He thought he could build up to five days a week of such employment.
62 In cross-examination the respondent said he intended to look for employment "most likely a factory job or maybe run my own business. Don't know." (He agreed he would be capable of working as a tyre fitter or repairer, or as a council labourer.
63 The respondent's school records revealed, as he acknowledged in evidence, that he lost interest in studying in Year 11. He left school. However he clearly retained aptitude despite his injury. TAFE records for the "Certificate II in Automotive Mechanical - Pre-Employment" he completed in December 2004, the year of his accident, showed he passed all but one course (noted "withdrawn no penalty") and achieved five credits.
64 This evidence needs to be assessed in the light of the expert opinion as to the respondent's earning capacity.
65 As I have said, the primary judge placed particular importance on Dr Veerabangsa's opinion. In particular (at [86]) his Honour said:
"86. In his report dated 22 January 2008 the Plaintiff's treating rehabilitation specialist at the Liverpool Hospital Brain Injury Rehabilitation Unit, Dr Veerabangsa, expressed the opinion that it would be difficult for the Plaintiff to maintain suitable employment on account of his various emotional, behavioural and cognitive residual disabilities that were due to the traumatic brain injury. These problems included reduced concentration and attention span, slow speed of information processing, poor self-monitoring, over-confident thinking and impulsiveness. I accept as reasonable Dr Veerabangsa's assessment in this regard."
66 In his report of 22 January 2008 concerning employment Dr Veerabangsa said:
" Employment
Reduced attention and concentration, slow speed of information processing, poor self monitoring, overconfident thinking and impulsiveness have made it difficult for him to maintain suitable employment. His capacity to work is partial as he is not able to perform in a competitive way in full employment. He was considered as unfit for work till October 2005 after which he was considered fit for part-time work. His incapacity for work is due to cognitive and behavioural reasons and not physical." (emphasis added)
67 As can be seen, the primary judge did not refer (at [86]) to the passage emphasised, nor is there any reference to Dr Veerabangsa's opinion that the respondent had partial earning capacity. The appellant complains about what he submits was his Honour's selective use of Dr Veerabangsa's opinion, contending that, taken as a whole, that opinion was inconsistent with his Honour's conclusion that the respondent was, practically, unemployable.
68 The primary judge accepted the opinions expressed by Dr Milder, a consultant neurologist, in his two reports of 18 July 2006 and 22 October 2007. As his Honour noted (at [89]) Dr Milder expressed the opinion that the respondent "may be able to take part in particularly simple structured activities, requiring slight concentration" and that the respondent suffered from "a markedly diminished capacity to attain his previous potential in his personal and professional affairs". The appellant submits, correctly in my view, that Dr Milder's report did not suggest the respondent was unable to work.
69 The primary judge placed weight upon assessment reports prepared by Dr Gilandas, a psychologist. In June 2006, Dr Gilandas subjected the respondent to neuropsychological assessment, testing his intellectual, sensory motor and visuospatial functioning, his language ability and his memory processes. Dr Gilandas concluded that although the respondent's high cognitive functions remained generally intact, he did not have an efficient working intelligence because his potential and performance was disrupted by his low-average memory processes. In his opinion the deterioration in the respondent's memory processes followed his head injury and was directly related to his accident. Dr Gilandas formed the view in his first report of June 2006, a view repeated in his second report of October 2007, that the respondent was "significantly disadvantaged on the open labour market and in fact may be unemployable in his current state. The primary judge regarded Dr Gilandas' opinions as "significant" (at [90]).
70 The appellant criticises the primary judge's reliance upon Dr Gilandas on the basis that his opinion that the respondent may be unemployable appears to relate to the fact that he remained unemployed three years after the accident. It does appear that Dr Gilandas' view about the respondent's earning capacity was influenced by his current employment situation. In his first report of June 2006, he juxtaposed his opinion about the respondent's prospect on the open labour market with the fact that, at that stage, the respondent was doing light duties in his parents' business, a job which his parents had provided in circumstances where they made allowances for his deficit. In my view, when the evidence of the respondent's earning capacity is taken as a whole, it can be seen that Dr Gilandas' hypothesis that he "may be unemployable" has some support insofar as the open labour market is concerned, but not insofar as work in a supported environment is concerned.
