Kaszubowski v McGuirk [2008] NSWCA 219 | Case summary

Friday 12 September 2008 Wendy Kaszubowski v David Justin McGuirk Judgment 1 McCOLL JA: I agree with Bell JA. 2 BELL JA: The respondent, David McGuirk, brought proceedings against the appellant in the District Court for damages for personal injuries suffered by him in a motor vehicle accident on 26 May 2001. Liability was conceded and the matter proceeded before his Honour Judge Garling as an assessment. His Honour delivered his reasons on 15 June 2007, subject to receiving further evidence and submissions concerning the cost of fund management. Final judgment was entered on 19 July 2007 in the sum of $2,641,789. 3 The appellant appeals against so much of the determination as concerns the award for past and future care. By Amended Notice of Cross-Appeal, these two heads of damages are also challenged by the respondent. For ease of reference, I shall refer to the respondent/cross-appellant as David in these reasons. 4 David was aged 27 at the date of the accident. He has suffered from cerebral palsy and intellectual handicap since birth. As the result of the accident he suffered post-traumatic stress disorder (PTSD), depression, back injury (aggravating a pre-existing low back condition), fracture of the left ankle and bruising to various parts of the left side of his body. There was little dispute as to the consequences of his physical injuries. The principal issue at trial was the chronicity of the PTSD and the diagnosis of major depression. 5 The grounds of appeal challenge his Honour's findings, contending error in the rejection of the evidence of certain expert witnesses, and, alternatively, in failing to give sufficient weight to the evidence of other of the expert witnesses. 6 David's mother, Mrs Burns, gave evidence, which his Honour largely accepted, of the efforts that she had made to develop David's sense of self-esteem and to equip him to lead as normal a life as possible. His palsy affected his right side and he had been taught to walk relying on his left side. Mrs Burns had purchased a farming property with a view to David, who was physically strong, working on it. He had done some labouring work after leaving school. At the time of the accident, he was living in a separate house on the property. This gave him a degree of independence, albeit that Mrs Burns cooked his meals, did his laundry and helped him with cleaning. He was accustomed to going out one night a week to the club. He was able to use public transport by himself. He had a relationship "of sorts" with the appellant. 7 There was no dispute that in the seven months following the accident David was quite incapacitated and Mrs Burns had to do most things for him. She had detected significant changes in his personality; he had become angry and short tempered. He had trouble sleeping and generally he needed a lot of assistance. In early 2002, David left home. He had not been coping well and there were difficulties caused by the fact that his grandmother had moved into the family home. 8 The evidence was unclear as to how long David lived away from home in the period after the accident. His Honour found that between February 2002 and February 2005 David spent significant amounts of time away from home, either living on his own or with a friend or friends. 9 Mrs Burns visited David at least three times a week in the initial period, in order to keep an eye on him after he moved out of home. 10 Mrs Burns observed a quite rapid deterioration in David after he had been living away from home for some time. He was having trouble with his leg and his back and he was "very bad emotionally". (Red 33.V) He was not getting out of bed. On her visits, Mrs Burns would find him unshaven and unwashed and the sink would be full of dishes. During this period, Mrs Burns spent a significant amount of time caring for David. (Red 33.X) He showed no interest in social life and he spoke of suicide. He had made suicidal gestures. He was morose and he complained of inability to feel sensation in the left side of his body. He walked awkwardly and was subject to falls. 11 Around February 2005, David returned to live at home, where he has remained. He had lost his self-confidence and self-esteem. He had difficulty using public transport and could no longer shop for himself. 12 Mrs Burns had difficulty estimating the amount of time that she spent caring for David. His Honour summarised her evidence of the care provided in the period following David's return home as follows (Red 35.K-T): "He often wants to go for a drive. She has got to take him for a drive. It may take her four hours. She has got to make sure he eats. He has got very difficult eating habits. He sits on a lounge and watches television. His position now is he does not want to be alone. If she goes anywhere he follows her, and in fact she is so worried that often she stays awake at night because she is afraid he is going to hurt himself. If he gets up she gets up. She said, 'I'm terrified of leaving him on his own. He can't cope' and he needs his mother to be near him. He is totally dependent, he will not let her out of his sight. She said, 'I don't' know how much longer I can do it. I need respite and some nights off.'" 13 Mrs Burns has had a difficult life. Her daughter, David's elder sister, drowned at the age of 3 ½ years. Mrs Burns has been married twice and both marriages proved unhappy. She had responsibility for looking after her elderly parents and used to travel to the Central Coast to attend to them. Following the death of her father, her mother had come to live with her at the property. Mrs Burns had herself suffered from major depression and had been under the care of a psychiatrist, Dr Argall. Her health problems include high blood pressure, panic attacks and back problems. 14 Before the accident, David had been seeing Dr Catherine Mason, a psychiatrist. In her first report, which appears to have been prepared in late 1999 (Blue 87), Dr Mason described David as being severely developmentally handicapped. She commented on his close and affectionate relationship with his mother, who appeared to have provided exemplary care for him. David had given a history that his stepfather had bullied him over the years and abused him on an occasion some years earlier. At the time of the consultation, the stepfather was no longer part of the household. Dr Mason considered the management of David's psychological distress would be assisted if contact with the stepfather was eliminated. 