately.

161 Selling the Mort Street property required selling or throwing away furniture and accumulated possessions which Mr Reynolds would not be able to take with him. Mr Reynolds wanted to sell his things on Gumtree even things which were not in very good condition, but he was unable to organise it. According to Mrs Reynolds, he kept procrastinating. He lacked confidence in what needed to be done to advertise items on Gumtree. When things were advertised on Gumtree he would not take calls from anybody or allow them to come to his house unless Mrs Reynolds was with him. He would not meet anyone to take money from them unless she was there. He insisted that if someone came to the house to buy something, she had to stand with him while the transaction was being completed.

162 In the four months between her return to Perth on 26 April 2013 and the trial in August 2013 Mrs Reynolds accompanied Mr Reynolds on two occasions when he was reviewed by Dr Risbey, who by that time had moved to and was practising from Bunbury. She also accompanied Mr Reynolds when he was reviewed and assessed by an occupational therapist appointed by the defendants, Ms Jodrell.

163 Mr Reynolds' detailed curriculum vitae was tendered into evidence (exhibit 2). Mr Reynolds obtained a Bachelor of Science degree in 1978 from Monash University majoring in microbiology, biochemistry and immunology. In 1980 he was awarded a Bachelor of Science with honours in clinical biochemistry from the University of Western Australia (UWA). During 1980 he was also a part-time tutor in biochemistry at UWA.

164 Prior to moving to Western Australia from Victoria, Mr Reynolds worked in a pharmaceutical laboratory and as a hospital microbiologist. During 1982 and 1983, after he had moved to Western Australia, he directed a cancer research project.

165 Towards the end of 1983 he joined the Commonwealth Public Service, initially in the Department of Veterans Affairs, as a research and clerical officer. He also worked as the executive officer on various committees. He later transferred to the Commonwealth Department of Housing and Construction where he remained between November 1984 and March 1986 working as a research and liaison officer. He was based primarily in Western Australia but also worked in Canberra.

166 His job required him to report to Canberra on the state of the housing industry in Western Australia and to liaise with various sectors of the business community including the finance sector, builders and the real estate industry. He was also involved in policy advice, on occasions to ministers. His role required a lot of report writing.

167 From March 1986 to April 1989, Mr Reynolds was employed as a senior evaluation officer with the Commonwealth Department of Administrative Services based in Western Australia. His employment in that position was interrupted for four months between April and August of 1987 when he was seconded as a senior project officer to the Commonwealth Department of Community Services to develop home and community care programmes. This involved Mr Reynolds liaising with various community groups, service providers and other government agencies and being involved in report writing. While he was employed at the Department of Administrative Services, for varying periods, he was the acting state manager. Mr Reynolds was involved in efficiency reviews of various government agencies within the Department of Administrative Services and in the setting and administering of a multimillion dollar budget.

168 In April 1989 Mr Reynolds transferred to the state government public service in Western Australia. He started in the Department of Marine and Harbours as the manager of management review and internal audit. While employed, Mr Reynolds obtained various post-graduate qualifications from Curtin University including in computer auditing, business accounting, computer studies and in medical technology.

169 His duties at the Department of Marine and Harbours included audit evaluation and management review involving long-term planning, budgeting and human resource management, providing input into policy formation and the effectiveness of the implementation of various programmes.

170 Mr Reynolds remained with the Department of Marine and Harbours until March 1993 when he moved to the Department of Transport as the manager business performance and improvement. His role was similar to that at the Department of Marine and Harbours involving him working on strategic directions and improving business performance, development of policy and implementation of new policy guidelines and systems.

171 He was then the manager of college services at the South West Regional College, Department of Training between July 1993 and February 1994 on secondment. He was a member of the executive group of the college and was involved in planning the day-to-day operations of all non-teaching staff and facilities, participating in and chairing a number of committees. Mr Reynolds' initial appointment was extended by the College.

172 Mr Reynolds was then the manager administration for the Mains Road Department in Bunbury, followed by a period with the Water Authority of Western Australia in Bunbury. There followed various appointments within the Department of Transport including a period of 15 months as a level 6.4 as the project manager, maritime and licensing branches, Department of Transport during which time Mr Reynolds managed policy and contracting across these two branches and their amalgamation.

173 For a little over three years, Mr Reynolds was then the Programme Manager, Road Safety, Department of Transport. His substantive position was a level 5, but he acted as the Director, Strategy and Coordination (a level 8 position) in 1997 and for approximately one year acted as the Road Safety Coordinator (level 6.4) until October 1998. He managed the Road Trauma Trust Fund (RTTF) and associated systems and wrote and developed policy for the RTTF and on the operations of the Road Safety Council.

174 From December 1999 for about 14 months, Mr Reynolds was Acting Senior Research Officer, Road Safety, Department of Transport (a level 6.4 position). In February 2001, Mr Reynolds became the Policy Coordination Officer within the Department of Planning and Infrastructure. Initially as a temporary position but confirmed by Ms Jones after three months. Ms Jones thought Mr Reynolds had been very satisfactory including dealing with many stakeholders (exhibit 45). For substantial periods he acted at a level 6 or higher.

175 It was whilst holding this position that Mr Reynolds sustained his injuries the subject of these proceedings.

176 In my view, Mr Reynolds' extensive experience both within the Commonwealth and Western Australian public service, including at management level, demonstrates Mr Reynolds was able to analyse and assess complex matters, determine outcomes and solutions to problems or issues, develop policies, make detailed recommendations regarding the implementation of policies and work practices and guidelines, make decisions and work with and relate to various people at various levels of management and decision-making both within government and in the private sector. I am satisfied Mr Reynolds' employment background demonstrates he was able to analyse complex detail, coordinate, organise and plan complex matters and issues.

177 When Mr Reynolds was at Monash University he met and married a fellow student, however the marriage only lasted for about three and a half years. They remained in contact for some time after the marriage ended.

178 In approximately 1985 he met and married Linda Mullins. That was his second marriage. They initially lived together in Canberra before moving to Perth. Initially they decided they did not want children but, according to Mr Reynolds, his wife later changed her mind and a son, Thomas, was born in 1986. After Thomas was born, difficulties in the marriage arose and at one time the couple underwent marriage counselling. They divorced in about 1997/1998 but remained on friendly terms and raised their son together. Mr Reynolds had regular contact with his son. Some years later his former wife was transferred in her employment to Capel and for the purpose of ensuing he maintained regular contact with his son, Mr Reynolds undertook various secondments in the south-west and sought a transfer to Bunbury. I have earlier referred to the period of employment in Bunbury after July 1993 when outlining Mr Reynolds' work history.

179 Mr Reynolds described his relationship with his son for the first 10 years of his son's life as very happy. In matters of discipline he did not physically punish his son. Nor did he swear at his son.

180 Mr Reynolds left home at about 18 years of age. He has one brother. He maintained good relations with his parents. His father died in 2010. His mother is still alive.

181 Prior to suffering the stroke, Mr Reynolds was a member of Toast Masters which is a public speaking organisation. He learned to enjoy delivering impromptu speeches and assisting other people to give speeches. Following the stroke, Mr Reynolds said he was unable to attend for quite a while because he was too ill. When he did later return to Toast Masters and tried to participate he found he was unable to. He found it a terrifying experience and stopped attending.

182 He was also a director of the Munda Biddi Trail Foundation which was involved in the development and maintenance of a long distance mountain bike trail from Perth to Albany. Mr Reynolds was one of the inaugural members when the foundation was set up in 1999 or 2000. He was involved in the development of videos advertising the trail which were distributed nationally and internationally and was a finalist in tourism awards.

183 Following the stroke Mr Reynolds stayed involved in the organisation for a period of time on a minimal basis but eventually ceased all participation.

184 Just prior to the stroke, Mr Reynolds described his life as:

Pretty much on top of the world. I'd met someone that I was looking to spend the rest of my life with. I had a job that I really liked doing in a mall team who I shared laughs with every week. We were doing good work, well respected. I had a lot of community activity, volunteers. I took a week off from work and did a kids' camp for kids with disabilities, seven days living. I did my cycling community work, ran public rides as part of Bike Week. I felt engaged with the community. I had a circle of friends from work, a circle of friends from the various activities I was involved in. I got on well with my son, and I was watching him - he was doing well, and growing up in a way that I was very proud to be his dad. (T244)

185 At that time, Mr Reynolds' son Thomas was aged nearly 17 years.

186 When Mr and Mrs Reynolds divorced, they resolved everything between them amicably without recourse to lawyers or litigation.

187 Mr Reynolds described his current life in the following terms (ts 244 - 245):

Q: Right. In terms of the other aspects of your life, can I ask you to describe to his Honour now how that compares to your position in May 2003?

A: Well, I don't have a job. It appears I don't have a career. My son doesn't talk to me and I don't know why. It appears my employer doesn't want me back. The last 10 years has really been - it's been terrible. It's been hell on earth. And so much has happened that I'm not sure I know who I am any more. I don't seem to be able to read other people any more, and they - I think I behave okay, and they have a different view.

188 Mr Reynolds met Pamela Reynolds in August 2002 over the internet and they quickly established regular contact with each other. Following the suicide of Mrs Reynolds' father on 29 August 2002, Mr Reynolds flew to Mrs Reynolds to provide her with comfort and support. This was the first time they met each other in person. He stayed with Mrs Reynolds for three and a half weeks.

189 Mrs Reynolds' brother lived in Alaska and flew to Washington State for a memorial service when Mr Reynolds met him. Mr Reynolds assisted Mrs Reynolds and her brother with dealing with their father's estate. He also bought a vehicle for Mrs Reynolds' brother because he was too busy to buy a vehicle for himself.

190 The formal funeral was in Alaska where Mrs Reynolds' brother lived. Mr Reynolds assisted in some of the organisation for the funeral.

191 Mrs Reynolds' son was then in his final year of school. She was aged about 46 years. Mr Reynolds related well to her son.

192 During their brief time together in the United States, they decided to get married and live in Australia. Mr Reynolds later returned to the United States in December 2002 and they were married on 4 January 2003. Mr Reynolds remained in the United States until March 2003 when he returned to Perth by himself while Mrs Reynolds was finalising her affairs in the United States, including making appropriate arrangements for her son who was intending to start college in the United States. It was also necessary for various immigration matters to be attended to before Mrs Reynolds was able to live in Australia.

193 Mrs Reynolds described how because her son played various sports there were often large groups of children at her house. She said Mr Reynolds related well to all of them. He watched her son play American football.

195 Mrs Reynolds described Mr Reynolds as taking charge of everything including arranging for her move to Australia. She described their relationship as very compatible. They did everything together and talked things through. There were never any arguments. Although Mrs Reynolds was then working, they were still able to spend a lot of time together sightseeing, shopping, going to sporting games and spending time with Mrs Reynolds' son and his friends.

196 They shared the domestic chores including cooking and cleaning.

197 Mrs Reynolds also said that while they were together in the United States she went through a bankruptcy and Mr Reynolds helped her organise and finalise all of her financial matters in relation to the bankruptcy.

198 Mr Reynolds commenced a graduated return to work program on 8 September 2003.

199 A formal written return to work proposal was prepared by Ms Ceri Pass, an occupational therapist at the State Head Injury Unit and forwarded to Mr Reynolds' employer on 28 August 2003 (exhibit 44). The initial proposal outlined a commencement date on 8 September 2003 for an initial two-week period to 8 - 19 September 2003 working from 9.00 am to 12.45 am Monday, Wednesday and Friday. The duties were described as preparing a briefing document on the section for the new executor director, collating and documenting minutes from a past meeting Mr Reynolds attended, and organisation and clean up of emails. Thereafter it was proposed for the next two-week period until 3 October, Mr Reynolds would work Monday to Friday in the mornings and would gradually increase his hours so by week seven, from 20 - 24 October 2003, it was proposed Mr Reynolds would be working full-time performing duties determined by his manager. It was recommenced that medical clearance for the proposal be obtained before the programme commenced and the programme be regularly monitored by Ms Pass.

200 The return to work proposal was reviewed at a meeting on 19 September 2003 with the amount of hours revised downwards. It was also proposed the duties include non-time pressured duties as directed by the manager and when Mr Reynolds was working a full day, there be minimal increases in his duties to allow him additional time to consolidate his work practices.

201 On 28 October 2003 Ms Pass reported Mr Reynolds was finding the increase in hours to be quite demanding on him mentally and that he had been experiencing fatigue, headaches and nausea. The number of hours of work it was proposed Mr Reynolds perform was revised and reduced. Ms Pass' written report of 8 October 2003 recommended that the programme be modified according to Mr Reynolds' progress.

202 Further reviews were undertaken on 28 October 2003 and 12 November 2003. It was proposed that by mid-December, Mr Reynolds would return to standard full-time hours but with duties which would be non-time pressured.

203 Further revision was undertaken on 28 January 2004 for the period 2 February to 26 March 2004 in which it was proposed that Mr Reynolds work full-time hours with flexible start and finish times and that Mr Reynolds undertake duties directed by his manager with the aim to gradually increase his productivity to 100% and gradually resume his pre-injury duties including time pressured projects. A further review of the return to work program was scheduled for 24 March 2004. However, no further return to work proposals were prepared as, by March 2004, Mr Reynolds had been able to resume normal working hours.

204 Following his return to full-time duties in March 2004, Mr Reynolds continued in employment with the State public service until 28 July 2009 when he was directed by his employer to remain at home, in circumstances I will consider more fully shortly. When he ceased working he was employed as a level 7 manager strategic coordination with the Department of Industry and Resources (DIR).

205 Mr Reynolds said his memory was not working well, he was in more distress everyday, he would get exhausted and he was not really coping. He was having to rest for a few hours each evening after he arrived home from work before he was able to eat. He would sleep for much of the weekend.

206 He frequently arrived late at work and left early. He would leave work early because he ran out of steam.

207 On weekends he spent a lot of time resting because he could not function and was in too much pain. He found it difficult to socialise.

208 Following his return to work, Mr Reynolds was promoted on two occasions. By letter dated 29 October 2007 from the Department of Industry and Resources, Mr Reynolds was offered an appointment as senior policy officer within the State development strategies group of DIR on a salary of $78,138 per annum commencing on 29 October 2007. Mr Reynolds accepted the appointment on 31 October 2007. At that time Mr Reynolds had been acting in a level 6 position as an acting senior policy analyst since January 2007.

209 By letter dated 20 February 2008 from DIR, Mr Reynolds was further promoted to the position of manager strategic coordination level 7 on a salary of $82,227 per annum which was the position in which he was employed when he ceased working. The effective date of the promotion was 27 February 2008.

210 Mr Reynolds said that Mrs Reynolds assisted him in preparing his written applications for the two positions. He used a template which she helped him organise and edit and proof read.

211 He also said the level 7 position was similar to the level 5.4 policy coordination officer role he had previously performed. He applied for that position because he thought his familiarity with the role would assist him to cope with the duties required. He said although he felt he was doing fine he also felt he had had difficulty in coping with the duties in those areas with which he was not so familiar and thought that he would be better able to cope in an area with which he was more familiar.

212 Following his return to work in 2004, Mr Reynolds also experienced difficulties in relation to his impaired sight in his left eye. He had problems seeing things in contrast and needed better lighting. If he dropped things on the floor he could not see them. He often had to ask Mrs Reynolds to find things for him.

213 He cannot see when people approached him from his left and was often startled when people approached him from his left. This in turn caused him to suffer from anxiety. He also felt his visual impairment caused him to fatigue easily.

214 He was also hypersensitive to movement in his visual field and would become nauseous.

215 Since the stroke he suffers visual fatigue very rapidly when reading. He has to have very bright lighting and a stable platform to read from. He has difficulty focusing.

216 He has difficulty with contrast and shapes. Sometimes he has turned around and walked into things or people.

217 Although he was able to resume driving, he experienced difficulties driving at night or in heavy rain which caused him to limit his driving at night or in heavy weather. It is also led to him suffering from anxiety when driving. Although Mr Reynolds has continued to drive to the present time, the difficulties he has experienced driving remain.

218 While he was working, Mr Reynolds thought he was coping well with his duties. However, in his evidence he said he now realises that he was not in fact coping well. He had difficulties with concentration and although his longer term memory was reasonable, his short-term memory was poor. He started to take notes to remind him about things, but then kept losing the notes. He requested an electronic device, a Palm Pilot, which he felt would assist him with his memory and prevent him from losing notes.

219 When asked in examination-in-chief about planning and initiative, he said he became aware that he was not stepping forward and was delegating tasks to junior staff rather than doing the things himself which previously he would have done.

220 Issues arose regarding Mr Reynolds' work performance and his time keeping. In an email from Heidi Lansdell, the principal policy officer in the DPI dated 10 August 2004, Ms Lansdell notes the progress or lack thereof and notes that Mr Reynolds had finally submitted his timesheets for review but she was not convinced his working as quoted reflected reality and that his work progress did not reflect the hours he had recorded. She also recorded that the work milestones she had requested that Mr Reynolds meet had not been met and that the review of documentation and preparation of other documentation had not been completed. She stated that this was the third time she had asked Mr Reynolds for his work. Her email concluded:

I firmly believe performance management needs to accelerated [sic] my take on this is that Steve has worked with us for four months, has produced very little and certainly not at the level expected for a level 5.

221 On 14 September 2004 a meeting was arranged at DPI to discuss a number of issues which had arisen regarding Mr Reynolds' work performance. Ms Pass who had coordinated Mr Reynolds' return to work programme was unable to attend and in her place Maria Ness from the State Head Injury Unit attended. She later provided a memo to Mr Reynolds (exhibit 9.9), which although it is dated 12 September 2004, must be incorrectly dated as it refers to a telephone conversation on 28 September 2004 and to the meeting on 14 September. The memo referred to a number of issues raised during a discharge interview from the position Mr Reynolds had recently vacated at DPI. The issues included issues relating to Mr Reynolds' work attendance including punctuality and sick leave, issues with other staff members and issues regarding his physical working environment mainly related to lighting. The memo noted that because the return to work programme had been concluded it was assumed Mr Reynolds was performing as a productive employee of DPI. It was at this meeting that Mr Reynolds identified difficulties with his memory and organising ability and requested the provision of a Palm Pilot to help with those matters.

222 Mr G Wayne Thomas, Neurosurgeon, by report dated 29 November 2004 stated that the severe jarring incident is likely to have produced trauma to his left internal carotid artery which subsequently led to the stroke. Mr Thomas was of the opinion that the damage sustained to the lining of the left internal carotid artery resulted in the dissection of the lining of the vessel and the thrombosis of the internal carotid artery which led to the stroke.

At the present time although he superficially presents very well he reports that the stroke has left him with a severe ongoing level of impairment as compared with before the accident. Although he has returned to his normal work full time there are certain difficulties which now affect him as a direct consequence of the stroke that he had. He has impairment of fine motor control of the right hand. He reports unsteadiness of gait especially because of the right leg. There is noticeable weakness of the right arm compared with the left whereas before he was strongly right handed. He confuses left and right and never did this in the past. Whereas the initial severe involvement of speech function recovered over a few days he has been left with what he describes as a big problem in speech expression. He has great difficulty finding the correct word to use at times and sometimes has forgotten a word which he felt should be very familiar to him. This has had an effect on his willingness to engage in conversation with others and at times he has become verbally withdrawn. He frequently has to write notes at his place of work for fear of forgetting something. His longer term memory is patchy.

