Foster v Prospect County Council [1999] NSWSC 191 | Case summary

Foster v Prospect County Council [1999] NSWSC 191 | Case summary | Zoe

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1 MASTER: The plaintiff who was employed by the defendant as a linesman seeks damages for personal injuries he suffered in an accident which occurred at work on 2 July 1990. Liability is in issue. At the hearing the plaintiff, his wife Winifred Ann Foster, Dr Craft, Dr Pauline Langekluddecke and Mr Warner gave evidence and were cross examined. The defendant has cross claimed against CIC Insurance Limited (cross defendant) seeking indemnity. The cross defendant has filed a second cross claim against the defendant seeking contribution. 2 The plaintiff was born on 7 March 1960 and was aged 30 years at the time of the accident. He is now 39 years old. The plaintiff's solicitor is taking steps to have the Protective Commissioner appointed to manage the plaintiff's affairs. The verdict moneys are to be paid into court pending the appointment of the Protective Commissioner. 3 I shall refer firstly to liability; secondly to whether the Motor Accident Act or the Workers Compensation Act applies; thirdly to the plaintiff's history prior to the accident; fourthly to the plaintiff's condition and work history after the accident; fifthly to non-economic loss; sixthly to past and future economic loss including superannuation; seventhly to care both past and future and respite care; eighthly to future medical expenses and lastly to fund management, Fox v Wood and out-of-pocket expenses and costs. Liability and contributory negligence 4 I turn to the issue of liability. The plaintiff was employed by the defendant as a linesman. On 2 July 1990 an emergency officer employed by the defendant discovered that the traffic lights at the corner of Briens and Kliens Roads Northmead (the accident site) were not working. He discovered that the A phase fuse on the eastern low voltage feeder from substation No 6 in Kliens Road had failed. The emergency officer fixed the fuse and left it hanging down in the open position. That officer left the work site at 2.25 pm before the district line crew arrived. A dispatch officer called a district line crew to the site to replace the broken cross arm on the power pole. The work group leader was Mr Norman Lidbury and the crew comprised lineworkers Mr Peter Warner and the plaintiff and electricity workers Mr Peter Jacques and Mr Robert Scott. When the crew arrived on the site the traffic lights were out. The work group leader was not informed that the B and C fuses were live, hence the other workers were also unaware that these phase fuses were live. 5

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After the accident, the condition of the lamps used by Mr Warner was checked twice in the normal manner and found not to be working. After a close inspection of the lamp used by Mr Warner was made and checked by Mr Lidbury, it was discovered that the globe on the series side of the switch had a filament broken and as the 2 globes are in series, the lamp would not work (Ex B p 4). 10 Not long after the accident the defendant requested that an additional test be performed on the lamps to test for a current. Different equipment with a buzzer and a light were used to test the current (t 193). 11 The plaintiff submitted that the defendant failed to provide a safe system of work; failed to provide some safe plant and appliances; failed to switch off the current in all power lines within reasonable proximity of the area where the plaintiff was working so as to prevent him accidentally touching a live power line; failed to warn the plaintiff of the location of all power lines which contained electric current at the time when he was performing his work and of the necessity to avoid them and failed to supervise the plaintiff and instruct him adequately at all times as to the dangers which he faced and the possibility of injury and the emergency officer did not communicate or caused to be communicated to the work crew that the fuses were live. In addition the plaintiff submitted that the defendant failed to comply with Regulations 16, 21, 22, 23, 30 and 34 (ii)(c) of the Overhead Line (Workers) Regulations 1964 and clauses 4.4 and 4.5 of the Electrical Safety Rules . 12 The defendant submitted that firstly the work involved danger; secondly the normal procedures were carried out by the defendant's employees; thirdly that if there was a fault in the test lamp, the testing method adopted was not foolproof and fourthly the risk of injury was not foreseeable. 13 I turn to the issue of negligence. The defendant investigated the accident and determined that the replacement of the cross arm could have been carried out by one of two methods, firstly by isolating supply and danger tagging the isolation points in accordance with Rule 4.5 of the defendant's Electrical Safety Rules and secondly by using the live line method in accordance with Regulation 22 of the Overhead Line (Workers) Regulations . Clause 4.5 of the defendant's Electrical Safety Rules provide that when low and medium voltage mains and apparatus are to be made not alive to enable work to be carried out such mains and apparatus shall be isolated from all possible sources of supply and proved not alive. 14 The defendant determined the accident was caused by non-compliance with Regulation 22 of the Overhead Line (Workers) Regulations and by non-compliance with Clause 4.4 of the defendant's Electrical Safety Rules . The report also pointed out that an assumption was made by the crew that the mains were not alive and no attempt was made to check isolations and secure these isolations by placing district danger tags. 15 The plaintiff tendered a report of Associate Professor T R Blackburn of the School of Engineering at the University of New South Wales. The defendant did not rely on such a report and Associate Professor Blackburn was not cross examined. According to Associate Professor Blackburn, the test lamp was faulty in that one of the lamps had a broken filament. This would have prevented any glow in the lamps whether there was voltage present or not, because the two lamps were connected in series and the broken filament meant a break in the continuity of the test circuit. The report concludes that phases B and C were obviously live and therefore the plaintiff must have sustained a voltage of 415 volts across his arm, between the armpit and the hand. Despite the relatively limited spacing of the contact points on one arm, the effect of the current flow would have covered the whole body because of the electrical conductivity of the blood system. Mr Warner's uncontested evidence supports this view as he stated that the touching of two phases at one time created a circuit (t 190). Associate Professor Blackburn says that the electric current would have affected the plaintiff's heart action and cause ventricular fibrillation with consequent loss of blood circulation. 16 According to the report of Associate Professor Blackburn the primary cause of the accident was the failure of the test instrument to detect that the conductors were live. He says that the tester was not fault proof. It is his opinion that had the test unit been tested both immediately before and immediately after its use on the pole, it would have reduced considerably the possibility of the tester being seen as satisfactory in its condition with a broken filament. However he is not certain that if testing was done before and after its use on the pole, the test results would have differed. He identified other deficiencies namely that there was a lack of communication in that the emergency services officer did not inform the crew either directly or indirectly that the lines of phases B and C were not isolated at the substation whereas A was. 17 Associate Professor Blackburn stated that had the plaintiff been wearing insulating gloves or long sleeves of a clothing material which had some insulating properties the accident may not have occurred but he acknowledged that as the test indicated that the conductors were not live, the plaintiff and Mr Warner did not have any reason to resort to such measures. 18 Nor did he think that the EPV (cherry picker) played a role in the accident. According to Associate Professor Blackburn it was immaterial whether the bucket was earthed or not because the current flow path did not involve any earth connection. The plaintiff's arm made contact with two separate phases and thus the current flow which caused the shock was able to flow from one phase conductor to another via the plaintiff's body without requiring any earth connection. I accept Associate Professor Blackburn's opinion as outlined above. 19 In relation to the lack of communication, if the emergency officer had communicated with the district line crew, the accident would not have occurred. However, there were procedures in place that the crew was supposed to follow. They were to test for whether the phases were live. If the phases were live, then an employee's body (excluding his or her arms) were not to come within 0.6 metres of a conductor of live low voltage wire unless the conductors were permanently or temporarily covered with insulating material. Where the employee was working aloft, if the conductor was not permanently or temporarily insulated, then the employee had to wear at least one insulating glove. In these circumstances the emergency or dispatch officer, in failing to notify the crew that the B and C phases were live, would not have foreseen that his

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or her conduct involved a risk of injury to the emergency crew of which the plaintiff was a member. The lack of communication between the emergency officer and the crew does not, in my view give rise to a finding of negligence. 20 It must be remembered that working with electricity is inherently dangerous. However, does the failure by the defendant to test the lamps both before and after being used on the conductor constitute negligence? There is no doubt that the defendant considered that testing the lamps before and after being used on a conductor was important. It has put into place a specific safety rule on this topic. Clause 4.4 of the defendant's Electrical Safety Rules provides that low and medium voltage mains and apparatus shall be proved not alive by means of approved test lamps, voltmeters, or other approved equipment. This test equipment shall be proven to be in good working order immediately before and after use by testing a known "live" circuit. The testing of the test lamps to be done both before and after testing has taken place on a live circuit. This rule does not distinguish between high and low voltage overhead lines. The work group leader did not ensure that the test lamps were pre-tested and he should have done so. The defendant did not comply with this safety rule as it did not cause a test to be carried out on the lamps prior to using it to test the current. The defendant's investigation cited non-compliance with this rule as a cause of the accident. 21 I have also accepted Associate Professor Blackburn's view when he stated that had the test been conducted immediately before and after use on the pole, it would have reduced considerably the possibility of the tester as being seen as satisfactory in its condition with the broken filament. It is my view that had the lamps been tested to see if they were working prior to them being used to test whether the conductor was live, it is more probable than not that it would have become apparent that the tester was not working properly. 22 It is reasonably foreseeable that if a low voltage lamp was not tested before and after use on the conductor it could not be ascertained whether the lamps were working properly. This created a real risk of injury to the plaintiff. The magnitude of the risk cannot be said to be far fetched or fanciful. As a response to the risk the defendant could have used different equipment, namely testing equipment that consists of both a lamp and a buzzer. If a filament in the globe was broken, a buzzer would alert employees that there was a live current. Alternatively, the plaintiff's employer could have required the plaintiff to wear an insulating glove and/or protective clothing. These are a relatively inexpensive and practical steps that could have been taken in response to the risk. The buzzer and lamp tester was used by the defendant some time after the accident occurred. The defendant breached the duty of care owed to the plaintiff. This breach of duty of care caused him to be electrocuted and suffer serious injuries. 23 It was not submitted that contributory negligence should be attributed to the plaintiff. In any event, the plaintiff had been told by his supervisor that the circuit was not live and he carried out his tasks in accordance with that direction. Hence, no contributory negligence should be apportioned to the plaintiff. 24