15 On 7 May 2001, Dr Mason prepared a second report. She had seen David intermittently in the period since September 1999. She said this: "In brief David's principal problems have stemmed from two sources. First of all his considerable cognitive impairment and some much milder physical impairment resulting, according to his mother, from problems in the management of his birth. David is actually much more severely cognitively impaired than superficial contact would suggest and he has been comprehensively assessed by Sheila Holley, a specialist neuropsychologist at Nepean Hospital who provided a report, a copy of which is enclosed. His intellectual ability is in the extremely low range with one or two exceptions. He has particular problems with problem solving, abstraction, mental flexibility and comprehension, although his social skills are exceptionally good given these deficits and his vocabulary is often misleading." [Blue 88.M-Q] 16 Dr Mason reported that David's stepfather had apparently behaved quite sadistically over a long period of time and that Mrs Burns had become increasingly isolated and psychologically distressed. David was extremely sensitive to his mother's concerns. If she was anxious or upset, he became agitated and attempted to provide protection and support for her within his limited capacity. Dr Mason considered that the close relationship between David and his mother probably explained the considerable gains he had made, despite his handicaps. Once the property settlement was finished and the family was re-established in a new home, David had become able to focus on day-to-day life. His sleep had improved and he was much more relaxed. At the date of Dr Mason's report, which was three weeks before the accident, David had been assessed by the Commonwealth Rehabilitation Service, who were offering support to integrate him into the workforce. Dr Mason considered this was an important step towards providing him with an opportunity to increase his confidence and his social circle. She considered that his previous attempts at employment had not been successful, partly because he became extremely anxious in situations in which he was expected to perform. Dr Mason prescribed a low dose of Zoloft to assist him to overcome his anxiety. 17 Dr Mason prepared a third report, dated 25 February 2002. She had reviewed David intermittently in the previous six months. At her review on 18 February, he disclosed persistent PTSD symptomatology; most days he experienced flashbacks of being rolled in the car and of seeing others, including small children, trapped with him. Dr Mason referred him to the St John of God Hospital, Richmond. 18 David came under the care of Dr Webster, psychiatrist, at the St John of God hospital. 19 Dr Webster first saw David in May 2002. He diagnosed him as suffering from a chronic condition of PTSD. He increased David's dose of Zoloft. Initially, this produced a positive effect. Between December 2002 and July 2003, David did not attend Dr Webster. When David resumed attendances on Dr Webster in July 2003, his depression and anxiety had significantly increased. Dr Webster increased David's medication but without a useful result. In September, there was a further increase, still without benefit. In October 2003, David was significantly depressed and expressing suicidal thoughts. 20 Dr Webster diagnosed that David was suffering from chronic PTSD and major depression. Since the symptoms had been active for two and a half years, Dr Webster considered it unlikely that they would completely resolve. He said this: "Mr McGuirk continues to suffer significant distress and impairment in social, occupational and all other areas of his functioning. His mother reports that prior to the accident he was an optimistic, easy going, jovial character. However, his personality has changed dramatically as a consequence of the accident. His irritability in particular has caused serious concern. His interpersonal relationships have suffered severely. He has little tolerance for his brother and his grandmother. He is argumentative and critical towards his mother. Socially he is quite isolated. Attempts to establish a relationship with a girlfriend produced major problems and in fact he was taken advantage of financially." [Blue 95.G-K]

Dr Webster considered that David was "disabled by his symptoms." (Blue 92-96) 21 In his second report, dated 19 July 2005, Dr Webster said that David continued to complain of symptoms consistent with PTSD and depression. Increases in his medication had not produced significant improvement. He remained depressed and irritable, he was sleeping poorly and was having suicidal thoughts. Dr Webster considered that all areas of David's functioning had been severely impaired as the result of the accident. He said that it was unsurprising that David had been unable to re-enter the workforce, given the persistence of his psychological symptoms. He believed that it was unreasonable to expect David to cope with employment in the future. Dr Webster's prognosis was that David's PTSD would persist in some form indefinitely. The depressive illness had also proved to be a disabling chronic condition. The need for future psychiatric in-patient treatment could not be ruled out. 22 In a third report, dated 18 December 2006, Dr Webster said that a new medication regime had been commenced, with disappointing results. David remained depressed, irritable and anxious. He was having frequent thoughts of suicide. His sleep pattern was erratic, he was lethargic and unmotivated. His level of self-care was poor. The report continued: "It has been clearly demonstrated during the past few years since the motor vehicle accident that Mr McGuirk is no longer capable of coping independently of his mother. Without her support and supervision he would find himself in a potentially disastrous predicament. His PTSD has so severely compromised his coping skills that if he were to lose his mother through death or disability his level of distress during his grief could result in suicidal intentions. If this was the case hospitalisation would be required to ensure his safety. Following discharge he would require ongoing care and support for all activities of daily living. Constant supervision might not be required but the need for this would have to be assessed on a daily basis by a suitably qualified professional such as a psychiatric nurse. The only practical way his needs could be