Kaiser v Johnston

CASES CITED: Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355

PARTIES: William Leslie Kaiser (Plaintiff) Paul Douglas Johnston (Defendant)

COUNSEL: Mr A Stone (for the Plaintiff) Mr B Fitzsimmons (for the Defendant)

SOLICITORS: Burke Elphick & Mead Lawyers (for the Plaintiff) Moray & Agnew Solicitors (for the Defendant)

1 William Leslie Kaiser was injured on 6 August 2007 when, as a pedestrian, he impacted with a vehicle driven by Paul Douglas Johnston. The accident occurred in the early hours of the morning, before sunrise, at the intersection of Walford and Walton Streets, Wallsend.

2 The plaintiff remembered nothing of the circumstances in which the accident occurred. The defendant did not see the plaintiff before the impact with his vehicle.

3 The issues were: 1 Whether there was negligence on the part of the defendant that was causative of the plaintiff's injuries; 2 The contributory negligence, if any, of the plaintiff; 3 The nature and extent of the plaintiff's injuries as a result of the accident; 4 The compensation, if any, to be awarded for those injuries in respect of non economic loss, medical expenses and requirements for past and future domestic care.

4 In the absence of any memory of the circumstances in which he was injured, the plaintiff was able only to give evidence of his regular practice.

5 He said that he routinely took a morning walk, starting at 5.30 am. In the 18 month period before the accident he followed the route that was shown on Exhibit E. This involved walking along the streets of Cardiff and included a walk to the west on the southern side of Walton Street towards its intersection with the south eastern corner of Walford Street. From there, his practice was to continue to walk to the north on Walford Street to Thomas Street.

6 The plaintiff said there was no constructed footpath on the southern side of Walton Street and he therefore walked on the road, close to the gutter. At the corner of Walton and Walford Streets his practice was to step on to the grass and walk towards the street sign to check for traffic in Walton and Walford Streets before crossing Walton Street and continuing to walk to the north on the Walford Street footpath. He described his practice as follows: I come up. I step onto the footpath. There's a street sign there. I usually hang on to it with one hand. As a guide I look to the left and to the right and then behind me again, looking for traffic. I do that twice. If it's clear then I make a turn on the right-hand side walking down towards Thomas Street. Transcript D1.13.20 7 The photograph, Exhibit F1, showed the position of the street sign referred to by the plaintiff.

8 The plaintiff claimed that he took the same route summer and winter and regardless of the weather conditions. He agreed that in August between 5.30 am and 6 am it was dark and that Walton Street was not well lit. He said there was sufficient lighting from a service station at the eastern end of Walton Street to allow him to see where he was walking when on the road pavement, although the illumination decreased as he progressed to the west. He did not remember if there was street lighting at the western end of Walton Street.

9 Questioned concerning his claimed practice of holding on to the Walton Street sign while checking for traffic, the plaintiff said that he did this so that he was in a position to see each way on Walford Street as well as checking for traffic approaching from behind him in Walton Street. He agreed that virtually the same view was available if he remained on the paved part of the footpath but said he walked out to the street sign as a matter of habit.

10 He agreed that there was a house on the south eastern corner of the intersection but did not remember if there was a large tree on that corner. He said he could not agree that it would be difficult to see south in Walford Street if he failed to walk beyond the give way sign because he had never looked from this point.

11 The plaintiff said that if he saw cars, he stopped and waited for them to pass, regardless of whether they indicated an intention to turn to the right.

12 He accepted that cars or their lights were visible for about one quarter of a kilometre when travelling north in Walford Street.

13 The jacket and track suit pants that he was wearing at the time of the accident were in evidence as Exhibits G and H respectively. The jacket was dark brown in colour. The trousers were black and were marked with two red and white diagonal stripes on the lower portion of the front panel of the right leg. The accident occurred in a cold winter month so that he wore these outer garments over a singlet, pyjama top and pants, fleecy winter shirt and socks. A balaclava covered his head, ears and neck with openings only for his mouth and eyes. Over the balaclava he wore a grey Akubra hat. He wore black gloves on his hands and brown safety boots.

14 The plaintiff denied that he was huddled into his clothing against the cold of the August morning. He said that he walked briskly, stretching out, so that by this stage of his walk he was warmed up.

15 The defendant was driving a Toyota Hilux four wheel drive vehicle that belonged to his employer. He was towing a box trailer, variously described as 5 x 4 or 7 x 5 feet in dimension. The trailer was used to carry machinery when required and was heavier than the average trailer. He was driving to his depot to commence his day's work as a line marker.

16 His route took him along Cardiff Road where there were four speed humps that slowed the speed at which he drove the vehicle. He agreed that these speed humps had no effect on his speed when he reached Walford Street. On approaching Walton Street, he put on his right hand indicator. Some cars in front of him travelled on in Walford Street. Two cars turned into Walford Street from Thomas Street and travelled towards him. He slowed his vehicle almost to a stop to allow them to pass.