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I turn to consider whether there were breaches of the statutory duties referred to earlier in this judgment. In s 37(1) of the Electricity Act 1945 (formerly known as the Electricity Development Act) (the Act ) enables the Governor to make regulations in relation to the safety of persons employed by electricity supply authorities in connection with the generation, transmission, distribution or supply of electricity or of persons engaged in the installation of electric wires, cables, appliances, meters, fittings, insulators or apparatus in, on, under or over any place or premises whatsoever. The regulations in pursuance of the Act in force at the time of the accident were the Overhead Line (Workers) Regulations . These regulations were repealed on 28 August 1992. The Overhead Line (Workers) Regulations are intended to cover persons employed by the electricity supply authorities such as the plaintiff and electricity supply authorities such as the defendant. The plaintiff was working on low voltage lines as defined in Regulation 6 of the Overhead Line (Workers) Regulations . The purpose of the regulations are to ensure the safety of these employees when working with electricity. 25 Regulation 16 of the Overhead Line (Workers) Regulations 1964 states that an employee shall wear suitable protective clothing while working within 0.6 metres of a conductor of a low voltage line. This regulation creates an obligation upon the employee not the employer. Hence it does not appear that the defendant breached this regulation. 26 Regulation 21 states that an employee shall not pass between the conductors of a live low voltage overhead line at any point where the conductors are spaced less than 1.2 metres apart unless the conductors immediately next to his body are permanently insulated or temporarily covered with suitable insulating material provided by the employer, a distance of 0.6 metres in each direction from the point nearest to the employee's body on each conductor. This regulation creates an obligation on the employee not on the employer not to pass between the conductors of live low voltage less than 1.2 metres apart unless they are insulated, albeit there is an obligation on behalf of the employer to provide suitable insulating material. The defendant has not breached this regulation. 27 Regulation 22 states that an employer shall not permit or require an employee to, and an employee shall not, work aloft on, or within 0.6 metres of, any conductor of a live low voltage overhead line unless any part of a conductor (except the conductor on which he is working) within 0.6 metres of any part of the employee's body other than his arms is permanently insulated or temporarily covered with suitable insulating material provided by the employer; or the employee wears at least one insulating glove and occupies such a position that no part of his body, other than his forearms, is at or above the level of any conductor of the live line which is within 0.6 metres of any part of his body other than his arms and which is not permanently insulated or temporarily covered with suitable insulating material provided by the employer. For the purpose of this regulation, if the work to be carried out is work of an operational nature the bare live parts of low voltage fuses or links need not be temporarily covered with insulating material if the employee wears at least one insulating glove. This regulation creates an absolute statutory duty on the employer. The plaintiff's body was not permanently insulated or temporarily covered with suitable insulating material nor was he wearing at least one insulating glove. The plaintiff was working within 0.6 metres when he leant his arms and body over to reach the B phase. The defendant in its own investigation cited that the accident and the plaintiff's injuries were caused by non-compliance with this regulation. The duty was an absolute one. The employer through its employees breached this regulation. 28 Regulation 23 provides that where a low voltage overhead line has been isolated from all sources of supply to permit the carrying out of work the employer shall not authorise the work to be commenced unless such line has been tested and proved that it is not alive. The A phase of the overhead line had been isolated from all services of supply. However, the B and C phases were not. The duty on the employer is an absolute one. The line was not proved "not alive". The defendant has breached this statutory duty. 29 Regulation 30 provides that test equipment be checked to prove operation both before and after use on an unknown circuit. This regulation appears in Part V of the Regulations which is headed "High Voltage Overhead Lines" and appears to relate to high voltage overhead lines. The plaintiff was working on low voltage lines so this regulation does not apply to this situation. 30 Regulation 34 provides that the employer is required to provide low voltage test lamps and these items are to be kept in good repair and the employer shall cause a check on the condition of the equipment at intervals not exceeding six months. The equipment is checked every six

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"The insurer insures the owner of the motor vehicle and any other person who at any time drives the vehicle (whether or not with the consent of the owner) against liability in respect of the death of or injury to a person caused by the fault of the owner or driver of the vehicle in the use or operation of the vehicle in any part of the Commonwealth (whether or not on a public street)." 33 In Central West County Council , Powell JA stated that he accepted that the test posited by the words 'arising out of' is wider than that posited by the words 'caused by' and the former, although it involves some causal or consequential relationship between the use of the vehicle and the injuries, does not require the direct or proximate relationship which would be necessary to conclude that the injuries were caused by the use of the motor vehicle. However, the authorities demonstrate that not all acts upon, or in relation to a motor vehicle involve the use of that motor vehicle. In the case before me it must be demonstrated that, at the relevant time, the elevated work platform vehicle was in use and that use caused the plaintiff's injury. His Honour in Central West County Council analysed the reasoning of Dixon CJ, Windeyer J and Menzies J in Government Insurance Office of New South Wales v King (1960) 104 CLR 93 and Meagher JA's interpretation of Dixon CJ's reasoning in Handford . His Honour referred to the decisions of the High Court in GIO of New South Wales v R J Green & Lloyd Pty Limited (1965) 114 CLR 437 and Commercial & General Insurance Co Limited v GIO of New South Wales (1973) 129 CLR 374 and noted that in State Government Insurance Commission v Stevens Pty Limited (1984) 154 CLR, 552, 555, 559 Murphy, Wilson, Brennan and Deane JJ in the course of their judgment said: "The wide scope of a policy in similar terms was emphasised by Barwick CJ in Green & Lloyd , when, in referring to the statute in question in that case, he said: '…The Act is not limited to the use of a vehicle in or upon public thoroughfares or to its use in movements: and that in choosing the expression 'the use of the motor vehicle' as the basis for the requirement of a policy of insurance and for the delimitation of the area of indemnity to be obtained, the Act indicates an intention to cover a very wide field, a field more extensive than what might be called the traffic use of the motor vehicle.' That passage was cited with approval by the Court in Commercial & General Insurance . Notwithstanding the breadth of the phrase which is suggested by these principles, while conception of use of a vehicle is not without limits related to the character of the vehicle: see Harvey Trinder (NSW) Pty Limited v Government Insurance Office (NSW) ((1966) 114 CLR 449) and Government Insurance Office (NSW) v King ((1960 104 CLR 93). In the later case Dixon CJ said: 'But there is in my opinion a distinction between using a car and putting it in order for some subsequent use. This broad distinction may sometimes be difficult to apply because so many things are incidental to or arise out of the present use of a motor vehicle which is isolated from the circumstance might look as if the use of the vehicle had been abandoned or suspected for the purpose of repairing or adjusting it. But it must always be kept in mind that all the incidents attending the actual use of the vehicle form part of its use.'" 34 In NRMA Insurance Clarke JA (with whom Priestley and Powell JJA agreed) stated that the test by which it is determined whether indemnity is afforded under the terms of the policy involved three separate considerations namely, firstly whether it has been established that the owner or driver of the vehicle is at fault - that is, to adopt the definition in s 3, whether the evidence establishes that the owner or driver was negligent or had committed another tort?; secondly if the first question is answered "Yes", whether the fault of the owner or driver caused the death of or injury to the person who has claimed?; and thirdly if the answer to the two preceding questions is "Yes", whether the fault of the owner or driver was "in the use or operation of the vehicle". Clarke JA stated obviously it is not any fault of the owner or driver which will enliven indemnity under the policy. It is only the use or operation of the vehicle which will give rise to a right to indemnity. 35 and at page 9 Clarke JA continued: "There remains the final question, whether the plaintiff's injuries were caused by the owner's fault in the use of the vehicle? That is a question of fact which cannot be resolved by the application of a simple test. In some cases it will be relatively clear whether the fault was in the use of the vehicle. For instance, where the fault lies in the driving of a vehicle. Again where an owner's employee negligently secures a load on a truck so that part of it falls off during a journey and injures another person it is clear enough that the owner's fault would be 'in the use or operation of the vehicle'. They are both cases where the negligence occurs in the actual use of the vehicle. Where, however, the owner is negligent in some aspect of an operation incidental to the actual use, such as the loading, the position is not so clear. It is settled that 'the incidents attending the actual