met would be by providing a full-time carer. As his mother has demonstrated, a full-time carer need not have psychiatric training but it would certainly be an asset." (Blue 103.O-T) 23 David was assessed by Dr Robertson, psychiatrist, at the request of his solicitors, in December 2003. Dr Robertson commented that David was cooperative and gave a clear history. He impressed as being moderately depressed for much of the interview. Dr Robertson considered the assessment of David's IQ made by Ms Holley was likely to be a considerable underestimate. He put David's IQ as probably around 80; the junction between dull/normal and borderline/retarded. Dr Robertson considered that there was no doubt that David suffered PTSD as the result of the accident. This was associated with a very significant degree of depression. It was highly unlikely that David would ever make a full recovery from PTSD. David's depression was potentially treatable, although the chronicity of it was an adverse prognostic factor. (Blue 108-111) 24 Dr Robertson saw David again in May 2005. David reported that he was unable to sleep, and continued to have nightmares of the accident. He was angry, irritable and depressed. On being prompted by his mother, David described a suicide attempt that occurred around January 2005. Dr Robertson considered that David had been employable in simple, undemanding tasks before the accident and that he was effectively unemployable following it. (Blue 112-114) 25 In a report dated 22 November 2006, Dr Robertson addressed the question of David's future care: "it seems clear that fairly constant care is required. In the first place, this is needed to prompt and encourage David to take proper care of himself, and to see that his physical needs are met adequately. In addition, his suicidal thoughts are of considerable concern, and for this reason he needs a fairly close level of supervision. I am not suggesting that he needs constant close supervision, but he needs a carer who is not going to be away from him for more than an hour or two at a time. His mother currently fulfils this role." (Blue 118.R-T) 26 David was assessed by Dr Edwards, psychiatrist, for the Motor Accidents Medical Assessment Service on 20 June 2006. Dr Edwards considered David's cognitions were consistent with a mild mental handicap. He assessed his current functioning as extremely poor. In Dr Edwards' opinion, David was not able to work, even in a sheltered workshop. He was generally unemployable and very reliant on his mother, who supervised him in daily activities and in personal care. 27 Dr Edwards reviewed the reports of Dr Robertson, Dr Mason, Dr Webster, Professor Mattick and Dr Maguire. He concluded as follows (Blue 127.R-128.E): "My assessment of his psychiatric injuries is very consistent in the report of his treating psychiatrist, Dr M Webster, and the report of Dr Robertson. This man shows evidence that he has quite severe ongoing posttraumatic stress disorder symptoms and ongoing severe depression, as outlined in the documentation, and has been present now for over four years and have not responded to appropriate treatment. My report is inconsistent with Dr James Mcguire, who describes his posttraumatic stress disorder as 'residual'. His presentation today in interview and mental state examination, shows that he is still severely affected with post-traumatic stress disorder symptoms, and his depression is also quite marked and appears well out of proportion to any previous psychological symptoms prior to the accident, as described by his treating psychiatrist at the time, Dr C Mason." 28 Dr Edwards considered David's severe depression and PTSD symptoms were not likely to further improve in the foreseeable future. 29 Dr Edwards discussed the significance of David's pre-accident psychiatric treatment (Blue 130.J-L): "There is a history of adjustment disorder with anxiety treated by Dr Mason prior to the accident. This is in terms of a boy who has mild mental retardation. I do not believe that the anxiety he experienced then is significantly related to his current clinical presentation." 30 Dr Maguire, who assessed David on the appellant's behalf, prepared a report dated 28 September 2005 (Blue 289-301). He observed that David related in a friendly manner and that there was no evidence of "illness behaviour". Dr Maguire considered that David was preoccupied with a sense of injustice over the insurance company's failure to pay his accounts. David reported that he continued to have nightmares about the accident. Dr Maguire assessed David's overall mood as being mild to moderately depressed. 31 Dr Maguire reviewed the reports, including those of Dr Webster and Dr Robertson. He commented that prior to the accident David was experiencing anxiety and depression as a result of his difficulties in dealing with his stepfather's abuse. Based on David's presentation at interview, his main problem was his depression, which had been significantly influenced by his perception that the insurance company had not been dealing with him fairly. Overall, Dr Maguire considered David's depressive symptoms, rather than any residual PTSD symptoms, appeared to be reducing the quality of his life. Dr Maguire expected a marked improvement once the litigation had been completed. 32 Dr Maguire prepared a follow-up report dated 26 February 2007 (Blue 367-383). He said that one would expect an improvement in David's emotional state following the resolution of the present litigation. He considered that David's PTSD did not play a significant role in his life at the time when he was living away from home, noting that he had managed without treatment. 33 Professor Mattick, a consulting clinical neuropsychologist, assessed David in August 2005. Professor Mattick reported that David spoke clearly and fluently in a rather simple fashion, consistent with his borderline intellectual abilities. He presented at interview unshaven and with uncombed hair. He proved to be a surprisingly good historian, relating aspects of the accident and his treatment reasonably well. He showed no signs of depression. He did not appear dysphoric, pessimistic or despondent, nor was there any evidence of flat or sad affect, sad facial expression or tearfulness. Professor Mattick considered it possible that David's feelings of depression were simply an ongoing manifestation of pre-existing emotional distress. David appeared to meet the criteria for a PTSD associated with the motor vehicle accident, for which treatment would be beneficial. He noted David also appeared to have symptoms of depression, but observed that these may be an extension of pre-existing problems, given that David had been taking antidepressant medication prior to the accident. (Blue 304-318) 34 Professor Mattick prepared a further report dated 28 February 2007. In the report he commented on Dr Webster's opinion in these terms (Blue 404.E-J): "4.6 Post-accident well-being as set-out by treating psychiatrist - Dr Webster : Turning to the clinical notes and records from Dr Webster, a number of observations are worth making. 