17 Once they passed or while he was waiting he scanned the street into which he was turning to see if anything was there. He saw nothing and, after the cars passed, he turned into Walton Street.

18 He turned into the correct side of the street and heard a thump on the side of the vehicle. The noise came from the driver's door, near the door handle and the edge of the door. The defendant could state only that there was contact with this door. He could not state if this was the first point of contact between the plaintiff and the vehicle.

19 He stopped straight away and looked into his rear vision mirror. He saw something lying on the road. He walked back and saw the plaintiff lying on the road and he went to his assistance. The plaintiff was lying with his head facing to the north and his feet to the south.

20 Two men stopped to help. Initially the defendant was unable to see the nature of the plaintiff's injuries. With the assistance of lights from the van driven by the men who stopped to assist he could see that the plaintiff was bleeding from the back of his head. The photograph, Exhibit F2, was taken by police and it showed the blood stain on the road.

21 The plaintiff was removed by ambulance before the police arrived. By then it was daylight.

22 There was no sign of damage to the vehicle. There was no reported injury to the front of the plaintiff's face or body.

23 The defendant estimated his speed in Walford Street at between 40 and 50 km/h although he said he had no real memory of his speed. When he turned the corner he travelled in first gear. In this gear and when pulling the trailer, he estimated his speed at 20 km/h.

24 There were three documents that recorded the defendant's account of what occurred. The first was contained in the report Exhibit A.1 of ambulance officers who attended the scene. The second was recorded in a statement Exhibit D given to the police shortly after the accident. The third was recorded in a statement Exhibit 2 given to an investigator on 12 November 2007. In addition the defendant said that he rang his supervisor who arrived at the scene after the ambulance left. He told the supervisor what had happened but no record of this conversation was in evidence.

25 The defendant was cross examined about the extent to which, at the time of the hearing, he had any real recollection of events. He agreed that he did not at that stage remember much of the detail about which he gave evidence, including the time at which he left home, the time at which he was due to commence work and other details concerning the progress of his journey, in particular whether he was passed by other cars, the speed at which he travelled in Walford Street or whether he checked the speedometer in the vehicle or the gear in which he travelled.

26 He did not remember whether he in fact operated the right hand indicator but said he always did so, particularly when, as in this case, there were vehicles travelling towards him. He agreed that at times there was no traffic in Walford Street at that time of the morning and there was therefore no-one to whom he needed to indicate. He agreed that at such times he did not use the indicator.

27 He agreed that at the time of the hearing he did not remember if there were oncoming vehicles.

28 The defendant said that the driver's window was half open at the time of the accident because he usually smoked a cigarette on his way to work. He did not remember if he was smoking at the time of the accident or if he was in the process of lighting a cigarette, or disposing of its ash or a cigarette butt as he turned the corner. He could not state if he was affected by other distractions, such as adjusting the heating or the radio in the vehicle.

29 The defendant said that he was able to recognise that there was a person on the road by looking in the rear vision mirror before he left the vehicle. There was sufficient light to allow him to recognise this factor notwithstanding the dark clothing worn by the plaintiff, the dark road and the dark corner.

30 He was unable to offer any explanation for why he did not see the plaintiff before he turned the corner.

31 He agreed that the high beam on the headlights of the vehicle provided a greater range of illumination. He stated that it was his belief that he was not permitted to drive with the headlights on high beam when street lights were installed and therefore it did not enter his mind to use them on the morning of 6 August 2007.

32 There were some significant discrepancies in the statements that were in evidence.

33 The ambulance report recorded: Bystander states he hit pt in his vehicle doing approx 40 km/h around a corner.

34 The defendant agreed that he was the bystander referred to in this document. He agreed that it was most likely an accurate statement because it was given immediately after the accident.

35 The statement provided to police was handwritten in the note book of Senior Constable Harrison. It read: About 5:50 am on Monday 6th August 2007 I was driving white Toyota Hilux registration WL17EY in a northerly direction along Walford St, Wallsend, at a speed of about 40 kph. As I approached the intersection of Walton Street I indicated to turn right. I slowed to about 20 kph. I did not see any persons on or near the road. I then proceeded to turn right into Walton Street. I suddenly heard a thump on the door next to me. I then looked in the rear-vision mirror and saw a person laying on the roadway.

36 The defendant claimed that at the time he spoke with ambulance and police officers he was shaken, shocked and confused.

37 The COPS Event report Exhibit R, reference no E32709387, contained the information provided in the defendant's statement. It also stated: Driver 1 did not have any oncoming traffic to give way to and did not see anyone or anything within or near the intersection.