71 Dr Klug, a forensic psychiatrist, saw the respondent on two occasions. In his first report (25 July 2006) Dr Klug concluded that the respondent had "chronic psychiatric problems of a complex nature, which will never fully resolve, given the type of injury, the chronicity of his symptoms and the comprehensive treatment he has received but to which he has only partly responded." At that stage, in Dr Klug's opinion, although the respondent was "not totally incapacitated for work he has clearly had difficulties in the workplace and this has eventuated in the current situation in which he is unemployed and looking for appropriate work." He opined that the respondent would require "employment in a supportive environment where the criteria for a job, as suggested by his rehabilitation team, are met." He said the respondent's "partial and possibly incomplete incapacity is continuing and is likely to be chronic". He found it difficult to envisage that the respondent would return to any form of full-time work or would cope with work in which he had a "moderately high or high level of responsibility, [was] under pressure and [was] required to learn information rapidly and to make high level integrated decisions." In his second report of January 2008, Dr Klug opined that the respondent's neuropsychiatric state was unchanged and that his diagnosis was "a chronic and irreversible traumatic brain injury and a major depressive disorder in partial remission". His rating of the respondent, using the AMA5/WorkCover Guidelines was:
"Concentration, persistence and pace - His concentration is impaired as is his memory. This is well documented. This interferes for example with reading. He is easily distracted. There is little doubt that this interferes with his capacity to return to work on the open labour market.
Employability - his level of impairment is severe. He may be totally impaired."
72 The primary judge concluded (at [91]) that Dr Klug's view was an understatement of the problem facing the respondent with regard to future employment.
73 The primary judge next referred (at [92]) to a report of 7 November 2007 from Dr Deveridge, a surgeon. Dr Deveridge's report made it clear - and the primary judge so interpreted his report - that his area of expertise did not relate to the respondent's severe closed head injury or his facial bone fractures, but was confined to his orthopaedic injuries. Dr Deveridge opined that the respondent should undertake a work trial either as an apprentice motor mechanic or in a similar field as, having regard to the fact that he had been leading a sedentary lifestyle since his recovery, it was uncertain whether he could cope with this type of employment having regard to his physical injuries. Dr Deveridge's opinion was subject to any other restrictions which might arise from the respondent's cognitive deficit and headaches, matters he acknowledged should be addressed by relevant specialists. Insofar as Dr Deveridge opined that the respondent was "unfit for all work until he made reasonable recovery from the brain injury", a period Dr Deveridge determined, subject to confirmation by relevant specialists, was up to two years, the primary judge observed (at [92]) that what constituted "a 'reasonable recovery' is obviously a matter of fact and degree." His Honour did not read Dr Deveridge's opinion as indicating the respondent had any practical residual earning capacity.
74 The primary judge next referred to the joint Ravagnani report dated May 2007. Mr and Mrs Ravagnani interviewed the respondent using what they described as a "tandem interviewing technique" - an approach of which the appellant did not complain. In their opinion, the respondent was:
"…capable of light repetitive activities where he is given regular direction and is closely supervised. As he also possesses limited physical capacity and a tendency to fatigue as a result of his injuries, it is likely that any future vocational activity will be limited [to] part-time supported employment. Supported Employment involves placing the person with a disability (such as a brain injury) into a normal full or part-time job and providing assessment, job analysis, coaching and on-going support to maintain that job (Brodwin et al 1993, Barnes 1999). Support is provided by a professional vocational trainer or job coach. Initially, a worker typically requires substantial assistance however this may taper off over time to an occasional 'drop-in' basis. Wages may be paid according to productivity or State Award rates. Although this approach offers greater flexibility and better community integration than traditional sheltered employment, these jobs tend to offer minimal opportunity for advancement and are less secure than conventional jobs. Entry level wages for these occupations are very low (around $500 per week before tax) and are likely to be further reduced by part-time employment or lower productivity arrangements." (emphasis in original)
75 After referring (at [93]) to the joint Ravagnani report view that the respondent's future vocational capacity would be limited to part-time supported employment, the primary judge said:
"I infer from their assessment and description that such employment is not employment on the open labour market but rather, represents sheltered employment of uncertain duration with low entry level wages without prospects for advancement. This leaves open the question of whether such limitations on the [respondent]'s employment prospects are likely to be productive of income from a practical perspective. In my view there are no such prospects."
76 In my view the joint Ravagnani report did not support the primary judge's conclusion that there were no prospects that the employment the joint report foreshadowed was likely to be productive of income from a practical perspective. The report clearly stated that the respondent was "capable of light repetitive activities". Although the report contemplated that such earning capacity as the respondent retained might be exercised in supported employment, it was apparent such employment was remunerated.
