March 1995 - 15 attendances
April 1995 - 14 attendances
May 1995 - 17 attendances
June 1995 - 9 attendances
July 1995 - 3 attendances.
31 In many of those attendances the plaintiff sought and was given Pethidine injections, although other medications were also prescribed. A report of Dr Peter King, psychiatrist, dated 3 July 1995, referred to the plaintiff's history of medication as "including Pethidine starting from 1989, Panadeine Forte up to 20 a week and numerous other psycho-tropic drugs including Tricyclic antidepressants, Toroidal, Morphine, Sodium Valproate and many more".
32 Against this background it was submitted on behalf of the Council that the plaintiff at this time was addicted to Pethidine and that this addiction, combined with his headaches and neck problems, meant that he would have found it very difficult to maintain any regular employment at the time of the accident.
33 On behalf of the plaintiff it was submitted that although he did have ongoing problems with migraine headaches, he was showing signs of successfully managing that problem and that in the past he had succeeded in managing it and in carrying on a successful career. The basis for the submission that the plaintiff was showing signs of managing his headaches at the time of the accident was that medical records revealed only one injection of Pethidine in June 1995 and none in July.
34 I am not prepared to conclude that as of the date of the accident the plaintiff was addicted to Pethidine, although that was certainly a concern expressed by a number of doctors whom he consulted between February and July 1995. I do find, however, that between February and July 1995 the plaintiff had a serious problem with migraine headaches and neck pain which at the time of the accident was not showing any real signs of improvement. The reference to one injection of Pethidine in June 1995 and none in July, says more about the unavailability of records than an improvement in the plaintiff's condition. Neither he nor his wife gave evidence of any improvement before the accident. The effect of this finding on the plaintiff's claim for damages I will deal with in due course.
35 As a result of the accident the plaintiff suffered a closed head injury, a fractured left scapula, a fractured left mastoid and a possible fracture at the base of the skull. He also suffered right and left occipital scalp lacerations which required a blood transfusion. A golden staph infection subsequently developed in those wounds. On admission to hospital a CT scan of the brain demonstrated contusions in the right temporal parietal region with generalised mass effect. No focal injuries were indicated. A subsequent CT of the brain on 31 July 1995 indicated a resolution of the contusions and no further neural damage.
36 The plaintiff was admitted to the Royal North Shore Hospital where he remained until 3 August 1995. On that date he was transferred to the Royal Rehabilitation Centre at Ryde. He remained an inpatient of the centre until he was discharged home on 22 August 1995. The reason for his discharge was that he had become impatient with treatment and wished to be at home with his family. He had post-traumatic amnesia (PTA) from which he did not emerge until 14 August 1995. This placed his injury in the category of "a severe head injury".
37 Upon his admission to the Royal Rehabilitation Centre, he had a lower level nerve palsy affecting his left leg. There was some decreased sensitivity and power on the right side and a decrease in right hand fine motor control. He walked with an unsteady gait. Following intensive treatment, his mobility improved so that he was able to walk independently over all surfaces. He was left with a high-level balance problem. This produced a tendency to lose his balance when bending. He was left with a generalised weakness on the right side, particularly affecting right hand function. Given his previous expertise as a guitarist, this was of considerable concern to the plaintiff and caused him great anxiety.
38 Shortly before his discharge from the rehabilitation centre, the plaintiff underwent a neuropsychological examination. The results of that assessment were:
"The current assessment demonstrates severe memory and new learning difficulties, indicating a deterioration in functioning. Mr Binks' memory performance indicates reduced encoding capacity, despite having adequate attention, concentration and sensory spans.
It is suggested that Mr Binks may have suffered some hypoxic damage as a result of the obstructed airways and profuse bleeding which occurred at the time of injury.
In addition to his impaired memory functioning, Mr Binks demonstrates some executive deficits, such as reduced fluency, perseveration and poor planning. Mr Binks' disorganised and impulsive attitude towards tasks has reduced his overall performance."