38 The defendant agreed that he said nothing of oncoming vehicles in the statement recorded in the police notebook and that he probably could have Transcript D3.46.15 told police that there was no oncoming traffic, although he did not remember.

39 The relevant part of the statement provided to the investigator read: I left home around 5.45 am to go to work and drove town ( sic) Cardiff Road which goes into Walford Street, I needed some fuel for the vehicle so as approached the intersection of Walton Street I had to slow down to almost a stop because of vehicles travelling South in Walford Street. I had my right turn blinker on and when the south bound traffic cleared I began to make my right hand turn into Walton Street travelling at less than twenty kilometres an hour.

40 This was the first recorded reference to the presence of other vehicles in Walford Street before the defendant turned into Walton Street. The statement also referred to the need for fuel as the reason for the right hand turn into Walton Street. The defendant told the court that the vehicle had sufficient fuel but that it was his practice to stop at the service station in Walton Street on his way to work to buy items such as drinks or cigarettes.

41 From the evidence of the plaintiff and the defendant, summarised above, I made the following findings.

42 It was dark at the time of the accident, in the sense that it was night time rather than daylight.

43 The plaintiff was wearing dark clothing that covered virtually the whole of his body.

44 The red and white stripes on the front panel of the right leg of his track suit trousers were not readily visible if he was walking parallel to the defendant's vehicle prior to the impact. They were visible if he walked diagonally across Walton Street towards the north eastern corner of Walford Street.

45 The plaintiff prior to impact was not in a static position. He was walking briskly. His presence at the intersection was not obscured by parked vehicles, other structures or vegetation.

46 The position of the blood stain on the road surface indicated that he walked at least half way across Walton Street prior to impact.

47 From the south eastern corner of the intersection, the plaintiff was able to see vehicles approaching from a distance of for 250 metres.

48 The defendant's vehicle would have been visible to the plaintiff had he adopted his usual practice of waiting for vehicles to pass the intersection, whether or not they were indicating an intention to turn into Walton Street. It followed therefore that he did not adopt this practice on 6 August 2007.

49 The plaintiff collided with the driver's door of the vehicle driven by the defendant. It was probable, having regard to the compound fracture of his left ankle, that there was other contact between the plaintiff and the vehicle. It was not possible to determine where this impact took place.

50 There were no street lights of relevance in Walton Street. There was no evidence concerning the lighting in Walford Street. The defendant's evidence that he did not operate his headlights on high beam because he believed this was impermissible when there was street lighting, suggested that there were lights in Walford Street. Photographic evidence indicated that there were no street lights on either of the eastern corners of the intersection.

51 The defendant was relying on the low beam of his headlights.

52 There was sufficient illumination to allow the defendant to see, through his rear vision mirror, the plaintiff lying in the road after impact.

53 It was not possible to state precisely the speed at which the defendant was travelling at the time of the accident, except that at most it was 40 km/h. From the evidence that it would have been necessary to slow down to turn the corner when pulling the larger than average trailer and that the defendant was able to bring the vehicle to a halt within metres of the point of impact, I accepted that it was probable that his speed when turning the corner was slower than 40 km/h.

54 Both Walton and Walford Streets were average suburban streets of two lane width. The defendant's view of the intersection was not obstructed by parked vehicles or other objects, such as trees, fences or walls.

55 The defendant relied on a number of authorities to support his argument that there was no evidence that established a breach of duty on his part that caused the plaintiff's injuries. The cause, he said, was the plaintiff's conduct in walking into the side of his vehicle and that this would have been the result regardless of whether he saw the plaintiff before he turned the corner into Walton Street.

56 He relied in particular on Flounders v Miller [2007] NSWCA 238, a decision in which the Court of Appeal upheld the trial judge's finding that it was not possible on the evidence to choose between two competing hypotheses as to how the plaintiff in that case suffered injury.

57 Justice Ipp analysed in some detail the principles dealing with causation. He quoted (at [16]) the basic principle stated by Mason P in Bendix Mintex Pty Limited v Barnes (1997) 42 NSWLR 307 at 318 that: … the law never gives judgment In favour of a plaintiff when the only finding is consistent with liability and non-liability. Further he noted that in Wallaby Grip v Macleay Area Health Service (1998) 17 NSWCCR 355 at 363-363[16] Beazley JA said that Bendix … applied well-known principles of causation and that … a plaintiff must show more than that it is possible that the injury was caused by the defendant.

58 At [35] Justice Ipp confirmed that the onus remained on the plaintiff to prove that the circumstances raised the more probable inference in favour of what was alleged, adding: The circumstances must do more than give rise to conflicting inferences of an equal degree of probability or plausibility. The choice between conflicting inferences must be more than a matter of conjecture. If the court is left to speculate about possibility as to the cause of the injury, the plaintiff must fail.

