Habib v McKenna

Before the accident

1. The plaintiff was born in 1994. He is one of four children. He has an elder sister and two younger brothers. His sister completed the HSC. The older of his two brothers is now in Year 12.
2. The plaintiff initially attended Canterbury South Public School. He then moved to Birrong Public School for the balance of his primary school years. He repeated Year 5 in 2005. His school reports are in Exhibit C. It is clear, and in fact part of the plaintiff's case, that he was not academically inclined but was a very keen and able sportsman.
3. In August 2001 the plaintiff was referred for assessment to a counsellor. He was subjected to testing which is summarised in the chronology at the beginning of Exhibit C. There is nothing in the school reports in the remaining years to the date of the accident which would suggest any dramatic improvement on the plaintiff's part.
4. The plaintiff said he was very happy at school. He loved sport and he had a close group of friends. He especially enjoyed rugby league and hoped one day to be a professional player. He obviously displayed early talent, as illustrated by Exhibit H. He also had a desire to work in landscaping. He had designed certain features at his parents' home and he carried out tasks such as lawn mowing.

The accident

1. The accident occurred on 15 July 2006. The plaintiff was in a motor vehicle driven by his uncle, Mr Sam Habib (the second defendant). He was seated in the rear. There were 4 or 5 people in the car. He was on the way to a fishing trip at Bonnells Bay (Exhibit A). The fishing 'party' occupied two vehicles.
2. Mr Sam Habib's vehicle was a station wagon. There was an 18kg gas cylinder in the rear.
3. The accident was described by the plaintiff's father in this way: He was in the vehicle behind that driven by the second defendant. He thought the plaintiff may have been in the middle of the rear seat but he was not certain. (Another witness thought the plaintiff was behind the front passenger). Mr Habib was a passenger and observed the second defendant's vehicle as it drove in front of him. Another vehicle, driven by the first defendant, was approaching from the opposite direction. He noticed that it was weaving in and out of lanes. As he approached the vehicle ahead the second defendant moved as far as possible to the left side of the road. There was, however, a collision which Mr Habib described as the oncoming vehicle clipping the vehicle ahead. The second defendant lost control. His vehicle struck a barrier (Exhibit 9).

After the accident

1. The plaintiff was removed from the scene by a helicopter. The plaintiff's first memory after the accident was waking up in hospital. This was John Hunter Hospital in Newcastle where he was admitted into the Intensive Care Unit. He remained in this unit until the following day.
2. Observations and investigations revealed a laceration to the plaintiff's left knee, undisplaced fractures of the left L3 and L4 transverse processes and, most significantly, a CT scan showed an "acute right frontotemporal subdural haematoma with small haemorrhagic contusions in the inferior right temporal lobe." (Exhibit E, page 59).
3. The left knee laceration was cleaned and closed under general anaesthetic.
4. He was discharged from John Hunter Hospital on 21 July 2006 and transferred to Westmead Children's Hospital. He was discharged to the care of his parents on 25 July 2006.
5. It is a little unclear precisely when the plaintiff returned to school but, at whatever date it was, he said that his whole life had changed. He no longer had the friends he previously had and he found that he was unable to play sports. He also suffered from severe headaches, low back pain and left knee pain.
6. The plaintiff said that he did try to return to sport even wearing headgear and strapping his knee. At one stage he moved to a different rugby league club to start afresh but this was unsuccessful. The plaintiff said that he often tried to return to active sports but found it difficult due to his injuries. The plaintiff said that as time has passed his low back and knee pain have become worse.
7. The defendants tendered a video to discredit the plaintiff's evidence. Exhibit 1 contains footage exposed in May and June 2009 which appears to directly contradict the plaintiff's assertions. His pursuit of touch football, tennis and general activity display no apparent signs of restriction. He also often appears happy and overtly enjoying himself. The plaintiff's reaction to this video was that he was doing his best to be a "normal kid" and the observer could not see the inner pain that he was suffering nor was there any video of him after the event when he was in a great deal of pain.
8. In my view Exhibit 1 must be seen as contradicting the plaintiff's assertions about his physical capacity. I note here that during the examination in chief the plaintiff sat comfortably in the witness box. This was also the case at the commencement of cross-examination but then significantly changed while he was being shown the video. He moved around in the witness box a lot, sometimes stood and often made movements suggesting he was suffering a good deal of back pain. I thought he might have been trying to divert my attention from the obviously damaging video, but I do not say this as a concluded finding.
9. If this thought was correct it should not necessarily be seen as a comment on the plaintiff's credit. This is a convenient point to make some comments about the plaintiff's presentation in the witness box. If there was no suggestion of brain damage the video evidence could be seen as severely impugning his credit. On the other hand if his personality and behaviour had been affected by brain damage then his presentation could well be seen as consistent with that injury. I would add that although the plaintiff at times appeared frustrated with the cross-examiner he at all times remained polite and attempted to answer the questions put to him. On one occasion when he did seem to lose his composure he immediately apologised to me for his outburst.
10. Another example of the plaintiff seeking to avoid the effect of the video was him stating that he would strap his knee. There was no strapping visible on the video when he was wearing shorts because, he said, he only strapped his knee when he wore long trousers.
11. The plaintiff obviously did not understand some of the subtleties of the language being used in cross-examination but he did maintain his assertions that he was in constant pain and his life had been significantly altered by the accident.
12. Returning to the chronology, the plaintiff left school at the end of Year 10. During his final year he attended a TAFE course and appears to have done reasonably well (Exhibit G).
13. In 2011 the plaintiff worked with a relative doing carpentry and also for a very short time in a metal fabrication factory. In May 2011 he began a TAFE course in locksmithing and then, in August of the same year, began an apprenticeship with Ameens Locksmith. The plaintiff said he initially did well in his apprenticeship but this was because his tasks were easy. He also started quite well at TAFE. By the second year, however, he said he found it difficult to concentrate and his physical pains affected his ability to work. Exhibit 14 shows the plaintiff did not do well at TAFE, let alone attend with any regularity.
14. The plaintiff stopped working for Ameens Locksmith in September 2013. He said this was because there were complaints about his work and he was not getting on with the boss's brother. He also said he was embarrassed that he was being treated like a child.
15. It was put to the plaintiff that he had left the job because he had an upcoming hearing date (in September 2013) and he wished to maximise his damages by appearing to be incapable of employment. He rejected the suggestion. The hearing date was vacated to enable the matter to return the Motor Accident Service for further assessment.
16. The same suggestion was put to him about leaving employment earlier this year. Once again he rejected that assertion.
17. After leaving Ameens Locksmith the plaintiff attempted to run his own business as a locksmith. He had a card printed (Exhibit J) and he advertised on Gumtree (Exhibits K and L). The plaintiff was clearly not entitled to hold himself out as a qualified locksmith but nevertheless he attempted to pursue this occupation.
18. The plaintiff was cross-examined about the jobs that are described in Exhibit M. He said that, perhaps with one exception, these were the only jobs he had obtained. It was put to him that he had in fact carried out many more 'call-outs' as a locksmith. This was the history he gave to Dr Buckley. I note that when Dr Buckley gave evidence he said he did not believe the plaintiff on this subject. The plaintiff was at pains to point out that even the jobs contained in Exhibit M were generally done with the assistance of another person.
19. A bizarre portion of the plaintiff's evidence concerned a trip he made to Queensland in September 2014. The first unusual feature is that while he was in Queensland he said he obtained a driver's licence although he was only away for about a week. He was at the time, and perhaps still is, not allowed to drive in New South Wales because his licence has been suspended. He did, however, then go on to say that he did not use the Queensland licence in New South Wales.
20. The second unusual feature about the Queensland trip is that the plaintiff said he had arranged the flight himself but he did not seem able to say if any accommodation had been organised. While on the one hand persistently maintaining he had no friends he seems to have had the company of friends while in Queensland.
21. In 2014 the plaintiff began part-time work at the Lucky Seven Convenience Store in Sefton. The proprietor of the store is Mr Khanat. He is a friend of the plaintiff's parents. The plaintiff said his days and hours were irregular and the work came to an end earlier this year. He said there were a number of complaints from customers and he felt that he was not "getting anywhere". He said he was paid $15 per hour for his work. This is significant because two later witnesses said he was not paid at all.
22. The plaintiff said complaints from customers arose because he did not give correct change and ultimately he stopped the job. This occurred in March this year. The plaintiff has not worked since and displays no interest in working. He said this was because he felt that he was incapable of working. At the present time he spent a good deal of time in bed. He agreed that he had told a rehabilitation adviser (MEND) that he was not interested in seeking employment (T 44.5).