He did get depressed as a result of his stroke and is gradually overcoming this as he's been able to increase his exercise. The depression and exhaustion that he feels from time to time seem to come in waves. He finds it a challenge to turn up for work each day. On the whole however he does feel that things are continuing to improve with time.

Dissection of a carotid artery is most commonly a traumatic event. It can occur in association with motor vehicle accidents or very rarely these days as a complication of cerebral angiography. The close proximity of the unusual severe jarring incident to Mr Reynolds' neck in the event of 22nd May 2003 is likely to have produced trauma to his left internal carotid artery which subsequently led to the stroke occurring approximately one week later. Whereas superficially he has made a very good recovery from the stroke and aphasia he nevertheless does have significant ongoing problems and even though further recovery may slowly occur over the next year or two it is likely that he will always be left with significant symptomatology consequent upon the stroke which occurred after the accident of 22nd May 2003.

225 Mr Reynolds was referred to a psychiatrist, Dr Shub, by the defendants' solicitors on 26 November 2004. In a report dated 16 December 2004, Dr Shub expressed the opinion that Mr Reynolds' psychiatric state was directly attributable to the cerebrovascular accident. He, too, recorded a wide range of symptoms including nightmares and flashbacks, avoidance phenomena, a sensation of detachment, hypervigilance, acute anxiety, depressed mood, generalised fatigue, demotivation, compromise of ability to concentrate, focus and memorise and erratic appetite. Dr Shub's formal psychiatric diagnosis was that of post-traumatic stress disorder, panic disorder and major depressive disorder.

226 In October 2004 Dr Moussa, treating general practitioner, reported Mr Reynolds was 'slow witted', unable to concentrate and severely impaired.

227 In my view Dr Moussa's observations are, at such a relatively early point in time in the chronicling of Mr Reynolds' medical conditions and symptoms, tellingly prescient and I set out his short handwritten report dated 28 October 2004 in its entirety:

Since a serious traumatic blood supply accident and brain injury Mr Steven Reynolds has suffered the following:

1. difficulty with memory - 20 times a day
2. difficulty chasing thoughts and completing simple tasks - frequently in the day he had had difficulty understanding jokes, and is no longer 'quick' witted. He has definitely become sluggish mentally and is unable to complete tasks - causing discrimination victimisation at work.

Others see that his performance and mental function has significantly deteriorated. I do not feel he can return to the workforce if he lost his current job where they have been tolerant. Mr Steven Reynolds behaves as a person who is 'simple', slow witted' or Alzheimer type sufferer who cannot see that they have a problem.

Because he has had so much trouble he is just now beginning to understand that he must be the problem at work. His function mentally has been seriously damaged and he appears to be physically able. He has brain injury and his life at work and at home with relationships has been affected.

228 The notes of Dr Moussa for the period up to August 2008 record a repeated and recurring set of complaints of cognitive and emotional disturbance.

229 In December 2004, Mr Woodman, psychologist, assessed Mr Reynolds on referral from a neurologist, Dr Panegyres. In a report dated 3 February 2005 Mr Woodman recorded Mr Reynolds described a roller coaster emotional journey since the stroke which included the onset of anxiety symptoms and periods of depression and suicidal ideation. In spite of that history, Mr Reynolds felt he had made a good physical and cognitive recovery and had successfully returned to his work in his previous position as a policy advisor in the Department of Planning and Infrastructure. Mr Reynolds described recently reviewing a complex 400-page competition policy report. Mr Reynolds also reported being able to complete all basic acts of daily living and as having returned to driving and bike riding.

230 However, despite those achievements, Mr Reynolds felt his cognition had not returned to its pre-stroke level and he could not think as quickly and efficiently as previously and that his attention and memory was affected particularly when working under pressure. Mr Reynolds also reported suffering from headaches and nausea which had recently resolved. Mr Reynolds also reported suffering symptoms consistent with panic attacks and that he had been seeing a psychiatrist Dr Tannenbaum (no evidence of Dr Tannenbaum was led or tendered).

231 Mr Woodman performed neuropsychological testing and concluded that the test results suggested Mr Reynolds had made an excellent cognitive recovery. Nonetheless there were weaknesses suggestive of a mild reduction in complex attention and some difficulty processing and encoding verbal material. Mr Woodman regarded these difficulties as relatively mild but which would be magnified in real world day-to-day situations and by non-organic factors such as depressed mood, anxiety, stress and fatigue. Mr Woodman felt that Mr Reynolds' reported cognitive symptoms were explicable without recourse to organic brain damage.

232 An email from Louise Jones, policy coordination at DPI dated 1 November 2004 records a number of poor work performance issues by Mr Reynolds including that it was not usual for Mr Reynolds to prepare other than a simplest of briefing notes and then under instruction. The email concluded Mr Reynolds:

• Was absent or very late in at critical times in the process
• Did not offer to help when he did come in
• Did the opposite to what he was instructed on at least three occasions, usually causing extra work and confusion

233 In a further email of 13 July 2005 Ms Jones recorded that Mr Reynolds' attendance was totally unpredictable with frequent absences without warning and without any explanation or apology. His work hours were also totally unpredictable and there were often late starts. It remained difficult to obtain completed timesheets from Mr Reynolds and leave forms. Ms Jones concluded under the heading 'Work Performance':

5.1 Never achieved timelines, nor had a satisfactory reason for not doing so (see table below).

5.2 Does not follow / has difficulty understanding instructions (see table below).

5.3 Plays off supposedly other work requests against legitimate requests (see table below).

5.4 Does not report or seek help (see table below).

5.5 Does not deliver or delivers inappropriate products (see table below).

5.6 Reluctance to 'talk' and follow-up (see table below).

5.7 Not at work at critical times (see table below).

234 Ms Jones recommended that Mr Reynolds' medical assessment be clarified to determine whether he was capable of doing his job and that he should only be provided with one piece of work at a time with clear written instructions on what and how to do the work.

235 Eventually, because of continuing problems Mr Reynolds was experiencing at work, a workstation assessment was arranged by his employer and RiskCover, the workers' compensation insurer. The assessment was performed on 17 June 2009 by an occupational therapist, Amanda Marrett, of the Recover Group. Ms Marrett provided a report dated 23 June 2009. In that report she recorded Mr Reynolds reported impaired memory, difficulties dealing with stress and in face-to-face communication, difficulties initiating tasks which affected completion of work and difficulties associated with the visual impairment and a startle response. Ms Marrett made various recommendations regarding Mr Reynolds' workstation and further recommended consideration be given to a referral to a occupational therapist specialising in neurological deficits to review memory deficit.

236 In his evidence, Mr Reynolds confirmed that he had experienced the problems he reported to Ms Marrett.

237 Earlier, in January 2009, RiskCover requested a report from Mr Reynolds' general practitioner Dr Moussa. Dr Moussa responded with a report of 22 February 2009. Dr Moussa stated:

I do not believe that Mr Steve Noel Reynolds is able to perform at his full capacity, and as such he does need to work at a slower pace. His injury to his brain has affected his memory and his concentration abilities. Time restrictions and pressures of normal work would be difficult for him to cope with and I believe that Mr Steve Noel Reynolds is capable working in a group predominantly in a supernumerary capacity where he is able to assist with the normal everyday work of the Department of Planning and Infrastructure.

I do not believe that Mr Steven Noel Reynolds has the capacity to perform more than one duty and is not able to accept too much responsibility and work commitments due to the nature of his injury. He is left with visual loss, brain mental capacity impairment, chronic pain, and does require occasional days off work for severe post-traumatic cervicogentic headaches.

238 Dr Moussa further stated that Mr Reynolds was keen to remain in the workforce and believed Mr Reynolds could still be a useful employee but in an altered job description.

239 RiskCover also arranged for Mr Reynolds to be reviewed by a consultant neurosurgeon, Professor Reilly who provided a report dated 15 July 2009. His report records Mr Reynolds told him about the symptoms and difficulties he had been experiencing both at work and at home in his own personal affairs. The report also notes that Mr Reynolds was then attending a psychiatrist, Dr Risbey.

240 Professor Reilly noted the report of Dr Moussa of 22 February 2009 and said he agreed with the limitation set out in that report. Professor Reilly considered it was unlikely Mr Reynolds would be able to fulfil the requirements of the level 7 in which he was then employed. Professor Reilly stated Mr Reynolds required psychological support.

241 In a memorandum dated 22 July 2009 in which she referred to the reports of Dr Moussa and Professor Reilly, Sophie Woodley, manager of human resources to the director general at DMP, recorded:

Steven has worked in a number of work areas of DoIR/DMP and managers have experienced various difficulties in managing him, citing performance and possible behavioural issues. In his current position, he is often absent and does not communicate his reasons for absence with his manager. His manager has reported that he struggles with day to day tasks and that they are unable to give him the level of responsibility that his position requires due to his absences, performance level and behavioural difficulties.

242 Ms Woodley recommended Mr Reynolds be directed to remain home until it is established suitable duties for him could be arranged.

243 The first defendant, Mr Reynolds' employer, apparently concluded that there were no suitable positions in the public service and by letter dated 28 July 2009 told Mr Reynolds:

DMP has considered the information provided and regret to inform you that we are unable to identify a suitable role for you. Therefore you are being directed to remain at home from today (28 July 2009) until a return to work programme has been facilitated ...

244 No return to work programme was ever 'facilitated' for Mr Reynolds. The employer was not willing to facilitate it. He has never returned to any form of paid employment since 28 July 2009.

245 When Mr Reynolds saw Dr Moussa's report of 22 February 2009 he very much disagreed with it and the restrictions he placed on Mr Reynolds' ability to work.

246 He also later saw Professor Reilly's report of 15 July 2009 and Professor Reilly's opinion that Mr Reynolds was unable to fulfil level 7 competency. Mr Reynolds said he thought that at the time Professor Reilly was an idiot and he said so. He also thought that Dr Moussa was a complete idiot and disagreed with what they had written.

247 His employer's direction to remain at home was unexpected. He was planning to remain in the public service and advance his career.

248 In mid-2007 he prepared a handwritten plan which he showed his wife (exhibit 1.115). Reading it now he does not understand what it means.

249 My reading of the plan is that it is nonsensical which coincides with Mrs Reynolds' view.

250 Although Mr Reynolds resumed full-time hours, I accept the evidence of his former wife Mrs Reynolds, which evidence was essentially unchallenged, that after he had returned to full-time work he continued to suffer from fatigue and would need to rest as soon as he came home from work each day. I accept the prolonged and extended nature of the return to work programme, which was initially optimistic Mr Reynolds would be able to return to full-time work by mid to late October 2003, shows Mr Reynolds struggled with the duties and tasks he was assigned. I also accept that although he resumed full time work duties he was never able to properly cope with or perform those duties, which he masked over, and it took some time for the full extent of his residual symptoms to be understood. In particular the fact that shortly after the return to work programme was commenced there was a revisal downwards of the number of hours Mr Reynolds work, associated with the recommendation that his duties not be time pressured and that the nature of his duties be closely supervised, indicates the reality was that Mr Reynolds' ability to perform his work duties was severely limited.

251 When regard is had to the evidence of Mr and Mrs Reynolds regarding the extent of fatigue from which he suffered, which I accept, their evidence as to the panic attacks he experienced and the anxiety suffered as well as his confusion and difficulties with concentration, and also having regard to the fact Mrs Reynolds was keeping a very close and protective eye on Mr Reynolds, and finally, having regard to the contemporaneous reports of anxiety and other symptoms consistent with cognitive deficits to the various doctors upon whom Mr Reynolds attended in the second half of 2003, I do not accept that his eventual return to work full-time work in March 2004 truly reflected Mr Reynolds' work capacity.

252 In my view that Mr Reynolds did return to full-time work reflects an employer, quite properly, supporting Mr Reynolds in returning to work but without having a full understanding of the difficulties Mr Reynolds was experiencing with his work duties and of which it was not fully aware because Mr Reynolds did not report the full extent of his difficulties, and because of Mr Reynolds wanting to, and being firmly of the view he was able to, return to work, but without having any proper insight as to the extent of his residual symptoms in circumstances where he was largely being supported and protected by Mrs Reynolds which to some extent masked the extent of the difficulties Mr Reynolds was experiencing. In my view that lack of insight, combined with the failure to fully report the extent of his difficulties to his employer, which was mainly because Mr Reynolds believed in time he would be able to cope with his work duties, led to the extent of his difficulties being masked and not fully understood by anyone throughout the period of a little over five years between March 2004 and July 2009 when Mr Reynolds ceased working at the direction of the first defendant. The reasons which led to that direction, supported by recommendations of medical practitioners including Mr Reynolds' general practitioner Dr Moussa, were in reality always present. Mr Reynolds' capacity or, more appropriately, incapacity, for work in 2009 was no different than it was throughout the whole of the period he returned to work with the first defendant between 2004 and 2009. That he was able to remain employed on a full-time basis during that period of time says more about the first defendant than it does about Mr Reynolds' capacity for work. I shall consider the issue of Mr Reynolds' capacity for work throughout that period in more detail later in these reasons.

253 I am further supported in this view by the fact that between January 2004 and December 2007 Mr Reynolds had over 80 days off work certified as arising from the injuries sustained from the accident (exhibit 1.358).

254 Mr Reynolds was referred by Dr Moussa to the psychiatrist Dr Risbey in May 2009. Dr Risbey saw Mr Reynolds on 17 and 18 May for the purposes of assessing Mr Reynolds' condition. In a report to Dr Moussa of 20 May 2009, Dr Risbey accepted Mr Reynolds suffered from post-traumatic stress disorder arising from his experience of helplessness while in RPH. However, Dr Risbey also said that his assessment indicated a strong likelihood of neurological deficit (especially frontal lobe areas also affecting his emotions and behaviour thus complicating the psychiatric presentation considerably). He felt the more severe attacks of emotional dysregulation as reported to him by Mr Reynolds, including uncontrolled swearing and panic attacks, sounded more organic in basis. Dr Risbey also noted a pre-existing history of childhood abuse by his parents and two marriage breakdowns but further noted that there were not any reported problems prior to the stroke.

255 When Mr Reynolds received the report of Professor Reilly and the letter from the first defendant directing him to remain at home, Mr Reynolds initially disagreed and took issue with the opinion that he was not fit to perform his work duties and the decision to direct him to remain at home. He raised those concerns with Dr Risbey and Dr Risbey touched upon that in a short report to Mr Reynolds' solicitors of 7 October 2009. Although Dr Risbey was asked for a detailed report, he declined to fully report until the results of the neuropsychological testing Mr Reynolds had been booked into undergo in late October 2009, were obtained.

256 In a report to RiskCover dated 11 December 2009 after he had received the results of neuropsychological testing, Dr Risbey expressed the view that Mr Reynolds could work as a productive member of a team in the public service. Dr Risbey felt the outlook was more positive than it had seemed to him when he last reviewed Mr Reynolds and felt there were no substantial restrictions in Mr Reynolds returning to work. However, he recommended there be a monitored return to work programme including by an occupational therapist and that the monitoring continue for 12 months.

257 In May 2009 associate Professor Foster conducted a neuropsychological assessment and concluded Mr Reynolds had deficits with respect to concentration and attention, elements of memory, components of language and elements of executive functioning. In addition there were difficulties with elements of visiospatial capacity. Professor Foster noted severe to extremely severe levels of stress, anxiety and depression related symptomology. Professor Foster described the 2003 injuries as being significant contributors to the adversely affected cognitive capacities.

258 In a further report to RiskCover dated 12 March 2010, Dr Risbey reviewed Mr Reynolds' position noting that although the neuropsychological test results appeared encouraging, such results did not necessarily reflect the more complex functions and problems of a real work situation. He also noted that Mr Reynolds had become concerned to find his continuing memory problems gave him considerable trouble. Dr Risbey was of the opinion that the difficulties Mr Reynolds had experienced in the workplace did not reflect any prior health issues because they were not evident prior to stroke.

259 In his viva voce evidence, Dr Risbey explained that his understanding of the extent of Mr Reynolds' condition and disability changed over time. Initially he did not realise how profound was Mr Reynolds' disability because it was not showing up very clearly on neuropsychological testing. It was only when Dr Risbey read the reports of Dr Collins and Dr Kay and gained an understanding of the role of the insular cortex as explaining an organic basis for some psychological symptoms that he more fully understood the seriousness of Mr Reynolds' condition. It helped him to make sense of some things that initially did not seem to make sense, such as when the formal testing of memory indicated Mr Reynolds' memory functions seemed fairly good yet the major complaint had been the difficulty of memory.

260 Dr Risbey also explained that the major difficulty reported by Mr Reynolds over recent years was in organising himself and providing himself with a structure which provides the best setting for coping. The conventional thinking was that the condition after a stroke improved and then stabilised around two years or so. Dr Risbey explained that it had become clearer to him that when Mr Reynolds thought he could handle his work duties and wondered why he was being put off work and wanted to return, that was based upon a lack of insight on his part, that is, Mr Reynolds' part. Dr Risbey said that over time after various consultations Mr Reynolds gradually became more insightful so that during 2010 he realised that he could not rely on his memory and could not initiate tasks or organise himself.

261 Dr Risbey said that in hindsight he was over optimistic in his recommendation in his report of 11 December 2009 that there be a monitored return to work programme. He explained that at the time he made that recommendation he thought that even though Mr Reynolds was disabled to some extent, he could also go back to work and be useful to an extent. He was less concerned whether Mr Reynolds' employer would benefit from him being at work. He was more concerned for Mr Reynolds' mental health and he was supportive of Mr Reynolds returning to some sort of work because he felt it would benefit his mental health.

262 Dr Risbey said that Mr Reynolds suffers from impediments in his brain which have been present ever since the stroke. What had changed was that over time Dr Risbey obtained clarity into the nature of Mr Reynolds' problem. Mr Reynolds also obtained insight about his own problems.

263 In his March 2010 report Dr Risbey referred to the disability being both organic and psychological. He explained when giving evidence that his reference to organic was the effects of the stroke and the psychological was the trauma memories and the avoidance of such memories. Dr Risbey initially thought Mr Reynolds had post-traumatic stress disorder but in his evidence said he was not so sure that was any longer the case and it was no longer the major focus. The major focus was now Mr Reynolds' inability to organise himself to initiate things to keep his stress levels down. He said that a psychiatric diagnosis such as depression and anxiety states presume a normal functioning brain but if a person suffered a stroke and the brain is not functioning normally, the psychiatric diagnosis cannot be made with validity.

264 Dr Risbey was taken to his report dated 1 August 2011. He agreed with the opinion of a psychiatrist, Dr Kay, expressed in his reports that the organic condition has primacy in explaining Mr Reynolds' symptoms and cognitive deficits resulting from the stroke and must be taken seriously. He concluded though that the explanation for Mr Reynolds' condition does not have to be either/or organic or psychiatric and that both causes can co-exist. In his report of 1 August 2011 Dr Risbey expressed the opinion that Mr Reynolds suffered from permanent brain damage which expresses itself in a number of subtle ways limiting Mr Reynolds' ability to function mentally in the same manner he was accustomed to prior to the stroke. He said that because Mr Reynolds had naturally high intelligence (and still speaks as someone with a high intelligence) it is likely the results on testing would not reflect the full extent of neurocognitive deficit as he may still perform in many of the tests as well as an average person even though that would be below what his pre-morbid level of functioning would have been.

265 Dr Risbey concluded the organic brain damage was the primary mechanism generating symptoms and deficits in Mr Reynolds' functioning and the psychological symptoms he suffered arose from a combination of the organic brain deficits and the traumatic nature of the stroke experience.