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in a zone in which the danger (or its source) had not been eliminated or counteracted by insulation. The defendant also submitted that the vehicle was in use as it was being employed for the purpose of both providing access and enabling work to be undertaken from it. 38 The part of the submission referring to the lack of insulation fails as the evidence shows that the basket and the arm on the EPV were insulated. Even so, according to the evidence it did not matter whether the bucket was earthed or not because the current flow did not involve any earth connection. The EPV arm and bucket was used by the defendant to permit its employees to gain access to the overhead wires. That the evidence shows that the accident was caused by the plaintiff leaning over causing his arm to touch two phases at one time which created a current flow this caused the electric shock to flow from one phase wire to another via the plaintiff's body without requiring any connection with the cherrypicker. It was the fault of the employer in using a tester lamp which was not working properly. This meant that the defendant's employees and the plaintiff were told that the lines were not live and adequate precautions were not taken. The live circuit came into contact with the plaintiff's arm. The current then flowed through the plaintiff's body causing serious injury. 39 It is my view that the injury was not caused by the fault of the owner/driver of the motor vehicle in the use or operation of a motor vehicle. There was no fault in the fact that such vehicle was used in the way it was used or operated. The use and operation of the vehicle were incidental to what occurred. The plaintiff might well have been working from a ladder or from a pole chair. Getting the plaintiff to where the fault caused his injury is not a fault in the use or operation of the elevated work platform vehicle. The plaintiff's injury was not caused by a motor accident within the meaning of the Act and that he is not an injured person within the definition of that Act. I will assess damages pursuant to the Workers Compensation Act not the Motor Accidents Act . CIC is the defendant's motor vehicle (third party) insurer. As the indemnity is not enlivened under the policy CIC Insurance is not liable to indemnify the defendant and both cross claims should be dismissed. Damages 40 I turn to give a history of the plaintiff and make some comments about the plaintiff's evidence. This history has been largely provided by documents and his wife's evidence as he has little recollection of past events. It is my view that the plaintiff's wife was giving truthful evidence and she did not seek to exaggerate the plaintiff's condition. It is convenient at this stage to comment upon the manner in which the plaintiff gave his evidence. When giving evidence the plaintiff seemed to understand the difference between having an actual memory of events or having been told something later. After being asked some questions he immediately became agitated and replied that he could not remember. However, in the next sentence of his answer he could actually provide the answers. Sometimes when answering questions he would give up and did not try to recall the information. While giving evidence and being cross examined he demonstrated a range of emotions. At times he was visibly upset, sometimes angry, sometimes he rambled on from one topic to another. 41

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venue being either in Queensland or in New South Wales. On these visits the two couples would go to restaurants and on picnics. The plaintiff was very pleasant and placid and did not get angry on these social occasions. 47 I turn to the plaintiff's medical condition and work history after the accident. He suffered a cardiac arrest requiring 20-30 minutes CPR. On admission he suffered from post electrocution cardiac arrhythmias, hypoxic brain damage, mild rhabdomyolysis (dissolution of cardiac musculature) with some transient renal impairment and small areas of skin burns. He remained in intensive care for 6 days while his condition stabilised. His normal heart action was restored and no further treatment of the plaintiff's heart was required. The Westmead hospital discharge summary records that he suffered significant hypoxic brain damage. On 1 August 1980 when he was discharged from hospital he was able to walk around and talk to his family and follow complex 3 step commands. He was transferred to Parramatta hospital for rehabilitation. 48 The plaintiff now remembers being in Westmead hospital but does not remember for how long. He can remember going to a building in Parramatta where he thinks he had rehabilitation and where he was taught to talk and walk again. At rehabilitation he had difficulty with orientation as to time and inappropriate behaviour. It was noted that he had poor problem solving ability and impaired memory. He had difficulty handling money and according to Dr Sandanam the staff specialist of rehabilitation medicine at Westmead hospital in January 1991, the plaintiff was unable to work for at least 6 months. 49 After the plaintiff's accident Ms Teal telephoned Mrs Foster and asked her to come down to Sydney and help. For a period of about 6 to 8 weeks both Mrs Foster and Ms Teal went to the hospital every day. On the day of his discharge Mrs Foster returned to Queensland. In September 1990 Ms Teal and the plaintiff went to stay with the plaintiff's now wife and her then husband in Queensland for 2 weeks. The plaintiff slept most of the time and was confused. In December 1990, Mrs Foster's marriage with her then husband broke up. She returned to Sydney and stayed with Ms Teal. Mrs Foster at this time found the plaintiff erratic, he never slept and he was aggressive. He would push her and became frustrated with anger. He would wash the walls with bleach every night as he thought they had germs. He would wander around at night and would not go back to bed when asked. He would get into a blind rage and smash things such as the light fittings in the ceiling or rip the sliding door off its hinges and hit the ironing board so that it collapsed. Mrs Foster said it was difficult to put a finger on what triggered the rage. The word "Prospect" made him lose control. 50 Shortly after the accident the plaintiff was unable to remember anything. He did not know his parents and he did not see much of his parents at this time. He was unable to remember his childhood and did not remember moving house to Whalan which had occurred 6 weeks prior to the accident. After some time Ms Teal moved out of the home saying that she could not "hack it any more" and that Mrs Foster was a stronger person who could take care of the plaintiff. 51

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the previous 15 months and that the plaintiff's memory and concentration had remained poor. His cognitive deficits were of a permanent nature and it was unlikely that he would ever be fit to return to his previous employment. 59 On 22 October 1992 videotape evidence showed the plaintiff walking along the side of a park and crossing a four lane road. He made a purchase at a shop and returned home via the park carrying a plastic bag. On 31 October 1992 video tape showed the plaintiff driving a car down the road. The plaintiff drove to a petrol station, filled a can with petrol from a petrol pump and put the can back in the car. He reversed the car made a right hand turn onto a busy road, stopped at two sets of traffic lights and parked the car. He asked a male for directions and then was shown carrying 4 cardboard boxes back to the car. He put the boxes into the car and drove home. 60 On 5 December 1992 the plaintiff and Mrs Foster married. Mrs Foster did not want to get married but the plaintiff said that he felt safer and thought that if they were married she would not ditch him. On 6 December 1992 the plaintiff and his wife moved to Queensland as the plaintiff's wife had bought a delicatessen business in Surfers Paradise. She employed her brother, another employee and Mr Sorrensen (who owned the business prior to her buying it). Mrs Foster chose to do this because she had become asthmatic and because of Alan's not wanting to be in the western suburbs and his running away (t 18). Both the plaintiff and Mrs Foster understood when they left Sydney that the defendant had given up trying to get the plaintiff back into the workforce. The plaintiff would go to work with her at the shop. He was able to put newspapers on the shelf and do the banking at Westpac 2 or 3 times per week provided that his wife did the paperwork. He could pack the shelves, bring in the newspapers and go to Woolworths to buy items for the shop if required. He could mop and sweep the floor. Sometimes Mrs Foster left him alone in the shop when she needed to go to the toilet. Mrs Foster did not think he was capable of giving change nor could he make sandwiches. He liked being there and chatting with the regular customers. On 15 June 1993 the plaintiff was shown on video tape wandering in the shop. His wife was also present. 61 The plaintiff drove when they first moved to Queensland but has not driven for some time. He does not like driving without someone with him because he does not feel confident on the road and he may have a spasm. 62 On 24 March 1993, the plaintiff was offered employment as a car park attendant at the defendant's head office in Parramatta (Ex H). The commencement date was 17 April 1993. His duties were outlined as overseeing the car park, directing visitors to head office to vacant car spaces as available and to ensure that car parking by staff was as designated. The hours were negotiable. The plaintiff's wife replied that she did not know how he was capable of supervising a car park when he could not supervise his daily life and his injuries prevented him from living out a normal life and holding a job. She stated that his medication alone made him constantly tired and it was not that the plaintiff did not want to work. The plaintiff's employment was subsequently terminated. 63 In September 1993 Mrs Foster had a breakdown. The reasons she gave for this was that although the business was good she had to work fewer hours because she was not getting any sleep. This was due in part to the plaintiff not sleeping. She sold the business. She then worked from 5.00 am to 9 or 10.00 am in an onion factory. While she was away from home, the plaintiff stayed in bed. Subsequently she obtained employment as a casual assistant in nursing at Small Haven Benowa where she still works on a permanent casual basis for 20 hours per fortnight. 64 In late 1993 the plaintiff visited Dr David Luis once a month for 6 months. Dr Luis reported that the plaintiff suffered from severe chronic brain injury deficit namely intellectual impairment, attention and concentration deficits, problems in acquiring new memory, frontal lobe damage: perseveration, planning disabilities, poor judgment and disinhibition all of which are permanent. Accordingly to Dr Luis no treatment known to medical science can alter the reality that he will suffer from severe brain damage for the rest of his life. It was the opinion of Dr Luis that the plaintiff could not return to any type of employment with his employer. 65 The plaintiff's wife said that in late 1993 the plaintiff's restless leg syndrome improved. However there was no improvement of his mental and behavioural state. On 15 April 1994 the plaintiff was shown on videotape wandering along a street of shops by himself. He was pausing to look into shop windows. At midday he had coffee in a café with a female. He had a conversation for about 20 minutes. He paid the bill but it was not possible to ascertain whether he had been given the right money with which to pay the bill or if he was able to work this out. He walked with the female to a train station car park and got into the passenger side of the car. 66

