IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIS HONOUR: On 22 February 1985, the plaintiff, Chris Kaperonis, then aged 11 years and seven months, was crossing Addison Road, Marrickville near the intersection of Shepherd Street when he was struck by a car insured by the defendant. The plaintiff sues for damages in respect of injuries allegedly sustained. He sues by his father as tutor, the proceedings having been commenced during the infancy of the plaintiff; the proceedings have been continued by the father as tutor after the plaintiff attained adulthood because, if the allegations of disability made by the plaintiff are to be accepted, the plaintiff is a mentally disabled person within the meaning of the Act.

The defendant disputes negligence and alleges contributory negligence on the part of the plaintiff. The evidence on the liability issues is unfortunately sparse, chiefly because of the plaintiff's own inability to recall much about the accident, and because of the absence overseas of the insured driver. The defendant sought to tender his statement, in reliance upon s.63 of the Evidence Act 1995; in respect of that application I have delivered a separate judgment refusing same.

The plaintiff was taken from the scene of the accident to the Childrens' Hospital at Camperdown and he was interviewed by police later the same day. The police officer said, "Can you tell me what happened?" and the plaintiff replied:-

"I tried to run across the road between the parked cars and all of a sudden a car ran into me. I couldn't see him because there too many cars (sic)."

On 21 March 1985, the plaintiff was seen by Dr. Ann Cooper (to whose opinions I shall refer later) and gave this history:-

"Chris told me he was coming home from school with a friend. 'There were lots of cars. My friend crossed the road first - he did not get hurt - I got hurt. I never saw the car.'"

In the light of those contemporary accounts, I do not accept as reliable the detail of the plaintiff's evidence of the happening of the accident. I entertain similar reservations about the evidence of his father who, I am satisfied, was about 60 yards away in Shepherd Street at the time when the plaintiff commenced to cross Addison Road. I reject in particular their assertion that there was no traffic travelling from the plaintiff's right to left in Addison Road, such as may have blocked the plaintiff's view of, and obscured the plaintiff from the view of, the insured driver travelling in the opposite direction. I am satisfied that there were vehicles travelling in that direction; but the probability is that those vehicles were travelling very slowly, and may indeed have been stationary, at the time when the plaintiff passed between them. I am satisfied that the plaintiff's companion crossed the road in front of the plaintiff, and that that boy was in fact running. I reject the evidence of the plaintiff and his father, that the plaintiff was only walking, preferring to rely on what the plaintiff said to the police. I find that he also was running but that he was lagging behind his school friend. The police investigation of the accident recorded in Exhibit A seems to have been somewhat cursory, and some information which might have been useful, and might have been expected to be found, is lacking - in particular the width of the street. It appears that Addison Road was an undivided carriageway providing for one line of parked cars and one line of moving traffic in each direction. So far as can be gathered from the police report, the plaintiff had passed entirely across the (unmarked) traffic lanes for vehicles coming from his right, and had reached approximately the centre of the lane for traffic travelling in the opposite direction. To that extent, the evidence of the police report coincides with the plaintiff's oral evidence, and I accept that that is the fact.

I am satisfied that the defendant's driver was negligent. I reach that conclusion particularly because of the evidence that another boy ran across the road just before the plaintiff emerged into the defendant's path; and because of the evidence, which I accept, that there were other boys, young school children in uniform, in the vicinity. It was almost 3.30 pm and any driver on a city or suburban road ought be alert to the likelihood that school children would be on the road at that time. A statement taken from a Mr. Peter Karanikolas, since deceased, who was working in a nearby service station, establishes that there was a screech of brakes or tyres at the time of the impact. I infer that the driver did not see the plaintiff until virtually at the moment of impact. I therefore conclude that the plaintiff is entitled to a verdict.

However, that verdict must be subject to a substantial deduction by reason of the contributory negligence of the plaintiff, in light of the findings that I have made as to his passing through the line of traffic into the path of the defendant's vehicle. The plaintiff was at an age when he ought reasonably to have been aware of the risk of behaving in that fashion. However, as was pointed out by Mahoney, JA. in Nader v. Urban Transit Authority of New South Wales (1985) 2 NSWLR 501 at 507-508, in making an assessment of the plaintiff's conduct:-

"It is relevant to have regard (inter alia) to two things: the foresight that such a child might be expected to show; and the prudence which he may be expected to exercise. The fact that the child was as young as he was is relevant because the appreciation which is to be expected of such a child of the risk inherent in what the plaintiff did is less than is to be expected of a mature person. And the prudence or judgment which should be expected of such a child is correspondingly less: see eg. McHale v. Watson [1966] HCA 13; (1966) 115 CLR 199 at 212."