266 In relation to work capacity, Dr Risbey stated Mr Reynolds had lost the ability to work in remunerative employment at the level in which he was previously employed. He felt that without levels of support and structure, Mr Reynolds was vulnerable to exacerbations in his condition including increased stress levels and a reduced ability to function efficiently. He felt the help Mr Reynolds had been receiving at home for household tasks, especially with organisation, had greatly assisted Mr Reynolds and it had caused him to suffer less stress.

267 Dr Risbey's opinions were heavily reliant upon Mr Reynolds being truthful and accurate in his reporting of the difficulties from which he suffered. The difficulties reported by Mr Reynolds could not be observed directly or verified by clinical observation or examination.

268 In his final report of 10 July 2012, Dr Risbey referred to the earlier assessment when it was felt by both he and Mr Reynolds that Mr Reynolds could return to work with appropriate support, but noted that as disabilities suffered by Mr Reynolds emerged, including more subtle executive function deficits, it became clearer the earlier assessment of work capacity was overly optimist. Dr Risbey stated that because of the damage to the insular cortex on the left side and patchy areas of the frontal lobe, Mr Reynolds has difficulties with putting plans into practice even when he knows what has to be done.

269 Dr Risbey was asked about Mr Reynolds' ability to manage his financial affairs. He stated Mr Reynolds did not want a person telling him what to do and regarded the prospect of having a financial manager as irritating and unnecessarily costly.

270 Dr Risbey recorded that Mr Reynolds reported he found himself getting stressed when he had to organise tradesmen and in episodes of face-to-face contact. Dr Risbey concluded that the more Mr Reynolds can be allowed to manage his life himself, the less stressed he will become, providing there are some safeguards in place such as having an occasional agent in the role of case manager from time-to-time to organise tasks for him. Dr Risbey thought having a paid manager would be a case of overkill and was not warranted.

271 However, in his viva voce evidence Dr Risbey said he did not think it would be appropriate if Mr Reynolds was left to manage his own monies without assistance because Mr Reynolds would always be at risk of not exercising sound financial management. Dr Risbey thought some sort of trust fund managed by a trusted person but to which Mr Reynolds had access, was advisable. Dr Risbey felt that Mr Reynolds needed to be protected from being exploited and from exploiting himself.

272 Solicitors for the defendants arranged for a psychiatrist, Dr Shub, to review Mr Reynolds on 26 November 2004. By report dated 16 December 2004 Dr Shub expressed the opinion that Mr Reynolds' psychiatric state was directly attributable to the cerebrovascular accident. He, too, recorded a wide range of symptoms including nightmares and flashbacks, avoidance phenomena, a sensation of detachment, hypervigilence, acute anxiety, depressed mood, generalised fatigue, demotivation, compromise of ability to concentrate, focus and memorise and erratic appetite. Dr Shub's formal psychiatric diagnosis was that of 'Post-Traumatic Stress Disorder, Panic Disorder and Major Depressive Disorder'. Dr Shub was of the view that Mr Reynolds could continue to work on a full-time basis in his level 5 policy coordinator role.

273 Dr Shub reviewed Mr Reynolds at the request of solicitors for the defendants in April 2010 and provided a report of 6 May 2010. Dr Shub was provided with the earlier medical, rehabilitation and psychological reports. Dr Shub also noted his opinion expressed in his earlier report that Mr Reynolds could continue to work on a full-time basis.

274 Dr Shub then recorded Mr Reynolds' work history as reported by Mr Reynolds since providing that opinion, including that Mr Reynolds last worked in July 2009. Dr Shub maintained his earlier diagnosis regarding Mr Reynolds' medical conditions. However, he expressed the view that Mr Reynolds' degree of impairment and level of disability had deteriorated since his previous examination. He concluded that Mr Reynolds' current level of symptomology precluded his return to work. He felt Mr Reynolds may be in a position to return to work if adequate psychiatric management and rehabilitation be provided.

275 Dr Shub provided a final comprehensive report to solicitors for the defendants dated 4 March 2013 following his review of Mr Reynolds on 28 February 2013. His view regarding the diagnosis of Mr Reynolds' medical condition remained the same but he further stated:

However, his clinical state is intimately linked with the likelihood of damage to his Central Nervous System, and I believe that disturbances in her neuronal circuitry have both generated, and maintained elements of his psychiatric morbidity.

276 Dr Shub also stated that the loss of structure and of routine following cessation of work was a significant contributing factor to ongoing anxiety and mood disturbance. Dr Shub referred to a comment by Dr Bala in his report of 30 June 2003 that Mr Reynolds had an obsessional personality style and said '[it] should be noted that obsessive traits do not equate with a personality disorder', but 'obsessive tendencies are likely to provoke increased levels of anxiety in the context of an individual's significantly changed circumstances'.

277 Dr Shub did not believe Mr Reynolds was capable of returning to gainful employment and continued to struggle with his daily activities and general level of functioning.

278 Dr Shub endorsed ongoing psychotherapeutic treatment provided by Dr Risbey and recommended that the dosage of the antidepressant medication Mr Reynolds was taking be increased.

279 Dr Shub provided a further short report dated 7 June 2013 to solicitors for the defendants in which he was provided with reports of a Dr Lee and a psychiatrist Dr Mustac from 1993, a surveillance report (which was not tendered in evidence) and a chronology summarising Mr Reynolds' personnel file with the DPI. Dr Shub was asked whether his opinion as expressed in his report of 17 April 2013 was altered in light of the further documentation and information provided to him. Dr Shub said his opinion was not altered and that the information provided to him was not relevant to his diagnostic formulation. He remained of the view that Mr Reynolds' psychiatric state was caused by the incident on 22 May 2003. He also remained of the view that Mr Reynolds was not fit to carry out his pre-stroke work duties on either a part or full-time basis.

280 Dr Shub's reports were tendered by Mr Reynolds by consent without the need for Dr Shub to give evidence.

281 I have earlier referred to the evidence of Dr Kay when discussing the insular cortex. Dr Kay's report of 1 March 2011 was provided to Mr Reynolds' solicitors after he examined Mr Reynolds on 27 October and 13 December 2010, spoke to the treating psychiatrist Dr Risbey on several occasions and reviewed a Resting Cerebral Perfusion Scan (RCPS) performed by Dr Cardaci on 12 November 2010.

282 Dr Kay has qualifications and experience in forensic psychiatry and in diagnosing and treating those with brain injury. Dr Kay described his role as describing and quantifying Mr Reynolds' ongoing deficits, to provide an opinion as to the likely aetiology and give an estimate as to Mr Reynolds' prognosis as well as his ongoing care and treatment requirements.

The symptoms that Mr Reynolds complains of, some of which are objectively evidenced on neuropsychological examination, fall into a number of classes.

1. Affective lability, dyscontrol, poor attenuation, deficits in motivation to perform and continuation of tasks especially complex ones.
2. Difficulty with multiple stimuli.
3. Difficulty with attention and concentration.
4. Word finding and remembering.
5. Memory problems.
6. Other symptoms including difficulty with balance and headache.

284 At page 6 he described his diagnosis in the following terms:

My diagnosis is that Mr Reynolds has Organic Brain Syndrome primarily affecting left insular cortex and its connections to Frontal Lobe and other anatomically related parts of the left brain. I am of the opinion that your client is more likely to be suffering from an organic affective disorder than Post Traumatic Stress Disorder as such. However, I do not discount his mental functioning changes have contributed to his psychological well being. He is understandably anxious about his condition but I am also of the opinion that part of his anxiety has arisen predominantly as a consequence of damage to his brain. That is, his psychological symptoms are both primary and secondary sequalae of damage.

I am of the opinion that Mr Reynolds' neurological deficits have arisen as a consequence of a traumatic dissection of his left carotid artery. I note that neurosurgical opinion is that the fall some two weeks beforehand caused the traumatic dissection, notwithstanding his prior history of Diabetes and Hypertension.

285 Dr Kay was of the view that Mr Reynolds' psychiatric treatment provided by Dr Risbey was appropriate and that he would require ongoing psychiatric treatment and at times, support from a clinical psychologist. He thought Mr Reynolds would need to be reviewed on at least a monthly basis by Dr Risbey.

286 With respect to capacity for work, Dr Kay said:

I am of the opinion that Mr Reynolds is now unemployable in his former occupation notwithstanding that Mr Reynolds presents well, his deficits are such that in practice he is unemployable for any occupation for which he would be reasonably equipped by reason of training, experience or natural aptitude.

Mr Reynolds is unable to work by reason of irritability, effective lability, poor motivation and memory impairment.

287 Dr Kay also considered that Mr Reynolds' ability to engage and enjoy recreational and leisure activities was compromised by his ongoing problems.

288 Dr Kay further commented that although Mr Reynolds presented superficially as being well, he, that is Dr Kay, had no reason to doubt the veracity of Mr Reynolds' account of his ongoing difficulties. Dr Kay therefore accepted that assistance was appropriate.

289 Therefore, as with Dr Risbey, Dr Kay's assessment is very much reliant upon Mr Reynolds' account of his ongoing difficulties being accepted as truthful and reliable.

290 Dr Kay noted Mr Reynolds had a prior history of reactive type depression following the breakdown of marriage but the history since the stroke suggested Mr Reynolds was different to his pre-stroke self. Dr Kay felt there was good evidence that some of Mr Reynolds' complaints were due to physical injury to the brain but also presumed that at least some of the symptoms reflected psychiatric rather than organic pathology.

291 In cross-examination Dr Kay was asked how the fact that Mr Reynolds had been employed for six years following the stroke and had continued to drive his car, could be reconciled with the damage to his insular cortex. Dr Kay said that he also had some difficulties about the occupational history, but without actually having seen his employment records and any job appraisals and exactly how Mr Reynolds was performing his work duties, his feeling was that 'Mr Reynolds may well have been trading on past glories, that is he was a person who had exceptional skills, and in some domains, he still has exceptional skills'. Dr Kay noted that on neuropsychological testing, Mr Reynolds was still in the very superior range for a number of tests but if the symptoms and problems described by Mr Reynolds, which Dr Kay considered had been described consistently from the time of the stroke, were accepted the effect is now seemingly greater than it was when he was working. Tellingly, Dr Kay said that although he did not have evidence to support it, he suspected that really Mr Reynolds' performance at work was not good. He said that given the exceptional IQ Mr Reynolds had, the deficits he has suffered have had a profound effect on his life. That profound effect was compounded by the psychological component suffered by Mr Reynolds.

292 Dr Kay was of the opinion it would be very difficult to find appropriate meaningful employment for Mr Reynolds. Although he would like to say that hypothetically Mr Reynolds had some residual work capacity, actually putting it into practice would be exceptionally difficult and not necessarily successful.

293 Dr Kay was also taken to the pre-stroke medical reports of Dr Lee and Dr Moussa. Dr Kay agreed that Mr Reynolds had an obsessional personality but did not think that would have impacted upon his ability to function. His assessment of the pre-existing employment history was that although Mr Reynolds had experienced work conflicts and issues prior to the stroke, once those conflicts were resolved, Mr Reynolds returned to normal functioning. Dr Kay accepted that the pre-existing history demonstrated a pre-disposition to development of psychiatric symptoms at times of conflict which partly explained why Mr Reynolds' psychiatric condition appeared to worsen after he ceased work.

294 Dr Kay doubted that even with ongoing psychiatric support and support to get Mr Reynolds organised, there would be any significant improvement in Mr Reynolds' functionality.

295 I have also earlier, when considering the role and function of the insular cortex, briefly referred to the evidence of Dr Collins. Dr Collins provided two lengthy reports to Mr Reynolds' solicitors dated 20 April 2012 and 17 June 2013. For the purposes of reviewing Mr Reynolds and preparing her first report, Mr Reynolds attended four sessions with Dr Collins on 13, 15, 23 and 30 March 2012. Mrs Reynolds was also interviewed by Dr Collins on 5 April 2012. Dr Collins performed 16 hours of cognitive and psychological testing and clinical interviews with Mr Reynolds and Mrs Reynolds. Dr Collins was provided with and considered various medical reports which she lists and summarises in her report of 20 April 2012.

296 Her recording of the history of symptoms and problems reported to her by Mr Reynolds, and also by Mrs Reynolds, is broadly consistent with the evidence of Mr and Mrs Reynolds which I have earlier referred to and outlined.

297 Dr Collins noted that Mr Reynolds' overall 'intellectual function' was in the superior range and was consistent with his pre-injury function. Notwithstanding the retention of overall 'intellection function', Dr Collins assessed that Mr Reynolds had a:

relative weakness in high level reasoning using verbal material, relative to his ability to reason with visual material, and some mild slowing and fluctuation in working memory under higher cognitive load relative to his ability to reason with visual material ... His performance on tests utilizing verbal material were poorer than would be expected of someone who wrote policy for government briefings and vetted the writing of other employees.

298 In relation to memory and learning, once again Mr Reynolds had formal test scores which were in the high average to superior range. His learning and retention of verbal material varied as a function of its complexity and whether he was given prompts to assist retrieval. Dr Collins expressed this difficulty in the following terms:

His performances suggest some subtle problems absorbing and then retaining more complex verbal material, relative to his ability to learn and retain visual material and simple verbal material. As well, his pattern of performances suggests problems with executive function may be making a contribution to his reported difficulties with memory retrieval.

299 Dr Collins then identified relevant literature which disclosed that:

... strokes to the left insular cortex have been found to result in verbal memory impairment ... and it has been suggested that the insula [sic] is part of a functional network that mediates verbal memory through recroprical [sic reciprocal] interconnections via the lateral orbital and temporopolar regions ... and left insular infarction can produce aphasia and memory complaints that persist despite otherwise good language recovery.

300 In relation to higher executive function, whilst his performance was generally in the average range, deficits in some aspects of executive function had been found and were consistent with the reports by Mr Reynolds and his ex-wife as to problems he had with planning and organisation, as well as verbal fluency. Dr Collins herself noted features of this type of impairment of higher executive function in her own clinical assessment of him.

... Problems of this nature can be subtle in the quiet and structured environment in which testing takes place, but will be more apparent in everyday life, particularly noisy or busy environments, or environments with high cognitive demands.

302 This is very similar to a comment made some two years earlier by the treating psychiatrist, Dr Risbey.

303 On formal psychological assessment, Mr Reynolds was found to have high clinical elevations as to emotional lability, anxiety and depression. His scores also suggested social isolation, social detachment and confused thought processes. Confusion about his identity and self-worth were also evident.

304 Formal testing as to emotional processes and socio-emotional adjustment indicated a range of problems of a kind that indicated that Mr Reynolds would have problems in extracting emotional connotations in language, emotional expressions on faces, problems making decisions under conditions of uncertainty and difficulty in the ability to recognise and verbally express feelings in oneself and others. This latter feature is known as alexithymia and is known to be linked to lesions in the insular cortex. Dr Collins reported that:

... Recent research has elucidated the integral role of the insular cortex in social and emotional functioning. Anatomical studies revealed that the insular cortex is a highly interconnected structure embedded deep within the brain with reciprocal connections to multiple sensory, motor, limbic and association areas of the brain.

305 She explained that when the insular cortex is not functioning adequately, it can impact on functions subserved by brain areas with which it is interconnected. It was an explanation which largely coincided with the expert evidence at trial of Dr Buckley, Dr Kay and Dr Terace.

306 Dr Collins was not cross-examined as to her reliance on the scientific literature.

... Damage to the neural circuitry underpinning emotional and/or social intelligence (in which the insular cortex plays an integral role) results in impairments in real life decision making and an inability to copy effectively with environmental and social demands even in people with intact cognitive intelligence.

308 Overall, Dr Collins expressed the opinion that Mr Reynolds' symptoms can be attributed to the organic brain damage associated with the stroke as well as secondary psychological sequalae associated with changes he experienced in his cognition and emotional function.

309 Dr Collins expressed the opinions that it was highly unlikely that Mr Reynolds would return to work at a level commensurate with his previous level or on the open labour market, that his ability to undertake and enjoy recreational, social and leisure activities was significantly compromised by the limitations in emotional processing and decision-making under conditions of uncertainty and that his observed and identified difficulties with decision-making and initiating tasks would impact on his ability to undertake domestic tasks.

310 Dr Collins was of the opinion that Mr Reynolds' ability to undertake and enjoy recreational and social activities was significantly compromised causing him to become socially isolated. She supported ongoing psychiatric treatment and also additional psychological support. She also noted that Mrs Reynolds was currently carrying a considerable burden in being Mr Reynolds' point of contact and thought the appointment of a case manager to oversee his appointments and organise appropriate help within the home and leisure/community participation would improve his quality of life.

311 In May and June 2013, Dr Collins conducted a further four hours of testing on Mr Reynolds and interviewed him. In the opening section of her report dated 17 June 2013, Dr Collins again referred to 'new research on the role of the insular cortex and frontal systems of the brain, in cognitive and emotional function'. Dr Collins was asked to consider a 1988 assessment of Mr Reynolds in the context of her review. She was also given the reports prepared at the request of the defendants. She was also provided with the May 2013 report of Ms Chidgzey upon which she placed some reliance. Mr Reynolds attended three sessions with Dr Collins on 1 and 16 May and 12 June 2013.

312 Specifically dealing with the observations of Dr Home which asserted that there was a discrepancy between findings on neuropsychological evaluations and stating that one would expect performance on repeated neuropsychological evaluation to improve over time rather than deteriorate, Dr Collins stated:

This appears to be a misunderstanding. To my knowledge, there have been four neuropsychological assessments of Steven to date, as well as the current truncated review assessment. The findings from the assessments are consistent with one another, with the exception of Clin. Prof. Foster's assessment in 2009, which found Steven's intellectual abilities to be in the average range. There is no indication of deterioration over time, with assessments in 2005, 2009 (with Mr. White) and 2012 all finding Steven's intellectual functioning to be in the superior range and all finding relative weaknesses in aspects of higher executive functions.

313 Dr Collins noted that she had administered tests of social cognition and emotional processing, none of which had been administered in other assessments and which confirmed problems arising from the damage to the insular cortex.

314 Dr Collins was not cross-examined on her evidence in this regard.

315 By reference to the 1988 assessment, Dr Collins observed that there was no indication of a pre-existing personality dysfunction, which contrasted markedly with Mr Reynolds' current presentation 'as a socially isolated individual who is highly anxious, moody, tense and suspicious of others'.

316 Dr Collins (who had not been provided with the report of Dr Shub dated 4 March 2013) observed in very similar terms to Dr Shub that whilst Mr Reynolds 'may have had a pre-morbid obsessive personality style, it is important to note that personality style is not the same as personality disorder'. In addition, Dr Collins noted that 'research indicates that many high achieving individuals have an obsessive personality style and that this style can be useful in discharging duties in various professions including academics, accountants, surgeons, lawyers and even clinical neuropsychologists'.

317 Dr Collins remained of the opinion that Mr Reynolds' symptoms could be attributed to primary and secondary sequalae of the stroke, that it was highly unlikely that Mr Reynolds would return to his previous level of function and it was unlikely that Mr Reynolds could ever return to employment at his pre-accident level. She also expressed the opinion Mr Reynolds' ability to undertake and enjoy recreational, social and leisure activities had been significantly compromised and his difficulties, particularly with respect to decision-making, obsessiveness and initiating tasks together, would impact on his ability to undertake domestic tasks. She made recommendations in support of ongoing psychiatric treatment and case management.