23. Video footage exposed in October 2013 (Exhibit 2) showed the plaintiff working on his motor vehicle. He appears to be installing or mending a sound system. He does a good deal of bending. The plaintiff said that the video showed that he could not stand still. There is an element, especially around 10.15am on 21 October 2013, which could be interpreted as the plaintiff being restless. He said this showed that he was in pain. I could see no outward indication that this was the case.
24. A good deal of further video was shown extending to March of this year (Exhibits 5, 6 and 8). Once again the video directly contradicted the plaintiff's complaints. As more and more footage was shown the plaintiff came up with answers to meet what he must have seen as material harmful to his case. For example he said that the absence of sound meant that he could not be heard gasping in pain. He later said that he had, in effect, good days and bad days. The extent of activity shown on the various videos cannot sit with the plaintiff's evidence in chief. There are extended periods of gardening, working with a vehicle including significant bending and squatting and also carrying on activities at the convenience store.
25. There is another element which particularly applies to the plaintiff's activities at the store. The plaintiff's case is that he is essentially incapable of managing his own affairs and being able to live alone. The defendants relied on the video to contradict this assertion. The video clearly showed the plaintiff opening the store and getting it ready for operation. He said that the tasks were easy and made more so by the owner labelling or engraving the keys and the alarm being activated by a simple remote control. On other occasions he is seen to be closing the store, apparently by himself although the presence of other persons inside the store cannot be excluded.
26. Mr Habib (Bob) Habib gave evidence. He is the plaintiff's father. I should say at the outset he was a very impressive witness who I think was doing his best to tell the truth. He described the plaintiff as sports orientated before the accident. He had a passion for rugby league. Mr Habib frankly said his son was "very slow" at school before the accident. He was however very happy, had friends, he was helpful and he had no behavioural problems. These observations are consistent with the school records.
27. Mr Habib said that immediately after the accident his son was unconscious. He had a large lump on the side of his head. He was taken by air ambulance to John Hunter Hospital where he remained for some days. During this period he was very uncommunicative. The position improved slightly at Westmead Children's Hospital, although Mr Habib found it difficult to make sense of whatever the plaintiff said.
28. On his return home the plaintiff became extremely insular, impatient, angry and abusive. As time went by Mr Habib noticed him to be paranoid about what people thought of him. He began to have behavioural problems and he needed prompting for simple necessities like getting up in the morning, washing and eating. Mr Habib noticed mood swings. There were complaints of headaches.
29. Once the plaintiff returned to school the teachers told Mr Habib that the plaintiff was not listening in class, he had become aggressive and was not participating.
30. As time passed, Mr Habib noticed that the plaintiff was afraid of new situations and people. He thought that the plaintiff felt judged by others and he worried about almost everything. He also was no longer the caring person for the interests of others that he had been. He seemed to have no emotion.
31. Mr Habib said that he disciplined the plaintiff prior to the accident where necessary but could not do so afterwards. He felt guilty because he felt the plaintiff was a different person. Mr Habib was normally a stern disciplinarian.
32. Once the plaintiff started to earn an income his spending was irresponsible and his mother tried to save money for him.
33. When the plaintiff set up his own locksmith business Mr Habib warned him that it was probably illegal to do so because he did not have a licence or certificate. The plaintiff did not pay any attention to him.
34. Mr Habib said that he arranged for the plaintiff to start work at the convenience store. The owner is a friend of his. The original idea was for him to be exposed to other people because Mr Habib felt the plaintiff's language skills, both in Arabic and English, were behind what they should have been. He said that he had visited the store from time to time when the plaintiff was working and found the plaintiff acting in a way that suggested he thought "he was the boss".
35. Mr Habib said that at the present time he hardly saw the plaintiff. He would leave for work early in the morning before the plaintiff woke up. The plaintiff would not be home in the evenings.
36. Mr Habib said the plaintiff was no longer helpful at home, although he did insist that he mowed the lawns. He said he encouraged him "to try and be a man". He said the plaintiff had to be told "a hundred times" to do things. He felt the plaintiff had no respect for people and their feelings.
37. In describing the plaintiff's current condition he said that his son continually complained about his predicament. He would tell him that he was now 21 years of age and ask him how long he would stay at home. The plaintiff would reply "how long will Mum be here?".
38. Mr Habib said that the plaintiff could work but he doubted that he could save money. Effectively he said that he would need supervision if he was to live alone.
39. Under cross-examination Mr Habib did not agree that his lack of disciplining the plaintiff after the accident had perhaps, unwittingly and in retrospect, created a different person than the plaintiff might otherwise have been. Mr Habib absolutely accepted that the plaintiff was "not the brightest kid" but he was equally certain that he had been changed by the accident.
40. Mr Habib said the plaintiff still needed to be woken up in the mornings. Mr Habib was unaware that the plaintiff had been taking Mondays off while he was at Ameens Locksmith. He said he had spoken to the owner of the business about six months after the plaintiff started and the owner was enthusiastic about the plaintiff's prospects. He understood that the plaintiff left because he was being teased and taunted by a relative of the owner.
41. Mr Habib said he was not comfortable with the plaintiff working on his own accord as a locksmith. However his advice to the plaintiff about this was greeted with: "Why is dad always against me?". He said that the plaintiff was often helped by a handyman friend when he was working on his own accord. He said that the plaintiff still harboured a desire to be a self-employed locksmith.
42. In the house, Mr Habib said the plaintiff always needed to be asked to help. His other sons would help without being asked.
43. The overwhelming impression arising from Mr Habib's evidence was that with all the concessions he made about the plaintiff's learning limitations before the accident he was convinced that the plaintiff had changed to the extent that he was now insular, paranoid and in need of assistance, if only by way of guidance and encouragement.
44. I accept Mr Habib's evidence that the plaintiff did change in his personality and attitude since the accident. As will be seen below it is consistent with a good deal of other evidence. It is also consistent with his brain damage. The important questions of course are the extent of the change and the translation of the change into damages.
45. The plaintiff's mother gave evidence. She runs an after school day care centre from her home. She is one year into a diploma in day care. Unlike her husband I was not overly impressed by her evidence.
46. She described the plaintiff as a very happy and "good boy" before the accident. Allowing for her looking at the plaintiff through parental eyes I thought she portrayed the plaintiff as significantly more 'normal' than the balance of the evidence suggested. She said that he was doing well at school before the accident. She said the teachers had described the plaintiff as "very good".
47. Mrs Habib insisted the plaintiff was "not slow". She said no-one had ever said that he was slow. She described the plaintiff before the accident as her "right hand". He would help with outdoor cleaning and with shopping. She said he had hardly helped since the accident. She said she would not give him a note when he went shopping because he would not take it with him or he would respond "do you think I am a baby?". Mrs Habib said that the plaintiff did not absorb any learning. She did not think he could operate a washing machine even if it was set to a basic on/off mode.
48. To some extent Mrs Habib described the plaintiff since the accident in the same way as other witnesses. She described the same change in personality and moods, the same aggressiveness and need for assistance. However when she came to detail I thought she somewhat exaggerated the position.
49. Mrs Habib said that she still needed to wake the plaintiff every single day. Often she needed to stand by his bed for 20 to 30 minutes in order to get him to rise. She said she frequently was called into the shower to be with him because he was crying or she needed to wash his back. She denied, however, that she had ever noticed that he had shaved his chest or his arms, as referred to in the report of Dr Zeman.
50. Mrs Habib said that the plaintiff was essentially incapable of any domestic activity. He could not even make a simple lunch. Notwithstanding this she conceded that he could work in the garden although she said it would take him much longer than was reasonable. This was certainly not the impression I had from viewing the video of the plaintiff working in the garden on 4 March this year.
51. Mrs Habib said that she needed to arrange the plaintiff's clothes every day and to encourage him to eat and to wash. If she did not do so he might not shower for a week. She said he could not live independently.
52. Mrs Habib said that when the plaintiff was working he would give her sums of money for her to put into an account on his behalf. She said that he could not look after his financial affairs but when challenged on what history he had of inappropriate spending she could only nominate purchasing cigarettes. She agreed that the plaintiff had an ATM card to his account which would defeat the purpose of her taking money from the plaintiff and placing it into the account.