I think it would reasonably be appreciated, by a child of the plaintiff's age, that there were risks of injury involved but, as Mahoney, JA. said in Nader, such a child may not be expected to appreciate the quantum of the risks involved. He would be expected to know that there was a real danger of injury, as distinct from, for example, the mere possibility, though he might be expected not to be able to appreciate fully the consequences if a possible injury occurred. Again, he would be expected to know that the injury could be serious. Mahoney, JA. went on:-

"Prudence is also relevant. An ordinary adult is expected not merely to appreciate the risks but also to have prudence, ie. the judgment to decide not to undertake those risks to which a reasonable person would not expose himself. Prudence is also affected by age. Experience shows that a young child may appreciate the existence of a danger but may not have the prudence or judgment to avoid it. And that, I think, is relevant in deciding whether the child was guilty of contributory negligence."

In my opinion, a child of the age of the plaintiff at the time of the accident might be expected to understand that it was not prudent to hurry across the road in the face of on-coming traffic, although he may not have appreciated the significance of the vehicles between which he passed as possibly obscuring a driver's view. He should have had some appreciation of the risk; and might be expected to exhibit some measure of prudence in determining not to run the risk; but having regard to his age, I would not assess his contribution to the accident as equivalent to that of the driver. In my opinion it is appropriate to apportion 20% of the fault of the plaintiff and 80% to the driver.

In reaching that conclusion I take into account the principles discussed in such cases as Talbot-Butt v. Holloway (Court of Appeal, unreported 5 October 1990); Cassar v. Government Insurance Office (Court of Appeal, unreported 14 November 1990); GIO v. Hare (Court of Appeal, unreported 28 March 1991) and other cases requiring consideration of the "causative potency" of the conduct of the parties respectively, and of the degree of departure of the parties respectively from the standard of care of the reasonable man (or in the plaintiff's case, the reasonable child).

I have taken account also of observations in the cases as to the extent of the obligation of care that is cast upon a driver driving in an area where the presence of young children ought to be anticipated: Cotton v. Commission of Road Transport & Tramways (1946) 43 SR 66 at 68-69; Mye v. Peters (1967) 68 SR 298; Mitchell v. GIO (1992) 15 MVR 369.

The plaintiff's father, although his opportunity to observe was in other respects limited, was in effect directly behind the plaintiff and close enough to see what happened to him when he was struck by the car. I accept his evidence that the boy was thrown up in the air and fell face down on the roadway surface. In those circumstances, it would not have been surprising had he suffered very severe injuries, but the fact is, as I find, that his physical injuries sustained at that time were comparatively minor. I shall come in a moment to the detail of them. He was taken by ambulance to Royal Alexandra Hospital for Children and was discharged the next day into the care of his parents.

The plaintiff sustained a bruise and abrasion to the left cheek, bruising of the left shoulder, and a laceration of the right heel which required four sutures. Notwithstanding that the plaintiff has continued to complain of frequent pain in the shoulder even up to the present time, I am not satisfied on the evidence that there is any organic basis for that. Indeed, as at 23 March 1985, the plaintiff's general practitioner, Dr. Aroney, thought that these injuries had "now practically cleared up", and I find as a fact that the plaintiff made in physical terms a complete recovery from the left cheek injury and the shoulder injury within, at most, a few months after the date of the accident.

Similarly the plaintiff complains of continuing pain in the region of the left heel, and it does appear from the evidence of Dr. Guirgis who saw him in December 1985, that at that stage there was some thickening of the retro-tendinous bursa which "might represent some sort of mild post-traumatic bursitis and could be a source of pain in that area". Dr. Guirgis gave no indication as to the likely prognosis for that condition, and there is no medical evidence to support the continued existence of any organic source of disability after the end of 1985. Certainly, Dr. Connelley in November 1991 found none. I am not persuaded that there is any organic cause for the plaintiff to have continuing pain in the right heel. I find that any problem there had ceased to exist as an organic problem within about two or three years after the accident.

The plaintiff's parents both gave evidence that the plaintiff often complains of pain in his back, both above and below the waist, but the plaintiff himself said in his evidence in chief that he now had no "pain in the main trunk of (his) body", although he did say that he felt, at the time of the accident, that he had an injury to his back. He made no complaint of such at the time when he was seen by Dr. Guirgis, and the first mention that I can find of any back pain in any of the medical reports is in Dr. O'Donovan's report of 18 February 1993. Presumably there had been an earlier complaint because he was able to produce x-rays of his spine, but there is no medical evidence of that, nor does it appear by whom, or when or why that x-ray was ordered. Dr. O'Donovan found no continuing disability; nor did Dr. T.J. Connelley in his report of 29 June 1993. The plaintiff has failed to satisfy me that he sustained any back injury.