318 Dr Collins referred to a report of speech pathologist Ms Leanne Chidgzey. Ms Chidgzey saw Mr Reynolds on 10 May 2013. Ms Chidgzey expressed the speech pathology diagnosis to be that of a:

Mild expressive dysphasia characterised by occasional word finding difficulty and circumlocution with some pragmatic dysfunction. There is cognitive involvement characterised by memory, planning, organisational and initiation deficit with reduced effectiveness of higher level language processing.

319 Ms Chidgzey considered that the cerebrovascular accident 'materially contributed to his reduced function', that the deficits were permanent, that the deficits she identified would restrict Mr Reynolds' ability to function in the workplace, that his deficits interfered with his ability to enjoy recreational conversational and leisure activities and made recommendations in respect of treatment.

320 Ms Chidgzey was not required for cross-examination by the defendants.

321 I have previously referred to the evidence of Dr Buckley in relation to the role of the insular cortex in the functioning of the brain. Dr Buckley is a specialist rehabilitation physician. His role is to take over from acute medical carers of an injured person and to assist that person re-establish his or her capacities and roles in society. He also explained the rehabilitation physician attempts to rehabilitate a person in their function, their mobility, their cognition if they have suffered a brain injury, and in their general re-integrating back into the community. Dr Buckley has undergone training in respect of brain injury. He has consulted to neurosurgeons and neurologists at Royal North Shore Hospital in Sydney. He also ran the traumatic brain injury rehabilitation unit at the Royal Rehabilitation Centre in Sydney which was then one of only two brain injury units in Sydney.

322 He has experience in working with people who have suffered strokes which he described as an acquired or traumatic brain injury.

323 Dr Buckley was asked to examine Mr Reynolds and assess his care requirements. Mr Reynolds attended upon Dr Buckley on 11 June 2012. Mr Reynolds was accompanied by Mrs Reynolds who was also interviewed by Dr Buckley.

324 Dr Buckley provided a report dated 24 July 2012. His diagnosis of Mr Reynolds' condition was:

Stroke in the left side of his brain, including the left insular cortex, as a result of a dissection of the left carotid artery.

Major blindness of the left eye.

Serious cognitive impairment of a type related to insular damage, with consequent difficulty in managing his day to day lifestyle.

Sensory impairment in his left side, and particularly left arm.

325 Dr Buckley addressed what he described as the 'relative inconsistency' on the one hand having had a period of appearing to manage at work as a policy advisor, but not being able to manage his domestic commitments. He expressed his opinion as:

... There is good evidence that the stroke has caused serious cognitive impairment of a type related to insular damage, with consequent difficulty in managing his day to day lifestyle.

326 Dr Buckley also provided recommendations in respect of future care and treatment which I will consider in more detail later in these reasons.

327 In a further short report to Mr Reynolds' solicitors dated 2 August 2013, Dr Buckley itemised a number of further medical reports provided to him, which having read and considered, he concluded that none of the reports caused him to alter his opinion expressed in his earlier report.

328 In his viva voce evidence Dr Buckley explained that with insular cortex damage because of the disconnection with the frontal lobe a person might have difficulty in initiating or properly planning activity. Further, if there is a disconnection between memory and personality functions, a person is likely to react incorrectly without the benefit of memory of what has happened before. Therefore it is not easy to call on resources previously used in order to solve a problem that has been solved before.

329 In relation to difficulties with perception, it is likely to alter a person's empathy with other people and to interact with other people.

330 Dr Buckley expressed the opinion that the key to managing the difficulties reported by Mr Reynolds was to provide a structure so that Mr Reynolds does not have to put in place all the responses that are necessary for him to create an outcome. So if, for example, a structure provides for only one response that would make it easier for Mr Reynolds to deal with an issue rather than having an unstructured environment where there may be many issues to deal with. A structured environment provides a step-by-step process to assist in dealing with issues.

331 Dr Buckley was taken to the report of Dr Moussa of 22 February 2009 and to Dr Moussa's opinion (provided when Mr Reynolds was still at work) that Mr Reynolds did not have the capacity to perform more than one duty and was not able to accept too much responsibility due to the nature of his brain injury. Dr Buckley explained that concentration was a function which was very hard to locate in the brain. He explained the difficulty with impaired concentration is that it impacts upon the ability to process and deal with conflicting information from various sources and to deal with more than one issue at a time. In essence, he agreed with Dr Moussa's observation that Mr Reynolds could not perform more than one duty at a time.

332 Dr Buckley was taken to the reports of Dr Shub and a comment of Dr Shub that the brain injury mediates the psychiatric condition. Dr Buckley said that fitted in closely with his own view. He explained as a rehabilitation physician dealing with brain injury his focus is more on the physical or organic injury but in his experience nearly everyone with a brain injury becomes depressed because of their inability to function properly which is a depressing problem to face. He said that such people typically lose their spouse and friends and become lonely and depressed. He understood Dr Shub's use of the word 'mediates' to mean that the brain injury was an integral part of the psychiatric conditions, that is, there was an interaction between the two.

333 In cross-examination Dr Buckley was asked about the significance of Mr Reynolds' work history after he returned to work following the stroke including that he had been promoted on two occasions to a level 6 and level 7 position. Dr Buckley accepted, that at least on the face of it, the promotions indicated a reasonable work performance. However, he was not convinced that was the actually the case and the fact Mr Reynolds was promoted was not necessarily an indication that all was well.

334 He was asked why, when for a significant period Mr Reynolds was reporting that he could work, that was not a reliable indication of his work capacity. Dr Buckley explained that someone with the type of injury that Mr Reynolds had lacked insight into the nature of the condition and the extent to which they were coping which could explain Mr Reynolds' self-assessment of his work capacity.

335 Dr Buckley was asked the fact that Mr Reynolds had been driving for 10 years was a good indication that the injury was not such as to stop him from working or carrying out his day-to-day activities. Dr Buckley expressed the view that the capacity to drive was a very poor indicator of a person's cognitive functioning and referred to his experience of having to prevent patients with advanced Alzheimer's disease from driving. Although Dr Buckley accepted that driving is a highly cognitive activity, he did not think it was a good proxy for cognitive assessment.

336 Dr Buckley accepted that he was heavily reliant upon what Mr Reynolds had reported to him as being truthful and accurate and that if the reporting was not, the value of his report was limited.

337 It was suggested to Dr Buckley that if Mr Reynolds had been able to provide the amount of detail regarding his treatment and history that he provided to Dr Shub, as set out in Dr Shub's report of 16 December 2004, that demonstrated insight on the part of Mr Reynolds. Dr Buckley did not think the ability to provide biographic detail had anything to do with insight. It was to do with memory. The memory impairment suffered by Mr Reynolds was in relation to new memory after the accident happened. He explained that other than in the most extreme forms of brain injury, an injured person can access their biographical data from before an accident without difficulty. Laying down and making a new memory after an accident is a much more complex process than relying on memory from before an accident. In Mr Reynolds' case a stroke has affected the reliability of his memory since the stroke. He explained the situation as follows (ts 495 - 496):

... This is not the all or nothing brain injury that he suffered. This is a brain injury that has caused a relative disconnection between the frontal lobes, the personality, the deciding part of my brain; the perception, the incoming part and the memory. And it's the processing of those three areas of the brain that's gone wrong. And again, just like the computer, usually, sometimes it works fine, but other times, unpredictably, it's not remembered, or a faulty reaction to the environment occurs, or a faulty perception of the environment occurs. So it's not that everything has stopped. If everything had stopped he'd be a vegetative patient in a nursing home.

Yes? - It's that there is a relative difficulty in performing all those activities.

338 Dr Buckley was asked whether the severity of Mr Reynolds' cognitive deficits placed him at the lower rather than the top end of severity. Dr Buckley responded by saying that Mr Reynolds was at the end where he could not manage to properly organise his domestic affairs and he has quite significant cognitive impairment which remove him from the capacity to do the kind of work he used to do.

339 In re-examination, Dr Buckley was asked, if the history was that since the stroke Mr Reynolds had continuous difficulties in his domestic and social arrangements, that when he returned to work he thought he was doing well but there were problems from time to time in the work setting but that Mr Reynolds felt that both the problems at home and work were the fault of other people and not his, whether that was significant in the assessment of Mr Reynolds' condition. Dr Buckley explained that such history was consistent with a person with a brain injury. He said it was nearly universal in people with brain damage that they have difficulty in accepting the damage is causing any problem for them and they think they are the same person as before. It is only wives and husbands who notice and complain about the difference and the failings but which the person with the brain injury does not recognise.

340 By report dated 14 February 2011 to Mr Reynolds' solicitors, Dr John Ker, consultant physician in rehabilitation medicine, stated his opinion that Mr Reynolds had sustained a left-sided carotid artery occlusion with consequent left hemisphere stroke resulting in neuro-physical and neuropsychological impairment. Secondary to those effects of the left hemisphere stroke, Mr Reynolds has developed feelings of anxiety with added panic attacks, a depressive illness and subsequent increased impaired concentration.

341 Dr Ker stated that the functional deficits were a visual impairment and 'a subtle right hemiparesis impacting on upper limb function, balance and disturbed gait pattern'.

342 He considered prospects of further improvement remote.

343 After Mr Reynolds was directed by his employer to stay at home, the general practitioner Dr Moussa referred him to Mr Parry at Fresh Start Injury Management for rehabilitation assistance. An initially assessment was conducted on 29 July 2009. Following discussions with Dr Risbey, Mr Reynolds was referred to Mr Barry White for a neuropsychological testing and recommended Mr Reynolds remain off work until the testing had been performed and Mr Reynolds' cognitive capacity assessed. Mr Parry provided a report dated 11 September 2009 to RiskCover.

344 Mr Reynolds was later referred to another rehabilitation provider, the ORS Group, in November 2010. Mr Reynolds told the ORS Group rehabilitation consultant that he thought he could return to work in a level 7 position. Despite that view, the rehabilitation consultant in their report to RiskCover dated 16 November 2010 concluded that vocational rehabilitation was not suitable for Mr Reynolds.

345 I have earlier in these reasons [70] - [71] referred to Mr Reynolds being reviewed by a neurologist, Dr Grainger. At the request of solicitors for the defendants, Dr Grainger reviewed Mr Reynolds on 23 April 2010 and again on 17 January 2013. Dr Grainger provided reports dated respectively 4 June 2010 and 31 January 2013 following each of those reviews.

346 In his report of 4 June 2010 Dr Grainger said that from a neurological aspect Mr Reynolds had made a good recovery, except for persistent loss of vision in the left upper field, with no residual speech defect or weakness in the right limbs. Dr Grainger also recorded Mr Reynolds' reporting of ongoing problems with motivation and memory and that Mrs Reynolds had been assisting with his daily activities. In relation to the reporting of a recent deterioration of memory, Dr Grainger wondered whether it could be related to uncontrolled hypertension or diabetes but then ruled that out noting that Mr Reynolds' blood pressure was normal. Dr Grainger concluded that it was likely psychological factors were causing the reported problems which he noted was outside his area of expertise. Dr Grainger did not consider that symptoms of declining cognitive function and motivation could be related in an organic way to the stroke. Dr Grainger considered Mr Reynolds was capable of some work from a neurological perspective and that it would be better for Mr Reynolds to be occupied at work than sitting at home on his own.

347 When Dr Grainger reviewed Mr Reynolds in January 2013 he recorded Mr Reynolds was continuing to take medication for his diabetes, cholesterol and hypertension. Except for the diabetes which Dr Grainger said was not well controlled, the other conditions appeared to be adequately controlled. Dr Grainger also recorded Mr Reynolds was taking Panadeine Forte and Tramadol each day for headaches and medication for nausea. He was seeing Dr Risbey every two to three weeks. Mr Reynolds reported not liking to face up to people or use the phone and that he felt uncomfortable socialising. Mr Reynolds advised after an hour's talking he felt exhausted. He still reported difficulties with memory. He explained the level of assistance he was receiving.

348 Dr Grainger repeated his earlier opinion that Mr Reynolds had made an excellent recovery from the stroke. Dr Grainer did not feel that Mr Reynolds' reported symptoms were related to organic brain damage. Dr Grainger also felt it was difficult to explain fully on a psychological basis the degree of memory impairment which was reported. Dr Grainger remained of the view there was no reason why Mr Reynolds could not work. Finally, Dr Grainger advised that the ongoing symptoms reported by Mr Reynolds were psychological and required a psychiatrist to assess. He said that a diagnosis of PTSD after a stroke was outside his experience.

349 In his evidence-in-chief Dr Grainger said that the MRI/MRA scans he viewed showed that Mr Reynolds was only left with a small amount of damage in the left hemisphere because he had had a very good cross-flow of blood coming from the other side which led to a good recovery without which he would have been left disabled. Mr Reynolds was only left with a tiny area of infarct damage in the insular area of the brain and such damage can be found in people who have made a full recovery. The amount of damage however does not necessarily correlate to impact on a person's functioning. Dr Grainger was of the opinion that the area of function where the damage was suffered was diffusely situated so as to permit other areas to take over and compensate for the damage and lead to a full recovery of various functions such as speech, cognition and right-sided paralysis. Dr Grainger was of the view that to the extent the identifiable damage might interfere with function in respect of cognitive issues, any impairment would be compensated by other parts of the brain.

350 Dr Grainger conceded in cross-examination that the extent of the injury involved not only discrete identifiable loss of brain cells in the insular cortex but also extended to the associated structures including the temporal lobe. Dr Grainger also conceded that the functioning of the brain was both biological and psychological, but the psychological functioning of the brain, including the effects of the organic brain injury on psychological functioning, was outside his expertise.

351 I have earlier above at [312] when considering the evidence of Dr Collins, referred to her response to opinions expressed by Dr Home in his reports. Dr Allan Home is a consultant occupational physician. He was called on behalf of the defendants. He, at the request of solicitors for the defendants, initially reviewed Mr Reynolds on 9 August 2010 and provided a report of 1 September 2010. Dr Home subsequently reviewed Mr Reynolds on 19 July 2011 and 15 March 2013 and provided reports consequent upon those reviews respectively dated 20 July 2011 and 15 March 2013.

352 In his first report of 1 September 2010 Dr Home concluded Mr Reynolds did not retain any significant functional disability arising from the stroke but said there might be a current disability relating to psychological adjustment difficulties following an industrial dispute in 2008/2009 which he related to issues Mr Reynolds reported he had at work regarding changes to his work duties and concerns about poor lighting and ergonomic furniture and the need for a Palm Pilot and also issues related to his work attendances. There were also issues Mr Reynolds was having with his rehabilitation case manager Mr Parry. Dr Home was of the view Mr Reynolds was fit to resume his pre-accident employment on a full-time basis.

353 In his next report of 20 July 2011 Dr Home expressed the opinion that Mr Reynolds' current psychological symptoms did not have a predominantly organic basis but were psychological in nature. He agreed with the views expressed by Dr Grainger. Dr Home felt Mr Reynolds had become entrenched in his illness role. Dr Home felt the primary symptoms reflected a stress disorder and referred to the diagnoses made by Dr Shub in December 2004. Dr Home did not accept that Mr Reynolds suffered from any residual complaints associated with the stroke which affected his memory or headaches of which he complained. Dr Home remained of the view that from a physical point of view Mr Reynolds was fit to resume his pre-accident employment on a full-time basis.

354 In Dr Home's final review and report of 15 March 2013 he was provided with a large number of medical and other reports itemised in his report. He was specifically asked to respond to Dr Kay's report of 1 March 2011.

355 Dr Home said Mr Reynolds presented with severe invalidity and he considered there was a significant disparity between Mr Reynolds' current presentation and his presentation to Dr Home in 2010. Dr Home was unable to provide any medical explanation for the severity of the current symptoms. It was Dr Home's view that with suitable motivation and reasonable accommodation from an employer Mr Reynolds could resume work at his pre-stroke level.

356 Dr Home did not agree with Dr Kay's opinion that Mr Reynolds was suffering from an acquired substantial organic brain injury requiring the level of support indicated by Dr Collins and the Lighthouse Group. At pages 8 and 9 of his report Dr Home explained that he disagreed with Dr Kay's opinion because Dr Kay considered Mr Reynolds had since the time of the stroke presented with a consistent picture of neuropsychiatric deficits but that Dr Home disagreed there had been a consistent presentation of such deficits. Dr Home explained that in his view the medical records showed an inconsistency between the various neuropsychological evaluations between 2004 and 2008.

357 Mr Reynolds gave evidence over four days. He was continually in the witness box from 6 to 8 August. On 9 August some witnesses were interposed but Mr Reynolds' evidence was completed in the afternoon.

358 Giving evidence was clearly emotionally traumatic for Mr Reynolds especially when reliving the circumstances of experiencing the stroke and the immediate aftermath, and the breakdown of his marriage to Mrs Pamela Reynolds. He was frequently tearful and had difficulty speaking.

359 While at times, particularly towards the end of the day, he was visibly tired, Mr Reynolds generally gave his evidence in a straightforward manner without embellishment. He generally understood the questions asked of him both in examination-in-chief and in cross-examination. His memory was generally good both in relation to matters occurring before his stroke and since.

360 The defendants do not submit that any adverse credibility finding should be made against Mr Reynolds. However, they submit he is an unreliable historian. The defendants accept Mrs Reynolds was a truthful witness.

361 In my view, those concessions were properly made. I find Mr Reynolds was a truthful witness who did his best to provide an accurate history of the symptoms and difficulties he has suffered and how he has coped with daily living activities and also the circumstances of his employment with the first defendant post the stroke. His evidence was generally consistent with the documented history both in his employment records and in the medical records and reports. I do not accept the defendants' submission that Mr Reynolds was an unreliable historian. To the extent he may at times have provided an inaccurate history which was inconsistent with the documentation, the inaccuracy is minor and does not detract from the overall truthfulness and reliability of his account.

362 For example, Mr Reynolds was cross-examined at considerable length in relation to a failure to submit timesheets and properly account for periods in respect of which he claimed sick leave and the completion of required documentation in 1998 and 2001. Mr Reynolds was cross-examined in relation to various applications for leave signed by him and medical certificates provided by him in 2001 and whether he remembered the circumstances in which the applications for leave were made and the medical certificates provided. The tenor of the cross-examination was to suggest Mr Reynolds was a poor employee who failed to follow direction and comply with his employer's lawful requirements, leading to industrial disputes and disenchantment between the parties. It was submitted this evidence demonstrated Mr Reynolds' future employment prospects within the State public service were poor.

363 Mr Reynolds was being asked to remember the circumstances in which documentation was completed 12 years previously. I do not expect Mr Reynolds to have been able to recall the circumstances in which the documentation was completed and what was discussed and said between he and his supervisors. I do not draw any adverse inferences against Mr Reynolds because he was unable to remember the circumstances in which the documentation was completed or because he took a different view to the documentation that he was not reprimanded for failing to comply with his employer's direction or requirements regarding properly accounting for his time.

364 Nor do I draw any adverse inference against Mr Reynolds regarding similar issues which arose between he and his immediate supervisor, Mr Hodge in late 1998. I accept there was a difference in view between Mr Reynolds and Mr Hodge regarding the need to submit timesheets and Mr Reynolds was probably not as compliant with the direction to keep timesheets as he ought to have been. Mr Hodge directed Mr Reynolds to improve his time management and personal productivity.

365 An issue also arose as to whether Mr Reynolds had breached the Department of Transport code of conduct by releasing confidential information to the public. Mr Reynolds was written to by ML Harris, the acting director general of transport, on 9 December 1998 (exhibit 10.205). Both at the time and in his evidence, Mr Reynolds maintained he had not disclosed confidential information to the public. A decision was made not to take any action regarding the allegation of the release of confidential information.