4.6.1 Dr Webster's view of premorbid adjustment: Firstly, the previous medical history set out by Dr Webster in the St John of God Hospital notes from 23.04.02 do not mention these emotional disturbances nor is there mention of the medication he took prior to the accident. Indeed, Dr Webster lists his pre-morbid personality as having a higher frustration tolerance and Dr Webster notes that Mr McGuirk was easygoing and laid back prior to the accident. 4.6.2 I disagree. He was anything but easygoing and laid back according to the notes from Dr Mason. Of course, this information may have led Dr Webster to reach an incorrect conclusion about Mr McGuirk's pre-accident functioning." (Emphasis in original) 35 In his second report, Professor Mattick expressed the opinion that most of David's post-accident symptoms had to do with his complex family relationships, problems with his mother and stepfather, difficulties with his brother, difficulties with "his partner", Wendy, and the living arrangements, upset about the death of his sister, paranoid thoughts to do with his stepfather attempting to harm him and/or his mother, and similar issues. (Blue 405.O-Q) In Professor Mattick's opinion, David had seized on the accident as a cause for his emotional distress and for compensation purposes. Professor Mattick considered that David had developed a sense of entitlement to compensation and he had become somewhat fixated upon it as a prime outcome. (Blue 405.R-U) 36 Professor Mattick doubted that David had ever been destined for work and noted that he was in the severely intellectually retarded range. He considered that David needs some supervision given his severe mental retardation, but that this need preceded the accident. He disagreed with what he characterised as the "unsubstantiated view" of Dr Webster (Blue 406.P) that David required constant supervision by a fulltime carer. He considered the threats of self-harm to be acting-out or attention seeking. They were matters that were likely to resolve with the settlement of his claim and, in the event they did not, there were other appropriate mechanisms for dealing with persons at risk of self-harm, available through a range of mental health services. 37 As is evident from this summary of the expert reports, there was a sharp division of opinion concerning David's prognosis and future care needs. 38 Each of the expert witnesses gave oral evidence before his Honour. 39 His Honour considered that Dr Mason provided a good insight into how David was prior to the accident. (Red 38.E-F) He noted that Dr Edwards' conclusions were consistent with the reports of Dr Webster and Dr Robertson (Red 42.M). He reviewed Dr Maguire's evidence, noting that he did not know of any case where a person had received 24-hour care because of suicidal ideation. (Red 43.F-W) 40 His Honour rejected the evidence of Professor Mattick. His reasons for this were that Professor Mattick's opinion was significantly different from the opinion of the other doctors. Professor Mattick had only seen David on one occasion. His second report appeared to be an attack on the other doctors' opinions. Professor Mattick had been unfairly critical of Dr Webster and Dr Robertson in answers given in cross-examination. (Red 44.R-V) His Honour referred to par 4.6 of Professor Mattick's second report (set out at [34] above) noting that Dr Webster's reference to the pre-morbid personality was in fact a record of the history given by Mrs Burns. His Honour considered that Professor Mattick had assumed the role of advocate. 41 Where there were differences of opinion, his Honour preferred the opinions of Dr Webster, Dr Robertson and Dr Edwards to that of Dr Maguire. 42 A central credit finding related to the evidence of Mrs Burns. I will set it out in full: "I have got to say that in my view the person in the best position to assess the plaintiff was his mother. His mother was a very good witness. She was not perfect, she had difficulty in remembering dates, times he had been away from home and things of that nature, but her general memory, her general evidence was of a very high standard and totally acceptable, although naturally I have to be wary of accepting it totally because she is very emotionally involved with her son and that may affect some of her views and her opinions, but what she said was really generally very accepted and acceptable and not really subject to great challenge. (Red 38.F-N) 43 His Honour made the following findings: "The plaintiff is thirty-two years of age. I am satisfied on the evidence and find that the plaintiff at a young age developed cerebral palsy on the left side. He was clearly affected by it, however he led a relatively normal life to the extent he went to school, he travelled on public transport, he was able to do labouring work particularly about the farm, he could do heavy work, he was very strong, able to mostly look after himself but particularly with the help of his mother, and whilst he needed care and help and whilst he had a cognitive problem he was able to get on with his life in his way. He was a bit vulnerable and he needed his mum to keep an eye on him but as she said she had developed him to the stage where he had a lot of self confidence, he coped quite well socially and was able to live, for him, a fairly normal life. He then had the fracture of the ankle, the other back injury and the other injuries. … I accept that since this accident he has had difficulties in coping. I accept his mother's evidence, I accept what she said was the position before and after the accident, and if there is any significant difference in the evidence between what he could do before and what he could do after, I prefer the evidence of his mother. She is the one who is in the best position to tell us. She did. Of course I am careful about it because she is emotionally involved, but there were many things