By far the most serious of the plaintiff's physical injuries was to his teeth. The upper left central incisor tooth was avulsed; the upper right central incisor sustained minor damage. The upper left lateral incisor sustained a significant crown fracture. Dr. Wilson, in his report of 23 December 1992, records a complaint of pain (at that time) in two lower teeth, but the report of the United Dental Hospital, where the plaintiff was seen on 16 April 1985, provides no support for a claim that those teeth also were damaged in the accident, and I am not satisfied that there was any injury to them. Dr. Buchanan, who reported on the state of the plaintiff's teeth for the defendant, does not dissent from Dr. Wilson's view that the plaintiff requires future treatment, and that the preferred form of treatment is the installation of a fixed four unit bridge at an approximate cost of $4,000. I find that the plaintiff requires this treatment and the probability is that he will have it as soon as he is in a financial position to do so. Accordingly I will include in his verdict the full cost thereof without attempting to discount to a present value. The bridge will require replacement at intervals of 12 to 15 years. The plaintiff's life expectancy is about 49 years (Australian Life Tables, 1980-1982, reproduced in Luntz, Assessment of Damages, 3rd Edition at p.556). I allow the cost of three replacements, deferred respectively for 13, 26 and 39 years, and, using multipliers of .530, .281 and .149 respectively (five percent tables), the respective allowances are $2,120, $1,124 and $596. I therefore allow for future dental care the total figure of $7,840.

I accept the evidence that the injury to the plaintiff's teeth was a cause not only of pain and physical discomfort but of personal embarrassment to him in that it affected the manner of his speech and no doubt contributed considerably to his distress in the years immediately after the accident. Notwithstanding the treatment carried out at the United Dental Hospital in mid-1985, a degree of discomfort associated with his mouth injury, particularly discomfort with eating, has continued to the present time and is to be taken into account accordingly in the assessment of general damages. It will continue, I find, for a short time into the future pending the carrying out of the further dental treatment recommended by Dr. Wilson. However, to the extent that the pain and discomfort results from the condition of the two lower central incisor teeth, that is not, upon the finding that I have made, a matter for compensation in this action.

The final diagnosis recorded by the hospital at the time of the plaintiff's discharge was "closed head injury". The plaintiff's case, as particularised, included an allegation that he had suffered organic brain damage. I did not understand plaintiff's counsel at the trial seriously to press that claim although I have no note that he specifically abandoned it. In my view the plaintiff has not made good the allegation of organic brain damage. There is no reliable evidence of loss of consciousness. Although the histories given by the plaintiff's father to medical experts and others have on occasion asserted a quite lengthy (but variable) period of loss of consciousness, he said nothing of the sort in evidence. He did say that when he saw the plaintiff at the hospital, the plaintiff "had come to but he was very dizzy", but that amounts to no more than an assertion of the father's awareness that the boy was then conscious, and perhaps an assumption on his part that he had earlier been unconscious. The police report, which gives a brief description of the plaintiff's injuries, says nothing about loss of consciousness. The ambulance report records "no LOC". It appears from the statement of Mr. Karanikolas that he went to the boy immediately after the accident, evidently before the arrival of the ambulance, and the boy was not unconscious at that stage, responding when spoken to by the witness. The hospital, which surely would have been concerned to ascertain whether there had been a loss of consciousness, given the suggestion of a closed head injury, records no history of that. The hospital notes also record that there were no focal neurological signs. In the absence of even a fleeting loss of consciousness, the evidence does not support the probability that brain damage occurred. There is no medical evidence of it. The only evidence in support of it is an opinion expressed by a consulting clinical psychologist, Mr. Goard, who regarded the plaintiff's performance on a battery of psychometric tests as providing "definite evidence" that the plaintiff suffers from a significant degree of brain damage: but that view is not shared by another consulting clinical psychologist, Ms. Chadwick, nor do the medical experts interpret Mr. Goard's results in the same way. Mr. Goard, unlike Ms. Chadwick, seems not to have had the benefit of seeing the plaintiff's school reports, and seems to have been unaware of the plaintiff's pre-morbid IQ test results.

The school records show the following as the results of IQ tests prior to the accident:-

He had been tested by the Education Department after the accident and before Mr. Goard's testing of him, as follows:-

In a written submission, the plaintiff's counsel summarised the effect of the evidence as to the plaintiff's present state in a passage which (omitting argumentative assertions as to causation) I am content to adopt:-

"His behaviour and emotional reactions are seriously disturbed. He is depressed and severely withdrawn. He has no friends and stated he doesn't want any. He very rarely goes out of his house. If he does go out he never does so alone.

He is in a miserable state. He is unhappy, often angry and frustrated. He feels unable to do even simple tasks and does not have the motivation to try. He has trouble sleeping and his mother stated that he often speaks to himself and laughs to himself 'like an idiot'.

His anti-social behaviour, his anger and frustration, his refusal to speak, except in monosyllables, is the culmination of a gradual emotional deterioration. ...

He has essentially stopped functioning other than to eat, sleep and watch television.

He is emotionally unfit to cope with any activity which requires inter-personal skills. He is extremely withdrawn, at times unpleasant and unco-operative.

His body language, his appearance and his manner of speech all reveal his extreme limitations in relating to others.

His reactions to those who offer help appear hostile and the medical reports reveal that he does not wish to communicate. He does not want to talk to anyone and doctors are no exception.

His withdrawal into himself and his inability or unwillingness to relate to others renders it difficult for anyone to help him. His prognosis is thus extremely bleak and discouraging."