59 The defendant contended that, in the absence of evidence from the plaintiff of the lighting conditions at the time of the accident, I should accept the conclusion reached in the police report that … given the circumstances that the pedestrian was wearing dark clothing & the intersection is poorly lit, then the driver of the motor vehicle would not be expected to see the pedestrian crossing the intersection …. Exhibit R, COPS Event Ref No: E32709387 The police officer who made this record did not give evidence. The opinion recorded appeared to have been reached on the basis that the plaintiff prior to the accident was walking north on the footpath on the eastern side of Walford Street and that at the time of the accident he was in the process of crossing Walton Street in line with the Walford Street footpath.

60 The defendant stated that police officers arrived at the scene about one hour after the accident when it was daylight. The report therefore was not based on their actual observation of the intersection at the time of the accident.

61 This was the only evidence to support the suggested conclusion that the intersection was so poorly lit that a driver, taking due care and driving slowly, would not be expected to see a moving pedestrian walking on the road at the intersection.

62 There was material that indicated that this was not the case. The defendant's view of the intersection was unobstructed, there were some street lights in Walford Street and he was able to see adequately while driving with headlights on low beam. It was not suggested that, although his low beamed headlights were slanted to the left hand side of the vehicle, coupled with street lighting they provided no illumination to the eastern side of Walford Street.

63 Although the police recorded that there was no oncoming traffic to give way to…and that the defendant … did not see anyone or anything within or near the intersection, the defendant stated that there were vehicles ahead of him as he travelled north on Walford Street and that there were oncoming vehicles to which he gave way before turning into Walton Street. If this evidence was accepted, it suggested that there was a considerable degree of illumination of the intersection as the defendant approached it and that, further, his vehicle was brought virtually to a stop before he turned into it so that he had an opportunity, which he said he took, to scan the intersection.

64 Finally, on the question of lighting, there was the defendant's evidence that after the accident he was able to see the plaintiff lying in the road by looking in his rear vision mirror unaided by illumination other than street lighting.

65 It was suggested that the plaintiff ought to have questioned the defendant on the matter of the sufficiency of available lighting. In my view, the material set out above established this factor on a prima facie basis and it became a matter for the defendant to provide evidence to counter it. He said nothing in his evidence in chief to suggest that his capacity to see the plaintiff was diminished by inadequate illumination. I noted that the defendant was asked in cross examination: Q. You really can't help us with an explanation as to why it is you didn't see him before you went around the corner can you? A. No. Q. You're agreeing with me? A. Yes. Transcript D3.50.37

66 This question, in my view, allowed the defendant the opportunity to claim that the combination of poor street lighting and dark clothing explained his failure to see the plaintiff before the accident. He did not do so.

67 Another factor that might have affected the defendant's capacity to see the plaintiff before he turned the corner was the precise location of the path taken by the plaintiff to the point where impact with the defendant's vehicle occurred.

68 I have already noted that it was apparent that the plaintiff did not follow his usual practice of waiting for the defendant's approaching vehicle to pass before he started to cross Walton Street. I accepted that this departure from the plaintiff's stated practice raised the possibility that he departed from it further by walking at an angle from the unlit southern side of Walton Street when entering the intersection.

69 There were a number of reasons why I considered that, even had the plaintiff taken this route, he ought to have been visible to the defendant in sufficient time to allow him to avoid the accident. The position of the blood stain indicated that at the time of impact the plaintiff was close to the centre of Walton Street and that he was already in the intersection at the time the defendant commenced his right hand turn. A further indication that the plaintiff was well within the intersection was the evidence that he was not injured in any part of his body by protruding parts of the front of the vehicle as one might expect if he walked diagonally across Walton Street.

70 It could not be said therefore that he stepped suddenly out of darkness and into the path of the defendant's vehicle. In either of these positions on the road, the headlights of the slowly turning vehicle should have illuminated him.

71 I thus concluded that the defendant was in a position to see the plaintiff notwithstanding his dark clothing and the allegedly low level of street lighting. I also concluded that the relatively slow speed at which he was driving the vehicle immediately before impact would have allowed the defendant to stop, swerve or sound the horn on the vehicle in order to avoid the accident, if he had seen the plaintiff.

72 It was put to the defendant that he was in breach of the Australian Road Rules Australian Road Rules 1999, 73.6 in failing to give way to the plaintiff when turning from a continuing road into a terminating road. The defendant said that he was unaware of this rule but it followed from my finding that the plaintiff was already within the intersection that the defendant was in breach of this Rule when he turned right into Walton Street. This was a further factor that I took into account in deciding this issue.