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Videotapes taken on 21 and 22 October 1997 show the plaintiff getting out of a car with an older man. They crossed the road at the lights, walked along the footpath and browsed in shop windows. They entered a CD shop and the plaintiff pointed to particulars CDs. The next day the plaintiff is shown getting out of the passenger side of a motor vehicle and holding dogs on leads. An older man and woman got out and took the dogs. They all walked along a track adjacent to a beach. The plaintiff carried a plastic bag and held a small dog when they got back to the car. Later the plaintiff was observed with the older woman in a supermarket. The plaintiff carried the shopping basket and picked up items from the shelves. He did not take an active role but appeared to merely follow instructions. He was patient. They met up with the older man and the plaintiff put the shopping in the boot of the car. 67 The plaintiff still has a tendency to flee from situations he feels he cannot cope with. I have referred to incidents where this occurred earlier in this judgment. Mrs Foster gave evidence that in August 1998 after they had a conference with counsel in relation to this case, the plaintiff once outside Wentworth Chambers took off. The plaintiff's wife went back to the hotel near Central. He was not there. She walked back to counsel's chambers. He turned up later and told her that he had opened his wallet and shown a passerby the card of the hotel and they directed him to it. The plaintiff's wife says that she accepts the plaintiff's running away as part of his behaviour. If he is unable to deal with something he runs away but he has never stayed away for days. The plaintiff has made one suicide attempt by taking an overdose of tablets and talks of suicide. His wife believes that he would not take his life as his religious beliefs tell him that it is wrong. 68 The defendant alleged that the plaintiff is capable of driving a motor vehicle. In relation to driving, the plaintiff's wife agreed that he was driving a car in the early stages (t 58). She took the car to work. The plaintiff could walk from Kingswood to Penrith and if she did not have the car he could drive there. She agreed that the plaintiff had driven in Queensland probably on about half a dozen occasions. He drove while they were at Broadbeach and a couple of occasions when they lived at their current address at Biggara Waters (t 61). While she has not placed any restrictions on him driving, she prefers him not to drive. Dr Craft's opinion is that the plaintiff should not drive (this is referred to later in the judgment). Mrs Langekluddecke a clinical psychologist was shown film of the plaintiff driving. She said that while she did not know that he drove, it did not surprise her that he could as borderline people can drive a motor vehicle. 69 It is my view that the plaintiff has been capable of driving short distances along familiar roads. The videotapes show this and it is consistent with the plaintiff's wife and the plaintiff's evidence. It appears that in recent times the plaintiff has become socially withdrawn and lost confidence with driving alone or even with his wife accompanying him. 70 The plaintiff's wife currently has a permanent shift in the nursing home where she does 20 hours per fortnight and works from 5.00 am to 9.00 am. She does 8 hours the first week and 12 hours the second week. She either drops the plaintiff off at her daughter's place or otherwise he stays at home and watches videos or sleeps. She also started a scouting group at Madgeera. She has taken the plaintiff along to some of these activities such as camping and picnics on a few occasions. He just watches and does not become involved. 71 In relation to the plaintiff's current situation, physically he is much the same although weight continues to be a problem. He has a scar on his upper right arm and small scars on his fingers. He says that now he has a lot of nerve problems and he is unable to sleep; he has continual headaches with pain behind his eyes. He experiences shooting pain from his head down to the centre of his foot all of the time and he has had to accept his pain, and the shooting pain from his head to his foot as nothing can be done about it. He is unable to sleep at night and is tired all day. During the night he has spasms and goes flying out of bed. He is exhausted and goes cold and collapses. He says that he wants to "croak it" as the pain is too much. He has marks on his right hand and right shoulder and scars from the electrocution. He says that he suffers from depression and likes to hide himself away because he fears tasks, he cannot do things very well, forgets things and has to be helped. He goes into his room and puts a record on when he has had enough as it is his way of coping. He sees no future at all. He feels that his life has finished and the only place that he feels comfortable is at Head Way, as there are others with problems. 72 The plaintiff has had difficulty in performing bladder and bowel functions. It appears that this can be managed by the awareness on the part of his carer to provide suitable prompting to the plaintiff to regularly empty his bladder. There is no evidence that the plaintiff is currently using catheters. 73 He says that he loves his wife very much but feels like he bludges on her and uses her. Again he referred to being a second rate person and that he puts too much burden on his wife. He says that without her he feels that he would be in a mental institution. The plaintiff stated the only time that he said he felt happy was when he had conversations with the minister at Kingswood. He said that the minister was very nice and told him to accept things for what they are. Unfortunately the minister moved on to another parish. 74 The plaintiff's wife says that in the last year or so the plaintiff's mental state has deteriorated. The plaintiff spends a lot of time at home and lately has become withdrawn, more agitated and more aggressive. He no longer cares what he says to people and can speak in an abusive manner and use foul language. When engaged in a conversation he monopolises it and a lot of what he says does not make sense and he can become dogmatic. However there has been no physical change. The current situation is that the plaintiff can wash himself, eat by himself, can go for walks, mow the lawn and assist with domestic chores such as vacuuming and mopping and the like. He can go to the local shop for one or two food items or more if he is provided with a note. He can carry the shopping but he does not do the washing. He can go to the chemist and collect his medication in a "Webster" pack. He does not take alcohol or illicit drugs. The Webster pack became necessary because the plaintiff when depressed used to search for the medication and take extra. The plaintiff's wife has to watch him take the medication and then hide the pack. 75 Dr Delaney an ophthalmic surgeon says that the plaintiff has a marked convergence weakness in his eyes which is attributable to the electrocution. Aside from exercises no other treatment was required and there was no assessable loss of vision. As previously stated there are no continuing problems with the plaintiff's heart. 76 I turn to the issue of the plaintiff's brain damage. There is no dispute that the plaintiff is suffering some level of permanent brain damage caused by the accident. There is a dispute as to whether the plaintiff has been exaggerating the level of his brain damage so I have referred to evidence on this topic in detail. I have already referred to the evidence of Dr Sandanam and Dr Luis There was a dispute between Doctors Langeluddecke and Roberts as to the use of the Rey 15 Item test. Dr Langeluddecke says that it has been criticised in recent literature and this test should not be used. Dr Roberts said that this was one of a number of tests she relied upon to reach her conclusions. 77 In October 1990 Dr Lorentz stated that the plaintiff suffered from significant hypoxic brain damage, causing profound deficits of recent and remote memory and general cognitive functioning. At that stage there could have been some improvement but it was certain that the plaintiff would be left with significant permanent cognitive deficits and it was too early to tell whether he would be able to return to employment. In 1992 Dr Sandanam stated that the plaintiff's memory and concentration remained poor. He noted that the plaintiff had no physical disability although he noted that the plaintiff had insomnia and a disturbed sleep pattern due to chronic leg pain. Dr Sandanam thought that it was unlikely that the plaintiff would ever be fit to return to his previous employment. Dr John Polgar stated that the plaintiff suffered cardiac arrest following his electrocution which resulted in hypoxic brain damage. Dr Metcalfe agrees with Dr Polgar and says that the plaintiff had not improved and both agree that the plaintiff is unemployable. 78