53. Somewhat confusingly she said that the plaintiff was not employed, and not paid, by the Lucky Seven Convenience Store although he asked her to bank $300 or $400 about every two weeks when he was working at the store. She said she had never deposited amounts of around $1,000 into his account. This contradicts the plaintiff's evidence that sums of money of this order had been deposited by his mother. The mystery of these large deposits was never solved.
54. Despite a good deal of evidence about the plaintiff's apparent pride in his appearance Mrs Habib said this was not the case and it was only on her urging that he dressed properly. She spoke to his hairdresser to ensure that he was well groomed.
55. The plaintiff has obviously been attending a gym. He said so and a number of the doctors have this history and have noticed his consistent condition. Despite this, Mrs Habib said she did not know that he had been going to a gym nor had she ever seen him in gym clothes or with a bag carrying an appropriate outfit.
56. Mrs Habib did not know the plaintiff had girlfriends but this is consistent with her husband not allowing the plaintiff to have such a relationship. I should observe here that despite various histories about a girlfriend, including telling Mr Ayoub about his girlfriend, no witness had ever seen a girlfriend. I think the possibility must arise that the plaintiff did not have a girlfriend but told people that he did in order to obtain, at least to his mind, some elevation in status.
57. Mrs Habib said the plaintiff could not walk to the convenience store, which was not very far away, because of pain in his back. This is inconsistent with the surveillance evidence.
58. Mrs Habib said that from time to time she would bring the plaintiff home in the evening after he had closed the store. They would travel straight home. This is inconsistent with Mr Khanat's evidence that the plaintiff would bring the takings to his home on the plaintiff's way home.
59. Mrs Habib said that she hoped the plaintiff would remain at home if he married together with his new wife. The impression I had from the plaintiff's father was that he was looking forward to the plaintiff becoming married and leaving to set up his own home.
60. My overall impression of Mrs Habib's evidence was that she was minimising the extent of the plaintiff's abnormality before the accident and maximising the extent of his disability following the accident. As a general statement I do not accept her evidence unless it is corroborated by other independent evidence. I preferred the evidence of her husband.
61. Another witness called by the plaintiff was Mr Andrew Hemmad. He is three years older than the plaintiff and described himself as a firm friend of the plaintiff prior to the accident. He is also a cousin and was present in the same vehicle as the plaintiff when the accident occurred.
62. Mr Hemmad said that he had continued to associate with the plaintiff for some years but had "backed off" over the last couple of years. He said this was because he did not get on with his cousin any more. He found him argumentative and sometimes badly behaved, although not to the extent of committing any criminal acts. He said on one occasion he felt that the plaintiff was driving too quickly and deliberately sped up to get through a light that was amber and turning red. He said that he had tried to help the plaintiff through guidance but the plaintiff rejected any assistance.
63. Mr Hemmad said he had locked himself out of his motor car and called the plaintiff for assistance. This was when the plaintiff was fairly new to the locksmith trade. The plaintiff not only failed to open the door but also did some damage. A qualified locksmith was called who was able to open the car very quickly. The plaintiff was probably over confident in trying to do the work but his failure may well have been simply a product of his inexperience.
64. Mr Hemmad's evidence, like that of the plaintiff's father, I think pointed to a change in the plaintiff, to some extent more subtle than that described by Mr Habib but certainly consistent with it.
65. Mr Chris Kahla gave evidence. He is the plaintiff's uncle. He said that before the accident the plaintiff was "young, active and full of life". He thought the plaintiff's personality had changed. He was more insular, not wanting to be involved in family gatherings. He seemed to be stuck in his room. Mr Kahla felt that in communicating with the plaintiff that he "wasn't there".
66. Under cross-examination Mr Kahla agreed that he had not seen very much of the plaintiff and that teenagers often gave short, curt answers. He did not know about the plaintiff's friends and girlfriends.
67. The next witness was Mrs Maryanne Kahla. She is the plaintiff's sister. She is now 22 years of age. She said that before the accident she and the plaintiff were very close; they shared everything, they laughed and played together. After the accident the plaintiff isolated himself, he was often alone and cried randomly. Their closeness dissolved.
68. Mrs Kahla said she hadn't seen the plaintiff much since she was married in 2010. She found him impatient and irritable. On one occasion when she was visiting home the plaintiff had pushed her and, she thought, her mother. He had then taken out his frustration by punching a wall.
69. Mrs Kahla denied that she had made up the pushing story. Mrs Habib also gave evidence about a pushing incident. The two versions were not the same in detail but consistent enough for me to reject the defendants' submission that the history was manufactured.
70. The next witness was Mr Mahmoud Habib. He is a carpenter and is also the plaintiff's cousin. He was a front seat passenger in the same vehicle as the plaintiff when the accident occurred. He said he had put the gas bottle into the rear compartment of the station wagon.
71. After the accident Mr Habib noticed that the plaintiff had a lump on his head. His eyes were rolling back and then closed. A local resident put icepacks on his head.
72. Mr Habib saw the plaintiff at both the John Hunter Hospital and Westmead Hospital for Children. He said they had been very close before the accident, having football in common.
73. He described the plaintiff since the accident as being aggressive and blaming Mr Habib for his predicament. He was impatient, for example when taken fishing. Mr Habib found the plaintiff to be insecure and having a low self-esteem. He said he was "picky" about his food.
74. Mr Habib seemed to know very little about the plaintiff's current circumstances. He didn't know about his work or his girlfriends but, as with the other witnesses, the overwhelming effect of his evidence is that the plaintiff went from a vibrant, popular, young boy to an insular and somewhat uncommunicative person.
75. The next witness was Mr Badr Mustafa. He is a student at the University of Western Sydney studying accounting. He said that he was one of the few students from his class who managed to go to university. He described his school as "very disadvantaged".
76. Mr Mustafa initially said he met the plaintiff in Year 4 but later thought it might have been Year 5. They then carried on in the same school year until the plaintiff left high school in Year 10. However, notwithstanding being in the same year, they were not in the same classes as Mr Mustafa was in the top class whereas the plaintiff was in the bottom or next to bottom class.
77. Mr Mustafa said he has been suspended a "couple" of times. It was put to him that this was more than the plaintiff. The suggestion was obviously wrong. This was later conceded. It was however submitted that the plaintiff's school record was no worse than his peers, noting that Mr Mustafa had more than one suspension. I reject this submission. The plaintiff had a very bad post-accident school record. There was no basis on which the defendants could submit that this was the norm.
78. Mr Mustafa's evidence followed the now consistent theme of the change in the plaintiff's personality. Mr Mustafa said the plaintiff had become unpredictable and that minor things "ticked him off". He said he would often get into fights and was very sensitive to people looking at him. He was surprised they had not been banned from the local McDonald's restaurant where the plaintiff often displayed an unjustified hostile attitude to other patrons.
79. Mr Mustafa described the plaintiff as having been "Mr Popular". He said that he continued his association with the plaintiff because there was now "no one there for him". He said he would go to his home from time to time but often found it difficult to communicate with the plaintiff. He did not know the plaintiff had been working at the convenience store. This is somewhat surprising for a person who met and conversed with the plaintiff frequently. However, it is consistent with the plaintiff's apparent disinclination to talk about himself and his circumstances. The plaintiff's father had referred to the plaintiff spending a lot of time with a friend called Badr. If this was Mr Mustafa then Mr Habib's evidence suggests more of a perception than a reality.
80. Mr Ameen Ayoub gave evidence. He is a co-proprietor with his brother Albert of the locksmith business where the plaintiff worked as an apprentice, starting in 2011. Although called by the defendants, I think his evidence also favoured the plaintiff. Mr Ayoub is a very experienced locksmith who obviously took a kindly and fostering approach to his apprentices. His brother seems have had less patience.
81. Mr Ayoub said he initially found the plaintiff to be very enthusiastic. He was always polite and seemed to get along with his fellow workers as well as customers in the locksmith shop.
82. Mr Ayoub said that he first had concerns about the plaintiff approximately a year after he had commenced when he received a summary of his TAFE performance (Exhibit 11). His concerns were heightened when he put these results together with the plaintiff's sick leave record which demonstrated that he had already taken 16 days of sick leave, most of which were on Mondays. By this stage Mr Albert Ayoub wanted the plaintiff sacked but Mr Ameen Ayoub allowed him to continue hoping that he would improve. He spoke to the plaintiff who promised to improve but this did not eventuate.
83. Ultimately the plaintiff resigned in September 2013 (Exhibit 13); however, by this time Mr Ayoub had already come to the conclusion that the plaintiff was unlikely to be successful as a locksmith.