366 In summary, while I accept that before he suffered the stroke, Mr Reynolds was involved in a number of industrial issues with his employer, largely concerning his failure to maintain proper time keeping and sick leave records, I do not accept that Mr Reynolds' evidence in relation to these issues reflects adversely upon his credibility.

367 For much of his evidence Mr Reynolds was very clearly distraught and emotional. I accept the reliving and re-telling of the circumstances surrounding the stroke and the impact the stroke has had had upon his life including the loss of his job and marriage to Mrs Reynolds was distressing and traumatic for him.

368 I find Mrs Reynolds was a most impressive and entirely believable witness. It is clear that despite the difficulties and challenges she encountered in dealing with Mr Reynolds after she first arrived in Australia, and the disappointment and despair she must have experienced when she found Mr Reynolds to be a different person from the man she met and fell in love with and married in the United States, and despite the fact they have divorced, she retains an affection and fondness for him as well as a sense of duty and responsibility towards him. She questioned whether she could have done more for Mr Reynolds. I am left in no doubt that Mrs Reynolds has done more than could reasonably have been expected of her, and continues to do so, in providing care, assistance and support to Mr Reynolds and in doing so has made large sacrifices in her own life and happiness.

369 Mrs Reynolds' evidence was generally consistent with and corroborated both in Mr Reynolds' evidence and the documented history of the symptoms and difficulties he has suffered since the stroke. Her evidence painted a vivid portrait of a person formally confident, determined, resourceful, decisive and in control and in charge, ambitious and seeking career advancement and who enjoyed social interaction, who has changed to become indecisive, disorganised, lacking initiative and confidence, verbally abusive, socially awkward and isolated and who is unable to provide any proper or adequate level of care for himself. The re-telling of their life together since the stroke and perhaps the realisation that her hopes and aspirations of a life together had not eventuated, was clearly also distressing and traumatic for Mrs Reynolds. That she recently returned from the United States to Australia, having resolved when she had last left Australia she would not return, for the purpose of caring for and supporting Mr Reynolds in the lead up to the trial and in giving evidence, which she would have known would be distressing to her, forcefully underlines the force of her evidence.

370 Her account was largely unchallenged in cross-examination.

371 I have earlier on various occasions observed that the various opinions as to both diagnosis and the extent of any residual disabilities and consequent need for care and support in the future are largely dependent on the accounts provided to them by Mr Reynolds being accepted as truthful, accurate and reliable. In my view the history recounted by Mr Reynolds in his evidence was largely consistent with and reflected the accounts he has provided to the doctors at various times since he suffered the stroke on 6 June 2003. The history recounted by Mr Reynolds is, as I have already found, largely corroborated by Mrs Reynolds' account in her evidence. It is also consistent with and reflected in the reports of Mr Reynolds' supervisors and work colleagues between September 2003, when he returned to work on a graduated rehabilitation program, and July 2009, when he was directed to remain at home, as recorded in Mr Reynolds' employment records.

372 I find that the admitted damage Mr Reynolds has suffered to his left insular cortex has caused a disconnection between the frontal, parietal and temporal lobes of the brain which has in turn caused interference with and impairment to Mr Reynolds' brain function. Although the stroke did not cause physical or anatomical damage to the lobes of the brain, the damage to the left insular cortex whose function is to interconnect and integrate the functions of the frontal parietal and temporal lobes has caused dysfunction in the functioning of Mr Reynolds' brain in a similar way had there been physical or anatomical damage to the lobes. In my view, the damage to the left insular cortex is properly described as organic brain damage in the same way as would be an injury to the frontal, parietal or temporal lobes.

373 I am also of the view Mr Reynolds has suffered psychiatric injury as a result of the stroke and the organic brain damage. I accept the opinion of Dr Shub that the nature of the psychiatric injury is post-traumatic stress disorder, panic disorder and major depressive disorder. Although Dr Risbey initially diagnosed Mr Reynolds with PTSD, he was no longer certain that was the correct diagnosis because his focus had shifted to the organic brain damage after he was provided with Dr Kay's opinion. Dr Kay thought Mr Reynolds was more likely to be suffering from organic brain damage but did not discount PTSD. In my view, the finding Mr Reynolds suffers from both organic brain damage and PTSD is consistent with and supported by the opinions of Dr Shub, Dr Risbey and Dr Kay. The finding Mr Reynolds suffers organic brain damage is also supported by the evidence of Dr Collins.

374 However, I also find Mr Reynolds has suffered secondary psychiatric injury as a result of the insight he gradually gained regarding the nature and extent of his medical condition and the impact it has had upon his life, particularly in his work life, which has caused depression.

375 In making this finding I prefer the opinions of the psychiatrists to that of the neurologist Dr Grainger and the rehabilitation physician Dr Home as to the diagnosis that Mr Reynolds has suffered organic brain damage arising from and associated with the damage to the insular cortex. I find the opinions of the psychiatrists, supported by the opinion of Dr Buckley, who has significant experience in the rehabilitation of people with acquired brain injury, including stroke, and Dr Collins, a clinical psychologist with qualifications and experience in cognitive neuro-psychology, to be more persuasive than the opinions of Dr Grainger and Dr Home. In particular I find the evidence of Mrs Reynolds as to the difficulties Mr Reynolds experienced following the stroke and the dramatic changes in his personality and temperament, which account is consistent with and supports the contemporaneous reporting of difficulties to the doctors between 2003 and 2009, which evidence I accept, supports and confirms the medical opinions. It is implicit, if not express, in the opinions of Dr Grainger and Dr Home they do not accept the reported history of difficulties. In my view, having accepted the history of the reported difficulties suffered by Mr Reynolds as being accurate and reliable, the opinions of Dr Grainger and Dr Home do not sufficiently explain the onset of the difficulties following the stroke. I am satisfied as a matter of ordinary common sense and experience, Mr Reynolds' medical condition and history of difficulties are so connected with the admitted negligence of the defendants as to be regarded as caused by that negligence: March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506 per Mason CJ. I am persuaded the reported history, both the contemporaneous history and the history as provided by Mr Reynolds, and vividly corroborated by Mrs Reynolds, supports the opinions of the psychiatrists and both Dr Buckley and Dr Collins and their opinions are to be preferred to the extent that they are contrary to the opinions of Dr Grainger and Dr Home regarding the diagnosis of Mr Reynolds' medical condition and the cause of his residual disabilities and impairments.

376 The parties' respective positions regarding the assessment of damages are poles apart. In Mr Reynolds' submission the following is a reasonable award of damages.

377 In the defendants' submissions the following is a reasonable award of damages:

General damages for pain, suffering and loss of amenities

378 I have earlier above [372] - [375] made findings regarding the nature of the injuries suffered by Mr Reynolds as a result of the defendants admitted negligence. The circumstances in which Mr Reynolds awoke on the morning of 6 June 2003 experiencing the effects of the stroke including paralysis, confusion and helplessness, while being alone by himself would have been a frightening and terrifying experience which was compounded by waking up in hospital and initially not being able to move, see, hear or speak. I accept that since then he has suffered from regular panic attacks and nightmares which relate to that initial experience.

379 I also accept that in the months immediately following the stroke Mr Reynolds suffered from confusion and frustration while recovering from the immediate aftermath of the stroke. His speech improved and he regained his ability to walk. He was able to drive a motor vehicle and participate in some recreational activities. Eventually he commenced a graduated return to work programme in September 2003. However during those months of recovery he was highly dependent upon Mrs Reynolds for assistance in his day-to-day living and domestic activities and later in being able to get to and from work.

380 The confusion and frustration felt by Mr Reynolds manifested itself in angry outbursts toward Mrs Reynolds, including abusive language directed toward her, which was in complete contrast to how he was and acted toward Mrs Reynolds before the stroke. I also accept Mr Reynolds suffered from severe headaches and fatigue and exhaustion causing him to rest for significant periods. I accept he suffered sleep disturbance in part because of the nightmares and panic attacks he frequently suffered. He became intolerant of others, including Mrs Reynolds who I believe did everything humanly possible to care for him even though she herself was confused as to what had happened to Mr Reynolds and was having difficulty coping with a person who was entirely different to the person she had married earlier that year and last seen, in perfect health and confidence, a few months previously.

381 Mr Reynolds has also suffered loss of effective sight in his left eye which in turn has caused him to become startled when approached from behind or from his left.

382 I find before the accident Mr Reynolds was a confident person both in his social interaction and relationships and in his work. He was ambitious and seeking promotion. He was a regular participant in community activities as evidenced by his membership of Toastmasters and the Munda Biddi Trail Foundation. He had recently married Mrs Reynolds and was looking forward to and excited by their future together. He was independent and self-sufficient having for many years lived by and cared for himself since his divorce from his second wife Linda in 1997/1998. He also cared for his son Thomas whom he raised together with Linda. He had a strong relationship with his son.

383 Since the stroke he is a different person with an altered personality. He lacks confidence and motivation. He has difficulties in social intercourse in picking up or discerning social signals, particularly in conversation. He has difficulty in being able to meaningfully participate in social conversation. He suffers from anxiety and depressed mood. His concentration, focus and short term memory are impaired. He is indecisive and lacks initiative. His ability to plan and organise is impaired. Much of his self-worth and value was reliant upon his work and since he has lost his job he has experienced feelings of worthlessness and loss. The insight he gradually gained into his condition, after he was directed by his employer to cease work, has either exacerbated or caused his depression and anxiety, his loss of confidence and impaired ability to make decisions and to plan and organise. He has lost friends and withdrawn from his previous social contacts and community participation. He has become socially withdrawn and it would seem the only person with whom he regularly communicates is his former wife Mrs Reynolds even during those times she has returned to the United States.

384 As a result of a combination and cumulation of these various factors and his realisation of his inability to properly care for himself, he has felt compelled, at a relatively young age, to move to a retirement village.

385 In my view the symptoms and difficulties Mr Reynolds recounted in his evidence from which he suffers, which were starkly and vividly corroborated by Mrs Reynolds, and which are consistently reflected in his reports to the doctors since 2003 and which are set out in their medical reports, are genuine. Therefore to the extent that the doctors are reliant upon the truthfulness, accuracy and reliability of Mr Reynolds' account of his symptoms and difficulties for their opinions I accept and find the basis for those opinions is supported by Mr Reynolds' reporting of the difficulties he has suffered.

386 The injuries suffered by Mr Reynolds have had, in my view, a significant impact upon his life. The residual symptoms and difficulties from which he suffers and which he experiences are permanent. However, if Mr Reynolds is provided with the support and structure which I later in these reasons find he needs, the impact of those residual symptoms will to some extent be ameliorated and he will be assisted in being able to lead a more independent lifestyle than he does currently. However Mr Reynolds will always be aware of limitations, restrictions and difficulties he will face and the loss of the life he previously led, both in relation to his work and his community participation which he greatly valued.

387 In my view a reasonable award for general damages for pain and suffering and loss of amenities is $180,000.

388 As I have previously noted, following the stroke Mr Reynolds remained off work following the stroke until he commenced a graduated return to work programme on 8 September 2003, eventually returning to full-time duties with the employer, the first defendant, in March 2004. Thereafter (although he was certified for over 80 days as being incapacitated for work) he remained at work on a full-time basis until 28 July 2009 when he was directed by his employer that he remain at home. He has not worked since then.

389 Between 6 June 2003 and 8 September 2003, and from 28 July 2009, Mr Reynolds was certified as totally incapacitated for work and received worker's compensation payments as for total incapacity. He was also certified as incapacitated for work and received worker's compensation payments while undergoing the graduated return to work programme. Mr Reynolds received weekly payments of worker's compensation in the total sum of $185,375.73 gross which exhausted the then prescribed amount of worker's compensation weekly payments.

390 Mr Reynolds submits that during those periods he was certified as incapacitated for work and in receipt of worker's compensation payments and since the payments ceased when the prescribed amount was reached he has been totally incapacitated for work.

391 Although the defendants accept that the weekly payments for worker's compensation were made based upon certification of total incapacity, and accept Mr Reynolds was paid the total sum of $185,375.73 in weekly payments of worker's compensation, they dispute that since 28 July 2009 Mr Reynolds has been totally incapacitated for work. In the defendants' submission Mr Reynolds has a retained earning capacity and can earn at least the adult minimum wage or the average wage. That submission would seem to be inconsistent given on the defendants' submission the average male wage is $1,513.70 gross per week and the minimum adult wage is $598 gross per week. The defendants submit the plaintiff has a capacity for light or sedentary work.

392 The defendants also submit Mr Reynolds ceased working on 28 July 2009 because he was not given a palm pilot and adequate lighting at his workplace. The defendants submit the circumstances of Mr Reynolds leaving his employment were in the context of an industrial dispute with the first defendant and not a reflection of his ability to work. It is further submitted that it was an anomaly that Mr Reynolds was removed from the workplace on the basis of two medical reports indicating he was unfit for the type of role he had been undertaking because being at work did, to the contrary, signify a level of function in the workplace.

393 They further submit both past loss of wages and future loss of earning capacity should be discounted by 35% to take into account a retained earning capacity and any other negative contingencies.

394 The defendants also submit the first defendant took all reasonable steps to rehabilitate Mr Reynolds back to work. I accept that submission, but the fact is that notwithstanding the steps taken by the first defendant to rehabilitate the plaintiff back to work, the rehabilitation failed and the plaintiff is unable to return to work. In my view the failure of the rehabilitation programme, together with the further unsuccessful attempts at rehabilitation independently organised by Mr Reynolds with ORS in November 2010 (which concluded vocational rehabilitation was not suitable), tell against a finding Mr Reynolds has a retained capacity for work and compel the finding that he has no realistic capacity for work. If all of the resources of the State public service, particularly given Mr Reynolds' long period of employment and the extent of his employment duties and the seniority he attained, were unable to lead to Mr Reynolds being gainfully employed, it is unlikely he has any realistic capacity for work elsewhere.

395 Further, I accept the opinions of Mr Reynolds' treating general practitioner, Dr Moussa, his treating psychiatric Dr Risbey, Dr Shub and Dr Collins that Mr Reynolds is totally incapacitated for work. In particular Mr Reynolds' lack of initiative, impaired concentration, decision-making and short term memory, together with the fatigue from which he suffers, forcefully demonstrate his incapacity for work.

396 I reject the defendants' submission that Mr Reynolds' employment with the first defendant following his return to work between 2004 and 2009, including two promotions, demonstrate a retained capacity for work. I also reject the submission the circumstances of Mr Reynolds leaving his employment were in the context of an industrial dispute with the first defendant and not a reflection of his ability to work and it was anomaly Mr Reynolds had been removed from the workplace. In my view, such a submission is entirely at odds with and does not reflect the medical documentation and the first defendant's, the employer's, documentation. In my view it is clear the first defendant directed Mr Reynolds to remain at home because it reached the view Mr Reynolds was incapacitated from and unable to perform his employment duties.

397 In my view the period in which Mr Reynolds returned to work was marked by a continual struggle to cope with his duties and a masking of the difficulties he was experiencing. Clearly by 2009 his employer was concerned about Mr Reynolds' apparent inability to cope with his work duties, which after medical and rehabilitation reviews, led to the employer directing Mr Reynolds to remain home. Mr Reynolds did not suffer any sudden deterioration in his capacity for work during 2009. The difficulties which became evident in 2009 were always present but were not fully appreciated by either the employer or Mr Reynolds. Indeed, Mr Reynolds, even after he was directed to remain at home, refused to accept he had the difficulties identified by the doctors and the rehabilitation experts and was of the view they misunderstood his condition and he was fit for and able to properly perform his duties. At that time Mr Reynolds had very little, if any, insight into the extent of his residual symptoms. That insight only developed gradually after he was directed to remain at home and further attempts to undergo rehabilitation slowly made it apparent to him that he was indeed incapacitated for work. His apparent managing of his work duties was illusory. Even though there were continual and consistent warning signs that Mr Reynolds was unable to cope with his work duties, the extent of his inability to cope was not fully appreciated by the employer until 2009 and by Mr Reynolds some time afterwards. The fact that he remained at work between 2004 and 2009 does not reflect a capacity for work. The fact he was able to obtain two promotions is more a reflection on the first defendant rather than an indication of Mr Reynolds' work capacity.

398 Therefore in my view Mr Reynolds has been and will remain in the future totally incapacitated for any work realistically available to him. I do not accept Mr Reynolds has any retained earning capacity.

399 Further, I reject the defendants' submission that any assessment of past loss of wages should be discounted for contingencies. A discount for contingencies is exactly that, it assumes there may well be uncertainties - what is often referred to as the 'vicissitudes of life' - in the future, both negative and positive, and therefore a discount should be applied in respect of those future uncertainties or vicissitudes of life. The normal discount in Western Australia for contingencies is in the range of 2% to 6% (Black v Motor Vehicle Insurance Trust [1986] WAR 32; Bowen v Tutte (1990) Aust Torts Rep 81-043). However because in relation to the assessment of past loss all events relevant to the assessment of that loss are known there is no need, indeed it would be inappropriate, to apply any discount for contingencies.

400 The defendants further submit Mr Reynolds' pre-stroke employment history and his pre-stroke medical history show it is unlikely Mr Reynolds, had he remained employed in the State public service, would have been further promoted. They also submit that any loss of wages, loss of earning capacity or damage suffered by Mr Reynolds is caused or materially contributed to by his pre-existing medical condition unrelated to the injuries suffered as a consequence of the defendants' negligence. This plea is particularised at par 22 of the first defendant's defence as follows:

(a) Type 2 diabetes.

(b) Hypertension.

(c) Hypercholesterolaemia.

(d) Depression from the breakdown of his marriages prior to the date of his alleged injury and the breakdown of his marriage in or about 2008.

(e) An obsessive compulsive personality disorder and anxiety.

(f) Injuries he sustained in a bicycle accident in March 2004.

401 The same plea is made by the fourth defendant in its defence at par 21 and is particularised as follows:

(a) Long standing type 2 diabetes, hypertension and hypercholesterolaemia.

(b) Depression he suffered from due to the breakdown of one of his marriages several years prior to the date of his alleged injury and the breakdown of his marriage in or about 2008.

(c) An obsessive compulsive personality disorder and anxiety.

(d) Sleep apnoea.

(e) Injuries he sustained in a bicycle accident in March 2004.

402 In relation to his pre-employment history with the first defendant the defendants spent a considerable time in cross-examination of Mr Reynolds exploring with him work-related issues between 1992 and 1999. A large volume of documentation was tendered. The defendants also called Mr Reynolds' supervisor at the time, Mr Gary Hodge.

403 From the documentation and the evidence of Mr Reynolds what I regard as trivial, minor issues emerged in respect of keeping and providing timesheets, completing required documentation when taking sick leave and not informing his employer when he was absent from work, issues to do with erratic work attendances, the need to seek permission to take a laptop home and various conflicts at work all of which seemed to have ultimately been resolved.

404 I have earlier mentioned [364] - [366] when considering Mr Reynolds', credibility referred to issues which arose between he and his immediate supervisor Mr Hodge regarding Mr Reynolds' failure to keep proper time records. Both Mr Reynolds and Mr Hodge gave evidence regarding issues in which Mr Hodge disciplined Mr Reynolds for failing to keep adequate timesheets. There was also an issue in 1998 in which it was alleged Mr Reynolds released confidential information. As a result a performance development programme was established in 1998 which required Mr Reynolds to improve his time management, personal productivity and account for absences from work by completing the required documentation. In December 1998 Mr Reynolds received advice from the acting director-general of transport that having considered the opinions of an independent reviewer it had been decided no action would be taken regarding the issue relating to the release of confidential information and Mr Reynolds was directed to comply with the recording of his attendances at or absences from work in accordance with the employer's policy.