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On 23 June 1993, the plaintiff's general practitioner Dr Hart agreed that the plaintiff suffered from severe hypoxic brain damage from the time of his electrocution. He stated that the plaintiff would not be able to return to any form of employment because he had an inability to concentrate for long periods, poor retention of complex commands, aggressive border line psychotic behaviour and he was in need of constant supervision. Jennifer Batchelor clinical psychologist in her report said that the plaintiff was severely disabled, had limited insight and his memory and adaptive abilities had been severely comprised. 79 Dr Langeluddecke a clinical psychologist in September 1991 conducted some psychometric testing. Her opinion was that the plaintiff suffered significant impairment in attentional, intellectual, memory, learning, and executive functions consistent with a severe acquired organic brain syndrome due to anoxia. She says that in terms of the plaintiff's intellectual capacity, his functioning has been reduced from at least an average level pre-morbidly, to no higher than a low borderline level and both his verbal and visuospatial intellectual abilities have been severely affected. Dr Langeluddecke is also of the opinion that the plaintiff's reading, spelling and verbal reasoning and abstraction skills are severely diminished. She says that the plaintiff has very little capacity to plan, analyse or synthesise visuospatial information and his immediate attention span and capacity for sustained attention are exceptionally limited, which in turn compromises his ability to utilise his limited residual intellectual skills. She says that the plaintiff's short-term memory and new learning capacities are severely impaired in all modalities and that his insight, behavioural control, monitoring and cognitive flexibility are severely diminished. 80 Dr Langeluddecke's says that the plaintiff's severe cognitive deficits are totally consistent in nature and severity with hypoxic brain damage which cannot be explained in terms of his anxiety and depressive symptoms, which probably reflect not only organic brain damage but also a reaction to his diminished cognitive functioning and marked lifestyle change. His problems with insight, impulse control and heightened aggression are in her view also consistent with hypoxic brain damage. 81 In terms of the plaintiff's past and future earning capacity it is Dr Langeluddecke's view that the plaintiff's motivational, cognitive and personality problems render him totally unemployable in any capacity. In terms of domestic assistance she is of the opinion that the plaintiff will require considerable assistance with daily living including prompting to attend to his hygiene and assistance with domestic duties, travel and management of his financial affairs. She comments that his quality of life is greatly diminished as he has lost his independence and his ability to undertake paid employment. I have referred to her view of the plaintiff being able to drive a motor vehicle elsewhere in this judgment. 82 When Dr Langeluddecke gave the plaintiff further psychometric testing 8 years after the accident, she commented that the deficits demonstrated on the latter testing were well in excess of those reported at previous testing. Her explanation is that the plaintiff is at risk of an acquired organic brain syndrome and associated cognitive impairment and personality change. In view of the history of brain trauma she identified two possible explanations for the deterioration. The first is that there has been a deterioration in the plaintiff's psychiatric state. The other explanation is that the plaintiff is exaggerating or feigning cognitive and behavioural problems consistent with having sustained a very severe brain injury. She says that it is noteworthy that available information regarding the plaintiff's current lifestyle suggests that his cognitive and emotional functioning in his normal environment is exceptionally poor. He no longer drives a motor vehicle, lacks initiative and appears highly dependent on his wife. He also attends an organisation for persons with brain related disabilities three to four days per week. In short she says that there is a consistency between the severe cognitive deficits noted on formal testing and the plaintiff's functioning in his normal environment. 83 After Dr Langeluddecke was supplied with an up to date report from the treating psychiatrist Dr Craft, she said that his report supported the view that the deterioration in the plaintiff's cognitive functioning noted in the recent psychometric testing is attributable to a deterioration in the plaintiff's emotional state. 84 Dr Craft has provided 3 reports dated 15 April 1994, 20 March 1998 and 18 September 1998. He was cross examined at length. Since early 1994 to date, Dr Craft has seen the plaintiff on a weekly basis, usually with the plaintiff's wife. The plaintiff's wife provides details of the plaintiff's behaviour and problems as the plaintiff cannot do this. The doctor also treats the plaintiff's wife at these consultations. The plaintiff's medication is varied from week to week depending on circumstances. Part of the plaintiff's wife's problems arise from having to deal with the plaintiff's behaviour. These consultations are one hour in duration and currently cost $150 and he intends to charge the plaintiff this fee regardless of whether Mrs Foster is there or not (t 166). 85

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and his extreme mood liability in that he is capable of moving from suicide to elation in the course of one day. It should be noted that the plaintiff has recently lost weight although his weight does vary over time and can become problematic. 88 Dr Craft in his report dated 20 March 1998 says that the plaintiff psychiatrically presents himself at his surgery with a wide range of moods, which are entirely unpredictable. He says that at times the plaintiff is half asleep, at other times he is confused and there are times when he is ebullient, overcheerful, full of quips and jokes and says he is full of energy and at other times is depressed, retarded, somnolent and threatens suicide. Also in energy the plaintiff ranges from manic outbursts to suicidal inanition and fortunately at these times he is too inert to be a danger to himself. However, the plaintiff has erratic temper tantrums. Small things upset him greatly. 89 Dr Craft has observed the plaintiff's tantrums. Firstly, the plaintiff throws his arms around a great deal, bangs and throws things and this frightens people. Then the plaintiff due to his avoidant personality moves forward at some speeds, like an enraged bull elephant throwing everybody on either side with no interest as to those persons' welfare (t 116). On one recent occasion in August 1998, the plaintiff ranted and raved, waved his arms and threatened Dr Craft. Then the plaintiff bolted out Dr Craft's door and attempted to get out of the waiting room. The plaintiff subsequently wrote a letter of apology to Dr Craft which was tendered in evidence. He says that the plaintiff's anxiety levels vary from panic to ease, in outlook from homicidal paranoia to moderate suspicion. 90 In May 1998 the plaintiff was referred to the Gold Coast Sleep Disorder Centre. During a sleep test conducted at the hospital the plaintiff's restless leg syndrome precipitated him off the couch twice during the night. The plaintiff says this happens whilst he is sleeping at home. According to the recent sleep assessment his adequate sleep is less than 46% per night. The plaintiff continues to suffer extreme pain in his leg and these psychomotor episodes of shooting pain are now so severe that they disrupt the sleep of both the plaintiff and his wife. The result is that the plaintiff is chronically fatigued, irritated and occasionally aggressive, deteriorating over the years that he has been examining the plaintiff to times when he is concerned both at the potentiality of aggression to others and to himself. Dr Craft referred to the plaintiff being at high risk at night because of the likelihood of the plaintiff precipitating himself out of bed, waking up, shouting, committing noise, wandering around the house and falling down the stairs in a confused state (t 149). Dr Craft did not think that the plaintiff should drive a car due to his epilepsy and his psychiatric state. 91 The two main current concerns Dr Craft referred to in evidence were the plaintiff's epilepsy or epileptiform episodes and his sleep jactitations. Dr Craft was also concerned with respiratory tract infections which in part are attributable to the high doses of medication he is required to take. Previously the plaintiff had grand mal seizures. The last recorded grand mal seizure was in September 1997 and it appears that the number of seizures are decreasing although the plaintiff's epileptiform episodes have increased in the last year or two. The greater the medication used to control his epilepsy means he is sedated and he does less to clear his respiratory system so he suffers coughs and colds (t 122). 92 It is Dr Craft's opinion that intellectually the plaintiff continues to deteriorate and is now functioning at a low intellectual level comparable to a child and necessitating continuous care. However he has never imposed restrictions concerning the plaintiff being left home unsupervised, going out into the community and to the shopping centre, crossing roads and returning home. However, the plaintiff may constitute a danger to the public if he has an epileptic fit or "runs amok" like the incident which occurred in Dr Craft's surgery. 93 In relation to the plaintiff's earning capacity, although Dr Craft would encourage him to get back to working, he does not think that the plaintiff would be able to maintain interest or be reliable in cleaning work. When asked if the plaintiff could now work 3 hours per week he replied that he could work if as in Sir Thomas More's "Utopia" there was a job in existence where he could do as little or as much as he wanted. He does not think the plaintiff would be able to do the work he did in 1991. However, if the plaintiff was supervised and looked after each hour of the day he could do something (t 164). 94 In relation to care, Dr Craft says that without the care of the plaintiff's devoted wife he would require at least a hostel or possibly a nursing home. In evidence Dr Craft stated that care would involve a regime of 24 hour care. Dr Craft estimated the plaintiff's life expectancy to be at least 20-30 years and in evidence he reduced this to 20-25 years (t 125). Dr Craft estimates that the plaintiff's wife will be able to care for him for a further 10 years (t 127.5). 95

