Algar v Gall Standfield & Tiley [2000] QSC 85

Judgment (98 paragraphs)

[1]

[1] CHESTERMAN J: When he was six years old the plaintiff was hit by a motor cycle as he was crossing the Gold Coast highway with three older children. The plaintiff suffered life threatening internal injuries but was taken quickly to the Southport Hospital where his injuries were repaired surgically. Post operatively he developed an infection at the site of his wounds and he was transferred for further treatment to the Royal Childrens Hospital in Brisbane. After discharge he made an uneventful recovery from the injuries for which he had been treated.

[2]

[2] The plaintiff's mother, Yvonne Knyvett, was advised by a social worker at the Southport hospital when the plaintiff was first admitted to seek legal advice on behalf of her son. Miss Knyvett accordingly went to the Legal Aid office in Southport from which she was referred to the defendant firm of solicitors, which applied for, and was granted legal aid to enable her to claim compensation on behalf of the plaintiff. No proceedings were issued and no determination of liability was made or agreed but in 1988 the motor cyclist's compulsory third party insurer paid the sum of $15,500.00 to settle the plaintiff's claim including costs. The settlement was sanctioned by the Public Trustee which held the balance of the money after payment of costs and special damages until the plaintiff turned eighteen in 1994.

[3]

[3] The plaintiff had been knocked unconscious in the collision and remained in that state for several hours. He had revived by about eight o'clock when the operation to repair his intestinal injuries was performed. The sum paid in settlement of the claim was assessed by reference to serious but transient internal injuries and the blemish of a large surgical scar left as a result of the operation. There is no question about the adequacy of the settlement for those injuries.

[4]

[4] The plaintiff claims that he suffered a degree of brain damage in the collision and that the defendant, had it acted with reasonable care and skill in the prosecution of his claim, would have discovered that he had suffered that additional, serious, injury and recovered damages in respect of it. The settlement is said to be wholly inadequate compensation for the plaintiff's actual disability caused by the collision. The plaintiff seeks by way of damages against the defendant the value of what he did not and cannot now recover as compensation from the insurer.

[5]

[5] A plaintiff who complains that his solicitors negligently advised him to compromise an action for damages so that he received inadequate compensation ordinarily encounters substantial difficulty. The reasons are well expressed in the head note to Karpenko v Proian, Courey, Cohan & Houston (1981) 117 DLR (3d) 383, a case which has been cited frequently and always with approval. See Campbell v Gibson & Gibson (1992) 8 SR (WA) 263 (where the texts and authorities are usefully collected); Seamez v McLaughlin [1999] NSWSC 9; Studer v Boettcher [1998] NSWSC 524; Dew v Richardson (1999) QSC.

[6]

As the authors of Jackson & Powell on Professional Negligence 3rd ed point out at para 5-30 there is usually no "right" or "wrong" answer to the question whether an amount offered to settle a claim should be accepted. In each case an exercise of individual judgment is required which takes into account the complex of interconnecting and sometimes conflicting considerations relevant to an assessment of the outcome of a claim. The courts are properly reluctant to discourage the settlement of disputes by allowing a plaintiff "to accept what is on offer from the original defendant (thus escaping the hazards of the original litigation) and then "top it up" by making a claim against his solicitors." See Jackson & Powell op cit at p 383 footnote 83.

[7]

[6] In my opinion the law is correctly stated by those authors at that page in these terms:

[8]

"A solicitor is bound to exercise reasonable care in the conduct of settlement negotiations and in advising of the merits of any settlement proposed. Such advice often entails weighing up imponderable factors, and a mere error of judgment is unlikely in practice to constitute negligence."

[9]

The authors remark on one exception: where the advice to settle is given in ignorance of facts which could have been ascertained by making proper enquiries. The plaintiff's case is that his claim comes within this exception. His argument is that had the defendants discharged their retainer with reasonable care and skill they would have sent him for examination by an appropriate specialist, psychiatrist, neurosurgeon or neuropsychologist, who would have found evidence of brain damage.

[10]

[7] The plaintiff's claim against the defendant requires a consideration of three topics. The first is what information did the defendant have about the plaintiff's injuries during the time it acted on his behalf. The second is what enquiries that information would have caused a reasonably competent solicitor to undertake. The third is what additional information would have been elicited by further investigation and what consequence for the plaintiff would have followed from that information.

[11]

[8] Before turning to address these topics it is convenient to recite some relevant facts by way of background.

[12]

[9] The plaintiff was born on 23 January 1976. His mother was a single woman then nineteen years of age. She had left school to obtain employment before completing grade ten when she was not quite fifteen. She and the plaintiff's father lived in a variety of temporary accommodations during the plaintiff's infancy. The relationship between the parents was unsatisfactory in many ways. The father appears to have been shiftless with an aversion for responsibility and a preference for indolence. His failure to provide financial or personal support to the plaintiff's mother (or the plaintiff) was a cause of arguments between them which sometimes turned violent. The plaintiff has had little contact with his father since about the age of four.

[13]

[10] The plaintiff first went to pre-school in country New South Wales where his mother was working. She had gone there in 1981 to make one of her numerous fresh starts away from the plaintiff's father. On their return to Queensland at the end of that year Miss Knyvett and her son lived first in her mother's caravan at Springwood and then in a caravan of her own at Carbrook. The plaintiff commenced school at the beginning of 1982 at Shailer Park State School. In March, having grown dissatisfied with the amenities of Carbrook, the plaintiff moved to a caravan park at Miami where the plaintiff was enrolled in the Miami State School. He was hurt in July and missed a considerable part of the second semester of his grade one year. It seems likely that he returned to school in October or November 1982. The school was concerned that he would not cope with grade two, having missed so much of the previous year, but his mother insisted he go on. He did not progress to a satisfactory standard and repeated grade two in 1984 with average results. His education continued uneventfully for another year, his grade three results being mostly average. 1986 saw a deterioration. The plaintiff began misbehaving in school. He deliberately disrupted classes and defied teachers. He was sent on a number of occasions to the headmaster for correction. The standard of his behaviour deteriorated still further in 1987 when he was in grade five. He destroyed property and resorted to violence against other, often younger, children. He and other boys stole from local shops. He was absent from school without excuse and was hostile to school discipline. He came to the attention of the Police Juvenile Aid Bureau and the Department of Childrens Services. In 1988 when he was twelve his behaviour was even worse. He absented himself from school for days on end to go fishing, to live rough in bushland and to play in pin ball parlours. He and other boys stole bicycles from the school. Sometimes the bikes were abandoned and sometimes sold to obtain money for drugs. He went on joy rides with older boys in stolen cars and participated in the proceeds of burglaries. The school authorities regarded him as uncontrollable as did his mother who on one occasion reported him to the police as a missing person because he was absent for six days.