The plaintiff's presentation in court was entirely consistent with that description. He is totally apathetic, totally passive. He does almost nothing for himself in the activities of daily living and has become totally dependent on his parents, particularly his mother. Cross-examined about those matters, he described his headaches and his dizziness as the cause of his inability to look after himself, but I think that evidence was simply untrue, although it is possible that that is his perception. His complaint that he is physically disabled by reason of dizziness and headache is entirely at odds with his concession that when he commenced to attend Ashfield Boys' High School 1987, he was quite able to travel to and from school by train, and walk the necessary (albeit relatively short) distance at each end of the train journey. He was capable of doing the things which were required of him at school. He displayed various physical skills. It appears that the plaintiff's neurological state has been the subject of some medical investigation, in that there are several references in other reports to his having been seen by, and to the existence of a report from, Dr. Alastair Corbett, a neurologist. However, no evidence from Dr. Corbett has been adduced, and I have no hesitation in drawing the inference that any evidence which he might have given would not have assisted the plaintiff's case. I have no doubt that insofar as he now asserts a physical disability of any kind, his evidence is grossly exaggerated and totally unreliable. The picture painted in counsel's submission set out above describes the way he behaves; why he behaves thus is a different question.

The plaintiff's case does not include any report of a psychiatrist of any assessment of the plaintiff, other than a report of Dr. Rodney Milton containing his comments on the plaintiff's school reports, to which I will refer in due course. There is an indication in that report (dated 24 April 1993) that the doctor had reported previously, because the report acknowledges a letter "requesting additional comment". However, what may have passed between the doctor and the solicitors at any earlier stage is not before me, and in particular there is no indication at all that Dr. Milton had ever seen the plaintiff the plaintiff, and if so, when, and, with what history, with what other material available to him, nor of what opinion he may have had at that time as to the diagnosis and causation of the plaintiff's state. The psychiatric material tendered on behalf of the plaintiff is limited to a very brief note from Dr. Cassimatis who saw him on 14 March 1985 and the reports of Dr. Ann Cooper dated 21 March 1985 and 9 April 1985 to which I will refer a little later. No up-to-date psychiatric assessment was presented.

The defendant tendered a series of reports from Dr. J. Sydney Smith, the first, dated 13 March 1990 being based upon a consultation with the plaintiff on 1 February 1990 and the subsequent reports being by way of commentary on other information provided to him from time to time. In summary, his view appears to be that the plaintiff's aberrant behaviour is attributable to a combination of his disordered personality and his intellectual limitations. There is no doubt, as I read his reports, that he supports the proposition that the plaintiff is effectively unemployable.

It is the plaintiff's case that if the symptoms of which he complains (continued headache and dizziness, inability to study and learn, and a personality change manifested in displays of irritability, aggression, hostility and even violence) are not manifestations of brain damage then they are to be attributed to an emotional reaction to his accident and/or a consequent personality disorder, and compensable as such.

It is part of the plaintiff's case that, additionally to whatever direct effect the accident may have had upon his emotional state, his condition has been significantly aggravated by the reasonably foreseeable reaction of his parents to his injury and its consequences. In this part of the case, reliance is placed on the majority decision of the Court of Appeal in Nader v. Urban Transit Authority of New South Wales (supra, especially per Samuels, JA. at 504 and McHugh, JA. at 536).

To evaluate this claim it is necessary to trace in some detail the history of the plaintiff both before and since his accident. He was born in Australia on 15 August 1973, of Greek parents. At the trial, his parents required an interpreter in order to give evidence, and it seems that the language of the family home was Greek. For an uncertain period in 1978 and 1979, the family sent the child back to Greece to give him a grounding in the Greek language and he attended a school there during the academic year 1978/1979, during which he "presented an ability to adapt in the school environment, perfect (10) as well as the necessary maturity to enrol in the primary school" (according to a certificate dated 15 June 1979 issued by the First Pre-school at Patras). In the latter part of 1979 and the first term of 1980, he was apparently enrolled in Year One at Summer Hill Primary School, and from 31 March 1990 (the commencement of the second term of Year One) he was enrolled at Marrickville Infants' School. A school record which appears to be dated November 1980 reads:-

"Non-reader Y1, spelling 3/25. Christos is developing more confidence in academic subjects, but language is still a problem. His work is generally untidy but has shown some improvement. He dashes off his work and is very active, has to be watched. In term three, happier and more outgoing."

His attainments in respect of each of reading, language arts and mathematics were recorded as "weak/below average". He was required to repeat Year One in 1981 and his attainment in that year was described as "below average" in respect of each of those three criteria. The record reads:-

"Year One repeat 81. Reading - very slow - knows single sounds - can blend with help - some double sounds. Comprehension - poor - spelling - poor - improving. Language - oral - will not join in activities. Intensive ESL. Language - weak - needs encouragement. Mathematics - slowly improving. Presentation of work much improved - enjoys art, craft and sport."