39 As of the date of trial, the plaintiff continued to have problems with fine movements in his right hand. He also appeared to have some difficulty in negotiating the steps in and out of the witness box. It is not clear whether that was due to large amounts of medication which he was taking, or to problems with ambulation. In his evidence (T.202) he indicated that once out of hospital he started running and in particular could run to Cremorne Point and back again and became quite active physically. That evidence is somewhat inconsistent with what I observed him to be able to do in court. On the other hand, he was assessed by physiotherapists from the Royal North Shore Hospital in October 1995 as having "good mobility".
40 During the trial, it was obvious that there was some facial asymmetry affecting the left side of the plaintiff's face. It drooped slightly by comparison with the right. This appears to be a direct consequence of the accident. On occasions the plaintiff's speech was slurred while giving evidence. It is not clear whether this was due to the high levels of medication which he was taking or whether it was a direct consequence of the accident.
41 Following the accident the plaintiff continued to recuperate at home, perform prescribed exercises at home and attend the rehabilitation centre from time to time as an outpatient. He underwent a neuropsychological review on 2 August 1996. The results of that review by Ms Mariott-Lloyd, the same neuropsychologist who had previously examined him, were:
"Mr Binks presents thirteen months post severe head trauma. The current assessment indicates that the significant memory deficits, in both modalities, noted previously have not resolved. Mr Binks has a significant encoding deficit, despite immediate registration capacity. He also continues to demonstrate some organisational and manipulation difficulties.
In contrast, Mr Binks' other executive deficits appear to have ameliorated. This improvement is evident in his increased insight, utilisation of feedback, decreased frustration, impulsivity and perseveration.
The change in Mr Binks' insight is fundamental as he is now open to the use of compensatory strategies, can accept feedback and make realistic future plans."
42 In April 1997 Ms Narci Sutton, a clinical psychologist from the Royal Rehabilitation Centre, who had been treating the plaintiff since his first admission there, reported:
"In a recent neuropsychological assessment he was found to have memory deficits in both modalities (verbal and visual). He also demonstrated significant encoding deficits and difficulties in organising and manipulating information. This is a particularly severe problem in situations where complex and diverse information needs to be analysed (ie a meeting, a social gathering). He performs best in one to one settings where environmental distractions are reduced.
I would like to emphasise that in spite of the above difficulties Mr Binks' overall intelligence level remains above average. This is in fact one of the main contributors to his emotional and adjustment difficulties. He is able to compare and judge between what he could do prior to the accident and what he can do now, thus he can measure his loss and the impact this has in his relationships and his family's future. Added to this, the brain injury directly impacts on his ability to deal with stressful situations."
43 The plaintiff's evidence was that he was seeking work after his discharge from the Royal Rehabilitation Centre but was unsuccessful. The plaintiff was rather vague as to the timeframe during which such applications for employment were made.
44 On 22 April 1997 the Commonwealth Rehabilitation Service prepared a report for use by the Royal Rehabilitation Centre. I propose to set that report out in full since it provides a useful assessment of the plaintiff's capacities, both physical and mental, at that time. It also appears to be quite objective and does not show any signs of being contaminated by litigation considerations.
"Mr Binks referred himself to CRS on 05/09/95 after sustaining an Acquired Brain Injury in a Motor Vehicle Accident on 20/07/95.
Since the time of referral the following areas have been address:
* Driving - Mr Binks completed a Driving Assessment and then completed 2 driving lessons. After a second assessment, it was recommended he have his licence reinstated.
* Adjustment to Disability/Education Regarding ABI - Throughout the CRS Program, issues surrounding the difficulties he was experiencing as a result of the injury were addressed eg:
- Memory - difficulty remembering appointments. Use of a diary was demonstrated and recommended and strategies put in place in the home environment to assist Mr Binks to remember to check his diary.
- Organisation - Mr Binks found it difficult to organise and prioritise activities, especially related to vocational issues. Initially, time was spent trying to assist him focus on particular vocational activities, with an aim to earn money to alleviate financial difficulties. Mr Binks reports still having difficulties in organising himself when the situation raise his levels of anxiety.
- Initiation - Mr Binks reports difficulty initiating tasks, especially where it was related to finances and emotional issues. After discussion regarding and setting a structure to the task, he was often able to complete it.