[14]

[11] In March 1988 an application was made to the Childrens Court for an order that the plaintiff be committed to the care and control of the Department of Childrens Services ("the department"). His mother consented to the order because she could not exercise any worthwhile authority over him. He was placed with foster families but continued to misbehave and so was sent as a boarder to BoysTown where he completed years 8, 9 and 10 of his schooling.

[15]

[12] He first smoked marijuana at the age of nine and drank alcohol at thirteen. Some of the proceeds of the burglaries I have mentioned went to buy drugs.

[16]

[13] The plaintiff left BoysTown at the end of the school year in 1991. He was then almost sixteen. When he was seventeen, in September 1993, he was charged before the Childrens Court with unlawfully using a motor vehicle. The next year saw him charged with the first of many offences of dishonesty and violence. He was first sent to prison in July 1995 on multiple counts of stealing, false pretences and the unlawful use of motor vehicles. On his release he re-offended and was sent to prison again in March 1996. In May 1988 he was sentenced to eight years imprisonment for breaking and entering and armed robbery. He and some others went to a house of a suspected drug dealer to obtain drugs without the inconvenience of paying for them.

[17]

[14] The plaintiff has a long-standing addiction to marijuana, amphetamines, heroin and alcohol.

[18]

[15] He has only worked twice, first as a brick-layers assistant for a few days and then as a labourer for two weeks cleaning air conditioning ducts.

[19]

[16] Between September 1982 and August 1987 the plaintiff's claim was handled by Mr Standfield, a partner in the defendant firm. Earlier the claim had been handled by Mr Gall and an articled clerk, John Henderson. One of them took a statement from Miss Knyvett which contained a recital of the plaintiff's accident and treatment. It said (inter alia) "at the hospital they took x-rays for head injuries and told me that (the plaintiff) was bleeding internally but they didn't know where at this stage." Mr Henderson requested a report from the Gold Coast Hospital in relation to the plaintiff's injuries and treatment. The medical superintendent reported, on 17 September 1982 that the plaintiff

[20]

" ... was unconscious on arrival at the hospital, but gradually regained his level of consciousness. There were signs indicating an intra peritoneal injury and subsequently laparotomy was performed which revealed a lacerated liver and three tears on the anterior wall of the stomach, two of which had perforated through. The injuries were repaired and the patient transferred to intensive care unit post operatively. His post operative course was complicated by the development of fever and a sub-hepatic abscess. ... consequently he was transferred to the Royal Childrens Hospital ... for further investigation and management."

[21]

[17] On 14 October 1982 Mr Standfield interviewed Miss Knyvett. She told him that the plaintiff had recovered. She felt "that he is almost one hundred per cent" though she noted he had lost weight during convalescence and appeared fatigued and stooped. A report was obtained from the Royal Children's Hospital in October 1982 which indicated that the plaintiff's infection had been treated and concluded "his subsequent health should not be affected by either his injury or this sub-phrenic abscess." Further medical reports were obtained later by the defendant but they related to a minor surgical procedure which the plaintiff underwent to correct a consequence of his earlier surgery and for advice about the large surgical scar along the plaintiff's abdomen. They are not relevant to the present litigation.

[22]

[18] In July 1983 Mr Standfield again interviewed Miss Knyvett about the plaintiff and discussed the minor surgical procedure he was to undergo. Mr Knyvett told Mr Standfield:

[23]

"Ty is having trouble with his schooling. I have reports that they wanted to keep him down. ... I don't want him to miss out on any more schooling ... Ty is doing alright. He seems okay. The only effect seems to be the missing of his schooling. He is now aged seven and in grade two. He still seems to be slow and is finding it hard to catch up on his work ... they want to keep him down. I will leave it to them at the end of this year and he can repeat grade two."

[24]

[19] By March of 1985 the defendant had corresponded with the insurer of the motor cycle involved in the accident and received an offer to settle the plaintiff's claim in the sum of $7,500.00, inclusive of costs. Counsel was briefed to advise on quantum and had advised an appropriate sum for general damages was $8,000.00. The Public Trustee had been approached and forewarned that it would be asked to sanction settlement of the claim if agreement were reached on an appropriate amount. Miss Knyvett was dissatisfied with the amount offered. She was concerned that the plaintiff may not make a complete recovery from his injuries and that the amount would be inadequate should the plaintiff suffer some sort of relapse in the future. The reports which the defendant had obtained indicated that the plaintiff had made a complete recovery from his injuries save for the scar. Mr Standfield wrote to Miss Knyvett on 7 March 1985:

[25]

" ... we have made some general enquiries in relation to the injuries and we cannot obtain any other opinion than the one expressed by the doctor at the Royal Brisbane Hospital, ie the effects of the injuries are minor, save for the scaring ... we appreciate you fears in relation to the injuries and what may occur in the future but we can only be guided by what the doctors say. Has Ty behaved any differently or have any other matters been brought to your attention which can be related back to the injuries? We can obtain a report from a plastic surgeon in relation to the scaring but as we understand it, that is not what you are primarily concerned with, but the internal affects that may occur to Ty."