84. He wrote a letter (Exhibit N), apparently to the plaintiff's solicitors, in November 2011 which sets out a number of matters entirely supporting the plaintiff's case. He did not, however, remember writing the letter and disagreed with some of its contents. To the extent, however, that he did agree I think it clear that he was identifying aspects of the plaintiff's behaviour which are consistent with the broad allegations the plaintiff makes about his memory problems, his inability to concentrate and his need for supervision.
85. Although Mr Ayoub highlighted certain periods when the plaintiff was doing well he had not been sent on jobs on his own by September 2013 other than to a nearby business where simple tasks were performed.
86. Returning to the November 2011 letter, Mr Ayoub was recalled to say that he had made some enquiries about the letter and found that it had been typed by his secretary. He accepted that he had signed it but also said he may have done so without reading it. He stood by the evidence he had given earlier concerning which parts of the letter were accurate and which were not.
87. Ms Sylvia Mansour is the secretary that typed Exhibit N. She was called to give evidence which was not of great assistance. She variously described herself as Mr Ayoub's fiancée and partner although she was not living with him. She had not been employed by Mr Ayoub but she did do his typing.
88. Ms Mansour said the plaintiff had asked her on a number of occasions to type a letter for him. She had done so. There is no evidence about what the other letters may have contained.
89. Ms Mansour said that Mr Ayoub may well have signed the letter without first reading it. It was not suggested that any particular person had dictated it to Ms Mansour. I would have been very surprised if she had taken down information from the plaintiff which she knew to be incorrect and then placed it before Mr Ayoub to be signed. I also do not think the plaintiff had the intellectual capacity to dictate the contents of the letter.
90. Exhibit N remains a mystery. Some of it was adopted by Mr Ayoub, some of it was not. It is quite possible he has forgotten some of the things that are alleged. The most telling feature against the value of the letter is that it is dated some two months after the plaintiff commenced employment at Ameens when by all accounts he was doing well and enjoying his job. I think the only responsible approach I can take to the letter is to accept only those parts that Mr Ayoub said were correct.
91. Mr Joel Barlow is currently an employee of Mr Ayoub. He has been with the company for five years and had been an apprentice prior to the plaintiff. He described the plaintiff as essentially a typical first year worker although I did get the impression that the plaintiff may have been more forgetful than the average apprentice and had problems with some tasks, such as a particular computer programme. This may have been consistent with the plaintiff's pre-accident intellectual capacity.
92. Mr Barlow said the plaintiff did not get on with the bosses, in particular Mr Albert Ayoub. However he said that when issues arose between them the plaintiff would "walk away". He said that he did socialise with the plaintiff after work but this was only on a couple of occasions.
93. Mr Barlow said that the plaintiff taking off Mondays was seen as something of a joke by his fellow workers. He said the plaintiff seemed to stop caring after about six months. He became less enthusiastic and had difficulty with some jobs. He needed to ask for explanations, such as how to deal with the computer programme I mentioned above. He thought the plaintiff was "pretty good" with customers. He did not remember the plaintiff using a diary.
94. In relation to the plaintiff's use of a diary, no diary was tendered or otherwise placed before the court. If it was relied on as much as alleged I would have thought the plaintiff would have brought it to court.
95. Mr Barlow said that the plaintiff needed more explanation than the average employee in his or her first year. Another issue that arose with the owners was the plaintiff's frequent use of his mobile phone.
96. Although there may have been other influences affecting the plaintiff, such as having a girlfriend or perhaps being overly active on weekends so that he took Mondays off, there is nevertheless a good deal of support in Mr Ayoub's and Mr Barlow's evidence for the plaintiff's case. Whatever the reason he took Mondays off the fact is also an indication of his lack of insight into the importance of going to work especially as an apprentice hoping to achieve a trade qualification.
97. In addition, when one looks at the TAFE records (Exhibits 11 and 14) there is an overwhelming message of the plaintiff simply being incapable of achieving the necessary standard to be successful in the courses. I do not think his poor results can simply be attributed to him having a poor attendance record. To the extent that his failure to attend is relevant I think this is an indication of his changed behavioural attitude.
98. The owner of the convenience store, Mr Khanat, gave evidence. He said he had been approached by the plaintiff's parents to help the plaintiff by providing him with some work. Mr Khanat said that initially the plaintiff did not do very much other than walk around the shop. He then took some time off and when he came back he gradually began doing certain tasks. It came to a stage where he was allowed to open and close the store, deal with customers including use of the register and the EFTPOS system. I note that the system included a facility to provide 'cash out' to customers. Mr Khanat accepted that he trusted the plaintiff with all duties.
99. Notwithstanding the trust that was put in the plaintiff Mr Khanat insisted that he was not a real employee and he was not paid a wage. On one occasion he gave the plaintiff a packet of cigarettes. On another occasion he offered him cash but he would not take it.
100. Mr Khanat denied receiving a subpoena to produce documents. This is contradicted by Exhibit 18. He said that in any event he did not have any records concerning the plaintiff. He did accept that he had spoken to somebody from a firm of solicitors but denied that he had been rude to that person or accused that person of being against the plaintiff and his interests. No evidence was called to establish the defendants' version of the conversation.
101. Mr Khanat said that the plaintiff often did not deal well with customers and identified an occasion where the plaintiff brushed the shoulder of a customer and then began yelling at him. This was surprising to Mr Khanat as the plaintiff knew the customer. I think this incident is significant because it is consistent with other evidence describing the plaintiff's apparent hypersensitivity to innocent encounters which he elevates to significant events. The incident described by Mr Mustafa at a McDonalds restaurant is an example.
102. Mr Khanat said that he was able to monitor the plaintiff's activities in the shop through his mobile telephone. He accepted that the plaintiff might on occasions both shut the store one evening and open it the next morning. However, there were occasions when he needed to be telephoned because the store was not open or perhaps the milkman let him know that there was no-one present. As far as Mr Khanat was concerned he did not mind who opened the store as long as it was either the plaintiff or his cousin. Mr Khanat confirmed the plaintiff's evidence that the keys were marked either by engraving or a tag and that notes were left for him to assist him with pricing.
103. The defendants submitted that Mr Khanat should not be accepted. They said his credit was seriously in doubt. This was primarily based on his evidence that the plaintiff was not paid. It contradicts the plaintiff's evidence that he was paid $15 an hour. To add to the mystery Mrs Habib also said that the plaintiff had not been paid but yet she had received moneys from him on a regular basis during his employment at the convenience store.
104. It is difficult to understand why Mr Khanat would have denied paying the plaintiff if he had in fact done so. I do not accept Mr Khanat's evidence that the plaintiff was not paid. I do not accept the similar evidence from Mrs Habib. The reason for the denial is unknown. One could speculate that perhaps there were compliance or workers compensation reasons for not having the plaintiff as an employee. These of course are no more than guesses.
105. I would have had serious concerns about the whole of Mr Khanat's evidence were it not for the fact that there were elements of it that were consistent with other evidence given by people I regarded as reliable historians.
106. What I do think emerges from Mr Khanat's evidence is that even if the plaintiff was not a full time employee he did reach a stage where he was entrusted to open and close the store, to deal with stock, customers and cash. I have little doubt that Mr Khanat would not have allowed the plaintiff to carry out these tasks unless he was certain that he had the capacity to do so.
107. A statement from Mrs Khanat was provided to some of the medical practitioners, including Dr Shores. She was not however called to give evidence. It was submitted that I should draw an inference that her evidence would not assist the plaintiff's case. No reason was given for her absence and I do draw that inference.
108. Another matter that requires noting is that some of the medical experts were provided with histories about the plaintiff's siblings including their detailed personal histories.
109. Drs Smith and Zeman both said that they had taken into account in their assessments of the plaintiff the personalities and achievements of the plaintiff's siblings. The defendant however does not rely on any genetic makeup of the plaintiff to explain his pre-accident or current condition. Thus, for example, Dr Smith reducing his assessment of whole person impairment by 2% because of what he was told of the plaintiff's siblings, must be ignored. Similarly Dr Zeman's factoring in to his assessment the information he had about the family must also be ignored. This is difficult to do when a doctor has reached conclusions based on a number of factors. This point of course also applies to what I have said above about the statement from Mrs Khanat.
110. I cannot apply any exact science to excluding factors from an opinion where those factors are either not relied upon or not established. I have however done my best to read the reports subject to these issues.

School reports

1. The school reports and related documents can be found in Exhibits F and O. Both sides relied on this material; the plaintiff to show the deterioration in his behaviour after the accident, the defendant to emphasise the plaintiff's pre-accident condition established a low intellectual ability.