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Dr Yeo in his report dated 20 April 1993, says that the plaintiff suffered severe diffused brain damage following hypoxia which resulted from the electrocution. He says that the plaintiff has a severe permanent disability and is unable to resume suitable part time or full time employment. He says that he doubts that a paid live-in housekeeper would be able to provide the supervision and personal care which Mrs Foster provides. After a period of 15 years (from 1993) he says that institutional care would be necessary and he says that even during the 15 year period the plaintiff will require a handyman for 4 hours per week and a companion attendant for 8 hours per week. He says that the life expectancy of the plaintiff could be shortened due to his labile emotional state and the susceptibility to anxiety and depression. He says that the plaintiff should live in his own home and maintain a familiar environment. 96 Mark Weatherley, psychologist, in his report dated 27 April 1993, concluded that the plaintiff's intellectual capacity was reduced from above average to low borderline and due to this brain damage he is incapable of holding any job in open employment market. 97 Dr Middleton commented that her findings were consistent with Dr Langeluddecke's finding of August 1994 and with the plaintiff's current presentation. Dr Middleton considered that the plaintiff's acquired organic brain impairment was consistent with the effects of electrocution and associated with cardiac arrest. She says that the plaintiff continues to present with a combination of emotional, psychiatric, memory and cognitive impairments and is unable to return to any paid employment on the open labour market. 98 Dr Middleton says that the plaintiff will permanently need to have a structured living situation with the organisation of all his domestic and every day living activities and the provision of a considerable amount of support and assistance in the performance and delivery of such activities. The daily activities that require supervision include monitoring, prompting and encouraging suitable daily living routines and participating in some form of regular vocational program out of his home base. She thought that the vocational program, that is organised through Headway was suitable. 99 In 1994 Dr Wayne Reid a clinical neuro psychologist reported that there was no significant improvement in the plaintiff's intellectual and cognitive functioning since he was first assessed in 1991 and that in some areas of functioning the plaintiff's abilities have declined. Dr Reid was of the view that motivational factors were affecting his performance and he considered that his prognosis for returning to the open job market was poor and that the plaintiff would have difficulties in living a fully independent lifestyle without some support for the rest of his life. 100 Dr Wendy Roberts and Associate Professor Jones disagree with the views expressed above. Dr Roberts' report dated 1 June 1997 says that while some level of dysfunction was not unexpected given the severity of the injuries which the plaintiff sustained, the results of the psychometric test scores that she administered were not reliable and that independent information on his functioning needs to be used to try and determine the actual level of impairment. She says that it is highly likely the plaintiff has a history of personality problems pre-dating his accident and there were significant gaps in his work history. In terms of the plaintiff's past and future earning capacity she remains to be convinced that the plaintiff cannot engage in remunerative employment nor is she convinced that the plaintiff required general supervision for day to day activities. She does not believe that he has nightmares or flashbacks about the accident. Nor is she convinced that the plaintiff lacks confidence of insight and behaviour control. 101 Associate Professor Richard Jones examined the plaintiff on 16 April 1997. He wrote reports relating to that examination and in a report dated 31 March 1998 it was his view that the plaintiff was feigning brain impairment. He said that the apparent neurological impairment was not in any known distribution which might suggest peripheral neuropathy spinal cord or brain damage. There was also apparent neurological impairment and the plaintiff's apparent loss of memory is not organically based. He believes that the plaintiff has the potential to be independent in all activities of daily living. He believes that if the plaintiff was motivated he could return to work. However he gives a rider that it is inadvisable for the plaintiff for psychological reasons to work with electricity. Associate Professor Jones is of the view that the plaintiff does not require a full time carer or any person to be at call 24 hours a day 7 days per week because he is independent in personal care and had the potential to be independent in all activities of every day living. Further, it is his view that were the plaintiff to believe in himself that there had been recovery from his perceived impairment he could return to work. 102 It is not disputed that the plaintiff suffered some level of neurological impairment as a result of the electrocution. All the doctors (except Dr Roberts and Associate Professor Jones) are of the view that the plaintiff is not capable of returning to work with the defendant, although Associate Professor Jones stated that working with electricity was contraindicated. Associate Professor Jones and Dr Roberts say that the plaintiff can return to work. They do not say what sort of work and whether it could be full time of part time. When Dr Craft was asked about whether he thought that the plaintiff was malingering, he answered that the plaintiff would sometimes accentuate his symptoms in the hope of profit or gain, but that would vary very much from day to day and hour to hour (t 165). His behaviour in this regard is rather like that of a little boy. 103 I accept that the plaintiff may have been accentuating his disabilities when he saw Dr Roberts and Associate Professor Jones and even when giving evidence in court but this is due to his psychiatric condition. This behaviour could account for the discrepancies reported by Dr Robert and Associate Professor Jones. In relation to the plaintiff's level of brain impairment, the plaintiff's past and future earning capacity, level of care and medication required, I prefer the evidence of Dr Craft as he has seen the plaintiff on a weekly basis for the last four years and has formed his view after numerous consultations. His evidence was tested by lengthy cross examination and I found his evidence to be truthful. His evidence largely accords with that of Doctors Hart, Langeluddecke, Middleton and Yeo. Non-economic loss 104 I have taken into account that prior to the accident the plaintiff had a job he enjoyed. He was in good health. He had hobbies such as breeding Arab horses, marine and tropical fish, boating, fishing, stamp collecting, music and military history. He had some ability as handyman. He was independent and enjoyed going to restaurants, picnics and the like. After the accident, he spent one month in hospital and the years of 1991, 1992 and 1993 undergoing rehabilitation. Without repeating them, his current disabilities and lifestyle are set out in Dr Craft's reports referred to earlier in this judgment and I take them into account. I also take into account the pain that the plaintiff suffered. He continues to suffer shooting pain from his head down his leg, he cannot sleep properly and has to take large doses of medication. I also take into account that he has insight into his condition and feels useless. He has scars on his right hand and shoulder from the electrocution. I assess non-economic loss at 75% of a most extreme case. ie., 75% x $190,495.63 = $142,871.72. There is no interest payable on this component of damages - see s 151M(3) Past and future earning capacity 105 Prior to the accident the plaintiff had been in continual employment for many years and it is my view that if the accident had not occurred he would have continued with his employment with the defendant as an electrical linesman until retirement age. He had several jobs after he left school before he found a job he enjoyed. The plaintiff claims past economic loss on the basis that he would have continued in employment with the defendant as a linesman. From the evidence I am satisfied that the plaintiff would have continued with this employment or a similar job until retirement. 106 The cross defendant submitted that nowadays there is no guarantee that the plaintiff would have remained in employment until 65 years of age and he may have been forced to retire at 55 years. There was no specific evidence given on the plaintiff's intended retirement age. While on one hand he would have worked until 65 years under, the anti-discrimination legislation it is also possible that the plaintiff may have worked either full time or part time after the age of 65 years. It is my view that a possible early retirement is adequately reflected in the deduction made for vicissitudes. 107 The defendant submitted that the plaintiff is capable of some part time light duties such as that which he undertook in 1991 with the defendant or as a car park attendant which was work offered to him. Many of the doctors are of the view that the plaintiff is unemployable. With the plaintiff's fluctuation of moods from hour to hour, his difficulties with memory, attentional, intellectual, learning and executive functions it would be most unlikely that the plaintiff would be able to hold down a job in any field. Dr Craft stated that the plaintiff would be able to hold a job if he could do as little or as much as he wanted but that the plaintiff would not be able to do the work he did in 1991 (t 164). 108 The plaintiff and his wife gave evidence that the plaintiff did not do much at the Seven Hills depot but sweep the floor and put wires together. Mr Warner also observed that the plaintiff did not appear to be doing any work but wandering aimlessly. The plaintiff caught the wrong transport to work and became angry and aggressive while undertaking this employment. The defendant did not provide any evidence such as his supervisor to demonstrate that the plaintiff was capable of continuing this employment. It is my view that the plaintiff would not have been capable of continuing in this employment and it was realistic that he notified his employer that he could not continue with these light duties when he did so. 109 In relation to the offer of the car park attendant's job, I accept that the plaintiff can drive by himself over short distances on familiar roads. He would be capable of parking cars in car spaces. His wife agrees that while the plaintiff could drive he has not done so for years. She does not think the plaintiff is capable of shuffling cars around a car park or moving a car from one car space to another (t 41). Dr Craft thinks that he should not hold a licence due to his temper tantrums and epilepsy as he could pose a danger to others. It is my view that the plaintiff's moods fluctuate from hour to hour, his behaviour includes rages and fleeing and he has epileptiform attacks. He has the potential to have a grand mal seizure while working. The plaintiff is not capable of overseeing a car park, directing cars to vacant car spaces and ensuring that staff were parking in their designated car spots. It is my view that the plaintiff has been virtually unemployable since the accident. No doctor has suggested that his condition will significantly improve, other than his epilepsy and right leg problems. Nevertheless, Dr Craft stated that with a system that could supervise and look after him each hour of the day, he could do something even though he was not able to undertake simple tasks such as cleaning and putting things on shelves (t 164.5). 110 In relation to mitigation of damages (s 151L) it is my view that the plaintiff has undergone appropriate medical treatment, has co-operated in procedures under the employer's workplace rehabilitation program and other rehabilitation programs. Later he tried to assist his wife with basic tasks in the shop while he was being supervised. 111 In relation to the appropriate deduction for vicissitudes of life, I take into account that the plaintiff is on high doses of medication which adversely affect the ability of his body to deal with respiratory infections and his possible suicide attempts, but it is my view that as I have already found that he has a diminished life expectancy, it is not appropriate to deduct a sum higher than the usual 15% for vicissitudes - 15% is an appropriate deduction. I should add that the plaintiff has not claimed an amount of damages for diminished life expectancy. 112 I accept Dr Craft's estimate of the plaintiff's life expectancy as being between 20-25 years. His original view had been 25-30 years. I accept that the plaintiff will live a further estimated 24 years ie., until he is 63 years. 113 It is possible but unlikely that the plaintiff may at some time in the future obtain some remunerative employment. It would be only for a few hours a week at best and he would need to be constantly supervised. For example if the plaintiff mowed a lawn and another employee did the gardening and supervised him. In accordance with Malec v J C Hutton Pty Limited (1990) 169 CLR 638 an award for damages should reflect this possibility. Doing the best I can I make an allowance of $25 per week. The plaintiff would have earned $559 per week and making an allowance that the plaintiff could earn $25 per week gives the sum of $534 for 26 years on 5% tables (multiplier 768.7) less 15% for vicissitudes = $348,912.93. 114 As it is expected that the plaintiff will not live beyond 63 years, there must be a deduction made against this figure for the probable living expenses or maintenance necessary to enable the earning of future wages for 2 years (until he reaches his expected retirement age of 65 years) plus tax. It is my view that the plaintiff's wife would have continued to work either part time or full time had the accident not occurred and she would have been responsible jointly for the costs of running the household. I have been referred to a copy of 1993-4 Bureau of Statistics Household Expenditure Survey (Ex 9). After looking at the items for couples only under the heading "Broad Expenditure Group", a reasonable sum per week to reflect probable living expenses and tax is $240 per week for 2 years equates to $24,960 and thus the amount for future economic loss is $323,952.93. 115 The plaintiff's past loss of earning capacity based on a comparable employee's wage records amounts to $248,753.46 from the date of the accident to trial. The defendant agrees with the calculation of this amount. However, I accept that since 31 January 1993 the plaintiff may have been able to do some limited supervised work as referred to earlier. An amount equalling $25 per week should be deducted from this sum. This deduction comes to $7,625 being $25 per week for 305 weeks until the date of trial. $248,753.46 less $7,625 equals $241,128.46. The plaintiff has received $46,465.10 in weekly compensation payments and $27,452.38 has been paid for the plaintiff's hospital and medical expenses. This sum totals $73,917.48 and should be deducted from past economic loss, ie., $241,128.46 plus past economic loss from 7 December 1998 to 12 March 1999 equals 14 weeks at $534 per week equals $7,476. Therefore, past economic loss equals $241,128.46 + $7,476 = $248,604.46 - $73,917.48 = $174,686.98. Loss of superannuation 116 At the date of the accident the plaintiff was a non-contributing member of the State Authorities Superannuation Scheme which entitled him on retirement at 65 years to a basic benefit. 117 An actuarial report of Peter Carroll dated 9 December 1998 calculates that the loss of the nett benefit to be worth $54,972. As I have made a finding that the plaintiff would have worked to 65 years in his current or similar employment. He would have been entitled to superannuation upon retirement but for the accident. I allow the sum of $54,972 representing the present value of the loss of superannuation benefits. Past and future care and assistance 118 To determine the applicable amount to be awarded for home care services (s 151K) it has to be identified which services that the plaintiff would reasonably need, result from the defendant's wrong. Or expressed another way the plaintiff is to be compensated for the loss of the plaintiff's capacity to look after himself, which was caused by the accident - see Van Gervan v Fenton (1992) 175 CLR 327 - (s 151K(3)). According to s 151K(3) no compensation is to be awarded if these services would have been provided to the plaintiff had he not been injured. In relation to the value of those services, the parties have agreed on the maximum hourly and weekly rates that can be awarded. 119 It was submitted that the plaintiff has needed in the past and will need in the future, a full time carer or 24 hour nursing care. The defendant submitted that the plaintiff was not entitled to homecare services and respite care. Alternatively the defendant submitted that the plaintiff required 3 hours care per week for the rest of his life. 120 The difficult issue to determine is the nature of care and for what duration it is required. The care currently being provided by the plaintiff's wife is throughout the day and night except when she is at work on a shift from 5.00 am until 9.00 am. She does 2 shifts one week and 3 shifts the following week. While she is away the plaintiff sleeps, watches videos or sometimes goes to Mrs Foster's daughter's house. He attends Headway on an average of 7 hours per week although at this time Mrs Foster is not working. Mrs Foster is not constantly providing care for the whole of the time she spends with the plaintiff and much of the care she provides does not require constant activity. She loves her husband and is prepared to continue to look after him for as long as her health allows her to do so. 121 The plaintiff is independent in personal care and hygiene. He can dress, wash, eat, walk, mow lawns. He can and does assist in domestic chores such as vacuuming, mopping, hanging out clothes and going to the local shops to buy a few items and collecting his medication from the chemist. He does not have problems with alcohol and drug abuse. The plaintiff can read books, in particular military history and the bible. He can take himself to the local shopping centre. He can drive short distances in the local area but of recent times has been reluctant to do so. 122 His wife cooks the majority of the meals and does the washing and I am satisfied that these services would have been performed by her had the accident not occurred. These tasks are not compensable pursuant to s 151K. I note that Dial an Angel in its report dated 22 January 1998 estimates that preparing meals takes about 10.5 hours per week. I am not satisfied that she would have been solely responsible for the household shopping had the accident not occurred. 123