[26]

Miss Knyvett attended the defendant's office on 16 April 1985 in answer to the letter and spoke to Mr Standfield. According to his note of the meeting she answered the question posed in the letter in the negative, saying that the plaintiff was in good health, though restless. She instructed Mr Standfield to obtain a report from a plastic surgeon. This was duly done. On 7 August 1985 the insurer wrote to the defendant to enquire whether its offer was to be accepted. Mr Standfield had lost contact with Miss Knyvett because she had changed address without telling him. Mr Standfield could not therefore obtain instructions in relation to the offer. Understandably he did not wish to alert the insurer to the fact that his client may not be showing much interest in the claim. Accordingly he responded by telex on 19 August 1985:

[27]

"Due to the age of the infant, you can appreciate that it is important that we have to see his injuries have stabilized. In this regard we are awaiting further instructions from the infant's mother as to his schooling. Those instructions should soon be at hand and we will contact you regarding same."

[28]

[20] The facts I have recited are clearly established. In addition, however, Miss Knyvett asserts that she expressly told the defendant that the plaintiff's behaviour had altered after his accident and that she suspected he had suffered some brain damage. Her evidence was that she told Mr Standfield and an employed solicitor, Mark Raeburn that the plaintiff "was having trouble at school and he was finding it difficult to read and write and that (she) thought there was something wrong with him". She recalled a particular incident when she spoke to Mr Raeburn about this matter, but "all he wanted me to do was to come in and sign the papers", a reference to the discharge and release to be signed on settlement. She also remembered a conversation with Mr Smith who took over conduct of the file from Mr Standfield in August 1987. She told him that she "was having trouble with (the plaintiff) at school, that he had been expelled, that he was having difficulty in reading and writing and that I thought that he had some sort of brain damage from the accident." She told Mr Raeburn on another occasion that she was having difficulty with the plaintiff who was "pinching BMX bikes and wagging school and getting into a lot of trouble and ... terribly disruptive and out of control". Mr Raeburn "wasn't real interested". Although she could not recall a specific occasion she "kept telling (the defendant) that there was something wrong with (the plaintiff) that he was in trouble all the time." Miss Knyvett had a recollection that it was Mr Tiley who took the statement in July 1983.

[29]

[21] The essence of this aspect of Miss Knyvett's evidence is that she told Mr Standfield, Mr. Raeburn and Mr Smith explicitly that the plaintiff was behaving abnormally and that she attributed the misbehaviour to the accident of July 1982. She told Mr Smith in terms that she suspected the plaintiff had brain damage.

[30]

The plaintiff's evidence is flatly denied by the defendant's witnesses and I do not accept it for a number of reasons.

[31]

[22] The first is that Miss Knyvett has plainly exaggerated the number of people in the defendant to whom she claims to have made these observations. Mr Tiley never met the plaintiff or his mother and did not even know that the defendant had acted for them until the present action was commenced. Mr Raeburn did act for Miss Knyvett but not with respect to the plaintiff's claim for damages. He attended to the conveyancing of a home unit bought by Miss Knyvett at Burleigh and he advised her with respect to the interest shown in the plaintiff and Miss Knyvett by the Department. At no time did Mr Raeburn conduct or assist in conducting the plaintiff's claim for damages.

[32]

[23] The second reason is that it is beyond belief that the defendant (Mr Standfield or Mr Smith) would not have referred the plaintiff for specialist medical examination if Miss Knyvett had told either of them that the plaintiff was behaving aberrantly, apparently, as a result of the blow to his head sustained in the accident. It will be remembered that Mr Standfield specifically asked Miss Knyvett in writing whether the plaintiff "was behaving differently ... which can be related back to the injuries" and was told that he was in good health but was restless.

[33]

[24] The third reason is that Miss Knyvett was interviewed by a Child Care Officer in May 1988 in connection with the application to have the plaintiff committed into the care of the Department. She provided a history of the plaintiff's development in which she said:

[34]

"(The plaintiff) was hit by a motor bike and went to hospital. He had a ruptured liver and stomach walls. Ty remained hospitalised for approximately three months ... Ty also had a hernia operation at ... the end of 1986 ... Ty has had no medical problems since the operation. ... Ty started "wagging" school about August 1987 ... until then he seemed to enjoy school ... she doesn't know why he "wags" school."

[35]

Doctor McGuire, a psychiatrist employed by the Department of Health, examined the plaintiff and Miss Knyvett and provided a report for the assistance of the Children's Court which was to hear the application. Miss Knyvett told Dr McGuire that the plaintiff's trouble started in 1987 as a result of his becoming involved with a group of older, delinquent, children. He was encouraged by them to abscond from school and to spend days at shopping centres. She did not mention the accident or head injury as a cause of the delinquency. It is not credible that if Miss Knyvett believed, or even suspected, that an injury suffered in the accident was responsible for the plaintiff's troublesome behaviour that she would not have mentioned it to the social worker or the psychiatrist. She did not do so. I cannot accept her recollection, now fifteen years old, of what she told the solicitors when it differs so considerably from the explanation, recorded contemporaneously, given to the child care authorities.

[36]

[25] Accordingly I find that the only information imparted to the defendant about the plaintiff's head injury and any consequence is found in exhibit 9, the defendant's file which is rehearsed in paragraph 16-19 of these reasons.

[37]

Should the defendant have investigated the extent and severity of the plaintiff's head injury?

[38]

[26] The standard by which one judges whether a solicitor has breached his duty to a client is not that of the "particularly meticulous and conscientious practitioner ... the test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession" per Oliver J in Midland Bank Trust Co Ltd v Hett, Stubbs and Kemp (a firm) [1979] Ch 384 at 403. Relevant to what a reasonably competent practitioner would do in the circumstances are the client's needs and ability to understand what is needed, and to articulate to the solicitor what is required. See Caradine Properties Ltd v D J Freeman Company (a firm) (1982) 5 CONST LJ 267; Rybak v Senneh Pty Ltd (1997) ANZ CONV R 74 at 78-9.

[39]

[27] The particular question is whether the reasonably skilled solicitor would have appreciated the possibility that the plaintiff had suffered some brain damage and therefore have advised Miss Knyvett to send the plaintiff to be examined by an appropriate specialist. Two possible impediments to this enquiry may be disposed of immediately. Miss Knyvett was not asked what she would have done had she been advised that the plaintiff should undergo such an examination. I am prepared to infer that she would have accepted the defendant's advice. The second is that the plaintiff was legally aided. Miss Knyvett could not pay for a medical report. Mr Standfield said quite candidly that he would have obtained the necessary funding from Legal Aid.