2. In my view the school material backs up both of these propositions. A number of the medical reports include summaries of the school material so that I do not propose, or need, to summarise it yet again. Suffice to say here that the plaintiff was clearly not doing very well at school before the accident. This however is a comment made from an academic point of view. I think the school reports do show the plaintiff, before the accident, was a happy child who got on well with his peers, was not 'naughty' and was sports orientated.
3. The reports after the accident, in particular those in Exhibit O, continue to illustrate the plaintiff's lack of academic ability. They also, I think quite dramatically, show deterioration in his behaviour. The many instances of bad behaviour are not what might be categorised as simple acts of mischief. On many occasions there is an added element of the plaintiff being both aggressive and entirely unconcerned with discipline or the threat of it. For example, there is this note on 2 March 2009: "Kenny was calling out and disrupting class. He had a bag of lollies which he threw to other students. He refused to put them away. Kenny was kept back for a short detention, but refused and ran out. Refused time out desk."
4. On 23 February 2009 there is this note: "Loud and disruptive in class. Noises on mobile. Refused to hand it in. Shouted and argued."
5. In a note on 6 November 2008 there is an indication of the plaintiff simply not comprehending the bounds of his misbehaviour. The note reads: "In German was given ample chances in class. He spoke to Ms Meyer in a very rude manner and could not understand what he had done wrong. His behaviour does not change even after so many chances."
6. The plaintiff was frequently given detention and suspended.
7. I think the evidence of Mr 'Bob' Habib about the plaintiff's change of attitude and behaviour following the accident is correct. In my view the school material displays a clear change in the plaintiff's behaviour. It also confirms the overall assessment of the plaintiff to the effect that his brain damage has manifested itself significantly in a change in his behaviour but not so much in his cognitive capacity.
8. The questionnaire sent to the school by the clinical nurse consultant in the Brain Injury Department at the Children's Hospital is I think important. It is to be found at page 3 of Exhibit C. It makes it clear that prior to the accident the plaintiff never had angry outbursts, either verbally or physically, never used bad language and never engaged in anti-social behaviour.
9. In the defendants' favour the questionnaire does emphasise the plaintiff's difficulty with school work.
10. I agree with the summary in relation to the school documents provided by Dr Shores, as follows: "A review of his pre-accident school reports would suggest that from an early stage he preferred "to learn through activity rather than reading", was friendly and well-mannered and was a proficient sportsman. His post-accident school reports paint a very different picture, with evidence of personality change exhibited by disruptive and aggressive behaviour and persistent disobedience resulting in a large number of Incident Reports and Individual Student Contacts pertaining to behavioural difficulties." (paragraph 6.3).

Medical evidence

1. Both parties tendered extensive amounts of medical evidence. In final submissions the plaintiff took me to a number of the reports. The defendants were content to rely on the report of Dr Shores and the evidence of the doctors who gave oral testimony.
2. On reading the contesting reports the initial impression is one of a great distance between the parties. I think this distance narrowed to a degree during the concurrent evidence of Drs Klug and Smith. Ultimately there is no dispute that the plaintiff suffered significant brain damage. Further the parties agreed that the brain damage had primarily manifested itself in behavioural changes.
3. The plaintiff maintained there was cognitive damage, which although mild in nature, nevertheless was of large effect, especially when acting upon the plaintiff's pre-existing cognitive state. The defendants said the cognitive damage was mild in both nature and effect.
4. A lot of the medical material is historical and repeatedly referred to in the reports. For example, neuropsychometric testing is reported on both by the testers and other medical practitioners who have relied on the reports or at least commented on them. I do not propose to summarise every report in the two large bundles that I was given. I think that particular reference however needs to be given to the oral evidence of Drs Klug and Buckley on the plaintiff's side and Drs Smith, Zeman and Spira on the defendants' side. The report prepared jointly for both sides by Dr Shores also requires some examination.
5. Despite this general approach I do think it necessary to refer to the following: 1. The MAS assessment carried out by Dr Wan dated 5 December 2013 described the head injury as a "traumatic brain injury in the severe range" (Exhibit C, page 350). The defendants said that the use of the word "severe" was a technical term derived primarily from the length of post-traumatic amnesia. That may well be the case but nevertheless the head injury must be seen more than mild or medium in nature. 2. Dr Mandalis, a neuropsychologist who reported for the defendant, made a number of important observations in her report dated 14 November 2008 (commencing at page 77 of Exhibit C): "His cognitive profile is consistent with a pre-injury history of 'Borderline' intellectual abilities and literacy and numeracy difficulties. The profile also shows changes to Kenny's executive skills and susceptibility to cognitive fatigue, consistent with the effects of a TBI." (paragraph 7.2). "The main limiting factors to his employment potential that are associated with the TBI is his reduced ability to control his emotions and behaviours, and the potential exacerbation of attention and organisational difficulties." (paragraph 7.3). "Kenny demonstrated attention and organisation difficulties prior to the accident however it is likely that these deficits have been exacerbated given the nature and severity of his TBI. Parent and teacher ratings also indicate deficits in the areas of initiation, flexibility and working memory, all of which are consistent with the effects of a TBI, especially one that involves frontal system damage. Kenny continues to experience cognitive fatigue from lengthy periods of concentration, which is directly a result of the TBI." (paragraph 7.4). "Kenny is particularly vulnerable to failure to develop executive skills due to the severity of the TBI and the associated damage to his frontal lobes. In addition, he has the potential to benefit from intensive behaviour support provided to him and his family, as well as academic support, to improve his prognosis." (paragraph 7.5). "Generally, a moderate to severe TBI sustained in childhood is associated with poor cognitive and academic outcomes. The outcomes are even worse for children with a history of learning difficulties that predated the TBI, which is the case for Kenny." (paragraph 7.7). 1. Mr Rawling, a neuropsychologist who reported for the plaintiff, very recently, said the following in his report of 9 April 2015 (Exhibit C, page 141, from page 2): "These findings were replicated in subsequent assessments by Dr Mandalis herself and by myself and Dr Shores. The borderline intellectual functioning and the learning disorder in reading are pre-existing while the other documented cognitive deficits are acquired - i.e. attributable to the brain damage sustained in the accident. Regarding reading though, it is worth noting that when repeating Year 5, his reading ability was at the national benchmark standard for Year 5. When re-assessed in Year 7, his overall literacy skills were at the "elementary" level. Clearly, the brain injury had acted to slow down the development of reading skills evident up to Year 5 (pre-accident). These acquired deficits (i.e. the cognitive losses due to brain damage) are relatively mild and circumscribed but given that Kenny's pre-accident cognitive potential would need to be realized to the full if he was to cope in a trade, any loss, even a mild loss, was almost certain to render him non-viable. For example, a drop of only 4 IQ points would see his Performance IQ drop into the Borderline Defective range and his overall or Full Scale IQ drop into the Defective range. Verbal IQ was already in the Defective range. Of course in Kenny's case, the cognitive loss was compounded by a range of emotional and behavioural deficits - irritability, lack of initiative, impulsiveness, poor social judgment-caused by the frontal lobe damage he suffered. There was universal agreement among the experts credentialed by both sides in this case on the nature and cause of these emotional and behavioural deficits." (pages 142 and 143).
6. Dr Shores' report appears in each side's bundle. Dr Shores is a consultant neuropsychologist who was retained jointly by the parties. He was accepted to be well experienced and regarded in the area in which he has given his opinion.
7. Some caution must be exercised in reading Dr Shores' report because of erroneous items of history. For example, in paragraph 1.5 he refers to the plaintiff now being a fourth year locksmith apprentice who was still at TAFE but had coped with the TAFE studies so far. He was also told that the plaintiff was "good at" being a locksmith. These assertions are clearly not correct. Dr Shores was also given the November 2011 statement from Mr Ayoub (Exhibit N), some of which is unreliable, and a statement from Mrs Khanat.
8. Dr Shores carried out a useful summary of the school records as well as preparing a comparative table of the psychometric testing that the plaintiff had undertaken over the years.
9. Dr Shores thought it "unlikely that there has been any significant effect on his memory function as a consequence of his head injury" (paragraph 3.1.7). A little later he said "despite one low average score, these results overall are consistent with a mild to moderate degree of executive dysfunction" (paragraph 3.2.2). In a footnote Dr Shores explained that "executive function is an umbrella term for functions such as planning, working memory, inhibition, mental flexibility, as well as the initiation and monitoring of action … it represents the highest form of human thought and is associated with the frontal systems of the brain".