405 Between February and June 2001 Mr Reynolds acted as a policy coordination officer on a trial basis under the supervision of the then manager of transport policy coordination, Ms Louise Jones. He was also supervised by Mr Hodge.

406 Mr Reynolds explained that his failure to complete the required documentation regarding his work attendances and absences was because he was busy at work and working extra hours. The need to complete timesheets would have meant him spending a great deal longer at work.

407 Mr Hodge left the State public service in 2002. He said his last involvement with Mr Reynolds was when he, that is Mr Hodge, was director general and he approved a substantive position for Mr Reynolds which he was pleased to do because Mr Reynolds had come through a difficult period. The position was a program manager's position in the office of Road Safety. In that position Mr Reynolds was under the supervision of Ms Louise Jones.

408 From this I conclude that any issues which had arisen between Mr Hodge and Mr Reynolds had been satisfactorily resolved such that Mr Hodge was pleased to approve Mr Reynolds' appointment to another position.

409 In my view there is nothing in Mr Reynolds' pre-stroke work history from which an adverse inference against Mr Reynolds should be drawn or which provides a basis for concluding he would not have been promoted within the State public service. Indeed, the fact that he received two promotions during the time in which I have found he was not in reality coping with his work duties supports a conclusion it is probable Mr Reynolds would have been promoted. I accept Dr Kay's observation Mr Reynolds would have been a difficult person to work with but that does not equate to a finding that Mr Reynolds would not have been promoted (ts 622).

410 Neither, in my view, have the defendants discharged the evidential onus upon them that any of the pre-existing medical conditions as particularised in the first and fourth defendants' defences are relevant to and causative of Mr Reynolds' symptoms and difficulties and of his incapacity for work. Although I accept that Mr Reynolds' diabetes and cholesterol have in the past fluctuated and at times been the subject of medical intervention and advice, the medical evidence is generally to the effect that such conditions with appropriate medication and lifestyle are able to be controlled and will not interfere with Mr Reynolds' capacity for work or in relation to his day-to-day activities. There is no evidence that any of the pleaded pre-existing conditions have significantly interfered with or prevented Mr Reynolds from performing his work duties with the first defendant. There is no evidence he had a pre-existing obsessive compulsive personality disorder or that he suffered pre-existing anxiety which interfered with his ability to undertake his work duties. As I earlier noted at [293] and [316], both Dr Kay and Dr Collins (and also Dr Shub at [276]) were of the opinion that while Mr Reynolds may have had a pre-morbid obsessive personality, that was not the same as a disorder. Although there was a history of stress, anxiety and depression at work and psychiatric treatment provided by Dr Mustac in 1993, in his report of 9 July 1993 Dr Mustac said there was no diagnosis of any psychiatric disorder and Mr Reynolds had made a complete recovery.

411 In a report of 23 January 1993 general practitioner Dr Lee stated that Mr Reynolds was 'a person of high intelligence and competence but of somewhat obsessional personality who finds it very difficult to accept that things are often not as they should be in the Public Service and undoubtedly because of this, his personality has contributed to the present illness'. However there was no diagnosis of a disorder and Dr Lee's prognosis was that the outlook was good and the plaintiff would make a full recovery. Dr Lee's opinion is consistent with those of Dr Kay and Dr Collins.

412 There is no evidence Mr Reynolds was incapacitated or required ongoing treatment as a result of the breakdown of his second marriage several years earlier. To the contrary, it was Mr Reynolds' evidence that issues arising from the breakdown of the marriage were resolved amicably and both he and his former wife maintained a good ongoing relationship and raised their son Thomas together. There is also evidence of Mr Reynolds and Mrs Reynolds that following their marriage in January 2003 they were both very happy and the plaintiff was looking forward to their future together.

413 Dr Terace, a psychiatrist, was called by the defendants. He made the diagnosis Mr Reynolds was suffering from:

1. Major depression;
2. Panic disorder;
3. Acquired brain injury related to the stroke.

414 Although, in a report of 17 April 2013, Dr Terace was of the opinion Mr Reynolds' psychiatric condition was predominantly the product of pre-existing personality factors and vulnerability interacting with the neurological and neuropsychological consequences of the stroke, including the divorce from Mrs Reynolds, he conceded the end of Mr Reynolds' marriage was intertwined with the injuries arising from the stroke. In any event, I do not accept Dr Terace's opinion that the divorce from Mrs Reynolds has been a substantial contributor to his ongoing psychological condition. Both Mr and Mrs Reynolds gave evidence, which was essentially unchallenged and which I accept, that the divorce was mutually agreed and the property settlement was by way of agreement without the need for litigation or recourse to lawyers. Further, notwithstanding the divorce, the relationship between Mr and Mrs Reynolds remains close and Mr Reynolds remains highly dependent upon Mrs Reynolds who continues to provide him with substantial support and assistance. In my view their divorce is insignificant in the cause of Mr Reynolds' ongoing depression and anxiety. The divorce is a result of the injuries and consequent symptoms suffered by Mr Reynolds and not the cause of them.

415 Although Mr Reynolds has suffered from sleep apnoea, he has received treatment for the condition. There is no evidence the sleep apnoea has, since 2003, interfered with Mr Reynolds' life to a significant degree.

416 There is no evidence that the bicycle accident in 2004 caused any further injury or any ongoing symptoms or need for treatment and it did not seem to be pressed by the defendants.

417 Since 2003 Mr Reynolds earned income as follows:

418 Although I have earlier found that despite his two promotions following his return to work in 2004, Mr Reynolds was essentially masking the difficulties he had in coping with his work duties and was incapacitated for those duties, I am of the view that the fact that he was able to obtain promotions despite his difficulties is a good indication that had he been fully fit he would have been promoted. In his written submissions as to the calculation of damages Mr Reynolds submits that but for the stroke he would have continued to be elevated through the incremental pay levels at or around February/March of each year. It is submitted his salary would have increased as follows:

419 The defendants submit that because Mr Reynolds had a poor pre-stroke work history it is unlikely he would have obtained a further promotion and submit the starting point for the calculation of past loss of earnings should be on the basis Mr Reynolds would have continued to have earned an income at the level 7.1 salary level of $1,419.55 nett per week. That equates to $73,816.60 nett per annum which differs to the salary ranges set out in Mr Reynolds' written submissions. The reasons for the differences are unclear.

420 I am of the view it is reasonable to adopt a median salary range of level 7.3 of $104,653 gross per annum, $88,955 nett per annum, $1,710 nett per week in assessing past loss.

421 Mr Reynolds does not make any claim for loss of wages before 28 July 2009 on the basis that before that date the measure of his loss was equivalent to the worker's compensation payments he received. Although after 28 July he received ongoing weekly payments of worker's compensation until the prescribed amount was reached in 2012, and the parties have submitted that I ought assess past loss of wages over and above the worker's compensation payments received, that is not normally the way in which such damages are assessed. Normally, the assessment of past loss of wages is undertaken without regard to the worker's compensation payments which have been made and received. By s 92 of the Workers' Compensation and Injury Management Act 1981 the worker's compensation payments operate as a charge against any judgment awarded and must be separately deducted from the judgment.

422 I therefore propose to assess past loss of wages by ignoring the worker's compensation payments which have been made. Although no claim is made for loss of wages before 28 July 2009, on the basis that the measure of the loss is equivalent to the worker's compensation payments which were received, I assess past loss of wages in the amount of those payments and will hear the parties as to the amount which represents worker's compensation payments made before 28 July 2009.

423 In relation to the calculation of past loss of wages from 28 July 2009 I assess the loss to 1 December 2013, a period of four years and 18 weeks or 226 weeks as follows:

424 Interest on the past loss should be assessed. However interest should only be assessed on the actual loss to Mr Reynolds after the worker's compensation payments received by him have been deducted. Although it is not clear precisely what worker's compensation payments were received from Mr Reynolds after 28 July 2009, from the table provided by Mr Reynolds which I have set out above at [417], I calculate he received approximately $109,000 nett worker's compensation payments after 28 July. Therefore interest is calculated as follows:

$386,460 - $109,000 = $277,460 x 3% x 4.2 years = $34,959 (say, $35,000)

Total past loss of wages and interest: **$**421,460

425 Adopting the same median salary range of $104,653 gross per annum or $2,012 gross per week, the calculation of past loss of superannuation is as follows:

Total past loss of superannuation and interest: **$**46,114.

426 The plaintiff submits that by now Mr Reynolds would be receiving an annual salary of $132,105 gross, $112,268 nett per annum or $2,159 nett per week. In the financial year 2012/2013 Mr Reynolds submits he would have been receiving a level 8.2 salary or approximately $103,000 nett per annum.

427 In my view Mr Reynolds was ambitious in his employment and would have sought promotion within the public service and received incremental pay level increases. However, I am not satisfied he would necessarily have been promoted or received the incremental pay levels as submitted by him. In my view, a reasonable basis on which to assess future loss of earning capacity is that Mr Reynolds would, were it not for the injuries he has suffered, be currently earning an income of $100,000 nett per annum or $1,923 nett per week.

428 I am satisfied Mr Reynolds would have continued working within the State public service until the age of 67 years. Mr Reynolds will be aged 58 years as at December 2013. Therefore future loss is assessed for a period of nine years. The 6% multiplier for nine years is 365.5. The assessment is as follows:

429 I reject the defendants' submission Mr Reynolds has a retained earning capacity. I have already found he is totally incapacitated for any work realistically available to him. Therefore there should be no discount for a retained earning capacity.

430 I am also of the view that adverse contingencies are no greater than the normal contingencies, particularly having regard to the relatively short period in which future loss of earning capacity is to be assessed. I therefore find that the normal discount for contingencies should be applied and I will adopt a rate of 5%. The assessment of future loss of earning capacity discounted for contingencies is as follows:

431 Between 1 July 2013 and 1 July 2019 the rate of compulsory superannuation payable will gradually increase. The current compulsory rate is 9.25%. It will increase to 12% in 2019. Rather than minutely calculate future loss of superannuation on the basis of the changed rate each year, I propose to adopt a median rate of 10.625%.

432 A nett income of $100,000 per annum is, based upon the figures provided in Mr Reynolds' schedule of damages, approximately $120,000 gross per annum which I will adopt to assess future loss of superannuation. A $120,000 gross per annum is approximately $2,308 gross per week.

$2,308 gross per week x 10.625% = $245 per week x 365.5 = $89,547, less 15%.

for fund administration expenses and contingencies (Jongen v CSR Ltd (1992) Aust Tort Reps 81-192; Villasevil v Pickering [2001] WASCA 143; (2001) 24 WAR 167) as amended by the Commonwealth legislation 2007 which reduced the rate of taxation, the accepted rate of deduction is now 15%:

Total loss of future loss of earning capacity: $743,828.

434 Mr Reynolds also claims for loss of annual leave and long service leave entitlements. However I have assessed future loss of earning capacity on the basis of the loss of income for 52 weeks each year. Therefore to also award damages for loss of annual and long service leave entitlements would be to double compensate Mr Reynolds. I therefore do not make any allowance for any loss of annual or long service leave entitlements.

435 The plaintiff claims the sum of $256,225 for past gratuitous services calculated as follows:

Pamela Reynolds - in Perth, pre-period of paid assistance

Pamela Reynolds - in Perth, plaintiff receiving paid assistance 4 hrs/week

Pamela Reynolds - in Perth, plaintiff receiving paid assistance 4 hrs/week

Pamela Reynolds - in Perth, plaintiff receiving paid assistance 4 hrs/week

436 The assessment of past gratuitous services is normally incapable of precise calculation and requires a broad brush approach. That is certainly the case here where the claim for gratuitous services is based upon the support and assistance provided by Mrs Reynolds over various periods including while she and Mr Reynolds lived together and apart in the same house, and while they have lived in separate houses, and for further periods while Mrs Reynolds had returned to the United States. Mrs Reynolds understandably was unable to provide any firm indication of the amount of time she spent providing care and support to Mr Reynolds. However, I am satisfied she provided considerable care and support without which Mr Reynolds' recovery from the initial impact of the stroke upon him would have been more prolonged. I am satisfied Mr Reynolds was in need of the care provided by Mrs Reynolds and remains in need of care and assistance.

437 The claim for gratuitous services is based upon the estimation Mr Reynolds gave in his evidence as to the amount of time Mrs Reynolds spent providing care and assistance to or for him.

438 Earlier in these reasons I outlined the role played by Mrs Reynolds after she arrived in Perth on 8 July 2003. In summary, she provided care and assistance in the form of domestic assistance, cleaning and cooking for Mr Reynolds, organising his day-to-day activities and, once he resumed working, accompanying him to and from work, accompanying him to and from medical and associated appointments, assisting him with various personal matters and papers such as paying bills and in preparing job applications within the State public service, providing assistance and comfort during the night when Mr Reynolds suffered from nightmares and interrupted sleep and generally being available to provide support and stability and structure to and for Mr Reynolds during those times of confusion and inability to plan and organise himself or make decisions.

439 In my view a reasonable basis on which to assess past gratuitous services is to allow three hours per day or 21 hours per week from 8 July 2003, when Mrs Reynolds arrived in Perth, for one year afterwards until Mr Reynolds had returned to work on a full-time basis and become less dependent upon her. Thereafter until January 2010, when Mr Reynolds received paid assistance of four hours per week, I assess past gratuitous services on the basis of 14 hours per week. From January 2010 to the current time, excluding those periods when Mrs Reynolds was in the United States, I assess the claim at 10 hours per week.

440 The parties have agreed past gratuitous services should be calculated at the rate of $25 per hour.

6 January 2010 - 1 December 2013 (excluding periods 23 June 2010 - 2 March 2011 and 8 November 2012 - 25 April 2013

442 In his report of 24 July 2012 Dr Buckley made recommendations for care as follows:

• Personal care, three hours per day seven days per week
• Activity supervision, four hours five days a week
• Case manager, eight hours per month of active involvement for the first six months at the commencement of any significant new arrangement, say every five years, and thereafter four hours per month
• Vacation care, full-time travelling companion
• Medical care, general practitioner - four times annually, neurologist, once annually, consultant rehabilitation physician, once annually, endocrinologist - twice annually
• Funds management - administration of funds via the Aged and Infirm Persons Act.

443 Dr Buckley also made recommendations for membership of a gym with heated swimming facilities for Mr Reynolds and his activities coordinator.

444 Ignoring the recommendation for a full-time travelling companion, Dr Buckley's recommendations amount to 42 or 43 hours of care per week for the balance of Mr Reynolds' life.

445 In his report Dr Buckley explained the need for that level of care because of Mr Reynolds' inability to properly organise himself in relation to personal hygiene, nutrition and domestic hygiene therefore requiring supervisory care and assistance in such matters. Dr Buckley proposed two hours of assistance each morning 'in order that [Mr Reynolds] arises from bed, showers, dresses and has an appropriate breakfast, and one hour in the evening to ensure that he has a proper evening meal and is ready for bed'. During the 24 hours of care Mr Reynolds' home would be cleaned, he would be assisted in shopping duties and in all other domestic tasks such as washing and cooking.

446 Dr Buckley further explained that Mr Reynolds needs an activities coordinator to help him plan, implement and maintain an activity based programme to maximise his physical fitness, which was a higher requirement due to his diabetes, and maximise his mental fitness, noting the psychiatric opinion regarding the depression from which Mr Reynolds suffered. The activities coordinator would plan various activities for Mr Reynolds to attend including attendances at musical concert activities, sporting, galleries, fishing and similar activities as replacement for work.

447 Dr Buckley reiterated the opinion expressed in his report in his viva voce evidence. Dr Buckley also emphasised the need to address Mr Reynolds' impaired planning and organising abilities by providing a structured lifestyle which minimises the need for Mr Reynolds to make decisions and makes it easier for him to simply follow an established structure. In his evidence Dr Buckley explained the reason underlying his recommendations for care in the following terms (ts 475):

... Well, I think it fits exactly as one might predict. Some people with insular damage would - would react. And the problems that they might have - the sort of issue that would arise is that the - the relative problem with the frontal lobe being properly connected is that one might have difficulty in initiating activity, or in properly planning an activity. The difficulty with the memory means that activities which you've done before, it's not easy to call on the resources that one used in order to solve a problem that's been solved before. And the difficulty with the perception is likely to alter one's empathy with other people, one's capacity to satisfy other people, which is the way that - you know, we - we mostly try to interact with other people to - to get, if you like, the - the benefit - one needs to offer benefit to people. And so I think all of the things that I heard about would fit with that kind of disconnection syndrome in the brain.

Is there any significance in the provision of external structure for someone with an injury of the kind that Mr Reynolds has as you diagnosed him? - Well, really, the key to managing this sort of difficulty is to provide a structure which means that he doesn't have to put in place all the - all the responses that are necessary for an individual to create an outcome. So if a structure provides for - for example, for only one response, well then, that - that makes it a lot easier than having an unstructured environment where there are lots of issues coming in and then difficulty in dealing with the one issue before going to the next and a problem with mixing up one issue with a different issue, and if the structure allows for one problem to be sorted and then the structure says, 'And once you've sorted that then do this, and once that's sorted then do that', then often the person with this sort of injury can follow that one-step-at-a-time kind of structure and appear relatively normal.

448 In his report of 1 August 2011, Dr Risbey commented that the domestic assistance Mr Reynolds had been receiving was of great help to him and, implicitly, that it was reasonable that that level of domestic assistance was necessary as a result of the acquired brain injury and was reasonable. However he did not quantify the amount of care he thought was reasonable.

449 In his report of 10 July 2012 Dr Risbey concluded that having a paid manager would be a case of overkill and was not warranted. He thought Mr Reynolds would not benefit from having a paid manager and would also find it irritating. However he thought an 'occasional agent' in the role of a case manager from time to time to organise Mr Reynolds' tasks together with a bookkeeper for checking payments would be reasonable.

450 With regard to Mr Reynolds' financial affairs Dr Risbey regarded him as intelligent and insightful but with some difficulties if unaided such as in paying bills on time. He thought a temporary period of management for six months followed by an occasional agent would be reasonable.

451 Finally, Dr Risbey also commented that Mr Reynolds finds it extremely stressful to organise and deal with tradesmen but he considered the more Mr Reynolds can be allowed to manage his life himself the less stressed he will become providing the safeguards he recommended, such as assistance with an occasional manager, be provided.

452 In her report of 20 April 2012 Dr Collins noted Mrs Reynolds was carrying a considerable burden in being Mr Reynolds' point of contact and recommended the appointment of a case manager to oversee Mr Reynolds' appointments and organise appropriate help within his home and to assist in community participation to improve the quality of his life.

453 In a later report of 17 June 2013 she said she concurred with Dr Risbey's view that provided with organisation and structure Mr Reynolds may be able to manage adequately.

454 In a comprehensive report dated 1 May 2012 Ms Jane Burns of Lighthouse Health Group prepared a life care plan assessing the need, and making recommendations, for care, aids and appliances for Mr Reynolds. The report was prepared in association with a physiotherapist, Ms Elizabeth Shannon. Ms Burns is a qualified nurse with post-graduate qualifications and experience and expertise in assessing the rehabilitation requirements of people suffering acquired brain injuries.