[40]

[28] I have not found this question an easy one and my opinion has changed during my consideration of the point. An important factor is that the defendant's conduct must be judged in the light of the information available at the time and the danger of imputing what has became known subsequently must be recognised. Another more potent factor is that the decision what medical opinions to obtain is a matter for professional judgment. A solicitor should not request reports from a plethora of medical specialists in the hope that one or more will turn up an arguably compensable condition on the basis that the defendant's insurer will foot the bill. There must be a sufficient reason for requesting a specialist report, and what is sufficient in many cases will call for a discerning assessment. A difference of opinion between practitioners on the point, or even an error of judgement, is not to be equated with a negligent departure from the requisite standard of care.

[41]

[29] The defendant relies upon the lack of any specific indicator that the plaintiff had suffered brain damage in submitting that it acted appropriately in not advising investigation for such an injury. The medical evidence it obtained contained only one reference to a head injury. That was in the first report which recited that the plaintiff was unconscious on admission and remained so for a number of hours. There is no suggestion in that or any other hospital report that the plaintiff required treatment for his head injury or that he had any untoward sequel. The plaintiff's mother did not, as I have found, complain that the plaintiff might have suffered brain damage or that his behavioural patterns had obviously changed after the accident. She told the defendant that the plaintiff was progressing slowly at school and was not learning as quickly as his peers. I accept Mr Standfield's evidence that she attributed the plaintiff's difficulty, at least in part, to his having missed several months of school in grade one. She also mentioned in answer to Mr Standfield's particular question about possible consequences of the accident that the plaintiff was restless or unsettled.

[42]

[30] Mr Standfield seems not to have turned his mind to the question whether the head injury might have been more serious than appeared from the first hospital report. He did not ask to be provided with copies of the plaintiff's school reports. I think it likely that he understood from Miss Knyvett that she had a concern that the plaintiff's lack of progress at school may have been connected to the accident. This seems to follow from his telex of 19 August 1985. Although he was "fobbing off" the insurer while he contacted his client I think it unlikely that he would have given a dishonest explanation for delaying.

[43]

Given that it had evidence of a head injury causing unconsciousness of some hours' duration, and that there was some apprehension that following his accident the plaintiff was unsettled in his behaviour, though this was vaguely expressed, and was experiencing difficulty with school work, would the appropriately skilled solicitor have recommended neurological or psychological examination?

[44]

[31] The plaintiff's counsel submits the answer is affirmative. Mr Campbell points out that Miss Knyvett's initial instructions to the defendant indicated a severe accident in which the plaintiff had received heart massage and mouth to mouth resuscitation from passers by. The hospital report indicated that the plaintiff was unconscious on arrival and remained so for a number of hours. Subsequent instructions suggested a diminished ability to perform school work. The defendant seems to have relied for its assessment that the plaintiff's only compensable injuries were intestinal and cosmetic upon the absence of any specific complaint by Miss Knyvett that the plaintiff was experiencing complications from his head injury. Mr Campbell was critical of this dependence pointing out that the plaintiff's mother was a single woman in her early twenties living in disadvantaged circumstances without the support of an extended family and with little education. The defendant should have done more, it is submitted, to enquire into possible consequences of the accident.

[45]

[32] The plaintiff on this point relies substantially upon the evidence of a solicitor, Mr Jenson, called as an expert in the handling of personal injury claims. He gave evidence as to the prevailing practice amongst solicitors conducting personal injury claims at the time relevant to these proceedings. His opinion was that a solicitor possessed of knowledge that his client had been knocked unconscious and on return to school found work difficult would call for pre-accident and post-accident school reports and submit the plaintiff for examination by a neurosurgeon or neuropsychologist, depending upon the amount of severity of the head injury. If it was apparent that the client had suffered a severe head injury a neurosurgeon would be retained but if the enquiry was whether more subtle cerebral damage had occurred a neuropsychologist would have been approached. Mr Jenson would not have considered an initial hospital report to be a sufficient basis for concluding that there were no sequels to a head injury because such reports are notoriously unreliable "in terms of a long term diagnosis or prognosis", especially where the reporting doctor is not a specialist in the area of concern.

[46]

[33] Mr Jenson thought that a cautious approach should be adopted when acting for an infant claimant. Damages when agreed would provide the only compensation for the rest of its life. It was therefore important to ascertain the true extent of any injury suffered. In addition the settlement required the sanction of the Public Trustee or the court. The solicitor would have to profer a solemn assurance that the settlement was in the best interests of the claimant and that could not conscientiously be provided (in a case such as the present) where the solicitor had not requested an appropriate specialist to advise whether a head injury had left any residual complications. There was no "down side" to such an approach. If the report indicated there were no complications the insurer would pay for the cost of the examination so the plaintiff's family was not out of pocket. Such a report would enable the sanction to proceed. If the report indicated there were complications then the action obviously should not settle on a different basis. I accept Mr Jenson's evidence. His argument is compelling. It is, I think, noteworthy that the defendant did not call any contradictory expert evidence. Moreover it seems right to me that even a slight possibility of brain damage should be investigated. There was no down side and a considerable up side to having the plaintiff seen by a specialist. Moreover I do not think the defendant was justified in depending so heavily upon Miss Knyvett. Mr Standfield should have turned his own mind to the question. His justification for delaying consideration of the insurer's offer itself provides the reason why it should have occurred to him that the plaintiff may not have recovered completely from his head injury.

[47]

[34] I conclude that the defendant's conduct of the plaintiff's claim did fall below the requisite standard. In making this finding I am conscious of the need not to complicate the practice of personal injuries claims. I do not, of course, suggest that plaintiffs should be sent willy nilly for examination by medical specialists when there is no rational basis for thinking that the plaintiff has suffered an injury within their area of speciality. In this case, for the reasons I have identified, there was a sufficient basis for requiring the plaintiff's examination by a neurosurgeon, psychiatrist or psychologist. The standard of ordinary skilled solicitors should not be so low as to afford the public little real assurance that their claims will be adequately addressed.