10. The point made on behalf of the plaintiff is that even though any cognitive impairment was mild it was operating on a low base. In addition the executive dysfunction found by Dr Shores was a cognitive impairment. It carries some significance when looking at the need for management of the verdict monies.
11. In paragraph 5.5 Dr Shores said: "These results would suggest that he is reporting a significant degree of emotional and behavioural dysfunction. However, given the long period of time since his injury, his report of having coped well for a period in the workplace and his normal presentation during the interview, some degree of symptom embellishment cannot be excluded."
12. In paragraph 6.1 Dr Shores explains how the plaintiff came to be assessed as having a severe traumatic brain injury. He then makes this important point: "With a brain injury of this severity it is unlikely he would not be left with some permanent neuropsychological and/or behavioural impairment".
13. I have already quoted what Dr Shores said about the comparison between the plaintiff's pre and post-accident behaviour at school.
14. Dr Shores deals with the plaintiff's employment prospects in paragraph 6.12. He said: "I would consider that from the neuropsychological point of view, despite mild to moderate executive dysfunction and personality change, he is fit for employment generally based on my assessment and the report of his employer who said that "As an apprentice he had to teach Mr Habib from scratch how to perform his duties but he learned quickly and could perform his duties independently. He said there was no need to supervise him more than would be expected for any other apprentice. He said that during the first 8 to 9 months of his employment he displayed enthusiasm, work ethic and ability which indicated that he could go further in the locksmith industry."
15. One of the difficulties with Dr Shores' conclusion about the plaintiff's fitness for employment is that the report of the employer is not correct. As already noted the plaintiff began taking days off and missing TAFE classes, or failing them, very shortly after he commenced employment.
16. Dr Shores goes on to say that the plaintiff "would need to apply himself to his TAFE studies and regain the enthusiasm and work ethic, of which he has demonstrated he is capable". This demonstration is not supported by the evidence. Again as already mentioned, Exhibit 14 paints a very different picture of what the plaintiff is capable of.
17. Thus while I generally accept the views of Dr Shores confining the plaintiff's impairments to mostly of a behavioural nature I think he has overstated, because of the unreliability of the assumptions he relied upon, the plaintiff's capacity to work.
18. The defendants relied heavily on the video film. I think it is significant but not to the extent asserted by the defendants. In my view the film unquestionably contradicts the plaintiff's evidence about continuing low back and knee problems. If the plaintiff does have any still existing problems in this area they are minor and do not affect his capacity to work or engage in domestic activity. I acknowledge that this conclusion does not exclude the possibility of some future problems, in particular in the plaintiff's knee.
19. The defendants however sought to derive a much greater advantage from the video evidence than that related to the plaintiff's physical capacity. In their submission the film showed that the plaintiff was capable of independent thought, independent action and an uninhibited capacity to work.
20. To this end Dr Spira, a neurologist, had been sent the video. This led to his report of 18 April 2015 in which he says he has changed his previous opinion to the extent that he had overestimated the level of disability he had previously concluded was applicable to the plaintiff. He ended the report stating: "Given the level of functioning demonstrated I believe that I overestimated the whole person impairment I supplied and the actual level of behavioural change must be a good deal less than the 15% I quoted."
21. In the witness box Dr Spira made a very important concession. He said that his most recent opinion was derived only from a viewing of the film. He noted the film was silent and he could not say what matters might be seen as a background to the film. For example, he specifically observed that his views on the plaintiff's apparent capacity to work (in the convenience store) might be affected by the plaintiff having a sympathetic employer. He said making an assessment on a simple viewing of video film was a "limited" approach (T 408.7).
22. I have already made the point that my assessment of Mr Ayoub was that he was in essence a sympathetic employer. Although there was much debate about Exhibit N it is quite clear that Mr Ayoub took an almost paternal role in the employment of the plaintiff and his evidence must be seen against that background. The defendants sought to make a great deal about Mr Ayoub's evidence that for the first year he thought positively about the plaintiff's work capacity and prospects. However, that evidence must be looked at against the background that in the first year the plaintiff was taking off many Mondays and performing very badly at TAFE. By July 2012 he had already taken 16 "sickies", all but one of them on a Monday.
23. The defendants suggested that the plaintiff was simply a young man who had decided that socialising was preferable to working. What this approach ignores is the evidence that the plaintiff wanted to be a locksmith and his haphazard approach is as much an indication of a failure to appreciate the significance of being at work and attending TAFE as of being disinterested. Dr Smith identified the inconsistency between the plaintiff's disinterest in being a locksmith at the same time as behaving in a manner which suggested he had no real care in the trade as consistent with the disinhibited behaviour one might expect of a person with frontal lobe damage: "HIS HONOUR: Can I just ask something arising from that? The records indicate that the vast majority of days he took off were Mondays, to the extent that the people in the workplace were having bets on whether he'd show up on a particular Monday. On the one hand that might indicate someone who just has a good time on the weekend and doesn't come in Monday because either he's too tired or just doesn't want to, but what I'm having a little trouble with is, can that at the same time be indicative of the frontal lobe impacts of his brain damage in that if you take him as a person who has said that he really wants to be a locksmith, and other witnesses have described him as having this passion to be a locksmith, that to have such a casual indifference to his apprenticeship and to going to work is only explicable by irrational and perhaps brain damaged behaviour? Is that-- WITNESS SMITH: That indicates to me a, a lack of judgment on his behalf and that ties in with frontal lobe executive damage." (T 382.1)
24. The above comments illustrate an issue which permeated a good deal of the evidence through the case. A number of matters which ostensibly supported one party could, on a different interpretation, support the other side.
25. Returning to Dr Spira, his report of 10 November 2011 on page 3 (Exhibit 3, page 325) suggests that prior to the accident the plaintiff was working as a clerical assistant at local tennis courts. There is no evidence to this effect and no apparent source for this history. The error classically demonstrates the warnings concerning histories given by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2).
26. Another example of the need for caution with histories is the plaintiff telling Dr Buckley about the extent of his work when self-employed as a locksmith (Exhibit C, page 225). The plaintiff in evidence said that the extent of his work was that contained in Exhibit M, revealing only eight jobs. My assessment of the plaintiff is that he would not have had the capacity, either mentally or by training, to have been as successful as he asserts in the history given to Dr Buckley. I prefer Exhibit M as showing the fruits of the plaintiff's endeavours to work on his own. In other words I think he essentially failed.
27. I do not think the history given to Dr Buckley can in any measure be accepted as an indication of the plaintiff's capacity to work. To the contrary, I think the history is more consistent with the plaintiff trying to impress Dr Buckley with his ability to work as a locksmith rather than as an indication of reality. The defendants submitted I should not take this approach because it could not sit with the plaintiff otherwise telling Dr Buckley of his myriad of complaints in order to maximise his claim. Firstly, I do not think that the plaintiff has the guile to manufacture evidence to bolster his claim, at least with any degree of sophistication, and secondly I think the plaintiff probably would not have appreciated the contradictory effect of the history he gave to Dr Buckley.
28. When Dr Buckley gave evidence he said he had not believed the plaintiff when he described the extent of his work as an independent locksmith.
29. Dr Buckley gave evidence concurrently with Dr Zeman. They are both rehabilitation specialists. Their views could not be further apart. Dr Buckley's reports are in Exhibit B. Dr Zeman's reports are in Exhibit 3.
30. Dr Buckley sees the plaintiff as significantly impaired in his capacity to live a normal life. He advocated a regime of assistance and care which involved six hours per day during the week and two hours per day on the weekends. Dr Zeman, on the other hand, accepted the plaintiff had suffered brain damage but said that there was little functional loss as a result of the damage. He could see no need for the plaintiff to have any assistance and did not see why the plaintiff could not work in the same manner that he might have done but for the accident.
31. Both doctors made concessions during their concurrent evidence when presented with assumptions that contradicted the histories that they had received. Dr Buckley was, however, concerned to emphasise his disagreement with the approach taken by Dr Shores to the extent that a distinction was made between cognitive and behavioural deficits arising from the accident. Dr Buckley thought, in my perhaps simplistic summary, that the distinction could not be easily made and that there was necessarily an element of both cognitive and behavioural features in the plaintiff's presentation.
32. Dr Zeman conceded an extent of executive dysfunction but said his interpretation of the plaintiff's pre-accident condition was such that this was not entirely due to the accident.