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The plaintiff can become violent and although this occurs less than it used to, it is impossible to predict when the violent outburst will occur. He still becomes aggressive as shown by the recent incident referred to by Dr Craft. The plaintiff is at high risk to himself and others at night because of the likelihood that he will precipitate himself out of bed, to wake up, shout, commit noise, wander around the house and fall down stairs. To some extent the risk of falling down stairs can be overcome if the plaintiff resides in a ground level dwelling. He suffers epileptic fits which under current medication are less frequent than they were although he still has epileptiform episodes. He runs away from time to time and can become aggressive in shopping centres when the queue is too long. However, in recent times he has become socially withdrawn. Both Doctors Langeluddecke and Middleton say that the plaintiff needs to be prompted to attend to hygiene and needs assistance with domestic duties. 124 Mrs Foster is currently 55 years of age. Like Dr Craft, Dr Yeo recommends a paid live in housekeeper and after 15 years (from 1993) ie., 10 years from now institutional care will be necessary. I accept this view. Dr Yeo also recommends a handyman for 4 hours per week (discussed later in this judgment) and a companion/attendant for 8 hours per week. I do not find that the plaintiff needs a companion/attendant. The plaintiff can be left alone for some periods otherwise he is looked after by his wife and she will have the benefit of respite periods. Dr Craft says that after 10 years the plaintiff will require at least a hostel or possibly a nursing home or a regime of 24 hour care. Dr Craft estimates that Mrs Foster will be physically well enough to continue performing these duties for another 10 years (t 127). Even though the plaintiff is independent in his personal hygiene, can stay at home unsupervised for several hours and can go to the local shops, he has required in the past and will require in the future, full time assistance for in excess of 40 hours per week. It is essential that someone checks that he is taking his medication morning, noon and night and hides the unused tablets, prompts him to empty his bladder at these times and supervises his meals. Even if he resides in a ground floor unit as Dr Craft suggests, it would also be necessary for a carer to check on him from time to time throughout the night due to his jactitations, epileptic fits or epileptiform episodes. He needs assistance to travel to doctors and Headway. 125 It is my view that the plaintiff's wife may work an average of 10 hours per week and go to scouts one night per week. She prepares meals and does washing which I estimate to take 15 hours per week. These duties are non-compensable. The plaintiff's wife can leave the plaintiff alone for periods such as when she works and at other times for an hour or more. However, the plaintiff's behaviour is unpredictable. Sometimes his psychological functioning is down to less than 10% while at other times it is 70%. (10% being a dangerous psychotic functioning state in which few holds are barred and many are unsafe). Much of the time when she is supervising the plaintiff all that she is doing is low level supervision or simply attending to her own affairs albeit ensuring that she is nearby and "on call" in case she is needed. Even so she is and has been required to provide in excess of 40 hours care for the plaintiff per week since April 1991. Section 151K provides the method of calculation where the services provided are not less than 40 hours per week. Using the figures provided by the parties I calculate past care at $233,336.30. 126

