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.
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