33. A matter which I noticed in Dr Zeman's reports which concerned me related to his history of the plaintiff's pre-accident behaviour. On page 2 of his report dated 16 March 2010 (Exhibit 3, page 336) Dr Zeman refers to a history from the plaintiff's father that the plaintiff "used to get angry but not as much". In a later report dated 15 November 2011 Dr Zeman says "before the accident, as noted previously, he had significant behavioural problems" (Exhibit 3, page 349). I asked Dr Zeman about these two comments and whether there was any other information which had caused him to elevate the history from the father to the comment made in the later report. He said there was not and conceded, in essence, that he had made something of a quantum leap from the original history. In the later report he went on to refer to behavioural difficulties suffered by the plaintiff's siblings and then concluded that the plaintiff had suffered a "traumatic brain injury with good functional recovery". To the extent that Dr Zeman has relied for his conclusion on the plaintiff's pre-existing behavioural condition and the attributes of his siblings the conclusion must be rejected.
34. I think the most useful findings that I can draw from the concurrent evidence of Drs Buckley and Zeman is two-fold: 1. As far as capacity to work is concerned the plaintiff's pre-existing condition would have limited him to the same types of employment that he is now capable of but his behavioural deficits (from the accident) make him more likely to lose jobs and have periods of unemployment. (Dr Buckley added to this scenario that if the plaintiff lost a number of jobs he would eventually become unemployable because of a continuing pattern of not being able to find employment and not having favourable references from previous employment). 2. The most reliable means of gauging the extent and effect of behavioural changes was by way of observations of the plaintiff, although this, of course, assumed the reliability of the observations. Psychometric testing was essentially designed to measure cognitive loss. It was less able to measure the extent of behavioural change.
35. In relation to the second point made in the preceding paragraph Dr Buckley was quick to state this view: "HIS HONOUR: So does it largely come down to the reliability of the observers' reports? WITNESS BUCKLEY: I think that's very true, your Honour, yes." (T 450.8)
36. Dr Zeman did not initially agree but later, I think, did adopt the same attitude but subject to the reliability of the observers' reports: "HIS HONOUR: --what I am saying was, is the only ‑ and having regard to what you've just said, that the testing of behaviour is limited, is the only way to come to any conclusion about behaviour or the effects of brain damage on his behaviour by the reliability of observers-- WITNESS ZEMAN: No - HIS HONOUR: --be they independent or-- WITNESS ZEMAN: No, I would agree on that, because I don't think, I don't think we can add ‑ well, if he had a problem, occasionally we can, we can do ‑ find it on testing, but the testing, which is very simplistic, doesn't show up anything, right? So he hasn't got that behaviour that you might see with someone that, that has got other, other more obvious problems, so if they are problems I would assume they're either not present or very subtle and it would have to depend on observers, and this is where we have a problem where ‑ trying to get some reliability about that, yeah." (T450.45)
37. The effect is that a good deal of the assessment of the plaintiff must come down to my acceptance of the reliability of the witnesses who were called to talk about the plaintiff and their observations of him as he has grown up. The surveillance evidence also plays a part, in particular where it contradicts those observations. Also obviously important are written records, like school and TAFE documents, which refer to the plaintiff's behaviour and achievements (or lack of them).

Damages

1. I have already made a number of findings in the course of discussing the evidence of the various witnesses and the contents of assorted documents and reports. I think it useful, before embarking on the assessment of damages, to restate the starting point for the assessment of damages.
2. My fundamental conclusions are as follows: 1. The plaintiff was a happy, popular and helpful child before his accident. 2. As a result of the accident he suffered a severe traumatic brain injury, a low back injury and a knee injury. 3. The low back and knee injuries, subject to the possibility of causing him some problems in the future, had essentially resolved within about three years to an extent that he was no longer impeded in his physical actions. 4. The brain injury has resulted in a mild cognitive deficit but has had a significant behavioural impact. 5. The cognitive deficit has had a larger effect on the plaintiff than might otherwise have been expected because the damage was imposed on an already low cognitive base. 6. I have reservations about some of the evidence called in support of the extent of the behavioural changes. These reservations are mostly confined to the evidence of Mrs Habib and, to a lesser extent, Mr Khanat. 7. I accept the evidence of the plaintiff's father and the remaining lay witnesses that following the accident the plaintiff became insular, isolated and sensitive to casual contact with strangers. In regard to the latter I am referring to incidents such as the occurrence at a McDonald's restaurant in the company of Mr Mustafa. 8. The plaintiff has a capacity to work but it is tempered by an unlikelihood of holding down any particular job for a very long period and not, sooner or later, falling out with either an employer or, if relevant, a customer or perhaps simply not appreciating the need to go to work regularly.
3. Starting with non-economic loss the defendant submitted that $225,000 was appropriate. The plaintiff advanced a figure of $492,000 because this is the cap set by Section 131 of the MACA. It is common ground that once the plaintiff becomes entitled to non-economic loss the assessment should be approached on an essentially common law basis provided that the cap is not exceeded. The plaintiff's submission, therefore, was that non-economic loss was more than $492,000 but this was the limit that could be awarded.
4. The plaintiff's knee and back injuries must of course be factored in to the assessment. They would no doubt have caused him a good deal of pain immediately after the accident and for some time thereafter. He still has a scar on his knee, although he gave no evidence about it. These injuries also still appear to be affecting his own consideration of his condition. I do not accept the defendant's submission that his evidence about his physical capabilities was false. The injuries may not be affecting him but I do accept that he has a perception that they do.
5. The major influence on non-economic loss must obviously be the brain damage and its consequences. The plaintiff was never an intelligent child and would not have become intelligent but for the accident. He would, however, have presumably remained happy and popular, been able to pursue his love of rugby league (even if only at an amateur level) and he would have had an uninhibited social progression presumably to marriage and family life. I do not mean to say he will not marry, but rather to point out he may be a less attractive suitor and susceptible to more arguments within his relationship.
6. The result of the behavioural changes, especially when acting upon the cognitive deficits (accepting them to be mild) has been to entirely change the plaintiff's capacity to enjoy life as he presumably would have but for the accident. The effects will be felt on a daily basis and for the rest of his life. In my view, on this basis, the plaintiff's non-economic loss should be assessed at $300,000.
7. The defendants proposed a figure of $15,000 for past economic loss including any lost superannuation. This was put forward on the basis that the plaintiff had little functional effect from the accident and a small buffer was appropriate. The plaintiff claims $222,137, including lost superannuation benefits. This was based on a net wage of $890 per week. It was conceded, however, that this figure is the wage of a qualified locksmith. The plaintiff would have taken at least four years to achieve this status, assuming he could have done so in any event.
8. The plaintiff's total claim excluded his actual earnings of $36,046 which he has received since the accident.
9. I have significant doubts about whether the plaintiff, but for the accident, could have qualified as a locksmith. I do, however, accept that he could have held down steady employment, perhaps in the locksmith trade, as an assistant or in some other occupation carrying out labouring or other relatively simple tasks.
10. I do not think it appropriate to assess the plaintiff on an average weekly earnings basis, firstly because having left school he would have taken time to establish himself in a steady job and secondly because I have significant doubts that he could have reached an average wage in any event.
11. I think the appropriate way to proceed is to assess his capacity but for the accident, factoring in the limitations that he would have been faced with as well as an initial training or establishment period, at $500 per week.
12. Taking the 221 weeks from February 2011 to the present the result is $110,500. This must be reduced by the wages earned of $36,046 reducing the figure to $74,454. Lost superannuation benefits at 11% are $8,190.
13. Turning now to future economic loss, the defendants suggested a buffer of $170,000 including lost superannuation benefits. This submission equates to a little under $200 per week. The plaintiff's claim was for $802,852 which includes a total lost economic capacity of $890 per week for the rest of his life together with lost superannuation benefits. The plaintiff's approach assumes he has no retained earning capacity and will not work again.
14. Neither party addressed me on findings I should make under Section 126 of the MACA. In my view but for the accident the plaintiff would have worked in a labouring or other unsophisticated employment for the balance of the whole of his working life but due to the nature of his employment opportunities he may have had some periods off work so that the normal vicissitudes of 15% would have been increased to 20%. As already stated I do not think the plaintiff would have been likely to achieve, over the years, average weekly earnings but that he would have gradually increased his average wages to a sum higher than the $500 per week net that I have allowed for in the past.
15. Taking into account the wage of a locksmith at $890 net per week, and repeating my conclusion that he would not have achieved this level, I think a fair approach is to begin the assessment on the basis of a potential lost capacity reflected in $750 net per week.