73 I concluded that the defendant failed to keep a proper lookout when he turned right into Walton Street. Had he done so, he would have seen the plaintiff walking within the intersection and he would have been in a position to give way to the plaintiff or take evasive or other action to avoid the accident.

74 I find that his failure to do so was a material contributing factor in causing the accident. I therefore find the defendant in breach of his duty of care to the plaintiff.

75 I have already made it clear that I considered the plaintiff at fault and I formally find that his contributory negligence was a material contributing factor in causing the accident.

76 I was urged by the plaintiff to find that the defendant bore a significantly greater degree of responsibility for the accident.

77 There was, however, nothing to persuade me that I should reject the defendant's evidence that he indicated his intention to turn right. He could not remember this at the hearing, but he told the police officers shortly after the accident that he had done so.

78 This suggested that the plaintiff walked into the intersection without regard for the approaching vehicle.

79 I therefore considered that the plaintiff and the defendant were equally responsible for the consequences of their negligence. Having regard to the capacity of the defendant to cause a greater degree of the damage by reasons of the size and weight of his vehicle, I apportioned liability as to 60% to the defendant and 40% to the plaintiff.

80 The medical evidence confirmed that the plaintiff suffered the following injuries: 1 A head injury that rendered him unconscious for a short period following the accident and for which surgical procedures were undertaken on 8 and 12 August 2007.

2 A compound fracture of his left ankle that was surgically fixed on 6 August 2007 with a metal plate and screws. 81 The plaintiff was initially treated at John Hunter Hospital. He was discharged to Rankin Park Rehabilitation Hospital on 24 August 2007. He left there on 15 September 2007. At that stage he was ambulating but his ankle remained in plaster and he required a walking stick. The hospital noted that in the course of his treatment he suffered mild exacerbations of osteoarthritis in his left knee and right shoulder as a result of his immobility and the requirement to use walking aids.

82 The plaintiff was discharged into the care of his estranged wife who provided him with accommodation at the family home.

83 The plaintiff claimed significant ongoing problems arising out of his injuries. Complaints consistently recorded in the medical reports included: 1 Problems of communication with verbosity, tangential responses to questions or responses that were unrelated to questions asked and failure to stay with a point in conversation. 2 Lack of capacity to concentrate. 3 Depression with occasional suicidal ideation. 4 Loss of motivation. 5 Speech disorders and word finding difficulty. 6 Reduced memory capacity.

7 Irritability, verbal aggression, rigidity in his behaviour.

8 Diminished capacity for affection and for establishing and maintaining relationships.

10 Diminished attention to personal hygiene and untidiness.

11 Left ankle pain, aggravated by activity, and restricted range of movement in the ankle.

84 Some of these complaints can be dealt with briefly.

85 The plaintiff stated that he suffered no shoulder pain prior to the accident and that, as a result of the accident, raising his right arm above shoulder level caused him discomfort.

86 I rejected this part of his claim. There was medical evidence that indicated that complaints of right shoulder pain were investigated prior to the accident and a diagnosis of degenerative arthritis made. Further, in the course of his evidence, the plaintiff regularly raised both arms, at times placing both hands behind his head. When I asked about this apparent anomaly, he stated that he made these movements in order to maintain some mobility in his right shoulder. He demonstrated no discomfort when he moved in this fashion. I therefore did not accept this explanation.

87 I also rejected the claim of injury to the left knee. The plaintiff said that he suffered no left knee pain prior to the accident. Again, there was reference in his medical records to investigations of left knee pain resulting in a diagnosis of degenerative arthritis.

88 While rejecting the claim of injury to the right shoulder and left knee, I accepted the independent objective observations of Dr Kellett of aggravation of these pre-existing conditions as a result of immobility and the use of walking aids while undertaking rehabilitation at the Rankin Part Rehabilitation Hospital.

89 The claim that he had difficulty swallowing was rejected. It was investigated and no abnormality was noted.

90 In general the medical evidence supported the plaintiff's complaint of ongoing discomfort and restriction in range of movement of the left ankle. It was generally accepted that these symptoms were consistent with the injury to the left ankle and that there was no prospect of further improvement.

91 The other symptoms of which the plaintiff complained were all claimed to be the consequence of his head injury. He experienced post traumatic amnesia for a period of nine days after the accident. On 16 August 2007 a procedure described as a left-sided minicraniotomy and evacuation of a subacute subdural haematoma was performed. Dr Kellett, reporting on 29 August 2007, was of the opinion, support by other medical experts, that post traumatic amnesia of nine days duration indicated that the plaintiff suffered a severe traumatic brain injury.

92 Dr Ferch expressed concern for a period following the accident during which a right sided subdural haemotoma increased in size. Over time this condition improved and, although not entirely resolved, the haemotoma has reduced in size and ceased to be of concern.