[48]

What consequences would have followed specialist examination of the plaintiff?

[49]

[35] The consequences which must be examined are both legal and factual. What the plaintiff lost by reason of the defendant's failure to investigate whether he had suffered brain damage was the chance that evidence of that condition would have been obtained and accepted by the court before whom his claim was litigated. Kitchen v Royal Air Force Association [1958] 1 WLR 563. The submission by senior counsel for the defendant that this is not the proper approach is plainly wrong and cannot be accepted. The submission misunderstands the nature of the plaintiff's damage, which is the lost opportunity to have his claim for damages evaluated on the footing that he had suffered some brain damage. That claim depended upon proof of the hypothesis that the plaintiff could be shown to have suffered such an injury. In accordance with Malec v J C Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 643 damages are to be assessed by reference to the degree of probability of the hypothesis. The plaintiff's case was always cast in this mould. It could not have been otherwise.

[50]

[36] The evaluation of the lost chance requires an examination of what evidence of brain damage and of negligence by the motor cyclist would have been obtained. The court must also assess what financial consequences would have flowed to the plaintiff as a result of proving negligence and brain damage resulting from the collision. The assessment is to be made as at the date that the notional action would have come on for trial, though regard may be had to considerations that were reasonably foreseeable at that time, and may be made by reference to evidence that would have been available not only evidence which was available for of the present action. See Johnson v Perez [1988] HCA 64; (1988) 166 CLR 351; Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 395.

[51]

[37] The defendant placed considerable reliance upon the fact that it twice briefed counsel to advise on quantum and neither barrister recommended that the plaintiff be referred to a neurologist or similar specialist for further examination. It is said that the defendant was not negligent in acting upon the advice of competent counsel briefed in the particular matter. There are two answers to the submission. The first is that counsel was not asked to advise whether the plaintiff should be further examined. Counsel was asked only to express an opinion on the value of the plaintiff's claim on the materials held by the defendant. The second answer is that a solicitor is not relieved from his obligation to exercise professional care and skill in a matter by reason of his having briefed counsel to give an opinion. See Davy-Chiesman v Davy-Chiesman [1984] FAM 46 at 64.

[52]

[38] The first point is whether the plaintiff would have proved the motor cyclist was negligent. The plaintiff was crossing the Gold Coast Highway at Miami from east to west, towards the caravan park where he lived, with three other children. The oldest, a girl, Cindy Hancox was eleven. Her two brothers were eight and nine. The collision occurred at about 4.30pm on a Sunday. Weather conditions were fine and clear. The highway was four lanes in width, two in each direction separated by a median strip. The children crossed the south bound carriage-way and paused on the strip. Cindy commenced to cross the north bound lanes but the others hesitated. When she crossed the road she turned around and saw two motor cycles approaching and her brothers and the plaintiff commencing to cross the road. She called to them to go back. Her brothers obeyed but the plaintiff continued and was hit. The point of impact was about the line separating the two north bound lanes. The motor cyclist was riding at between fifty five and sixty kilometres per hour in the right hand lane. Traffic was light. In the direction of his travel the highway curved right and he could not have seen the children on the median strip for more than about seventy metres. The rider noticed one child run across the road but reached the far side without danger. About two seconds later another child "came running out from the median strip onto the road". Despite braking and swerving he ran into the child.

[53]

[39] The police report identified two witnesses to the accident but they were not contacted by the defendant. Nor did the defendant obtain statements from Cindy Hancox or her brothers. Mr Standfield approached the question of liability on the pragmatic basis that the plaintiff's claim was a minor one and the insurer would probably accept liability rather than incur the costs of litigation. His assessment proved accurate but it may have been falsified had the plaintiff's claim escalated into one in respect of serious brain damage.

[54]

[40] In any event I am left with the difficult task of assessing what a court would have made of liability when the available evidence was not recorded and what is left is fragmented and made imperfect by time. I think it is likely that the plaintiff would have proved negligence against the motor cyclist. The requirement that a motorist keep a proper lookout is an exacting one, particularly when the motorist is put on notice that children may be on or adjacent to the roadway. The plaintiff rightly relies upon the remarks of Kirby P in Mitchell v GIO [1992] 15 MVR 369 and of Hope JA in Settree v Roberts SC (NSW) 5 June 1981. The case is reported on a question of damages in (1982) 1 NSWLR 649. The child who crossed the road safely was probably Cindy Hancox. Having seen her and been alerted to the presence, or possible presence, of other children the motor cyclist should have slowed and/or moved into the left hand lane to increase his chance of seeing a child move suddenly onto the road from his right and avoid impact.

[55]

[41] It is unlikely that a finding of contributory negligence would have been made against the plaintiff. He was only six years of age. Children of such tender years notoriously have no road sense. Viewed from his perspective his behaviour was not out of the ordinary, or careless of his own safety. He was with older children and followed their lead. Contributory negligence is to be gauged by the standard to be expected of an ordinary child of comparable age. See McHale v Watson [1966] HCA 13; (1966) 115 CLR 199.

[56]

[42] There is a chance that the plaintiff would have failed. The "lost" evidence may have revealed different circumstances. The plaintiff may not have been able to prove any operable negligence on the part of the motor cyclist. I would assess the chance of failure at twenty per cent, which includes the slight chance that some contributory negligence would have been found against the plaintiff.

[57]

[43] The real contention is whether the plaintiff has suffered brain damage. It is not necessary that he prove conclusively that he has suffered such an injury. He is entitled to damages if he can show that there was evidence of brain damage which a court might have accepted. The magnitude of the award will depend upon the likelihood that the evidence would have been accepted. If there is no acceptable evidence of brain damage then, of course, the plaintiff has lost nothing in value by not having been referred for appropriate examination by the defendant.