* Vocational Issues - Early in the Rehab Program, it was established that writing 'jingles' for Advertising Companies would be the quickest way to earn money. Setting up a studio from where he could work, was complicated by the fact that his equipment was missing and related insurance problems. A further difficulty was Mr Binks' uncertainty that he could still "create". Two simulated Work Training were set up with 2UE and George Patterson Advertising Company. During the latter, it was established that Mr Binks was able to "create" and received positive feedback from the Creative Director for his work.
Since his Work Training, Mr Binks, with the assistance of his wife, has been to visit and promoted himself to many advertising companies. As of yet, he has received no work. Mr Binks is currently involved in other projects, which he hopes will generate financial income.
* Worksite Assessment - Mr Binks was experiencing right shoulder pain after working in his studio so a workplace assessment was completed. As a result, equipment was provided to ensure easier, more ergonomic access to his equipment was possible and an ergonomic chair was provided. Education was provided on posture and workstation setup.
* Counselling - Mr Binks was concerned about how his wife was coping with the change since the accident. Mrs Binks was referred to a Psychologist for assessment and counselling and names of recommended counsellors were provided for continued counselling.
Mr Binks was referred to a Psychologist for adjustment to disability counselling to address low self-esteem/confidence issues.
*Physical Upgrading - Mr Binks underwent a Physical Assessment and joined the Physical Upgrading Group on 2 occasions. Both times, Mr Binks found it difficult to commit himself to attending the group. He feels that he still required physical upgrading and that a Home Program would be more appropriate. This has been set up for him by a physiotherapist. Mr Binks fatigues easily and experiences difficulty with high level coordination of his right hand.
* Other - Information was provided about Small business and Financial Assistance available.
* Liaison - Has been maintained with other treating professionals and the DSS regarding benefits.
Although Mr Binks, as yet, has not completed any paid work, it is felt that there is no further assistance that we can provide him at this time in regards to return to work in his chosen area of music. Discussion has taken place regarding exploring other options of 9-5 jobs. Mr Binks feels that this would not allow him to be free for other projects.
Mr Binks' CRS file will therefore be closed and he has been informed, that should he require CRS assistance in the future in gaining employment, that he can refer himself to our service again. …"
45 The comment in the report as to the plaintiff's unwillingness to explore "other options of 9-5 jobs" because "this would not allow him to be free for other projects" accords with my assessment. During this period and even up to the present time, the plaintiff has only been interested in jobs which related to the music industry. His evidence was replete with descriptions of "projects" which he tried to get off the ground, but which failed to eventuate either for lack of finance or because he was let down by other persons. These projects were all related to aspects of the music industry.
46 In 2000 the plaintiff was accepted for and attended what he described as the "Award School" which was a course conducted by the advertising industry. The course involved bi-weekly sessions of two to three hours where various forms of creative ideas and strategies for use in the advertising industry were discussed. Towards the end of this course on 5 June 2000 the plaintiff was successful in obtaining employment with an organisation called "Next Generation Entertainment".
47 The plaintiff obtained the job by responding to an advertisement in a paper. The job involved writing music which would be used in computer games. It turned out that these were gambling games. Although the plaintiff said he was morally opposed to such games, he remained in that employment. "Next Generation Entertainment" was a new company which had offices in George Street, Sydney. The plaintiff was taken on with a number of other new employees. The hours of work were 9 to 5. The plaintiff was set up in a recording studio so that he could perform his work. The plaintiff performed some of the work in his own studio at home, outside the hours of 9 to 5. The music which he composed and produced was purely for background purposes and did not contain lyrics.
48 The plaintiff remained in that employment until October 2001 when he was retrenched. The termination of his employment had nothing to do with the way in which he was performing his work. The plaintiff was not the only person to be retrenched by "New Generation Entertainment" at that time. The plaintiff's earnings for the year ending 30 June 2001 were $74,766 before tax (ie $978 net per week after tax).