In December 1981 this note was made as to his "development":-

"Well behaved - quiet - withdrawn - will not open his mouth to speak - has improved lately but can be quietly obstinate. Enjoys art and craft."

A general comment in respect of him, not dated, is that "skills depressed because only Greek spoken at home".

In 1982 he completed Year Two with a rating of below average on each of reading, language arts and mathematics, his attainments being summarised as follows:-

"Year Two - Christos still very reserved - doesn't try to participate. Holds back. Responds to praise - needs lots of it."

The same theme is repeated in notes on his progress during 1983 (Year Three). In July it was noted:-

"Very reserved, very rarely participates in any type of discussion, reading and numbers are poor."

"Extremely slow in all areas, has been recommended for OA placement."

It appears from the pupil record card of the Department of Education (which seems to track him through all his various schools) that he was recommended for OA placement in November 1983, and in Year Four (1984 - still at Marrickville Primary School) he was in an OA class throughout. Included in Exhibit D is a letter from the school to the plaintiff's solicitor which reports:-

"Chris Kaperonis was enrolled in the IM support class, formerly called OA. Students in these classes are placed there because they are experiencing learning difficulties. Teaching/learning activities for these students are planned in an effort to develop the potential of every individual and, as such, are not designed to be competitive. The fact that Chris Kaperonis had been placed in an IM support class would suggest that he was experiencing some intellectual retardation. We have no record of either a deterioration in classroom and playground co-operation or work habits."

An earlier letter records that it was in term two of 1984 that the plaintiff was transferred from the regular class to an IM class.

"Slight improvement in his confidence in resource group. Christos tries very hard but has difficulty in most areas."

Throughout 1984, the school reports include comments such as:-

"Still not concentrating or working to his ability - rarely speaks at all - still experiencing many difficulties."

Grades for effort are almost all D ("inconsistent worker").

"Christos has improved greatly this year and settled in well to the OA."

Again in 1985, when he moved into Year Five, he was enrolled in an OA class. That was his position at the time of the accident.

The plaintiff claims that he was a good student who used to enjoy school and that he was in medium level classes. Asked whether he was fairly bright, he said:-

He claimed not to remember having had to repeat a year and not to remember having been in an OA class before the accident. He denied that he had been a poor student and a slow learner. That may be his present recollection, but in light of the school records I find that evidence quite unreliable and unacceptable.

The school reports which were tendered were originally in no particular order but an attempt was made by the plaintiff's solicitor, (though not until I requested that that be done during the trial) to place them in chronological order. That was a difficult task (especially in haste at that late stage) because not all of the reports bear dates and it is necessary to have regard to internal evidence to assign a date to them. One report has written on the front of it 1985 and internal evidence that it was completed in November of whatever year. Examination of it shows, however, that it is a report from the Marrickville School, not the Ashfield School so that it must have been written in November 1984 and is the last report on the plaintiff prior to his accident. (It is possible that it was written in November 1983, which is how Dr. Milton seems to have understood it, but comparison with other 1983 and 1984 comment seems to indicate November 1984 as the more probable date). This reports contains the following comments on the plaintiff's progress in particular subject areas:-

Comment - "Christos should learn his words each week."

Comment - "More care is needed to produce neater work."

Social Studies/Natural Science - Grade 2 (indicates "above average progress")

Comment - "Christos had made great progess in number work."

It is recorded that he borrowed books from the school library and that no allowance need be made for the fact that he had a limited knowledge of English at that time. The report records "satisfactory participation" in music, art, sport, drama and physical education, the last being accompanied by the comment, "Christos loves soccer". Under the heading "Social and Personal Development" it is recorded that he "usually" "produces careful work", "takes pride in book work", and "shows self-control"; and that he "always" "works well independently", "works well in groups", "listens attentively/follows instructions", "respects rights of others", "is courteous", and "accepts responsibility". The teacher's comment is:-

"I have seen a great improvement in Christos' work and his attitude to school. If this continues next year I will expect even better academic results. Christos is usually a well behaved, police pupil."

That report must, of course, be read in the context that he was placed in an OA class.

The plaintiff's parents claim to have been under the impression that he was progressing satisfactorily at school before the accident, the plaintiff's father claiming that the plaintiff was about the middle of his class and denying (at least initially) that he had been placed in an OA class prior to the accident. He endeavoured to convey that the plaintiff had required special enrolment in an OA class only after the accident, and because of his injuries, but eventually conceded that he had been placed in an OA class before the accident. However, he then maintained that that was not because of poor academic performance or special learning difficulties, but simply for administrative reasons, to make up the numbers in the class. I reject that evidence. It may well be the present recollection of Mr. Kaperonis but it is clearly at odds with the plaintiff's record in the pre-accident years.