93 There remained at the time of the hearing two major areas of complaint. The first centred on changes to the plaintiff's personality and level of intellectual functioning. The second related to his complaints of fatigue and lethargy.

94 In respect of fatigue, the plaintiff was diagnosed after the accident to be suffering from sleep apnoea of some severity. He has been treated but he continued to complain of significant sleep disturbance with the consequence that spends much of his day time hours sleeping.

95 The plaintiff's evidence concerning his remaining symptoms was supported by Mrs Kaiser and his daughter and by the majority of the medical experts.

96 Mrs Kaiser described the plaintiff as energetic, friendly and affectionate with his grandchildren prior to the accident. They separated prior to the accident for the reason that they drifted apart. The main area of contention between them was the plaintiff's conversion to juicing his food and his adoption of other life style changes that he pressured his wife to adopt.

97 For this reason, at the time of the accident the plaintiff no longer lived at the family home. He slept in his motor mechanics workshop, showering at the home of a neighbour of the workshop who also washed his clothes. At the workshop, the plaintiff undertook motor mechanical work and registration inspections, earning income to a level that did not affect the age pension that he was receiving. The proprietors of the workshop business were Mrs Kaiser and the plaintiff's son.

98 Mrs Kaiser stated that although the plaintiff no longer resided at the family home, he returned twice a week to work in his vegetable garden and take its produce for the purpose of his juiced meals. Their daughter and three of her four children lived on the premises and the plaintiff visited at weekends to spend time with his grandchildren, occasionally staying overnight. He displayed considerable affection towards the grandchildren, taking them to the cinema, soccer matches and shopping.

99 Mrs Kaiser described the plaintiff after the accident as moody and bad tempered. He became angry if faced with any change in his routine. She said he was impatient, self opinionated and humourless. His relationship with his daughter deteriorated and, after a misunderstanding concerning missing money, he was not on speaking terms with his son. He no longer enjoyed spending time with his grandchildren.

100 She described the plaintiff's attitude to personal hygiene as poor and his bedroom as untidy to the point where it was a pigsty. He no longer worked in the garden. He collected items that were placed in the garden and refused to allow them to be removed. Photographs of the collections of these items were in evidence. They might be described as rubbish.

101 He spent much of his time sleeping, either at the workshop or in his room at weekends.

102 As a consequence of his memory problems he tended to lose items such as his wallet, keys and watch and he overlooked turning off the headlights on his car. He used multiple calendars as reminders but he remained unreliable.

103 Mrs Kaiser stated that the plaintiff's difficult personality placed considerable strain on her and her household. She wished him to leave the home but to date he did not have the means of securing alternative accommodation.

104 The plaintiff's daughter confirmed much of Mrs Kaiser's evidence. She said he was irritable, volatile and moody after the accident. She said the plaintiff told her that he had no life and that he spoke of suicide. She described the household as tense and unpleasant. She also preferred that he live elsewhere.

105 Notwithstanding his problems, Mrs Kaiser and his daughter agreed that, in terms of the plaintiff's day to day functioning, there were some areas where little changed after the accident. The plaintiff continued to go to the workshop daily and, on most days, was present there between 8 am and 5 pm. The plaintiff said he spent most of his time at the workshop sleeping. He placed a sign outside the workshop to the effect that he was meditating and potential customers should wake him.

106 Mrs Kaiser continued, as she had prior to the accident, to attend to the financial side of the workshop business. She said she now also attended to the payment of medical expenses for the plaintiff. She required the plaintiff to pay rent for the workshop. This required him fortnightly to draw a cheque from a building society and deliver the cheque. She accepted that, provided he was prompted, he could undertake this function without difficulty.

107 When his driving licence was returned after the accident, he became capable of driving locally. He could also take public transport alone to attend local medical appointments.

108 The major dispute amongst medical experts concerning the source of the plaintiff's problems arose from the difference of opinion between Dr Langeluddecke, retained on a joint basis by the plaintiff and the defendant, and Dr Sydney Smith, retained by the defendant.

109 Dr Sydney Smith's opinion was that there were other rational explanations for the plaintiff's symptoms. He considered that the plaintiff's depression pre-existed the accident and was exacerbated by living in the stressful environment of the family home. The condition of sleep apnoea, he considered to be the cause of the plaintiff's fatigue and a contributing factor in his depression. The pre-accident depression and sleep apnoea contributed to the plaintiff's problems with attention and poor memory. Dr Sydney Smith thought there was evidence of cerebral atrophy that he related to the plaintiff's past history of alcohol abuse .

110 He rejected information provided by the plaintiff and Mrs Kaiser of changes in his personality after the accident. He considered that they were dishonest in their description of his pre-accident state of health.