455 Ms Burns expressed the opinion Mr Reynolds required lifelong nursing care and supervision. She recommended as follows:

1. two hours per day (Monday to Sunday);
2. four hours per day three days per week (allow for one weekend day);
3. four weeks per year - holiday travel;
4. eight hours per day, unlicensed health care worker (UHW);
5. public holiday allowance; and
6. staff training, 48 hours for a registered nurse.

456 Ms Burns made additional recommendations for the provision of a heavy cleaning service, a spring or seasonal cleaning service, gardening and a handyman service at an annual cost of $6,562. She also made recommendations for the cost of a carer or support person accompanying Mr Reynolds on holidays at an annual cost of $6,743.30. Various recommendations were also made regarding the provision of various appliances and equipment.

457 In a report dated 22 March 2012 an occupational therapist, Ms Jayne Cruttenden, also of the Lighthouse Health Group, undertook an occupational therapy assessment of Mr Reynolds and made various recommendations regarding the need for domestic assistance and various aids and equipment. She deferred to Ms Burns regarding the need for personal care assistance.

458 At the request of the defendants Mr Reynolds was interviewed by an occupational therapist Ms Ruth Jodrell who also made recommendations as to Mr Reynolds' need for future care and assistance, aids and appliances, and provided two reports to the defendants' solicitors dated 3 April 2013 and 22 May 2013. Ms Jodrell's recommendations are in stark contrast to those of Dr Buckley, Ms Burns and Ms Cruttenden. Ms Jodrell noted Mr Reynolds had employed domestic assistance for four hours per week which had subsequently dropped to three hours per week. When assessing Mr Reynolds' future assistance requirements Ms Jodrell in her report of 3 April 2013 noted at par 62:

When seeking to support Mr Reynolds, the temptation is to provide many hours of external assistance to do tasks which Mr Reynolds finds challenging. Professionally I disagree with this approach as fundamental to occupational therapy is the premise that 'OT acknowledges the persons need for taking care of self central to the recovery/rehabilitation process'.

459 Ms Jodrell further commented that she strongly supported Dr Risbey's view to which I have earlier referred [451] that the more Mr Reynolds can be allowed to manage his life himself the less stressed he will become, providing the safeguards he recommended be put in place.

460 In summary, Ms Jodrell recommended an occupational therapy, cognitive rehabilitation therapy (CRT) programme for four hours per week for a period of 12 weeks followed by a further two hours per week for a further 12 weeks. She also recommended review by an occupational therapist for three hours per week for one year. She further recommended domestic support for three hours per week and a support worker for four hours per month for the balance of Mr Reynolds' life expectancy.

461 Finally, a consultant rehabilitation physician Dr Ker in a report of 14 February 2011 noted Mr Reynolds was entirely independent in self-care but benefitted from the provision of basic domestic assistance to ensure effective household cleaning and laundry tasks. He thought the provision of two hours of daily assistance to undertake household cleaning, laundry tasks and basic meal preparation would fully meet Mr Reynolds' needs. He also noted that when pressed, Mr Reynolds could undertake most household activity and domestic cleaning tasks but was inconsistent and inefficient in the performance of those tasks. Mr Reynolds was not fully reliable in utilising kitchen appliances. Dr Ker did not regard Mr Reynolds as requiring any further assistance. When asked about recreational activity Dr Ker stated Mr Reynolds expressed little interest in recreational activity and that the headaches and fatigue suffered by Mr Reynolds curtailed his capacity to exercise, undertake travel outside of his home and socialise.

462 In my view the recommendations of Dr Buckley and Ms Burns are an overestimation of what I consider to be a reasonable level of care and assistance Mr Reynolds will require in the future. Little consideration or regard has been given to Mr Reynolds' wishes as to the level of care with which he would feel comfortable. Although Mr Reynolds suffers from various impairments, they do not in my view impact upon his thought processes or ability to make decisions as to how he wishes to lead his life. In my view Mr Reynolds is able to lead an independent life without the level of care and assistance recommended by Dr Buckley and Ms Burns.

463 I am particularly persuaded by the views of Mr Reynolds' treating psychiatrist Dr Risbey, who has been the treating psychiatrist for some years and is the most familiar of the various medical practitioners and allied health care professionals who have provided evidence in this case and who have only reviewed Mr Reynolds for medico-legal assessment purposes and not for providing treatment recommendations to Mr Reynolds. In my view because of Dr Risbey's greater familiarity with Mr Reynolds' condition over a period of years and his obvious concern for Mr Reynolds' wellbeing, Dr Risbey is best placed to assess Mr Reynolds' needs and what is a reasonable level of care. I therefore prefer Dr Risbey's view that Mr Reynolds is insightful and intelligent and the assessment of the level of care and assistance to be provided to Mr Reynolds ought have regard to his wishes to lead an independent life without undue interference which will only cause him heightened stress and irritability. Therefore I, except to the extent otherwise noted, do not rely upon the recommendations of Dr Buckley or Ms Burns.

464 Further, I am of the view the recommendations provided by Ms Jodrell are an underestimation of Mr Reynolds' need for care and assistance. When Ms Jodrell's opinion was sought she was not provided with a full history of how Mr Reynolds has coped since the stroke. She was under the impression that because he had worked for six years with the first defendant he had coped well with his work duties which was therefore relevant to assessing his care and assistance requirements. Because she did not have a full or proper appreciation of the extent of Mr Reynolds' difficulties after he returned to work she, in my respectful view, underestimated the extent of his difficulties and the need for future care and assistance. I therefore disregard Ms Jodrell's recommendations.

465 In my view a reasonable level of care involves a balancing of the recommendations of the treating psychiatrist Dr Risbey and the experienced rehabilitation physician Dr Ker. It also involves having regard to the compelling evidence of Mrs Reynolds regarding the nature and extent of the assistance and support she has provided to Mr Reynolds ever since he suffered the stroke.

466 The parties have agreed the future life expectancy of a 58-year-old male is a further 28 years. The 28-year weekly multiplier is 720.3.

467 The parties have also agreed the rate at which future care and assistance should be assessed is $45 per hour which covers the cost of both a domestic assistant and a carer.

468 In my view it is clear Mr Reynolds is in need of and will require both domestic assistance and care or support in the future. He will require assistance with meal preparation and cleaning. He will need someone to establish and maintain structures, organisation and direction, and provide assistance with paying household bills, organising and assisting with Mr Reynolds' financial affairs such as banking, seeing accountants and attending to his taxation affairs, helping with shopping, arranging his kitchen cupboards and also assisting in encouraging him to participate in social activities.

469 In my view Mr Reynolds is able to make decisions and express wishes about how he wants to live his life and what he wants to do or participate in on a day-to-day basis. He is not dependent upon someone to minutely organise all of his activities. Indeed, in my view that would be counterproductive and contrary to the wishes Mr Reynolds expressed in evidence, that he does not wish to have somebody interfering with his life. A balance therefore needs to be struck between providing a level of care and assistance which enables Mr Reynolds to function on as normal a basis as possible, given the residual disabilities from which he suffers, but which also permits him to lead as an independent life as he wishes to and retain an ability to make his own choices and decisions but without becoming further socially isolated and withdrawn.

470 A carer will need to encourage Mr Reynolds to lead a healthy lifestyle including regular exercise and maintaining a healthy diet. Whether Mr Reynolds chooses to accept such advice or support is ultimately a matter for him. He cannot be forced to accept such advice. He is not a person suffering a legal incapacity who does not have the legal authority to make decisions on his behalf. Mr Reynolds is entitled to make his own decisions, including bad decisions.

471 In my view the level of care recommended by Dr Buckley is an unnecessary interference in Mr Reynolds' life and is contrary to Mr Reynolds' expressed wish.

472 In my opinion it is reasonable to allow for 14 hours per week for future care and assistance which I would further break down to four to five hours per week of domestic assistance and nine to 10 hours per week of support. The calculation is therefore as follows:

$45 per hour x 14 hours per week x 720.3 = $453,789.

473 A further claim is made by Mr Reynolds for the cost of training care providers of approximately $5,000 per year. I am not satisfied, notwithstanding the evidence of Ms Burns, that such training, ie, each year, is necessary or justified in respect of the type of care to be provided to Mr Reynolds for the nature and extent of his medical condition and the impairment suffered by him. Further, in my view the hourly cost would normally reflect or include the cost of adequately trained and qualified carers. I therefore make no allowance for the cost of training carers.

474 Mr Reynolds also makes an additional claim for a carer to travel with him as a companion when he goes away on holidays. The claim is particularised on the basis Mr Reynolds will require a companion for eight hours per day for four weeks per annum. In my view such a level of care is not needed. Nor is it reasonable or justified. I am not satisfied that if Mr Reynolds decides he wants to travel overseas or interstate he needs the presence and assistance of a full-time carer to accompany him when he is away. I believe he would be able to travel with the assistance of a structure being put in place such as an itinerary which he could follow. Except for Dr Buckley, there is no medical or expert opinion which recommends such a level of care is needed. Further, it is unlikely Mr Reynolds would want or choose to have someone accompanying him all day every day for four weeks. Accordingly, I make no allowance for this aspect of the claim.

475 Mr Reynolds also claims for additional expenses of having a carer holidaying with him including extra airfare, hotel accommodation and meal costs. For the reasons I have explained above, in my view such a claim is unreasonable and unjustified and I make no allowance for it.

476 Mr Reynolds submits GST is payable in relation to the cost of care and therefore an allowance to meet the cost of the GST should be allowed for in the assessment of damages.

477 Section 38-30 A New Tax System (Goods and Services Tax) Act 1999 reads as follows:

(1) A supply of *home care is GST-free if home care subsidy is payable under Part 3-2 of the Aged Care Act 1997 to the supplier for the care.

(2) A supply of care is GST-free if the supplier receives funding under the Home and Community Care Act 1985 in connection with the supply.

(3) A supply of *home care is GST-free if the supply is of services:

(a) that are provided to one or more aged or disabled people; and

(b) that are of a kind covered by item 2.1 (daily living activities assistance) of Part 2 of Schedule 1 to the *Quality of Care Principles.

(a) the supplier receives funding from the Commonwealth, a State or a Territory in connection with the supply; and

(b) the supply of the care is of a kind determined in writing by the *Aged Care Minister to be similar to a supply that is GST-free because of subsection (2).

478 Therefore the provision of home care is GST free if the supplier receives funding under either the Aged Care Act 1997 (CW) or the Home Community Care Act 1985 (CW) in connection with the supply of the care, or otherwise receives funding from the Commonwealth or a state in connection with the supply of the care, or the supply of 'home care' is provided to disabled people and is of a kind covered by item 2.1 of pt 2 sch 1 to the 'Quality of Care Principles'.

479 In this case, the provision of care to Mr Reynolds is not, I am informed, subsidised. Therefore whether or not provision of home care is GST free depends upon whether s 38-30(3) applies.

480 'Home Care' is defined by reference to the meaning given by s 45-3 of the Aged Care Act. Section 45.3 of the Aged Care Act defines home care as:

(1) Home care is care consisting of a package of personal care services and other personal assistance provided to a person who is not being provided with residential care.

(2) The Home Care Subsidy Principles may specify care that:

(a) constitutes home care for the purposes of this Act; or

(b) does not constitute home care for the purposes of this Act.

481 The term 'Quality of Care Principles' is defined by reference to the principles made under s 96.1 of the Aged Care Act. In turn, 96.1 states the minister may make Principles providing for various matters in accordance with various items. The relevant item is:

The services comprising 'daily living assistance' in the Quality of Care Principles made under section 96-1 of the Aged Care Act 1997 comprise personal assistance, including individual attention, individual supervision, and physical assistance, with:

(a) Bathing, showering, personal hygiene and grooming.

(b) Maintaining continence or managing incontinence, and using aids and appliances designed to assist continence management.

(c) Eating and eating aids, and using eating utensils and eating aid (including actual feeding if necessary).

(d) Dressing, undressing, and using dressing aids.

(e) Moving, walking, wheelchair use, and using devices and appliances designed to aid mobility, including the fitting of artificial limbs and other personal mobility aids.

(f) Communication, including to address difficulty arising from impaired hearing, sight or speech, or lack of common language (including fitting sensory communicate aids), and checking hearing aid batteries and cleaning spectacles.

482 Therefore, it is submitted, the nature of the domestic assistance and care to be provided to Mr Reynolds, because it is not encompassed by the types of activities of 'daily living assistance' in the quality of care principles, is not GST free. In short, it is submitted that while medical services rendered to the plaintiff are GST exempt, nursing and domestic assistance services will not be. Accordingly, as Mr Reynolds will be liable for payment of GST an allowance for the GST should be included in the award of damages so that Mr Reynolds is awarded the full cost of the services he will be required to employ.

483 I was not referred to any authority in which the issue of whether GST payable on the cost of services to be awarded to an injured plaintiff is included in the award of damages. Neither have I been able to find any authority directly on point. However, in a case concerning damage to property, Campbell JA (McFarlane JA and Sackville JA agreeing) in Gagner Pty Ltd t/as Indochine Café v Canturi Corp Pty Ltd [2009] NSWCA 413 after referring to a registered business entity for the purpose of GST getting a credit for receiving GST and essentially acting as a collecting agent for the tax said [147] - [151]:

1. I accept that the consequence of these provisions is that, even though the Respondent might pay out an amount of GST in connection with the goods and services which it acquired for the purpose of making good the damage to its premises, it would be able to recover that amount back, either in the form of a reduction of the net amount it must remit to the Commissioner for the quarter in which the payment was made, or as a refund. Thus the amount of GST component of any payments it made for making good the premises would not ultimately be a loss that it suffered. Given the compensatory purpose of the damages award, it was wrong to include that component in the award of damages.
2. Having reached that conclusion as a matter of principle, I turn to see to what extent the conclusion is consistent with previous decisions. I proceed in this way because all the previous decisions, apart from one of the Queensland Court of Appeal that is not directly in point, are first-instance decisions.
3. Some awards of damages for a tort have included GST on the individual items that go to make up the quantum: eg, my judgment in Bennett v Goodwin [2005] NSWSC 930 ; (2005) 62 ATR 515 at [16]-[17] (which related to conversion of goods); Nemeth v Prynew Pty Ltd [2009] NSWSC 511 at [3]-[6] per Macready AsJ (which related to nuisance through removal of lateral support to land - Piling Contractors (Qld) Pty Ltd v Prynew Pty Ltd [2008] NSWSC 118). Similarly, in Martin v London County Council [1947] KB 628, where damages were awarded against a bailee for having failed to exercise care concerning the bailed items, the quantum of damages was assessed as the cost of replacement articles including (English) purchase tax. Other decisions have included GST in the amount properly payable under an indemnity for legal costs: my judgment in Vrkic v Otta International [2003] NSWSC 641 at [25]-[26]; Thornton v Apollo Nominees Pty Ltd [2005] TASSC 38; (2005) 15 Tas R 35 per Evans J. In Tenderwatch Pty Ltd v Reed Business Information Pty Ltd [2008] FCA 931 ; (2008) 78 IPR 329 at [21], Heerey J, in quantifying the profits for which a copyright infringer was being required to account, deducted GST that the infringer had paid in the course of his infringing activities because it 'reduced the actual profit or benefit derived by [the infringer] from the infringement.'
4. It is important that, in each of the Australian cases just mentioned neither the recipient of the damages, the person with the benefit of the costs order, nor the copyright infringer was shown to be registered for GST purposes, and thus entitled to the benefit of an input credit on any GST paid. Because the tort plaintiffs were not entitled to an input credit on any GST paid, they would suffer a net loss that included the amount of GST paid. Similarly, in Martin v London County Council, the owner of the articles was an ordinary person, not shown to be engaged in any business activity. Similarly, the people entitled to the indemnity for costs would be out of pocket by the amount, including GST, that they owed their lawyers, because they could not receive an input credit concerning those legal fees. Similarly, the infringer had actually parted with an amount that included GST, and would not receive an input credit concerning that amount. Thus, those cases do not affect the reasoning above about the situation of the Respondent. I also note that there are no complications in the present case of the type that might arise if a plaintiff had not been registered for GST purposes for the whole of the time that was relevant to the assessment of damages. These matters point up, however, the importance of consideration being given to how the compensation principle applies to an individual plaintiff, when deciding whether an award of damages should include the GST that is payable on the individual items that go to make up the award of damages.
5. In summary, as the GST legislation currently stands, if the plaintiff in an action for tort is registered for GST purposes, and stands to receive an input credit for any GST payments incurred in making good its damage, and there is no impediment to the plaintiff receiving the full benefit of the input credit, that GST amount should be excluded from the quantum of damages recoverable.

484 In that case, the New South Wales Court of Appeal concluded the trial judge was in error in including the GST component in the damages awarded because the respondent was registered for GST purposes and as it would receive a credit for any GST collected, would not suffer a loss in respect of the GST payable.

485 That situation is to be contrasted with Mr Reynolds' position. Mr Reynolds is not a registered business entity for GST purposes. He would be incurring GST as a private consumer of the services provided and therefore gets no credit for the GST he pays.

486 I am satisfied that upon a proper construction of the A New Tax System (Goods and Services Tax) Act Mr Reynolds will be liable to pay GST on the domestic assistance and care services he will need. I also accept the liability to pay GST represents a cost to Mr Reynolds in respect to those services and he is accordingly entitled to be awarded a sum to compensate him for that cost.

487 In summary, in my view, Mr Reynolds is entitled to be awarded the GST payable on services provided to him. I therefore award the sum of $45,378 being the GST payable in respect of the future care and assistance I have earlier determined is reasonable.

488 Mr Reynolds makes a claim for an activities coordinator based on four hours per day five days per week for 48 weeks per annum but which is reduced to a claim based upon eight hours per week on the basis there is already a claim for domestic assistance and a carer. In my view, such a claim overlaps and duplicates the claim for the provision of a carer. I envisage the carer I have allowed will provide the type of support Mr Reynolds submits an activities coordinator would provide which is to help him plan, implement and maintain an activity based programme to maximise his physical and mental fitness.

489 I therefore make no allowance for an activities coordinator.

490 A further claim is made for the provision of an independent case manager. The role of a case manager is to coordinate the provision of domestic assistance and carer support and to act as both a conduit and a shield between Mr Reynolds and the carers and to ensure they are properly discharging their functions and responsibilities. If necessary a case manager will hire and fire domestic assistants and carers.

491 Mr Reynolds claims the cost of a case manager based upon an initial cost for six months for eight hours per month at a rate of $150 per hour. Thereafter, in Mr Reynolds' submission, intensive assistance will be required whenever there is a significant life event, say, every five years. Outside of these periods a claim is made on the basis of four hours per month for the balance of Mr Reynolds' life expectancy.

492 In my view an initial cost for establishing a case manager on the basis claimed for six months at eight hours per month is reasonable and I allow the claim as follows:

493 I am not persuaded it is reasonable to make an additional allowance for intensive assistance every five years and therefore make no allowance as claimed.

494 Although Dr Buckley recommends there be a case manager for four hours per month, I am satisfied, on the basis of the evidence of Dr Risbey to which I have earlier referred and having regard to my finding that the level of care recommended by Dr Buckley is an unnecessary interference in Mr Reynolds' life and an overestimation of the level of care he needs, it is reasonable to allow for the cost of a case manager assessed at two hours per month or 0.5 hours per week (an hour every fortnight) for the balance of Mr Reynolds' life. I am further satisfied that allowing for a case manager on that basis is adequate to provide for those circumstances when there might be greater need for interaction with a case manager. There will be times when a case manager will not be required every fortnight.