16. I do however think that the plaintiff has retained some earning capacity but its constancy must be measured against these factors: 1. His behavioural problems are likely to interfere with the longevity of any job that he obtains. 2. The range of employment open to him will be more limited than it would otherwise have been. 3. As he leaves more and more jobs his capacity to obtain references, and therefore new engagements, will be affected, but not to the extent suggested by Dr Buckley.
17. Taking these matters into account I assess the plaintiff's retained earning capacity at $350 per week leaving a lost capacity of $400 per week. I have chosen $350 because it is roughly his net wages over the year ending 30 June 2013. He worked for the whole of this year.
18. Taken to age 67 the calculation on the 5% tables is as follows: 956.1 x 400 - 20% = $305,952. Lost superannuation benefits at 11% are $33,655.
19. The next head of damages is past gratuitous care. The defendants' submission was that the maximum amount the plaintiff should receive is $25,000. This is based on 150 weeks at seven hours per week.
20. In final written submissions the plaintiff does not seem to have dealt with past care but obviously did not abandon the claim. The schedule of damages handed up by the plaintiff at the commencement of the hearing sought past care on the basis of 10 hours per week from the date of the accident to the present time. This claim totals $118,820. I assume this remains the plaintiff's position.
21. Past care is all gratuitous care. Both parties applied an averaging approach to the rates, as opposed to the specific rates referred to in Section 141B of the MACA. The defendants' figures suggest an hourly rate of $23.80 for the first 150 weeks. The plaintiff used $26 per hour over the whole period.
22. The defendants have conceded that the plaintiff would have required care following the accident. Their allowance for almost three years recognises a continuing need for the plaintiff to be assisted and supervised. The cut off after 150 weeks was not explained but I assume it is consistent with the first video films in 2009 showing the plaintiff without any physical incapacity.
23. The plaintiff's claim does not depend only on physical incapacity, rather it relies on the goading and encouragement required by the plaintiff to keep him going through the day from getting up in the morning to washing himself and even eating. I have great difficulty in seeing how these activities would take 10 hours per week. I do not accept the plaintiff's mother's evidence that she spends up to half an hour every day assisting the plaintiff to get out of bed.
24. The plaintiff's father did however say that there were frequently problems getting the plaintiff out of bed especially when he was working. He said there were times when he "basically dragged him out of bed". The evidence was that before the accident the plaintiff was a helpful and enthusiastic child. There was no suggestion that he had difficulties arising at the start of the day or eating during the day. I think he is quite capable of getting out of bed and capable, for example, of making a simple meal. I do not think he needs care for those actions. What he does seem to need assistance with is the encouragement to perform the actions. It is almost impossible to quantify the amount of time that is required. For example, it takes no more than a minute to tell someone to have something to eat or to get out of bed. However it seems that what is required in the plaintiff's case is persistent reminder.
25. I think the way I should approach past domestic care is to adopt the defendants' position of seven hours per week but not to end it after 150 weeks. I am satisfied that on the plaintiff's father's evidence, as well as so much of Mrs Habib's evidence that I accept, that he still does need encouragement with basic tasks. This encouragement does not need anywhere near the length of time suggested by Mrs Habib but in my view would occupy, on average, an hour per day. I therefore allow the plaintiff past care at seven hours per week. I intend to use a rate of $25 per hour which, adopting the same averaging approach as the parties, seems to me to be a fairer reflection of the change in rates from the date of the accident to the present. There have been 459 weeks since the accident. The calculation is 459 x 7 x 25 = $80,325.
26. Future care is the most contentious of the claims. The defendants said there should be no allowance at all whereas the plaintiff sought $1,708,350. The basis for the plaintiff's claim is a weekly cost of $1,671.08 essentially derived from the opinion of Dr Buckley as costed by Ms Sohier (Exhibit C, page 364). The weekly cost includes a housekeeper for 14 hours ($687.68), an activities co-ordinator for 20 hours ($833.40) and a case manager for 1 hour ($150). The plaintiff's regime is sought immediately, making no allowance for the plaintiff remaining at home for some years.
27. Dr Buckley's opinion, as expressed in both his reports and his oral evidence, is that the plaintiff is essentially a lost soul requiring almost permanent guidance. Dr Buckley suggests an activities co-ordinator for four hours every day during the week together with domestic assistance for two hours every day and also an independent case manager for one hour per week. The defendants' position is that the plaintiff has no care needs whatsoever. He can look after himself and he can work.
28. In my view the plaintiff is likely to remain at home for a number of years. I cannot predict when he will get married but I do think, having regard to his father's evidence, that when this occurs he will leave home. I also think that by the time of his marriage he will have adapted his attitude so that he will realise the necessity to get out of bed, go to work (at least when he has a job) and to bathe and eat. Although his future wife might find herself having to provide encouragement and 'urging' I do not think the six hours per week threshold will be met.
29. As I have already said I do not think the plaintiff will easily find a wife. For that reason a fair approach is to proceed on the basis that he will remain at home for, say, another 10 years and continue to receive the same support he gets from his parents.
30. The current rate is $27.96 per hour. On the 5% tables the calculation for the next 10 years of domestic assistance at seven hours per week is: 27.96 x 7 x 412.9 = $80,813.
31. It is to be taken from my prescription for future domestic care that I have rejected the regime proposed by Dr Buckley. I simply do not think that the plaintiff requires this level of supervision. He is a person who may not have successfully held employment for the whole of the period since he started working, but he has been employed for sometimes relatively long periods. He has made his way to work, he does drive (when he has a licence and sometimes when he does not) and he is capable of many tasks (as seen in the video evidence).
32. I do, however, believe there is, arising from the accident, a need for an overall level of supervision at least during his working life. I think the plaintiff needs to effectively 'be kept an eye on' to make sure that he is working or trying to find work, that he is not experiencing any particular problems either due to behavioural or cognitive issues and has a source for advice and liaison with employers. Although this need may to some degree arise from his pre-accident condition I think the probability of it, even if it is a product of cognitive impairment, is that it arises from the accident because the mild cognitive damage is what has made the difference, in particular to his executive functioning.
33. I also do not think his parents can perform the task. They seem unaware of what he does when not in their presence and their ensuring he goes to work so far has been limited to dropping him at the station or convenience store.
34. I think that the services could be provided by a vocational advisor or case manager over, on average, one hour per week. The rate for a case manager seems to be about $150 per hour (Exhibit C, page 368).
35. The plaintiff, as already noted, has 46 years remaining in his working life. The calculation on the 5% tables is 150 x 956.1 = $143,415. Consistent with the deduction for vicissitudes I applied to future economic loss I think the need for the case manager should have a similar deduction. This is primarily because the role of the case manager that I envisage is mostly to keep the plaintiff working. The deduction brings the amount down to $114,732.
36. Past out of pocket expenses were agreed at $12,180.
37. The defendants made no allowance for future medical expenses. The plaintiff asked for $50,000. This was made up of visits to the general practitioner, a rehabilitation specialist, psychiatric consultations and future surgery to his knee.
38. The plaintiff is not having any treatment at the moment. There is no evidence to suggest that he would regularly attend on a general practitioner or any other specialist. He currently refuses to attend any vocational rehabilitation.
39. I think there should be some allowance which should include visits from time to time to medical practitioners and that some allowance should be made for the possibility for future surgery as outlined by Drs Dao and Dixon (for example in Exhibit C at page 32). I think an overall allowance of $20,000 is appropriate.
40. A summary of the damages I have allowed is as follows: Non-economic loss $300,000 Past economic loss $74,454 Lost superannuation benefits $8,190 Future economic loss $305,952 Lost superannuation benefits $33,655 Past care $80,325 Future care $80,813 Future case manager $114,732 Past out of pocket expenses $12,180 Future medical treatment $20,000 Total $1,030,301

1. The defendants made an allowance for financial advice of 10% of the damages total. The plaintiff says the money should be invested on behalf of the plaintiff so that funds management expenses are appropriate. The defendants' position is that if the plaintiff does need funds management, which they deny, then it is as a result of his pre-existing condition. I disagree. The plaintiff may well have needed assistance as he grew up with managing money. The insult to his executive function, no matter how mild, combined with his behavioural difficulties I think make it important and necessary, for his funds to be managed. Accordingly I will ask the parties to address the question of the quantum of funds management.
2. I will therefore inform the parties that damages have been assessed at $1,030,301 and ask them to agree, or make submissions on the quantum of funds management. I will also hear the parties on costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2015