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For the next 10 years, that the plaintiff's wife will provide 138 hours per week care which equates to 20 hours per day for 48 weeks of the year. At the award rate the amount for care to be provided by Mrs Foster for the next 10 years (at $613 per week x 10 years (multiplier 412.9)) equates to $253,107.70. If market rates apply the amount for care for the next 10 years is $2,500 per week (see the following pages of the judgment for determination of appropriate market rate). This equates to $2,500 x 412.9 = $1,032,250. I will hear further argument as to which rate is applicable bearing in mind s 151K(1). 127 After 10 years, the plaintiff could receive the appropriate level of care in a hostel or community house for the following 14 years. It would be inappropriate to separate the plaintiff from his wife after she has cared for him for the previous 18 years and he is dependant upon her for emotional support. I have not been given details of the cost or availability of hostel type accommodation where both husband and wife could reside. He has some independence with daily living and this should be retained yet he needs full time supervision. 128 For Headway to supply 24 hour support, the service manager states that it would involve 84 hours of support at $25 per hour with 7 sleep overs per week at $65 per night as well as 2 hours per week case management to co-ordinate at $100 per hour. The plaintiff's living situation assessments and medical appointments and any other ongoing needs to ensure him a better quality of life. This equates $2,755 per week. 129 The Dial an Angel report stipulates the fee for a live-in housekeeper/companion carer providing companionship, encouragement, supervision and general vigilance available at call 24 hours per day, 5 days per week is $900 per week plus keep at $180 per day. This equates to $1,800 for 5 days care. This sum excludes leave entitlements. If this amount is increased to allow for 7 days care it amounts to approximately $2,520. Dial an Angel recommends that in addition to the live in care, liver out care should be provided on the basis of 2 to 4 hours per week, each visit consisting of 4 to 6 hours. It is my view the need for the further live out carer has not been established. In order to calculate the future care of the plaintiff for 14 years the rate I allow is the sum of $2,500 per week for future care which will become necessary after 10 years. The multiplier for 24 years is 737.8 less multiplier for 10 years is 412.9 leaving 324.9. $2,500 x 324.9 = $812,250. Headway 130 Dr Luis recommended that the plaintiff attend Headway. This is an organisation that helps with rehabilitation, provides nursing car and activities for those suffering from head injuries. The plaintiff has attended activities at Headway in the past and enjoyed them. He would like to continue to attend outings and activities with Headway. Dr Craft and Dr Middleton recommend that the plaintiff continues to attend Headway and I am satisfied that they should continue for his lifetime. 131 The plaintiff's wife currently drives the plaintiff to and from Headway which is approximately 3 kilometres from their home on Mondays where he attends woodwork from 3.00 pm until 3.30 pm. This program is supervised by a qualified instructor and the cost is $3.00 per weekly session. On Wednesday the plaintiff goes ten pin bowling with Headway from 11.00 am until 1.00 pm. He walks to the bowling alley as it is only about 250 metres from where he lives. After bowling the Headway bus picks him up and takes him to the Headway centre where he does social and leisure activities at no cost and he returns home by the Headway bus at approximately 4.30 pm. The costs of bowling in 1998 was $5.00 ($3.00 bowling plus $2.00 transport). Every second Thursday the plaintiff's wife drives him to and from the Headway centre where he does leather work from 1.30 pm until 3.30 pm. The cost for this is $3.00 per fortnightly session(t p 22). The costs per week of these attendances are approximately $9.50 per week for 24 years on 5% tables - multiplier 737.8 = $7,009.10. 132 Headway also hold an annual camp for one week which provides clients with an opportunity to take a break from their living and therapy situations, as well as respite for their carers. The costs of this is $100 for the week but this does not include food and expenses. The plaintiff did not attend this year due to his worsening condition. I allow for the future attendance at this camp at Headway the sum of $1.92 per week x 737.8 = $1,416.58. Total costs of Headway is $8,425.68. 133 It is noted that the plaintiff has incurred $2,218.75 fees at Headway for past attendance. If these fees are not included in the agreed out-of-pocket expenses, and allowance should be made for them and I shall deal with it when fund management is determined. Respite care 134 As the plaintiff's wife will be providing constant care for 10 years she is entitled to respite care. She has requested one week's respite every three months. This is a modest request and it is my view that it is necessary for her to have a break on this basis. For Headway to supply 24 hour per day support would involve 84 hours of support including 7 sleepovers per week as well as 2 hours per week case management to co-ordinate the plaintiff's daily living situation; assessments, medical appointments and other needs. The current fees are $100 per hour for case management, $25 per hour for a support worker and $65 per night for a sleepover. Dial an Angel has also provided details on the cost of respite care. On this issue, I prefer Headway to provide the services as the plaintiff has some familiarity with this organisation and is more likely to get the same carers each 3 months. It is difficult to foresee how the plaintiff will react to his wife's absence for a week each 3 months. I have assessed the costs of care for the plaintiff during this time by Headway or a like organisation for 10 years based on the report of Carroll and Ransom dated 10 December 1998 which calculates this amount to be $87,204. Handyman and companion attendant 135 Dr Yeo referred to the plaintiff's need for a handyman for 4 hours per week. The Dial an Angel report refers to the handyman/gardener services as including the replacement of tap washers, light globes, hosing paths, outside window cleaning, minor carpentry repairs, touch-up painting, lawn mowing, garden maintenance, car washing, pet care and pool maintenance. The video evidence shows the plaintiff is capable of lawn mowing. In my view the plaintiff is also capable of outside ground level window cleaning, garden maintenance and car washing. However, he may not be capable of replacing washers and light globes, touch-up painting and window cleaning at above ground level. He would have been able to carry out these tasks but for the accident. An allowance should be made for this - 2 hours each 6 months at $22 per hour ie., $88 per year for 24 years (multiplier 737.8 = $64,926.40. No evidence has been given in relation to past handyman services. Dr Yeo also says that the plaintiff requires a companion attendant for 8 hours per week. This need for a companion attendant has not been established. The plaintiff will be cared for by his wife for the next 10 years and she will be afforded respite care. Thereafter the plaintiff will receive care from a commercial organisation and the plaintiff's wife will continue to reside with him. Future Medication and medical treatment 136 I turn to the plaintiff's current medication. Currently the plaintiff takes Rivotril 2 mgs x 8 per day; Tegretol 200 mgs x 4 per day; Lithium 250 mgs x 3 per day; Adalat Oros 60 mgs am and Zoloft 200 mgs am. The first two of these are to guard against his grand mal and psychomotor sequelae. The Lithium and Zoloft are to control severe mood disorder, Adalat is taken to control high blood pressure, the result in part of stress. It is my view that the plaintiff will require this or similar medication for the rest of his life. It is agreed that the present weekly cost of the plaintiff's medication is $47.43 per week. The plaintiff will continue to take a high level of medication for the rest of his life. I allow the amount of $47.43 for 24 years (multiplier 737.8) = $34,993.85 for future medication. It is not clear whether this agreed figure includes the $3 per week cost of the Webster pack. In my view it is necessary that the plaintiff continues to be supplied with this medication pack and if no allowance has been made for it I will make such an allowance when the matter comes before me to deal with fund management. 137 Dr Craft spoke of the difficulties of ascertaining the right level of medication and those which occur when the plaintiff is taking such a high dosage and the fact that the medication is adjusted on a weekly basis. It is my view that the plaintiff will need to be referred to other specialists for the rest of his life on the same basis that is currently occurring. It is my view that it is necessary for the plaintiff to continue to see Dr Craft on a weekly basis for the rest of his life at $150 per visit. 138 In terms of referral to medical experts Dr Craft refers the plaintiff to Dr Maxwell, a neurologist one or twice per year in regard to specific medication problems. As the plaintiff is on high dosages of medication which breach the guidelines Dr Craft finds it helpful to obtain a second opinion. The plaintiff is having increasing quantities of drugs in order to deal with the increasing numbers of symptoms and these continued visits to other specialists will be necessary. Dr Craft also refers the plaintiff to Dr Corbett in relation to the plaintiff's epileptiform episodes which have increased in the last year or so. Dr Craft has referred the plaintiff to Dr Thompson a respiratory physician. 139 In addition, it is also necessary for the plaintiff to continue to be seen by other specialists (including a neurologist) four times per year at $150 per visit. The total costs for future medical treatment equates to $162 per week for 24 years (multiplier 737.8) = $119,523.60.

Foster v Prospect County Council

At a glance

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Judgment (41 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (7)