Following the accident, the plaintiff was detained overnight at the hospital but discharged the following day. His father's evidence that he came home "after a few days" is clearly inaccurate. He was away from school for a relatively short time; the evidence does not establish precisely how long. Certainly he was back at school before 14 March 1985, on which date he was seen by Dr. Cassimatis. The plaintiff's father gave evidence that the boy was "very dizzy" whilst he was in the hospital and that the complaint of dizziness continued during his first week at home and has continued to the present time. On 23 March 1985, Dr. Aroney reported the plaintiff's father as saying:-

"The boy is dizzy all day and night, he is not so good at school - takes half Mogadon at night and has a constant headache."

Dr. Aroney pointed out that there was no neurological or other objective evidence to support that, and thought that the boy would make a full recovery. Perhaps because of the absence of neurological support for the plaintiff's complaint and perhaps at the instigation of the plaintiff's father, it seems Dr. Aroney referred the plaintiff to Dr. Cassimatis, psychiatrist, who saw him on 14 March "for medico-legal assessment". Dr. Cassimatis recorded the plaintiff himself as saying:-

"That he had been dazed and forgetful for a week or so, but having returned to school, felt that he was back to functioning as his normal self, except for some somatic symptoms.";

"... was insistent that his personality had changed and that Chris was more forgetful than before."

Arrangements were made for the plaintiff to see Dr. Cassimatis again a month later; but there is no further material from him. The discrepancy between the plaintiff's own account, and his father's account of his symptoms may be explained, as Dr. Cassimatis seemed prepared to do, by recognising the possibility that the plaintiff himself was unable to objectively observe and assess his own condition, but it is difficult to rely entirely on the plaintiff's father's present account, for his evidence reveals a tendency to exaggerate the seriousness of the plaintiff's condition at any time, and undue willingness to advocate the plaintiff's case. However, the fact remains that during the early period after the accident, the plaintiff's father was consistent in his account to various doctors, that the plaintiff complained of dizziness; and on the whole I am persuaded that that was the case.

On 21 March 1985, the plaintiff was seen (on the referral of Dr. Aroney) by another psychiatrist, Dr. Ann Cooper, and she recorded the complaint of dizziness as made by the plaintiff himself. Her impression was that the plaintiff was a:-

"... somewhat anxious and inhibited young boy. His dizziness and insomnia appear to be related to anxiety symptoms."

She recorded that she obtained, on 9 April 1985, the history from the parents that the plaintiff's mother had a long history of dizziness and anxiety symptoms, for which she had been on medication for several years and had recently seen a psychiatrist. The unreliability of Mr. Kaperonis, senior's evidence is emphasised by his unwillingness to concede that history. However, that is clearly what was conveyed to Dr. Cooper. She also recorded that Mrs. Kaperonis had been worse since the date of the accident, with increased dizziness, insomnia and soreness on the left side of her head. She had suffered a substantial shock because some children came to her home immediately after the accident and told her that her son was dead. Dr. Cooper concluded that the mother's chronic anxiety, in which she exhibited symptoms similar to those displayed by the plaintiff, and an exacerbation of that anxiety as a result of his accident, were more likely to be the basis of most of the boy's symptoms than the accident itself and she commented that:-

"Prognosis is poor if Mr. and Mrs. Kaperonis continue to focus attention on the accident. I am relieved to hear that Mrs. Kaperonis is seeking psychiatric treatment as I feel Chris' symptoms will settle as Mrs. Kaperonis' symptoms settle."

On 9 September 1985, Dr. Aroney made the following note:-

"Still has the effects of the accident - dizziness - he takes Mogadon for sleep - can't learn at night and cries and jumps about at night. He also says he is frightened of cars - has the shakes - doesn't eat and has nerves. His left leg and left shoulder are painful as is the place in his mouth where two teeth were knocked out."

In fact the plaintiff claims a continuation of his insomnia and dizziness to the present day. The medical evidence led in his own case is grossly deficient. There is material before me to indicate that the plaintiff himself has refused, since about 1993, to attend for any further medical examinations in connection with his case, an attitude which has been reinforced by his parents; but that does not explain the almost total lack of medical evidence after September 1985. He seems at some stage to have been under the care of a general practitioner, Dr. Kefaloukas, but a very brief handwritten report from that doctor dated 22 July 1991 contributes little to an understanding of the case. Apart from that, there is a dental report obtained for medico-legal purposes, the two reports of the psychologist, Mr. Goard to which brief reference has already been made and the report from Dr. Milton dated 24 April 1993 which, as already observed, consists of a review of the plaintiff's pre- and post-accident school reports but does not indicate that Dr. Milton had ever seen the plaintiff.

In effect, the plaintiff's case from September 1985 depends entirely on the evidence of the plaintiff and his parents as to his progress. I have dealt already with their evident misconception about the plaintiff's school progress before the accident. They endeavoured to convey that from the time of the accident the plaintiff's personality and behaviour had changed entirely and that the deterioration in him was continuous from the time of the accident and uninterrupted. Allowing that that may be now their genuine recollection in the light of the fact that he is now in a very sorry state indeed, it simply does not accord with such other evidence as is available, and in particular again his school records.

