Since then, he has expressed differing intentions concerning the house. He told Dr Bennett, a neuropsychologist, in January 2004, that at some stage in the future he would like to sell the house and settle in a house in a quieter location. In his affidavit of 23 November 2004 he said:
"My only other concrete investment plan is to research the market for a new place to live in the future."
55 He agreed in cross-examination that even now the noise was difficult in the summer, when doors or windows were opened. Another theme which came out in his oral evidence is that he would like, at some stage, to sell the house and move somewhere quieter, but that he does not have immediate plans to do so. However, at one stage in his cross-examination he said that initially he was unhappy with the noise,
".. but now I have become accustomed to it and it does not cause me any problem and I am certainly glad that I stayed there and will not sell the place."
The Financial Trial
56 When the OPC first began management of the plaintiff's estate it took responsibility for paying all of the plaintiff's bills. It gave him an allowance each week from which he bought groceries and other daily requirements. Before the verdict money was received it was $200 per week, after the verdict money was received it increased in March 2001 to $500 per week, around the time of purchase of his car in October 2001 it reduced to $440 per week, and thereafter it changed from time to time. As well, various ad hoc payments of allowance were made to him.
57 On 3 February 2003 a meeting took place between the OPC and the plaintiff's solicitor and barrister, at which a proposal was put forward in principle for the plaintiff to receive a larger weekly allowance, and become responsible for the payment of certain of his regular bills. On 6 March 2003, at a second such conference, the proposal was stated in more specific terms. It was that the plaintiff be paid $750 per week, and that he should be responsible for payment of utilities and motor vehicle expenses from it. As well, the OPC agreed that it would advance him some money to purchase some furniture, and to enable his sister and niece to visit him from England. This proposal is one which left the OPC paying for the plaintiff's medical expenses, the cost of storing his goods, and any other expenses which were not specifically stated to be the plaintiff's responsibility. That proposal was implemented promptly, and worked satisfactorily over the next few months.
58 After his allowance was increased to $750 per week, in March 2003, the plaintiff arranged for cable television to be put on at his home, at a cost of $50 per month. He sent $1,000 to his mother in England. He bought some furniture for the home. His phone bills for April and May 2003 were each of the order of $300 per month, including the bill for his mobile phone. However, he was able to reduce his phone bill to the order of $100 to $120 per month by disconnecting the long distance facility, and putting his mobile phone onto a pre-paid plan, so that he could control the amount he spent on it. As well, the plaintiff's money was used to pay for the fares of his sister and niece to visit at Easter in 2003 (para [40] above).
59 On 1 July 2003 there was a meeting at Dr Daly's surgery, attended by the plaintiff, Dr Daly, and representatives of OPC. Dr Daly described that meeting as "a wonderful meeting". At it, agreement in principle was reached that the plaintiff should be paid an allowance at the rate of $1,000 per week, quarterly in advance, and that he should pay certain specified types of expenses from it. Under the trial which began in March 2003 OPC had, each week, transferred $750 into the plaintiff's bank account, so this amended version of the financial trial tested his ability to manage money over a somewhat longer timeframe. $1,000 per week was the amount the plaintiff requested, because that was the amount which he had been receiving, after tax, before the accident. The plaintiff rejected a suggestion that he ought receive payments six monthly in advance.
60 It should be said, however, that the amount of the District Court verdict was not calculated on the basis that it ought provide the plaintiff with $1,000 per week for the rest of what would have been his working life. The terms of settlement record that the amount of the verdict had been fixed after apportioning 25% contributory negligence to the plaintiff. As well, the affidavit which his then solicitor swore on 30 January 2001 in the District Court proceedings in connection with the approval of the settlement made clear that a further compromise had been accepted, beyond that arising from the 25% contributory negligence, in calculation of future economic loss. As well, however, the largest component allowed for in the damages was for future care, in an amount which his solicitor thought was possibly on the high side.
61 The arrangement arrived at in July 2003 has been implemented by the OPC making periodical transfers of money to the plaintiff's cheque account. The arrangement has been extended several times, and remains on foot now.
The 2003 Criminal Charges Against the Plaintiff
62 The OPC officer who then had control of the plaintiff's file (not Mr Gulline) had agreed to a request which the plaintiff made to put some extra money into the plaintiff's bank account so that the plaintiff could celebrate his 45th birthday on 8 January 2003. The officer forgot to do so. The plaintiff visited an ATM on several occasions on 8 January 2003 and the days immediately following, but each time found that the money had not been put into his account. On the evening of 12 January 2003 the plaintiff was at home by himself drinking. He attempted to contact his mother in London, and his second cousin in Western Australia, by making a reverse charge telephone call, but the Telstra operator would not let him do so. He then made four phone calls in the course of which he stated (in different calls) that there was a bomb on a QANTAS 747, another bomb at Mascot airport, another at the Telstra building, and one at the Mascot train station. The calls were readily traced to his home phone. In two of the calls he was asked who he was, to which he stated his name accurately.
63 He had four criminal charges brought against him in consequence. Those charges were dealt with at the Local Court on 17 April 2003, and resulted in him being placed on a good behaviour bond for 18 months.
The Allegation of Failure to Save During the Financial Trial
64 The OPC submits that one factor which should be taken into account on the present application is that the plaintiff has spent virtually all of the money which he received during the financial trial.
65 For the purpose of submitting to the Magistrate who was to hear the 2003 criminal charges, the OPC wrote a "To Whom It May Concern" document on 12 March 2003, explaining that an error occurred in the processing by the OPC of an amount of $250 that the plaintiff was due to receive on 11 January 2003. It also explained the $750 per week arrangement which by then had been put into place, and continued:
"Whilst there are concerns about the length of time [GHI's] estate will last at the present rate of expenditure if he does not save some of his allowance, it is hoped that the new arrangement will help [GHI] to feel more empowered in the management of his finances. It is also hoped that this may reduce [GHI's] stress levels."
66 At the meeting on 1 July 2003 Mr Gulline said to the plaintiff that if he were to be allocated $1,000 per week that would be in excess of what would be affordable in the long term. Mr Gulline told him that he could only be allocated that sum on the basis that it would give him an opportunity to manage his money and save what was left. I conclude that Mr Gulline made these statements on the basis of his own evidence, Dr Daly's confirmation of the substance of that evidence, and to a lesser extent on Mr Gulline's contemporaneous file note.
67 After the amended version of the financial trial involving quarterly payments had been agreed, the OPC wrote to the plaintiff on 29 July 2003, explaining that the first payment had been placed into his bank account, and continuing:
"The funds are by way of a trial to allow you to further demonstrate your ability to manage your money other than on a week to week basis. The amount is as requested by you at $1,000 per week. However this is greater than the income generated currently and is not sustainable in the longer term.
All of your expenses during the next 13 weeks are to be met by you from the payment."
68 The plaintiff had always had a current account with the Commonwealth Bank. On 7 August 2003 he opened a new account with the Commonwealth Bank, entitled an "Award Saver" account, which he referred to as his savings account. He deposited into this savings account $8,000 of the $13,000 he had received as the first quarterly payment, and gave instructions for it to be credited to his cheque account at the rate of $800 per week.
69 In an affidavit he swore on 24 October 2003 the plaintiff said:
"I do appreciate that I will need to reduce the direct debits that I am having from my savings account into my cheque account to approximately $500 per week and in fact I have organised this in the last few weeks. I am sure that I can continue to do this, as I have now set up my home, purchased some clothes, sent money overseas and had a holiday, which are all things that I had not done for a substantial period of time."