he could do before he cannot do now. He thinks of suicide, he has made some sort of attempt but not a serious attempt I do not think on his life, but it is a problem, it is there and he has got the other continuing problems as I have set out earlier." (Red 46.N-47.T) 44 Turning to the question of care, his Honour found that in the past David had been cared for by his mother, who had to cook for him, do his washing, make sure he did the cleaning and the like, but that he had had a fair bit of independence. (Red 51.W-52.F) His Honour was satisfied that the position had "changed significantly" since then. (Red 52.G) 45 His Honour considered there was credible evidence that the respondent needed 24-hour care for the rest of his life. (Red 52.M) However, he went on to say this: "On the other hand I find it very difficult to conclude, having heard the evidence, that that is what the plaintiff actually needs. I think it was Dr Maguire who said he had not heard of that before and whilst I do not generally rely on all of his report I fully understand what he is saying. The reason for it is the suicidal ideation which is something which arises from time to time. I suppose it becomes difficult in these cases where one gets presented with fairly black and white opinions to find what the true position is. In my view the true position is he does not and will not need twenty-four hours a day supervision. He may at some stage in the future need increased supervision. He may even need hospitalisation. What he actually needs is his mother to go on forever looking after him and being with him all the time. I am satisfied that whilst he does not need twenty-four hour a day supervision arising out of the injuries he sustained in this accident, he does need significantly increased supervision." (Red 52.N-53.G) 46 His Honour approached the question of David's care needs by breaking the claim into four periods: ( a) From the date of the accident until 15 February 2002 (when David left home), damages for gratuitous care were allowed at the maximum rate prescribed by s 128 of the Motor Accidents Compensation Act 1999 (the MAC Act ) in the sum of $27,498. (The appellant does not contest the award for this period.) (b) Between 16 February 2002 and 10 August 2003, the first period when David was living away from home, damages of $8,400 were awarded, representing seven hours care per week. (The appellant does not contest the award for this period.) (c) Between August 2003 and February 2005 - while David was still living away from home, but at a time when Mrs Burns was providing a higher level of care, damages were assessed on the basis of 20 hours of care per week, amounting to $31,200. (d) Between 19 February and the date of judgment, while David was living in the family home, damages for care were assessed on the basis that Mrs Burns was providing at least 40 hours of services a week (Red 54.Q). The damages, at the maximum rate prescribed by s 128 of the MAC Act, were rounded to $100,000. 47 In relation to future care, his Honour divided David's life expectancy (53 years) into two periods: (a) For the 10 years from the date of judgment, David's care would continue to be provided by Mrs Burns, who was then 62 years old. Damages were assessed at the maximum rate prescribed by s 128 of the MAC Act and subject to a five per cent discount. This resulted in an award of $353,528. His Honour found no need to reduce this sum further. This was in the context of the earlier finding that "the difference between what she was doing for him before and what she is doing for him now would without any difficulty total forty hours per week". (Red 55.L-O) (b) For the period for the remaining 43 years from June 2017, his Honour found that David will need a carer for 16 hours per day. He reduced the award to take account of David's impairments that created a need for care which was unrelated to the accident and on account of vicissitudes. 48 It is necessary to set out in full his Honour's reasons with respect to the calculation for the period from June 2017: "When I turn to the report of Premium Care I note that that equates to $4,961 per week. If one starts that in ten years time, allows forty-three years, the multiplier is 938.2. It has to be multiplied again by the deferral figure of .614. If I simply multiply it out then it would come to $2,857,808. But from that you would have to take off what he probably needed before. It is suggested in the submissions I have that it would probably equate to six hours per week. I thought it would equate to more than six hours per week and what I have done is to reduce it by the $857,808, to come out with a figure of two millions dollars in accordance with the suggestion from the plaintiff with which I agree, the vicissitudes and the chances of what is happening in the future and what is likely to happen has to be reduced by a third. When I reduce it by a third, that is reducing it by $666,666 I come up with an additional figure of $1,333,334." (Red 56.S-57.K) 49 The appellant's principal ground is that the award for the past from August 2003 to the date of judgment, and for the future, is manifestly excessive. In the appellant's submission, any need for care in the period from 16 February 2002 has been minor and not exceeding seven hours per week. 50 In Urban Transit Authority of New South Wales v Seitis [1995] NSWCA 478 Kirby P observed that the Court will not disturb a judgment entered for damages unless it is convinced that the primary judge erred in the allowance made generally, or in the respect of particular heads of claim. His Honour commented on the quasi-discretionary nature of the assessment of damages. His Honour referred to the principles explained in Moran v McMahon (1985) 3 NSWLR 700. Priestley JA there discussed the distinction between those aspects of the assessment that fall into the discretionary area and those which involve difficult questions of fact (at 723). In a number of respects, it is in the latter area that this assessment is challenged. However, certain of the appellant's contentions make it apt to keep in mind Kirby P's observation: "Upon the evaluation of disabilities and the prognosis of their impact in the future, minds will invariably differ. The judge of trial has many advantages in considering the whole of the evidence and seeing the witnesses. The appellate court will not tinker with the judge's assessment. In an appeal even one extending to a review of factual findings, the appellate court will only disturb the judge's orders for established error". 