It appears that very soon after the accident the family moved from the Marrickville address to other Housing Commission accommodation at Croydon and the plaintiff had to change schools. On 10 April 1985, he was enrolled in Year Five at Ashfield Public School, again in an OA class. The records are fragmented and not always clearly dated. I have been unable to identify any report relating to the 1985 year but the records certainly seem to show during 1986 rather an improvement than a deterioration in his class work and in his personality. Of course it is necessary to be careful in comparing the opinion of a new set of teachers at Ashfield with those who had the plaintiff in their care before the accident at Marrickville, but what does appear to be established is that in the opinion of the Ashfield teachers the plaintiff was making recognizable progress during 1985 and 1986.

The end of year report (1986) includes this comment by his teacher:-

"Christos has worked well throughout the year. It was a pleasure to see how much his spelling, language and reading have improved. He is taking part in class activities a lot more. I feel he has gained more confidence in himself, this term. His book work is very neat and tidy, something to be proud of. I am sure he will settle down well to high school. Good luck in 1987 Christos."

The claim that the plaintiff sustained intellectual impairment and a personality change by reason of the accident appears to me to be difficult to sustain on the evidence. One relevant factor is the plaintiff's performance on IQ testing after the accident as recorded by Mr. Goard and Ms. Chadwick. Test results were as follows:-

(with the tester doubting whether the plaintiff was co-operating and trying to give his best performance).

(again with indications of malingering, according to Ms. Chadwick).

It is sufficient to say that I accept the evidence of both Dr. Milton and Dr. Sydney Smith that the school reports do not support that there was any alteration in basic intellectual ability attributable to the accident - indeed his class performance seems to have improved in 1986. Likewise, I accept the opinion of those doctors supported by my own examination of the school reports that before his accident the plaintiff was shy and anxious and not much given to initiating activity or participation and that there is no evidence of any change in those respects having occurred sufficiently proximate to the time of the accident to be attributed to it. The plaintiff's parents conceded in the course of cross-examination that it was really not until the boy commenced high school (Ashfield Boys' High School in 1987) that behavioural problems (which I have summarised earlier as manifestations of irritability, hostility, aggression and violence, to which I should also add truancy) became apparent. Dr. Milton was prepared to say that the plaintiff's pre-accident personality was such that he would have been vulnerable to trauma, particularly in view of his home background and therefore that it was probable that the accident had an overall detrimental emotional effect upon him, contributing to his present and ongoing difficulties. Dr. Milton said that:-

"His current poor performance is principally a result of his low intellectual ability and a pre-existing anxious, reticent and shy personality. Given his vulnerability as noted above, I regard the accident as contributing one-tenth to one-fifth his present disadvantaged state."

In the absence of any report by Dr. Milton of any actual interview with the plaintiff and any description of what in Dr. Milton's opinion was "his present disadvantaged state" I find it impossible to place any weight upon that opinion.

Dr. Smith, on the other hand, noted the absence of any indication of any dramatic change in his personality after the accident, the notation in the school records that he settled in very well in his new school after the accident, the absence of any indication of a behavioural problem in 1986 but the onset of behavioural aberrance in 1987. I accept Dr. Smith's opinion that if the accident was a significant cause which acted upon his vulnerability then the effects should have been immediate and any behavioural problems should have become immediately evident.

Weighing the whole of the evidence, I am of the view that the plaintiff has failed to establish that the accident has produced any adverse consequences (whether by direct cause, or its operation upon a previously vulnerable personality) in terms of any lasting emotional reaction, any intellectual or cognitive change, and any personality disorder. To the extent that the plaintiff suffers from intellectual or cognitive deficits, I am satisfied that they pre-existed the accident. To the extent that he suffers from personality problems and behavioural problems, I do not find that those are contributed to by the accident.

That last stated finding involves rejection also of the contention that, in the manner validated in Nader's case, the plaintiff's condition may be indirectly attributable to the accident because it is a result of his parents' response thereto. What Nader's case really establishes is that a reasonably foreseeable response of the parents to the plaintiff's accident is to be regarded as a reasonably foreseeable consequence of the accident itself, so that any damage flowing from the parents' reaction is not too remote to be the subject of compensation to the child; but that it remains a question of fact as to whether the accident was the cause in fact of the plaintiff's disability. I would not understand anything in that case to detract from the basic proposition that the plaintiff may only recover for such symptoms and disabilities as were the result in fact of the defendant's negligence. McHugh, JA. emphasised this at p.530:-

"Proof of a causal connection between the plaintiff's injury and the defendant's negligence is a fundamental element in an action for damages for negligence. Liability arises, however, upon the plaintiff simply showing that the defendant's negligence was a material contributing cause ... Causation involves two elements. The plaintiff must prove as a pure question of fact that the defendant's negligent conduct caused his injury and that the damage is one for which the defendant bears legal responsibility. Causation in fact is to be determined, not according to scientific or philosophical theories of causation, but by 'common sense principles' ..."