111 Dr Sydney Smith's contention that the plaintiff suffered depression prior to the accident appeared to be based on one entry in the clinical records of the plaintiff's general practitioner made on 19 September 2001 that noted a complaint of listlessness and depression re the state of the world. I would not regard as unusual a concern expressed at the state of the world within a few days of the attacks on the World Trade Towers in New York.

112 He rejected their assertion that the plaintiff rarely consulted doctors prior to the accident. Although the general practitioner's clinical notes dealt with the investigation of the arthritic conditions of the plaintiff's left knee and right shoulder, they were consistent with the statements of the plaintiff and Mrs Kaiser that his pre-accident visits to his general practitioner were infrequent. Consistent with the plaintiff's evidence, it appeared prior to the accident his arthritis required no treatment.

113 As his dispute with Dr Langeluddecke continued, Dr Sydney Smith became increasingly firm in his opinion that much of the plaintiff's problems were the result of his untreated sleep apnoea.

114 There were a number of reasons why I preferred the opinions of Dr Langeluddecke to those of Dr Sydney Smith.

115 While it was clear that the plaintiff tended to blame all of his health problems on the consequences of the accident and therefore to be somewhat unreliable in respect of those consequences, there was no reason to reject the evidence of Mrs Kaiser.

116 The general practitioner's clinical notes did not, as contended by Dr Sydney Smith, indicate that the plaintiff suffered from a diagnosable depressive disorder prior to the accident or that he was suffering from multiple medical problems. Indeed those notes indicated that the plaintiff consulted his general practitioner infrequently.

117 Dr Sydney Smith's assumption that the plaintiff was in receipt of a disability pension prior to the accident was entirely unsupported.

118 Finally, no other medical expert held the same opinions, including those who examined the plaintiff on behalf of the defendant.

119 Dr Bookalill reported that there was a direct relationship between the plaintiff's injury and the subsequent intracranial pathology and symptoms. He found no pre-existing health problems related to his current medical situation and no inconsistencies between his reported symptoms and his findings on clinical examination. Dr Bookalill's diagnosis was that the accident caused a mild impairment of the plaintiff's mental status following a severe head injury associated with bilateral subdural haemotoma. Asked to comment on the contribution of sleep apnoea to the plaintiff's condition, Dr Bookalill said: The head injury was extremely significant to the current clinical situation and even if there is a background history of cerebral atrophy and sleep apnoea I do believe that the head injury had made the memory problems much more severe. Exhibit 1, p9 120 Dr Spira agreed with Dr Langeluddecke that the plaintiff's complaints were temporally linked to the accident and stated that the history of sleep apnoea and alcoholism were not significant to those complaints. He said the complaints were all related to the injury suffered in the accident, they were appropriate to the level of injury he sustained and no improvement could be expected.

121 Dr Zeman reported that the sleep apnoea was not caused by the accident and that this condition could cause similar symptoms to those related to traumatic brain injury, including fatigue. The results of the tests administered by Dr Zeman indicated that the plaintiff suffered left sided brain problems affecting his verbal areas that were inconsistent with a sleep apnoea related hypoxic brain injury. Further CT scans demonstrated little indication of brain atrophy. Therefore while sleep apnoea might have contributed to the dysfunction of the plaintiff's brain, it was not the main or major cause of his problems.

122 Preferring the opinion of Dr Langeluddecke, I accepted the following findings from her reports.

123 Dr Langeluddecke undertook neuropsychological assessment of the plaintiff in October 2009. She diagnosed acquired organic brain syndrome resulting from the traumatic brain injury and an adjustment disorder with anxiety and depression secondary to brain damage. She arrived at these diagnoses after speaking with the plaintiff and Mrs Kaiser, reviewing documents and medical reports that were supplied to her and testing of the plaintiff.

124 Dr Langeluddecke noted, as other neuropsychological risk factors, the plaintiff's reported heavy alcohol use for a period of 25 years and subsequent abstinence since 1993 and the post accident diagnosis of sleep apnoea. She relied on his general practitioner's records and information from Mr and Mrs Kaiser in noting that there was no evidence of significant long-term cognitive impairment resulting from alcohol abuse. She recommended that opinion be obtained from a neurologist concerning the severity of the sleep apnoea and its relationship to the injury to the plaintiff's brain. I have already noted the opinions of Dr Bookalill and Dr Spira in this respect.

125 She reported that the plaintiff demonstrated …quite marked and wide-ranging impairment in cognitive functioning and unfavourable changes in behavioural/personality/emotional functioning which are in keeping with brain impairment, with particular involvement of frontal and temporal brain networks.

126 Dr Langeluddecke said the plaintiff's neuropsychological problems were related to and primarily, if not solely, caused by his severe traumatic brain injury. She did not consider that there was evidence of significant cognitive or behavioural impairment associated with the plaintiff's history of alcohol abuse. She did not consider the diagnosis of sleep apnoea to be significant.