[58]

[44] Although Mr Jenson's preference would have been to refer the plaintiff to a neuropsychologist his evidence, and that of Mr Standfield, establishes that it would have been in accordance with appropriate professional standards to have referred the plaintiff to a psychiatrist or neurosurgeon. Indeed if the principle concern was of behavioural change a psychiatrist might have been the first choice. Mr Standfield's practice was to refer patients who were thought to have suffered a serious head injury to a neurosurgeon. The plaintiff's present solicitors did just that. In June 1997 they requested Dr Coroneos to provide a report on the plaintiff's condition. Dr Coroneos reviewed the records of the Gold Coast Hospital for the plaintiff's admission and himself examined the plaintiff. He requested a CT brain scan which showed no abnormalities. Dr Coroneos noted:

[59]

"(The plaintiff had) been rendered unconscious by the accident with the admitting hospital records initially indicating that he was moving all his limbs, moaning but not acknowledging people's presence. Subsequent records indicated that he was conscious by the time he went to theatre and ... at 9.30pm ... he had a normal conscious level ... it is noted that he had undergone major abdominal surgery and was in the intensive care ward in receipt of narcotic pain relief. No focal neurological signs were noted. There has been no epilepsy or CFS leakage. Skull radiographs were normal. Current detailed neurological examination is normal with no abnormalities in the central of peripheral nervous system being noted. Current CT brain examination is normal. I would be of the view that (the plaintiff) probably experienced a mild head injury causing transient loss of consciousness ... sequelae such as headaches and a dizziness may be seen after this pattern of head injury in the first few months post injury. No long term sequelae could be related to a head injury of this type".

[60]

Doctor Coroneos expressed the further opinion that:

[61]

"For cognitive, behavioural and memory disturbance to be directly related to brain injury I would expect prolonged coma, motor posturing such as decauticate and decerebrate posturing, epilepsy and CT evidence of cerebral damage, haemorrhage swelling etcetera of varying degrees and combination. I am unable to identify any evidence of these adverse central nervous system influences in this case. I particularly make reference to the normal coma scale that was objectively determined and recorded each half hour from 9.30pm on the day of the accident.

[62]

[45] In 1998 and 1999 the plaintiff was examined by two psychologists, Dr Field and Dr Douglas. Their test results differed in some important respects but both found the plaintiff to have substantial neurological deficits in some areas of intellectual functioning, particularly with regard to language skills. The results showed the plaintiff to be of low average intelligence overall. The results of psychological testing were provided to Dr Coroneos for his comments. In a second report of 20 March 2000 the doctor thought that:

[63]

"The findings are consistent with (the plaintiff) having only completed nine years of formal education ... variation of performance on test results in the last few years could not be related to a mild head injury having occurred fifteen to seventeen years earlier and other factors such as alcohol and substance abuse are more strongly suggested. ... (the plaintiff) was able to pass Year 9 Maths and English based courses and the history of significant substance abuse has been admitted ... the test results suggest educational deficiency (verbal impaired more than performance quotients). The intact verbal fluency is not consistent with neuro-trauma, as are intact executive functioning, special processing - these are impaired after brain injury. ... the dull to normal results on intelligence testing including evidence of educational deficiency are constitutional in origin with super imposed effects of long term alcohol, narcotic and hallucinogenic drug administration ... rather than due to the effects of the accident in 1982."

[64]

[46] Doctor Coroneos adhered to his opinion in oral evidence. He explained that the plaintiff had a Glasgow coma scale of 14/15 at 9pm on the day of the accident, ie after surgery, so that "there certainly couldn't have been a significant head injury because an anaesthetic ... will depress a patient's Glasgow coma scale and if after an anaesthetic the child had a GCS of 14 no significant head injury could have occurred." He also pointed out that the records show that the plaintiff had been examined neurologically after admission and before surgery and that the examinations showed no abnormality. Doctor Coroneos rejected the proposition advanced by counsel for the plaintiff that unconsciousness itself provides evidence of brain damage and said that impaired intellectual functioning is not itself indicative of brain damage although, of course, it may be.

[65]

[47] The plaintiff also called Dr Young, a psychiatrist, who had examined the plaintiff in May 1994 though not in connection with the present claim. At the time the plaintiff was held in custody awaiting sentence and his then solicitors asked Dr Young to provide a report to support a plea in mitigation. Doctor Young saw the plaintiff in prison and appears to have had limited access to information relevant to the plaintiff's condition. He expressed the opinion in his report that the plaintiff -

[66]

"Is a youth who has an emotionally impoverished background. At the age of six years he suffered a catastrophic road trauma and probable brain injury. He is of low intelligence. He may also be dyslexic and have frontal lobe damage. Neuropsychological assessment would be needed to explore these areas fully. His temper outbursts could also relate to past brain damage. An EEG would help in determining whether there was an epileptoid component to these outbursts."

[67]

Doctor Young was not asked to re-examine the plaintiff nor was he supplied with the results of the tests which he suggested were necessary before a definitive diagnosis could be made. Significantly Dr Young was not asked the direct question: Did the plaintiff suffer brain damage? His evidence is accordingly of little assistance in the present case.

[68]

[48] The plaintiff was referred to Dr Nothling, a psychiatrist, who saw the plaintiff on three occasions, 14 February 1996, 27 May and 22 June 1999. Rather like Dr Young, Dr Nothling, after his first examination, thought that it was possible that the plaintiff had suffered some brain damage. He relied for that on Miss Knyvett's history that the plaintiff's behaviour changed following the accident and his school work deteriorated. Dr Nothling requested further information, including the plaintiff's pre and post accident school reports, neuropsychological testing and an examination by a neurosurgeon. Dr Nothling was later provided with Dr Coroneos' first report as well as Dr Field's report. From these Dr Nothling was of the opinion that the plaintiff's head injury "would not be expected to produce long term effects of traumatic brain injury". He thought it more likely that the long term affects of alcohol, marijuana, amphetamines, heroin and LSD were the cause of his antisocial behaviour and diminished intellect. He thought -

[69]

"The evidence is simply not present to support that he suffered the type of head injury that would be expected to produce long terms effects consistent with the neuropsychological results. His mother had described a significant deterioration in his behaviour directly associated with drug use."