49 The defendant called evidence from Mr Halprin, another employee of "Next Generation Entertainment" who was working with the plaintiff in 2000/2001 and who was retrenched shortly after the plaintiff. Mr Halprin was the person to whom the plaintiff reported when he was working with "Next Generation Entertainment". He characterised the position of the plaintiff as between that of a sound engineer and a member of the production staff. He described the plaintiff's work in the following terms:
"A. Sure, basically we would develop games for various clients and those games would have a sound component. So what we would do is essentially get together with Simon and work out whatever the brief was, it might be some musical themes, some sound effects that needed to be developed and he would write those." (T.699.52)
"A. Yes he would write the music, he would play it, edit it and pull it all together in the software and provided us with, you know, final sound files that we could plug into the games." (T.700.7)
"Q. At times were outside musicians called in to assist in terms of the sounds you needed?
A. At times, yes. Sometimes he would do, provide like an end to end solution, other times he would work with some other sound people who would contribute to the process as well.
Q. In terms of the outside musicians, who used to co-ordinate playing of the instruments by them and the recording?
A. He would co-ordinate that. We had a small sound studio and he would organise that from there.
Q. In terms of where he worked and what he worked with, is it correct to say that essentially his office was the sound studio?
A. Yes, it was, yes.
Q. And in terms of equipment do you remember what sort of equipment he had within the studio that he used to operate?
A. The main equipment was a Macintosh, with various sound editing and relevant programmes on it. There was also some external equipment, obviously the guitar because he would play the guitar, some other instruments, maybe some mixing equipment.
Q. In terms of the job as you saw it, as I suppose his manager, was it a complicated job?
A. Oh, relatively, sure.
Q. When you say it was complicated are you able to explain what you mean by that? What aspects you regarded as being complicated?
A. Essentially you need to be able to take a brief, need to be able to create the appropriate music and sound to match that brief. You would need to be able to drive the software on the Macintosh, to be able to edit it all together. Able to compose various pieces of music. So yeah, there were a few components to it." (T.700)
50 Under cross-examination it was sought to establish through Mr Halprin that the plaintiff had difficulties in performing this work. I am not so persuaded:
"Q. And you agreed with that but you were about to say something else about other aspects of his work, weren't you?
A. Yes. I mean, you have internal review processes when you work within a creative field and it is important you go through those before you ship the end product. So at times the brief given to him was not necessarily met and you would need to manage it and go back and forward, as you would with artists and programmers until you got what you were looking for."
…
"Q. Were there any other difficulties you found with him?
A. Yeah, I guess. I mean, it's, he wasn't from the gaming industry and like any industry when you are specialised you can kind of understand what the requirements are, so sometimes there were issues where you would need to explain things a few times because he wasn't coming from that background." (T.702)
51 From both the plaintiff's evidence and that of Mr Halprin I am of the opinion that the job with "Next Generation Entertainment" did require intellectual analysis and some creative activity by him. He was particularly well suited to the job because not only did it involve music, but it involved the production and composition of music by use of sounds which were stored in a computer. This was an area in which the plaintiff had particular expertise (T.210). It was also a job where he could work on a one on one basis, rather than being required to work with a group or team. Clearly the plaintiff had no difficulties in commuting to and from work during the sixteen months of his employment, nor does he appear to have had any difficulty in dealing with the substantial sums of money which he earned. Some of that money was used to purchase equipment for the recording studio which the plaintiff set up in his home.
52 The plaintiff's evidence was that he had no difficulty physically or mentally in performing that job (T.222). He had some difficulties with a person in a management position above him, but he attributed those difficulties to the personality of the other person. His major concern in relation to the job was that it involved performing work in the gaming industry, which he regarded as morally reprehensible.
53 Since his retrenchment in October 2001, the plaintiff has not engaged in any remunerative employment. He said that he had become disillusioned because he had applied for so many jobs and received so many knock backs. When specifically asked "Did you go back to seek advertising jobs" his response was:
"A. That was held up. Yes, but that was held up because I was trying to put a show reel together of newer stuff because you must remember the stuff I had in my show reel dated back to '89-'90 so that it is 10 years old and in this industry if it's 10 days old it is too old …"