51 Grounds 1 to 6 challenge his Honour's findings on the basis that they give insufficient weight to David's pre-accident level of compromise: Ground 1 - In assessing the Respondent's need for past and future care and assistance as a result of the motor vehicle accident on 26 May 2001, Judge Garling erred in rejecting the evidence of Dr Catherine Mason, psychiatrist, as to the Respondent's inability to live independently. Ground 2 - Judge Garling erred in preferring the lay observations of the Respondent's mother, Ms Burns, to the expert analysis of Dr Mason, as to the level of independence of which the Respondent was capable prior to the motor vehicle accident on 26 May 2001. Ground 3 - Judge Garling erred in his assessment of the Respondent's need for care and supervision consequent upon his cerebral palsy, unrelated to the motor vehicle accident on 26 May 2001. Ground 4 - Judge Garling erred in failing to give any or sufficient weight to Dr Mason's unchallenged evidence that, prior to the motor vehicle accident, the Respondent had the intellectual capacity of a 7 or 8-year-old child [the Respondent then being 27 years old], and that his capacity would never have improved. Ground 5 - Judge Garling erred in failing to give any or sufficient weight to Dr Mason's evidence that, as a result of his cerebral palsy, the Respondent suffered cognitive and other deficits such that, if no family member was available, accommodation in a group home or some similar facility was appropriate. Ground 6 - Judge Garling erred in failing to give any or sufficient weight to Dr Mason's evidence that, as a consequence of his cerebral palsy, the Respondent could never have lived independently, whether or not the motor vehicle accident occurred. 52 The grounds overlap. Neither in the grounds, nor in the written submissions are the impugned findings identified with any particularity. The written submissions fastened on ground two. I will deal with this ground first. The appellant submitted that Dr Mason's evidence, that David was "severely intellectually handicapped", combined with her suggestion of guardianship (as a safety device in the event of anything happening to his mother) was inconsistent with acceptance of Mrs Burns' evidence. The submission overstates any inconsistency between Dr Mason and Mrs Burns. 53 Dr Mason's assessment that David is severely intellectually handicapped was based on the assessment of the results of testing carried out by Ms Holley, the neuropsychologist. A number of the other professionals who interviewed David assessed his impairment as mild. One explanation for the differing opinions in this respect is the one given by Dr Mason in the second report, which is set out at [15]. 54 Dr Mason first saw David at a time when he was distressed over the acrimonious breakdown of his mother's second marriage. Less than six months later, she commented that, with the change in circumstances, David's psychological health had improved consistently. Dr Mason commenced David on a low dose of Zoloft, not because he was depressed, but because he became anxious in situations where he was expected to perform and she thought this would reduce his anxiety and assist him to make full use of the job support offered by the Commonwealth Rehabilitation Service. In her report of May 2001, it is plain Dr Mason considered that David could be integrated into the workforce. 55 The claimed inconsistency between Dr Mason's observations of David pre-accident and Mrs Burns' evidence is not evident. David was an intellectually handicapped young man with social skills that enabled him to perform at a higher level than others possessed of a similar degree of impairment. His determination to obtain a driving licence and his assessment with the Commonwealth Rehabilitation Service are consistent with acceptance of Mrs Burns' account that he was a young man who was confident despite his difficulties. 56 In cross-examination, Dr Mason was asked: "Q. You note in that first report of October 1999 that his mother had appeared to have provided exemplary care for him under difficult circumstances. We know something of course of the difficult circumstances but so far as concerns, this notation of care having been provided to him, was he a person so far as you were concerned who required care at that time of his life? A. Yes I don't think he would have been capable of living independently. (Black 252.K) Q. What were the shortfalls in his constitution psychologically which took you to that view? A. Well his planning, he has difficulty planning, he has difficulty with basic numeracy so that he wouldn't have been able to manage money at all and therefore to budget or to purchase - to manage a limited budget to purchase food and clothing and pay for … (not transcribable) … he can certainly dress himself and prepare light meals and give a direction and he could learn different tasks and routines and his social skills certainly were very helpful but he obviously did as well as he did because he had such a lot of support and care from his mother. (Black 252.H-P) … Q. I want to ask you doctor about what sort of care David required in your view at least, had he not had his mother and that relationship he had with her. Do you take my point? A. If I'd met him without a family carer I would probably have been looking at some form of guardianship and probably DOCS involvement as the service that usually takes some kind of responsibility for people who are handicapped to the extent that they've (sic: they're) vulnerable in this way. (Black 252.R-V) … Q. If his mother had not been available or some such similar supportive family member, what sort of DOCS involvement are you contemplating such a patient of yours might have been served by? A. Well he would certainly need someone to manage his financial affairs. He didn't have any resources as such and his mother was very much there and protective of him, so there wasn't any need to put a sort of action in place, but should she have had died for some reason, if she'd been in a motor vehicle accident and died he would have needed someone to manage his financial affairs and to make important decisions. If there was a difficult decision about medical care to make for instance, I don't think he has the capacity to weigh up the pros and cons. Q. And such a person on a disability support pension without a support of family member to look after him, might, as