[70]

As a result of his most recent examination of the plaintiff and an interview with his mother Dr Nothling reaffirmed his opinion. Miss Knyvett dated the plaintiff's loss of concentration and attention from about Grades 4 or 5, that is 1986 and 1987, some years after the accident. She also noted the connection between his drug intake and violent antisocial behaviour.

[71]

In evidence Dr Nothling said that brain damage sufficient to cause lasting behavioural disturbance would be accompanied by observable pathology such as swelling to the brain, a low Glasgow coma score or other neurological deficits. The hospital records do not suggest any of these were present.

[72]

[49] The only support for the plaintiff's claim comes from Dr Field, clinical neuropsychologist, who examined him on 21 November 1997. Dr Field's testing showed the plaintiff to be of low average intelligence though he performed worse on the verbal component of the test where his results were border line. Tested memory function was also in the low average to border-line range. Dr Field's conclusion was:

[73]

"The deficits noted on neuropsychological testing are quite severe. It is difficult to be certain whether they are all a reflection of the head trauma sustained when he was young or whether there may also have been an underlying learning disability, which has contributed in part, to his current problems. There is no definitive evidence to support the latter. Notably, his mother reported that (the plaintiff) was an active energetic child prior to the accident. Unfortunately, there is no base line information about school performance prior to the accident with which to compare his subsequent difficulties. For the reasons given below, it seems likely, on balance, that the current neuropsychological deficits are, at least to a significant degree, a consequence of brain damage occurring at the time of the accident.

[74]

Although the hospital reports cannot provide much information ... it would appear that brain injury may have been significant ...

[75]

The difficulty with verbal expression currently evident on testing is at a level of severity where it seems unlikely that it could be a reflection of learning disability alone ... it would seem that (the plaintiff) struck the left side of his head ... there may have been a direct ... injury to the left side of the brain".

[76]

It would seem that the bases for Dr Field's conclusion were the severity of the deficit in intellectual functioning found on testing and a supposition as to the severity of the head injury. As to the latter it is, I think, clear from the evidence of Dr Coroneos that the head injury was not so severe. There was a complete lack of neurological abnormality upon examination at the hospital and I accept Dr Coroneos' reasoning in relation to the lack of such signs and the significance of the Glasgow coma score. The first basis advanced by Dr Field is also put in doubt by the differing results found by Dr Douglas. I will return to that later.

[77]

[50] Doctor Field conceded that the plaintiff's intellectual deficits were consistent with a congenital learning disability though her opinion was that a head injury had been superimposed on constitutional defect. Doctor Field thought that the plaintiff's behaviour had been affected by damage to the left frontal lobe of the brain. Her test results indicated impaired function for those aspects of thought that are centred in that part. These are the so called executive functions involving the higher cognitive skills of abstraction and reasoning.

[78]

[51] Doctor Field's test results were provided to Dr Douglas, psychologist, who reviewed them and reported her conclusions to Dr Nothling on 24 December 1998. Dr Douglas also had Dr Coroneos' first report and the plaintiff's school reports for the years 1983 to 1991. She noted that the report for 1984 showed the plaintiff's language skills to be satisfactory as was his ability in mathematics. His performance in grade three, in 1985, was similar though he had difficulty with spelling and "word attack" skills. His results for years eight and nine when attending BoysTown showed him achieving B and C levels in both English and Mathematics. Doctor Douglas noted:

[79]

"It would appear that at two years post injury, when the majority of recovery of cognitive functioning is expected to have occurred following head injury, (the plaintiff) was performing at a satisfactory level in both English and Maths subjects. His performance across the following academic years appears to vary primarily because of reported poor motivation, although it is also noted that there appears to be a consistent weakness with spelling ability that could reflect a learning disability ... however as ... skills in other verbal areas appear intact ... it is more likely that the difficulties observed in his academic record are due to motivational or psychosocial factors rather than the effects of a head injury sustained in 1982".

[80]

Like Dr Field, Dr Douglas thought that the plaintiff's level of deficit in verbal expression was severe but thought that limited educational achievement, learning difficulties and prolonged drug abuse could account for these findings. She thought this was more likely "than the impact of an apparently mild head injury sustained in 1982, especially when two years post injury (the plaintiff's) overall verbal abilities were assessed as being intact (satisfactory)." Doctor Douglas recommended further more comprehensive psychological examination.

[81]

[52] This occurred on 27 May 1999 when Dr Douglas herself interviewed and tested the plaintiff. Significantly Dr Douglas elicited an 18 point difference between verbal and performance IQ scores, much greater than the differential found by Dr Field. Most of the increase in differential is attributable to a substantial increase in performance based intelligence over Dr Field's result. Doctor Douglas confirmed that the plaintiff's intelligence level is within the low average range. It was her opinion that the plaintiff had always been of that level of intelligence. It was, she thought, unlikely that he had suffered a diminution in raw intelligence as a result of the accident in 1982.

[82]

Doctor Douglas's test "strongly suggested the presence of significant learning difficulties in all areas, but particularly severe deficits on verbally based tasks". Doctor Douglas noted:

[83]

"(The plaintiff's) performance on educationally based tasks ... is consistent with an individual who has significant learning disabilities in the verbal area ... (his) school records do indicate that he was capable of passing both English and Maths based subjects in year nine ... I am still of the opinion that (the plaintiff's) test results indicate the presence of both limited academic achievement and significant learning disabilities in the reading and spelling area."

[84]

A test of verbal ability showed substantial impairment commensurate with a significant learning disability, but verbal fluency skills were intact.

[85]

Importantly Dr Douglas' testing of the plaintiff's executive functioning showed his mental processes to be intact and within normal limits. Doctor Douglas concluded:

[86]

"While I concur with Dr Field's findings of significant difficulties with comprehension and processing of verbal information, I am of the opinion that all the associated deficits she reports as being consistent with organic brain damage ... are also entirely consistent with an individual who suffers from both significant learning disabilities and has a significant history of poly substance abuse ... (the plaintiff's) head injury occurred over sixteen years ago. In that time he has been able to pass year nine Maths and English based courses ... the results ... strongly indicate the influence of significant learning difficulties in the verbal area that have impacted upon ... scores throughout the testing ... the deficits on assessment are ... more likely to reflect the impact of specific learning difficulties, limited educational achievement, and past substance abuse, than they are to reflect the impact of organic brain damage on cognitive functioning. In particular it is noted that ... performance on tasks generally found to be impaired in individuals with traumatic brain injury (ie speed of information processing, executive functioning and verbal fluency) are intact and well within normal limits ...".