127 Her testing suggested that, at the time he undertook the tests, the plaintiff was experiencing moderate to severe anxiety, stress-related and depressive symptoms. In comparing her neurocognitive findings with those reported shortly after the injury, she found that they indicated deterioration in some aspects of memory and visual planning and reasoning skills with some executive dysfunction. Also indicated was a marked deterioration in his emotional status and functioning.

128 I find that the plaintiff suffered as a result of the accident: 1 Severe traumatic brain injury resulting in impairment to his cognitive functioning and negative emotional and behavioural consequences. 2 Compound fracture of the left ankle with ongoing pain and discomfort and restriction in range of movement.

129 The plaintiff was 65 at the time of the accident and is now almost 68 years old. It was clear that prior to the accident he adopted a lifestyle that might be described as atypical or eccentric. He was fixed in his dietary and lifestyle habits to the point where his relationship with his wife suffered and they separated.

130 The defendant, acknowledging that the plaintiff suffered a brain injury, argued that the consequences of his injury to his lifestyle were minimal. He continued to attend his workshop daily, he showered and arranged for the washing of his clothes with the same regularity.

131 The defendant relied on surveillance of the plaintiff that indicated that he attended his workshop on some occasions as early at 7.30 am. A summary of the surveillance provided by the plaintiff noted that although he went to the workshop on five of the seven days during which he was under surveillance, he undertook minimal activity.

132 The defendant's submissions overlooked the evidence of the changes in the plaintiff's personality, his irritability and inability to cope with changes to routine, his loss of capacity to enjoy affectionate relationships with his grandchildren and his son and daughter and the diagnoses of anxiety and depression. He has alienated his son to the point where they no longer speak. He has alienated his daughter to the point where she preferred that he leave the family home.

133 There was evidence that he required prompting to maintain even the limited regime of three showers weekly and that he showed no concern for the condition of his room or the consequences of the accumulations of items stored in the garden.

134 His memory was affected and although Mrs Kaiser continued to attend to the book keeping for the workshop business, after the accident she was required to take over other aspects of the plaintiff's financial affairs and to prompt him to undertake those tasks that remained allocated to him.

135 The plaintiff was aware of the detrimental changes caused by the brain injury and suffered an adjustment disorder with anxiety and depression as a result.

136 I was satisfied that the consequences to the plaintiff of the brain injury were significant to the plaintiff's day to day functioning and his enjoyment of life.

137 Taking account of these factors and of the plaintiff's age at the time of the accident I assessed his general damages at $200,000.

138 The defendant did not dispute the claim for past treatment expenses of $38,500.

139 It was suggested that the claim for future treatment expenses be moderated to take account of the plaintiff's evidence that he was disinclined to use medication. I accept this as a reasonable proposition. I allowed the sum of $10,000 as a reasonable amount to allow for his needs to consult on an intermittent basis his general practitioner and specialist medical providers, in particular a psychologist.

140 I did not consider that the plaintiff's physical injuries generated any requirement for domestic care. I accepted the preponderance of medical opinion that indicated that the plaintiff required ongoing support as a result of the impairment caused by his brain injury. This impairment generated a need for ongoing supervision of his personal affairs, his attention of personal hygiene and to assist with basic housework.

141 The defendant contended that I should accept the assessment of his need at seven hours per week made by Dr Zeman. The plaintiff conceded that his need was not as extensive as that provided for in the assessment of the occupational therapist. His claim was moderated to 14 hours per week.

142 The plaintiff's claim was based on the estimate of Mrs Kaiser that she currently provided two hours per day of assistance to the plaintiff on a voluntary basis. I had no reason to reject this evidence.

143 The claim for past care was allowed on the basis that this was the level of care provided to 11 June 2010 in the sum of $65,489.48.

144 For the future I considered that, on a commercial basis, an allowance of 10 hours per week would adequately meet the plaintiff's needs, allowing nine hours at $35 per hour and one hour at $48. Recognising by the time he reached the age of 80 years the plaintiff would probably require this level of assistance in any event, I allowed for this domestic care component for a period of 12 years. The sum awarded was $172,026.

145 Verdict and judgment for the plaintiff in the sum of $291,609 comprising: Non economic loss..............................................$200,000 Past out of pocket expenses....................................38,500 Future medical expenses..........................................10,000 Past domestic care................................................. 65,489 Future domestic care...........................................$ 172,026 40% deduction for contributory Negligence..........................................................$ 194,406 ...........................................................................$ 291,609

146 The defendant is to pay the plaintiff's costs of the proceedings. This order is suspended for a period of seven days to allow the parties to list the matter for further argument on this issue, if required.

147 Exhibits G and H are returned. The remaining exhibits are to be retained for 28 days.

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