496 Mr Reynolds claims for the cost including the replacement cost of an ergonomic adjustable desk, a two-drawer dishwasher and a dryer. I am not satisfied an injury created need for those items arises and therefore make no allowance for those items.

497 Mr Reynolds makes a claim for various items such as alarm clocks, adjustable reading lamps and a Thermomix and digital thermometers. I am neither satisfied there is an injury created need for such items nor that such a claim is reasonable or justified. I therefore make no allowance for those items claimed.

498 A further claim is made for cost of an iPhone, an iPad and a GPS for his vehicle including replacement cost every two years. I am not satisfied there is an injury created need for such items or that a claim for such items is reasonable or justified. I therefore make no allowance for this claim.

499 Mr Reynolds claims he will require ongoing treatment including but not limited to:

• Six GP consultations at $126 per consultation and four further consultations at a cost of $69 per consultation but not less than $414 per annum
• Two consultations per year with a neurologist
• One MRI per year
• One consultation per year with a rehabilitation physician
• Fortnightly consultations with a psychiatrist at a cost of $350 per consultation but not less than $7,000. Mr Reynolds submits the annual cost is $8,895

500 The defendants concede Mr Reynolds will require two GP consultations per annum at a cost of $69 per consultation and a consultation with a psychiatrist once every two months at a cost of $250 per consultation. The defendants submit there is no evidence to support a need for any of the other medical consultations or reviews claimed by Mr Reynolds.

501 I accept the defendants' submission. Although the claim for future medical expenses is based upon the recommendations of Dr Buckley, there is otherwise no evidence the plaintiff will require consultations with a neurologist and a rehabilitation physician or a MRI each year. The medical evidence is to the effect Mr Reynolds' brain injury has stabilised and there is unlikely to be any deterioration. In my view there is no need for a review by a neurologist or a MRI. Also, providing Mr Reynolds receives the level of ongoing support and care I have determined he needs, there is in my view no need for him to be reviewed by a rehabilitation physician. I therefore reject Dr Buckley's recommendations in this regard.

502 Although I accept it is reasonable that the need for ongoing psychiatric treatment be assessed at one consultation every two months, I also accept there will probably be times when Mr Reynolds suffers an exacerbation of his psychiatric condition, manifested either by increased anxiety or depression, when he will need more intensive psychiatric treatment for short periods of time. I am therefore of the view it is reasonable to allow an additional four consultations per year to meet such exigencies, that is a total of 10 psychiatric consultations per year.

503 The total annual cost of future medical treatment is therefore calculated as follows:

• Two GP consultations at $69 per consultation = $138 per annum
• Ten consultations with a psychiatrist at $250 per consultation = $2,500 per annum
• Total annual cost: $2,638 or $50.73 per week x 720.3 = $36,541

504 Mr Reynolds claims for an initial occupational therapist assessment to include a block of 20 sessions. The initial one-off cost is $9,067.50.

505 A further claim is made for ongoing occupational therapy together with associated travel and report costs, physiotherapy and gym membership.

506 In my view the initial one-off cost is reasonable and I allow the sum of $9,067.50. However I do not accept there is a need for the extent of ongoing occupational therapy and the associated costs which are claimed. In my view it is reasonable to allow some ongoing physiotherapy which I allow at $1,000 per annum or $19.23 per week. The calculation is therefore as follows:

507 The parties have agreed future medication costs at $30 per week:

508 Mr Reynolds claims the sum of $7,618 based upon the cost of one emergency callout or ambulance trip per year. There is no evidence to support such a claim and I make no allowance for it.

509 Mr Reynolds submits that as a result of the injuries he has suffered he requires assistance in managing the award of damages. He claims future fund management expenses arising from a claimed need for advice and guidance in respect of the investment and ongoing management of his damages award. It is submitted the impact of the residual impairment suffered by Mr Reynolds as a result of the injuries creates a need for advice and guidance in respect of investment and ongoing management of the award of damages.

510 A claim is made in the sum of $548,889, being 15% of all of the other heads of damages claimed.

511 In support of his submission the accident caused injuries have caused a need for investment and management advice in respect of the award of damages counsel for Mr Reynolds referred me to Nominal Defendant v Gardikiotis [1996] HCA 53; (1996) 186 CLR 49. The relevant principles were explained by McHugh J [4] - [8] as follows:

1. When a defendant has negligently injured a plaintiff, the common law requires the defendant to pay a money sum to the plaintiff to compensate that person for any damage that is causally connected to the defendant's negligence and that ought to have been reasonably foreseen by the defendant when the negligence occurred (21). The sum of money to be paid to the plaintiff is that sum which will put the plaintiff, so far as is possible, 'in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation' (22). Consequently, when a plaintiff asserts that, but for the defendant's negligence, he or she would not have incurred a particular expense, questions of causation and reasonable foreseeability arise. Is the particular expense causally connected to the defendant's negligence? If so, ought the defendant to have reasonably foreseen that an expense of that kind might be incurred? Those questions arise in the present case. Is the expense of fund management causally connected to the negligence of the defendant? If so, was the incurring of the expense a reasonably foreseeable consequence of the defendant's negligence? If either of those questions is answered in the negative, the expense cannot be recovered from the defendant.
2. If a defendant's negligence results in the plaintiff being so mentally or physically incapacitated that she is unable to manage day-to-day tasks, the basic principles of compensation for tortious conduct entitle the plaintiff to damages both for the disability and the expense of managing those tasks. he expense is just as much a product of the defendant's negligence as is the disability. It is compensable therefore unless it is damage of a kind that a defendant could not reasonably foresee. Similarly, if a plaintiff can no longer manage her affairs with the same skill as before the accident, both the reduction in skill and any expense reasonably incurred in bringing the management of those affairs to the pre-accident level are compensable in damages. Likewise, if the defendant's negligence has aggravated a pre-existing incapacity, the plaintiff is entitled to be compensated to the extent that the aggravation has increased the incapacity and caused expense to the plaintiff.
3. Damages may therefore be awarded for the expense of managing a plaintiff's verdict moneys when the plaintiff's disabilities prevent him or her from managing those moneys and the disabilities are the foreseeable consequence of the defendant's negligence. Damages may also be awarded for the expense of investment advice where, as the result of the defendant's negligence, the plaintiff is no longer able to make adequate decisions concerning his or her own financial affairs. In both cases, damages are payable by the defendant because the expense is the necessary product of the defendant's negligence and is not the result of the free, informed and voluntary act of the plaintiff. The expenses have been brought about by the loss of the plaintiff's ability to do what that person was capable of doing before the occurrence of the tort which gives rise to the claim for compensation.
4. But a different area is reached when the plaintiff seeks damages, not for expense necessarily incurred as the result of a disability caused by the defendant's negligence, but for an expense arising merely from the size of an award of damages and the exercise of a choice by the plaintiff as to how to invest those damages. The expense of exercising that choice is not the consequence of the plaintiff's injury. It is the result of the plaintiff's decision to invest his or her money (usually in a professionally managed fund) rather than to spend it or to invest it in a fixed asset or some other form of investment. It is true that such an expense would not have been incurred but for the defendant's negligence. But the common law of Australia has rejected the 'but for' test as the legal test of causation although, 'applied as negative criterion of causation, [that test] has an important role to play in the resolution of the question' (23).
5. Under the common law theory of common sense causation, a free, informed and voluntary act of the plaintiff or a third party, which builds on a situation resulting from the defendant's tort and causes loss or damage to the plaintiff, negatives any causal connection between that tort and the loss or damage. That is so even though the act of the plaintiff or third party would not have occurred but for the defendant's tort. Consequently, unless a defendant's wrong has caused a disability that requires the plaintiff to obtain assistance in managing his or her verdict moneys, the cost of such assistance is not caused by the defendant's negligence and is not recoverable as damages from the defendant. Nor, as we shall see, is it a factor such as income tax which must be taken into account if the plaintiff is to receive a full indemnity.

512 My attention was directed to the expression in [5] '... being so mentally or physically incapacitated that she is unable to manage day-to-day tasks ...' In counsel's submission Mr Reynolds is, because of the accident-caused injuries, so mentally or physically incapacitated that he is unable to manage day-to-day tasks and his disabilities prevent him from managing any monies awarded to him.

513 In that case the plaintiff's intellectual abilities were not impaired by the accident caused injuries and it was held the need for assistance in managing the fund constituted by the award of damages was not caused by the injuries. Rather, the need for assistance in managing the fund arose from the award of a large sum of damages. It was held that the position would be otherwise in the case of a plaintiff who is intellectually impaired as a result of the defendant's negligence.

514 Nominal Defendant v Gardikiotis was considered by the High Court in Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627. Ms Willett had suffered severe brain injuries causing impaired intellectual capacity as a result of the respondent's negligence. Ms Willett's need to have others administer her financial affairs was therefore caused by the respondent's negligence. To the extent to which satisfaction of that need reasonably required the expenditure of money, the expense was a loss which the respondent's negligence caused. Because Ms Willett did not have capacity to attend to her financial affairs she sued by a litigation guardian. Ms Willett was unable to give instructions for the conduct or compromise of her claim and therefore any sum of damages awarded to her was required to be paid to and held by a trustee on her behalf.

515 In a unanimous decision the High Court [11] - [12] said:

1. The present case is markedly different from the circumstances considered by this court in Nominal Defendant v Gardikiotis. In that case the defendant's negligence did not affect the plaintiff's intellectual capacity to decide how her money should be invested or spent. Rather, it affected her physical capacities. In Gardikiotis no claim was made that as a result of Ms Gardikiotis' physical disabilities she would incur additional expense in managing her financial affairs. If such a claim had been made, there may have been some question about whether difficulties of that kind were to be regarded as compensated for by the award of general damages or should be an additional item taken into account in assessing those damages. It is not necessary to consider that question in this case.
2. Because Ms Willett does not have capacity to attend to her financial affairs, she sues by her litigation guardians.

516 Similar issues were considered by Murphy J in A v City of Swan (No 5) [2010] WASC 204 when he was considering the defendant's application for a declaration pursuant to O 70 r 1 of the Rules of the Supreme Court 1971 that the plaintiff was a person incapable of managing her affairs in respect of the proceedings. In the course of his reasons Murphy J referred to Masterman-Lister v Brutton & Co (Nos 1 and 2) [2003] 1 WLR 1511, a decision of the English Court of Appeal. Murphy J noted [71] - [72] the Court of Appeal in Masterman-Lister v Brutton & Co indorsed the approach of Boreham J in White v Fell (Unreported, EWCACiv, 12 November 1987) as follows:

In the context of O 70, the relevant 'matter or piece of business' is, of course, the proceedings before the court in which the person is involved. The requisite capacity in this context was considered by the Court of Appeal in Masterman-Lister v Brutton & Co. In that case, the court applied an 'issue-specific' approach that that focuses on the nature and complexity of the relevant transaction. The court distinguished an inquiry as to whether a person has the requisite capacity to conduct legal proceedings from an inquiry as to whether that person has the capacity to make some other legally effective decision: Kennedy LJ [27]; Chadwick LJ [62], [73].

The members of the court in Masterman-Lister v Brutton & Co endorsed the approach of Boreham J in White v Fell (Unreported, EWCACiv, 12 November 1987), which concerned an action for damages for personal injury. In that case, Boreham J said:

'The expression "incapable of managing her own affairs and property" must be construed in a common sense way as a whole. It does not call for proof of complete incapacity. On the other hand, it is not enough to prove that the plaintiff is now substantially less capable of managing her own affairs and property than she would have been had the accident not occurred. I have no doubt that the plaintiff is quite incapable of managing unaided a large sum of money such as the sort of sum that would be appropriate compensation for her injuries. That, however, is not conclusive. Few people have the capacity to manage all their affairs unaided ... It may be that she would have chosen, and would choose now, not to take advice, but that is not the question. The question is: is she capable of doing so? To have that capacity she requires first the insight and understanding of the fact that she has a problem in respect of which she needs advice ... Secondly, having identified the problem, it will be necessary for her to seek an appropriate adviser and to instruct him with sufficient clarity to enable him to understand the problem and to advise her appropriately ... Finally, she needs sufficient mental capacity to understand and to make decisions based upon, or otherwise give effect to, such advice as she may receive.' (emphasis added)

517 In this case, as was explained in White v Fell, the question is: is Mr Reynolds capable or does he have the insight and understanding he needs advice in relation to his financial affairs and management of a large award of damages, secondly, if he does have that insight and understanding is he capable of seeking advice from an appropriate adviser and instructing the adviser with sufficient clarity to enable the adviser to advise Mr Reynolds appropriately, and, finally is Mr Reynolds capable of understanding any financial advice given by the adviser and capable of making decisions based upon that advice and giving effect to it.

518 Therefore the question in this case is whether Mr Reynolds has suffered intellectual or mental impairment which has caused a need for investment and management advice in respect of the award of damages rather than the need arising simply from the fact of the award. Normally, such damages are only awarded when the injured person is under a legal incapacity.

519 In supplementary submissions counsel for Mr Reynolds referred me to three cases in which an award has been made for fund management expenses where a plaintiff was not under a legal incapacity and the proceedings not conducted through a next friend.

520 The three cases are Nicholson v Nicholson (1994) 21 MVR 125, Mortimer v Burgess (1997) 25 MVR 463 and Nominal defendant v Martin (1997) 26 MVR 474.

521 Nicholson v Nicholson was decided before the High Court decision in Nominal Defendant v Gardikiotis and was mainly concerned with contributory negligence. However, the New South Wales Court of Appeal also dealt with various grounds of appeal concerning the assessment of damages by the trial judge. The plaintiff was rendered quadriplegic as a result of injuries suffered in a motor vehicle accident. He also suffered a skull fracture which appears to have caused some brain damage, although the extent of the damage is not described in the judgment. The plaintiff conducted the proceedings in his own right and at trial his award of damages included allowance for a fund management fee. The reasonableness of that aspect of the award was not considered by the Court of Appeal but Kirby P in passing commented 'the reason this head of damage is allowed is because the plaintiff is incapable (either intellectually or physically) of managing the damages which have been awarded'.

522 In Mortimer v Burgess the plaintiff was also of diminished (but not without) capacity. His brain injury was described as producing 'consequent diminution in cognitive function and having significant effects on (his) personality and behaviour' (page 464). The trial judge had found the plaintiff 'was not capable of handling large sums of money for investment' and having regard to his 'forgetfulness and disinhibition' needed 'assistance in the management of the verdict sum' (470). The trial judge had disallowed the commercial expenses based on Westpac Investment Management rates, allowing instead the lower costs equivalent to the protective commissioner's fees. On appeal, Beazley JA (with whom Mason P and Meagher JA agreed) found the plaintiff's 'mental and physical condition, coupled with his personal circumstances, were not such as to make it more likely than not that an order would have been made (for the appointment of) the protective commissioner'. Accordingly, it was the reasonable costs of commercial fund management which ought to have been allowed **(**page 470).

523 In Nominal defendant (NSW) v Martin the plaintiff was not so impaired as to come under the care of the protective commissioner in New South Wales (page 479). Based on the evidence at trial which 'clearly established that (his) mental injuries impaired his ability to manage funds', the trial judge's award of fund management expenses based on Westpac Investment Management Pty Ltd rates was upheld on appeal (page 479).

524 Although obviously each case must be decided on its own facts, in my view it would be rare for an award of damages to be made for fund management expenses where a plaintiff is not under any legal incapacity.

525 Mr Reynolds is not under any legal incapacity. He prosecuted his action in his own name. Clearly he has been able to provide competent instructions to his solicitors and counsel and to make decisions regarding the conduct of the action based upon legal advice provided to him. At the commencement of the trial counsel for the defendants raised a concern as to whether Mr Reynolds had legal capacity to provide competent instructions and conduct the proceedings in his own name. Although I accept Mr Reynolds was assisted by Mrs Reynolds in the conduct of his court action, I also observe that between November 2012 and May 2013 when settlement negotiations were presumably conducted and preparations for trial were at their most intense, Mrs Reynolds was in the United States. Mr Reynolds was presumably able to provide competent instructions regarding the ongoing conduct of his claim without the presence of Mrs Reynolds. Counsel for Mr Reynolds informed the court he was satisfied Mr Reynolds was competent to provide instructions, understand the proceedings and advice provided to him and make informed decisions regarding the action.

526 Mr Reynolds also gave evidence he has saved in the order of $600,000 and made decisions to contribute all of his pre-tax income into his superannuation fund from July 2010. He has managed to support himself on his savings since his worker's compensation payments expired in 2012.

527 Although I accept he has been to some extent reliant and dependent upon the assistance of Mrs Reynolds, he has been able to sell his house and buy into the Collier Park Retirement Village.

528 Mr Reynolds further gave evidence that in the last few months before the trial he has with the assistance of an accountant engaged by him, completed his income tax returns for the years from 30 June 2006 to 30 June 2012. The returns were all lodged at the same time in October 2012. He was, however, assisted by Mrs Reynolds in sorting through his papers which he kept in boxes in his garage.

529 Dr Risbey did not support the appointment of a trustee but was of the view, a trusted person should be available to assist Mr Reynolds manage any award of damages. I understood Dr Risbey's recommendation was different to the need for financial advice of a person suffering intellectual disability or impairment.

530 Although I have accepted that as a result of the stroke Mr Reynolds suffers from various impairments which impact upon his functioning and ability to properly cope with and organise his day-to-day affairs, in my view the disabilities from which Mr Reynolds suffers do not impair his intellectual capacity or his ability to manage any award of damages to any greater extent than anyone awarded a large sum of money who is unused to and inexperienced in the management of such a large sum. Although I accept it would be prudent for Mr Reynolds to obtain investment and ongoing management advice regarding the award of damages, in my view the need for such advice does not arise from the negligently caused injuries and residual disabilities. Rather, the need arises from the fact of the award of damages. Mr Reynolds is able and entitled to make his own decisions regarding his future financial affairs including the right to make bad decisions. In my view, providing Mr Reynolds is provided with the level of care I have found he needs, principally the support of a carer and a case manager, who ideally will establish and maintain a structure, direction and organisation that Mr Reynolds is able to understand and follow on a day-to-day basis, including making his own independent decisions as to whether he does or does not want to undertake certain activities or do certain things, Mr Reynolds will be able to manage his financial affairs and make his own independent decisions, presumably with the advice of appropriate financial advisors which any person would require.

531 Therefore I make no allowance for future fund management expenses.

532 A claim for travel expenses was made in the global sum of $15,000. The claim is not otherwise particularised or explained. I accept Mr Reynolds has incurred some travel expenses, particularly in recent times when Dr Risbey has moved to Bunbury and Mr Reynolds has travelled to Bunbury to meet Dr Risbey.

533 Although no proper basis for the quantification of the claim has been made out, doing the best I can I allow the sum of $2,000 assessed on a global basis.

534 The parties agree the sum of $3,906.95 being a refund to Medicare.

535 The parties also agree the sum of $11,550 in respect of paid cleaning and domestic assistance.

536 Interest on the paid domestic assistance at 3% for 3.6 years is $1,247.

537 In summary, adopting the itemisation of Mr Reynolds' written submissions, I award damages as follows:

538 That sum must be reduced by 10% being the agreed deduction for contributory negligence [13] to $2,037,292.94.

539 I will hear the parties further regarding the sum of workers' compensation payments which must be deducted pursuant to s 92 of the Workers' Compensation and Injury Management Act 1981: refer [421] - [422].

540 Finally, I will hear the parties in relation to costs.