[87]

"... whenever there was an element of verbal processing ... included on a visual task his scores went down ... so whenever the verbal abilities were required to be used ... his performance drops quite severely. Language abilities are severely impaired. They specifically indicated the presence of learning disabilities as in reading and spelling ... his visual abilities are intact and even in the average to superior range on some tests ... if there was a verbal component to the task he does poorly. However, take out the verbal component and his ability to work quickly with information is unimpaired. It falls within normal limits."

[88]

Doctor Douglas rejected brain damage as a cause of the plaintiff's intellectual deficit because:

[89]

" ... the deficits that you expect following a ... brain injury would include a drop off in speed, a drop off in attention concentration, possibly memory and a drop off in executive functioning, the higher cognitive processes. That goes hand in hand with a brain injury. ... (the plaintiff) doesn't have diffuse deficits. He has specific deficits in one area ... his attention, concentration is intact. His speed of processing is intact. His executive functioning is intact, but the minute you add a verbal component to it his performance drops, so he only has the deficits when they target his area of weakness."

[90]

[54] Of considerable importance is the fact that on a test of verbal fluency which is a measure of executive function the plaintiff obtained average results. He performed that test particularly poorly for Dr Field. It was a reason for her conclusion that the plaintiff had suffered frontal lobe damage. Similarly for other tests of executive function the plaintiff achieved results within normal limits for someone with a low average IQ. Doctor Douglas summarized that her tests did not "show impairment in the tests that are commonly called frontal lobe tests in my assessment".

[91]

[55] Mr Campbell valiantly contended, in cross-examination and argument, that Dr Douglas had misunderstood her own test criteria or the import of the results. I am satisfied this is not so. Both Dr Douglas and Dr Field are eminently qualified and experienced psychologists. Their differing opinions is explained by the differing test results. Doctor Douglas found normal intellectual functioning for a person of low average intelligence but noted substantially impaired functioning for any task requiring the acquired skills of reading writing or spelling. This is indicative, in her opinion, of a learning difficulty in that area. Doctor Field found similar deficits but other, more diffuse ones which led her to postulate an impairment of cerebral function which she attributed to the 1982 accident.

[92]

Doctor Douglas' testing showed the more diffuse deficits to be transitory. Though present in 1997 when Dr Field tested the plaintiff they were not apparent in 1999. Executive functioning was then intact. It must therefore had been intact after the collision. The plaintiff's poor performance when tested by Dr Field is not a true reflection of his intellectual capacity but must be explained by circumstances other than permanent injury to the brain.

[93]

A number of possible explanations were canvassed in the evidence. One is the affect of alcohol or other drugs. The plaintiff admitted to Dr Nothling that he had consumed such drugs in gaol. Doctor Field did not test the plaintiff to ensure that he was unaffected by drugs when she examined him. She assumed he would be. Doctor Douglas did have the plaintiff tested for his examination and he was free of their influence. The plaintiff may have been affected by anxiety or a lack of motivation. The precise reason does not matter. It is clear that the plaintiff does not have permanent impairment of intellectual function but a fluctuating level of performance. This is inconsistent with organic brain damage.

[94]

Doctor Field herself thought that the plaintiff's school results in the 1984 and 1985 years were inconsistent with the presence of such a degree of impaired brain function as her tests revealed. This indicates, no doubt imperfectly, that the level of the plaintiff's intellectual function when measured in 1997 was less than it had been earlier. More substantially the fact that Dr Douglas elicited different results indicating a higher level of cerebral function shows that the first basis for Dr Field's opinion is insufficient to support it.

[95]

[56] The plaintiff claims damages for the lost chance that a court would have accepted Dr Field's opinion and awarded damages for the injury she described, and its financial and personal consequences. The plaintiff is entitled to an award of damages for the loss of that chance unless the position is that there was no worthwhile chance that a finding of brain damage would have been made.

[96]

[57] The difference of psychological opinion is shown to have been caused by an erroneous factual basis supporting one opinion which could not therefore rationally have been preferred over the other. The case is not one of differing expert opinion both drawn with equal validity from a set of established facts. It follows in my opinion that there is no acceptable evidence that the plaintiff sustained brain injury in the accident of 18 July 1982. He therefore had no worthwhile chance of recovering damages in respect of such an injury. The overwhelming probability is that had the defendant referred him for examination by a neurosurgeon or psychiatrist the result would have been a report indicating no relevant injury. The same would have occurred, though perhaps after a more protracted course, had he been referred to a neuropsychologist.

[97]

[58] Evidence was led from a number of the plaintiff's female relatives, aunts and cousins, all of whom were intelligent, industrious and warm hearted women. Their evidence establishes that up to the age of six the plaintiff developed normally. He enjoyed puzzles and card games and listening to stories read from books. The evidence however shows that a child of low average intelligence would develop with normal milestones. These same witnesses described a change in the plaintiff after his accident. They described him variously as being less outgoing, duller and less affectionate. One witness found him deceitful and aggressive. Mr Campbell relied upon this evidence as supporting the existence of brain damage. I do not find it sufficiently cogent for that purpose. The evidence was not put to any of the doctors or psychologists for comment so it is not known whether it was truly significant. Moreover the evidence of the plaintiff's demeanour after the accident was not as clear as the descriptions of him before he moved to Miami. I do not doubt the good faith of the witnesses but they were asked to recollect their observations of the plaintiff only recently and after the passage of many years. They did not have the same degree of contact with the plaintiff after his accident as before, probably because of the move to the Gold Coast.

[98]

[59] For the reasons I have endeavoured to express there must be judgment for the defendant with costs to be assessed on the standard basis.

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Judgment (98 paragraphs)

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