an example for instance, end up living in perhaps a group home or in subsidised housing commission accommodation, something of that sort? A. Yes, yep. Q. And then assuming he was in that sort of situation, that's to say without the mother and in-house, do you see him living independently or having the capacity to live independently? A. Well he'd still need assistance with budgeting, he'd still need assistance with planning. If he was in appropriate supported employment he may be able to earn some kind of an income but he certainly wouldn't be able to manage it and purchasing items for the household or, you know, those sorts of things would be very difficult for him. (Black 253.D-P) … Q. But in coping with the stressors of changing life, is he the sort of person that would always require someone to keep an eye on him as to how he was coping? A. Yes I would say so. Q. On a daily basis? A. Well that's hard to know. Sheila Holley gives his intellectual - his IQ range between 58 and 66 and notes particularly difficulty planning, probably going to have difficulty with problem-solving, difficulty with basic numeracy, so he'd need someone calling him daily or every couple of days." (Black 253.U-254.C) 57 In re-examination, Dr Mason's attention was directed to her answer that the respondent would need someone calling in on a daily basis, or every couple of days. She was asked: "Q. Doctor, when you say calling in do you mean someone dropping in just to enquire how he was? A. Well it would have to be someone who was able to look at what was happening to his finances, whether there was food in the house, whether he had paid the electricity bill or whether it had been taken care of. Not a social call but something somewhat more focussed on the practical." (Black 256.V-Y) 58 Ground 1 asserts error in the rejection of Dr Mason's evidence of David's inability to live independently. Neither in the ground, nor in the written submissions, does the appellant identify the evidence relied upon to make the ground good. I take it to be a reference to Dr Mason's answer at Black 252.K. The answer needs to be assessed together with the balance of the evidence that I have extracted above. A fair reading of Dr Mason's evidence is that David was doing as well as he was because he had a lot of support from his mother and that, if that support was absent, he would require assistance. Given his lack of ability to plan and his poor numeracy, he would need assistance with budgeting, purchasing household items and making important decisions, including about medical care. Hence his need for a person to call on him daily or every couple of days to provide him with practical assistance. I do not understand his Honour to have rejected Dr Mason's evidence. The deduction from the assessment of David's future care needs at a time when Mrs Burns is no longer available to him, of five hours per day, reflecting his level of pre-accident compromise, points to his Honour's acceptance of it. 59 Ground 3 complains of error in the assessment of David's need for care arising from his cerebral palsy. The last-mentioned consideration above addresses this ground of challenge. 60 Ground 4 misstates the evidence. Dr Mason did not give evidence that David had the intellectual capacity of a seven or eight year old child. She was asked to express an opinion as to David's "psychological age" when she assessed him in 1999 and 2000. She said "seven maybe eight". (Black 255.K) 61 Ground 5 complains of error in fact-finding, including the failure to "give sufficient weight" to Dr Mason's evidence that "if no family member was available, accommodation in a group home or some similar facility was appropriate". There is no reference in the ground or in the submissions to the evidence upon which this challenge is constructed. I take it to be Dr Mason's answer in cross-examination at Black 253.K. Again, the ground misstates the evidence. Dr Mason agreed with the cross-examiner that "such a person on a disability support pension without a support of family member (sic: a supportive family member) to look after him, might, as an example for instance, end up living in perhaps a group home or in subsidised housing commission accommodation, something of that sort". Subsidised Housing Commission accommodation is not a "similar facility" to a group home. To the extent that Dr Mason's answers in succeeding questions posited the need for David to have a person calling to his residence daily or every couple of days (presumably a person arranged by the Department of Community Services), it may be thought clear that one option Dr Mason considered as a suitable option for David pre-accident was living in subsidised Department of Housing accommodation, with support. 62 As I have noted, in assessing David's future care needs at a time when his Honour assumed he would be without his mother's support, a substantial allowance reflecting the level of his pre-accident compromise was made. The challenges advanced in each of grounds 1 to 6 overlook this circumstance. In my view, there is no substance to any of them. 63 Ground 7 complains that, having found that the additional care and supervision required as the result of the accident amounted to seven hours per week in the first period, it was an error to find that it increased after August 2003, in the absence of a medical basis for the increase. Ground 8 is directed to the same challenge. 64 His Honour commented on the difficulty of being precise about David's living arrangements in the period between February 2002 and February 2005. The allowance of seven hours per week for care services for the first 18 months was based on an acceptance of Mrs Burns' evidence that she visited David at least three times a week. Her observations of David's circumstances during this period suggest that his need for assistance as the result of the accident may have been greater than seven hours per week. His Honour was assessing what, as a matter of fact, had been provided in the way of care in the period. 65 The increase in the number of hours in the second half of the period when David was living away from home reflected his Honour's acceptance of Mrs Burns' evidence of David's deterioration. During this period, she called to his home regularly to make sure that he got out of bed, and attended to personal hygiene and other basic tasks. There was ample support for the conclusion that she was providing services of 20 hours per week, arising as the result of David's psychiatric condition. It will be recalled that Dr Webster did not see David for the first half of 2003. When David resumed attendances, Dr Webster reported that his depression, anxiety and irritability had significantly increased. 