In that case, the Court of Appeal held that the trial judge should have found on the evidence that the Ganser Syndrome from which the plaintiff suffered was caused in fact by the accident, albeit the causative link was not direct but passed indirectly through the parents' reaction. Here the evidence fails to satisfy me that the plaintiff's current and continuing intellectual state was caused by the accident and fails to satisfy me that any personality disorder from which he may now suffer or may thought to have suffered during any period since the accident was caused by the accident either directly or indirectly. The evidence does not support the proposition that his personality defects and consequent aberrant behaviour manifested in 1987 was caused directly by the accident or was in any way a result of his parents' reaction to the accident. It is true that in April 1995, Dr. Cooper was concerned that the attitude of the plaintiff's parents might produce adverse consequences in their son, but the evidence of the school reports does not support the proposition that any conduct of or attitude manifested by the plaintiff's parents had any deleterious effect upon him during 1985 and 1986. It is possible that their attitude (which I might summarise as over-protectiveness, and an undue willingness to accede to even his must unreasonable requests or whims) has reinforced the adverse consequences of his intellectual limitations and deficient personality, but inasmuch as those conditions are not themselves shown to be a consequence of the accident, there is nothing in the evidence nor in the decision of the Court of Appeal in Nader which should lead to a conclusion that there is any compensable element in the plaintiff's ongoing intellectual and personality disabilities.

It appears to me that so much of his condition as may be described as an anxiety syndrome requires separate consideration. The manifestations of that syndrome I take to be his complaint of, and the parents' description of him as, feeling anxious, his insomnia, his complaint of dizziness, and his complaint of headache. To the extent that those things existed in the period of a year or so after the accident I am satisfied that a connection with the accident is shown which is probably a connection that involves both direct and indirect (through the parents) elements. Those anxiety symptoms were not identified as a feature in his condition by Dr. Milton in April 1993. Nor were they the subject of complaint to Dr. O'Donovan who saw the plaintiff on behalf of the defendant on 18 February 1993, nor do they form part of the complaints recorded by the plaintiff to Dr. T.J. Connolly in May 1993. The brief report from Dr. Kefaloukos of 22 July 1991 refers to the plaintiff as "a very silent and withdrawn individual" but makes no reference to anxiety symptoms. Dr. Smith on 13 March 1990, recorded a continuing complaint of dizziness and headache, but on the other hand, in response to specific enquiry was told that anxiety was not a feature of the plaintiff's condition. Certainly, anxiety, as distinct from dizziness or headache which could be symptoms of an anxiety state, was not part of the plaintiff's complaints to Dr. Smith, and I am satisfied that any anxiety state which may previously have existed, as a consequence of the accident, had long since resolved. Indeed, the probability is that it had resolved within a year, given his relatively good progress at school, particularly in 1986.

I am satisfied that the plaintiff is to be compensated upon the basis that the accident did precipitate in a previously vulnerable individual an anxiety state which persisted for at most about a year after the accident but which is no longer manifested. I am satisfied that the accident did not cause brain damage or any intellectual cognitive or personality change.

I turn therefore to the assessment of the plaintiff's damages. Clearly the consequence of the findings I have made is that the assessment will not be very substantial. In particular it follows that the claims for a loss of earnings from the time when the plaintiff left school to date and into the future and for the cost of personal care is to be rejected entirely.

The claim for the likely cost of fund management must also be rejected for, assuming that the plaintiff is not capable of administering a fund in his own best interests (as, on the evidence, I would be prepared to find) that incapacity is not, on the findings I have made, a consequence of the accident: Nominal Defendant v. Gardikiotis (High Court of Australia, unreported 24 April 1996).

The claim is reduced to one for the shock and trauma of the accident itself, the pain and suffering associated with that event and experienced by the plaintiff over the next few months, diminishing over the next couple of years with some allowance for the anxiety and distress manifested in his early complaints to the doctors, particularly the pain, discomfort and embarrassment associated with the injury to his teeth, which will, as I have found, continue until the necessary treatment is completed, together with as much pain as discomfort as is associated with the carrying out of that treatment in due course. The claim consists only of out of pocket expenses, an allowance for the future cost of dental treatment, and a relatively modest award of general damages. The out of pocket expenses are agreed at $3,394. I allow for future dental treatment the sum of $7,840. I allow by way of general damages the sum of $35,000.

I assess the plaintiff's damages at $46,234. The plaintiff claims interest and is entitled to interest on portion of the amount awarded for general damages. For the purpose of calculating that interest, it is necessary to apportion the sum of $35,000 between past detriments and future detriments. I apportion the sum of $30,000 to the past and in respect of the period of 11.3 years from the date of the accident to date, I allow interest thereon at the rate of two percent per annum, an amount for interest of $6,780. In respect of the balance of the award which relates to the future, no interest is payable.

The total of the plaintiff's entitlement, for damages and interest, but subject to contributory negligence, is $53,014. Having regard to the finding of contributory negligence, there will be judgment for the plaintiff for 80% of that figure, that is to say for $42,411.20.