77 The conclusion that the respondent could work in a supported environment was also supported in a passage in the joint Ravagnani report to which the primary judge did not refer:
"Mr Choy's confident presentation, reasonably articulate manner and willingness to work may initially make a positive impression on a potential employer. Although this will perhaps aid him in finding an elementary job (with assistance), the persistence of his other cognitive, mood and motivational problems will mean that he is unlikely to keep a job for long. He would have extreme difficulty with highly stressful, physically demanding or ambiguous work environments, where he must be consistently productive or where he is expected to make decisions or judgements. He would also require an extremely supportive employer given his problems with memory, judgment and motivation. Furthermore, his complaints of neck pain and fatigue are likely to create ongoing difficulties with unskilled manual work. Given the severity and persistence of his symptoms, this situation is unlikely to change in the future and his potential for sustained open employment must be considered poor."
78 In a later report of December 2007, responding to a solicitor's letter which does not appear to have been tendered, Ms Ravagnani observed:
"A person's physical ability to undertake a task is of little functional use to them if they do not have motivation, initiative, attention and clarity of thought."
79 Dr Mellick, a consultant neurologist, examined the respondent in December 2006 apparently for the purpose of assessing the degree of his permanent impairment for the purposes of s 322 of the Workers Compensation Act 1987 (NSW). Dr Mellick observed that the respondent revealed "impaired attention, concentration and memory", features which were "common in frontal lobe injuries." He referred to psychometric evidence which showed "some slowness of cognitive functioning" associated with a "mood disorder for which [the respondent] is being treated with anti-depressants." He expressed the opinion that the respondent was "capable of resuming work but that there is some permanent impairment of his capacity to work as efficiently as he did prior to the motor vehicle accident."
80 The primary judge (at [97]) rejected Dr Mellick's opinion concerning the respondent's fitness to resume employment for a number of reasons. Of these, the only one of which the appellant complains is his Honour's conclusion that Dr Mellick's opinion was based on an erroneous history that the respondent's work was what the primary judge inferred was completely unskilled work packing boxes whereas, in his Honour's view, the respondent's work (I assume in his parents' business) required "discrimination, concentration and sorting skills". His Honour also rejected Dr Mellick's opinion because he had obtained an incorrect history that the respondent had been working as a motor mechanic prior to his injuries.
81 It is not readily apparent why, assuming it was correct, these incorrect work histories undermined Dr Mellick's opinion that the respondent was "capable of resuming work". Even if that opinion was expressed about the respondent's capacity to undertake unskilled employment, it was probative, in my view, of the appellant's case that the respondent retained residual earning capacity.
82 His Honour's conclusion (at [97]) that Dr Mellick's "non-specific assessment of there being 'some impairment'" had "little if any probative value" is somewhat semantic. Such a comment may have weight if that was all Dr Mellick had said. However, Dr Mellick's observation was made in the context that the respondent was capable of returning to work. As the reports of the experts to which I have referred make clear, and experience tells, experts rarely quantify in other than adjectival terms as "partial", "limited", etc, the extent to which an injured person may be capable of work, save to the extent they are of the view a person is entirely unimpaired or unemployable. It is the task of the trial judge taking into account other indicia in the report (and the overall evidence) to evaluate the extent to which these opinions can be brought to bear on the issue of the injured person's earning capacity. In my view Dr Mellick's opinion that the respondent was capable of returning to work had some probative value, particularly when taken with other medical opinions to similar effect.
83 The primary judge next dealt with Dr Smith, a psychiatrist who prepared an extensive report dated 28 September 2006. Much of the report reviewed historical material as well as setting out the respondent's account (apparently to Dr Smith) of his history since the accident. Dr Smith dealt with the issue of the respondent's earning capacity briefly. He noted that the respondent's IQ did not change after the accident, but that his "mentation is slower and he has difficulty with coping with too much information at once, and during his Driving Assessment it was noted that he lacked insight and reasoning." Dr Smith concluded that this "constellation is consistent with damage to the frontal lobes but the degree of cognitive impairment is mild." After recording that the respondent had regained his driver's licence for both automatic and manual vehicles, Dr Smith opined:
"He should be able to cope with sales work in the automotive industry but to date he has not been able to find such a position."
84 Dr Smith provided a further report in December 2007 in which he commented on the respondent's high school records, records from TAFE NSW and Dr Gilandas' report of October 2007. After reviewing that material Dr Smith reaffirmed his opinion that the respondent "should be able to cope with sales work in the automotive industry." The primary judge (at [101] - [110]) rejected Dr Smith's opinion for eight reasons.
85 The appellant's written submissions specifically challenge only two of those reasons. The first challenge is to his Honour's conclusion (at [102]) that Dr Smith's opinion - that the respondent could cope with sales work - was "a prospectively sweeping statement that is not based on a reasoned analysis." The appellant complains the primary judge's observation that Dr Smith's opinion should be rejected because he did not relate aspects of the work he said the respondent could undertake to his psychological condition, was "not a criticism made of any other doctor".