66 The increase in the allowance for care in the period from February 2005 to the date of trial reflects his Honour's acceptance of the extent of the services provided by Mrs Burns in the period after David's return to the family home. Her evidence in this respect was largely unchallenged. Senior Counsel for the appellant submitted that, upon analysis, the evidence did not demonstrate the provision of much in the way of care services at all: Mrs Burns gave evidence of making coffee for David, watching television with him and the like. This submission overlooks the disabling effects of David's psychiatric condition. Before the accident, David was leading a reasonably normal life. After the accident, he was not motivated to get out of bed. Making him coffee, watching television with him and taking him for drives all formed part of the services which David reasonably required as the result of his condition. Mrs Burns had other responsibilities, including the care of her elderly mother, who was suffering from dementia, which must have placed limits on the amount of time that she was able to devote to David. The conclusion that she spent at least 40 hours a week providing attendant services to David was one that was well open. 67 It is apparent when looking at his Honour's assessment of the award for the period from June 2017 that he deducted five hours per day to reflect David's care needs, arising from his cerebral palsy and intellectual impairment. Senior Counsel noted his Honour's remark, "but from that you would have to take off what he probably needed before" (Red 56.W), and submitted that, by implication, the finding was that David's' pre-existing condition had generated a consistent need for 35 hours' attendant care services per week. The evidence was said not to support the need for care in the period from August 2003 to February 2005 of 55 hours per week and in the period from February 2005 to June 2017 of the need for 75 hours per week. 68 His Honour reserved his decision, but delivered his reasons orally. His task was not made easier by the absence of a transcript. Reasons delivered orally are apt to be expressed with less precision than if published in writing. It is not clear that his Honour's reference at Red 56.W is to be taken as a finding that the pre-accident, past care, needs were 35 hours per week. It is clear that his Honour found David's pre-existing intellectual and physical impairments had created a need for some services in the past. He accepted Mrs Burns' evidence of cooking, doing the laundry and some cleaning for David when he was living in the separate house on the property. I do not read his Honour as finding that there had been a need for 35 hours' care per week arising from the pre-existing condition. The deduction made from June 2017 is to be understood as an assessment reflecting the need caused by David's cerebral palsy and intellectual impairment, at a time when his mother will no longer be available to him. The psychiatric and psychological reports speak with one voice about David's level of dependence on her. Dr Mason described Mrs Burns' support as being "almost invisible". (Black 257.G) David's need for care, as a mildly physically handicapped and intellectually impaired man facing life without his mother, may be thought to be greater than his pre-accident need in coping with the demands of daily living with her invisible support. In any event, the assessment of past care need was based on the evidence of the things Mrs Burns did for David which were plainly created by the psychiatric injury. 69 There is no substance to grounds 7, 8 or 10. 70 Ground 9 complains of error in the rejection of the evidence of Professor Mattick. There was a striking divergence of opinion between the expert witnesses. It is to be noted that Dr Edwards, who assessed David for the purposes of Part 3.4 of the MAC Act, had access to Professor Mattick's report, together with the reports of the psychiatrists, Dr Webster, Dr Robertson and Dr Maguire. Dr Edwards' assessment that David's psychiatric injuries were "very consistent" with the report of Dr Webster and Dr Robertson, and inconsistent with the report of Dr Maguire, provided a sound basis for rejecting Professor Mattick's opinion. The appellant's complaint is that his Honour's criticism of Professor Mattick was not justified. Senior counsel acknowledged that Professor Mattick had expressed himself in robust language. I take this to be a reference to the contents of the second report (Blue 391-409). I have extracted a passage from it at [34] above. 71 In cross-examination, Professor Mattick was confronted with the suggestion that, in his second report, there was a pejorative quality to his discussion of Dr Webster's report. Professor Mattick did not accept this was so. The assertion that he had assumed the role of an advocate was put to him, and it was rejected. The transcript of the cross-examination is suggestive of a vigorous exchange between counsel and the witness. At one point, it is apparent that Professor Mattick perceived that he was being criticised for the detail with which he had reviewed the documents presented on David's behalf. The suggestion was that he had not approached the task with an open mind. He rejected the suggestion, and pointed out that in other proceedings he had been criticised for the brevity of his document review. 72 His Honour had the benefit of seeing Professor Mattick give his evidence. I am mindful that Professor Mattick may have perceived that he was the subject of unfair criticism in light of his earlier experience. However, having read his reports and the transcript and recognising the advantage that the primary judge had in making an assessment, I would not hold that his Honour's criticisms of Professor Mattick's evidence were not open: Ahmedi v Ahmedi (1991) 23 NSWLR 288. 73 Senior Counsel for the appellant submitted that his Honour's reasons lacked logical persuasion and consistency. The case had been presented on David's part as demonstrating the need created by his psychiatric injuries for 24-hour care, and on the appellant's part, as giving rise to minimal care need in light of the pre-existing condition. His Honour did not accept either case and, in the result, arrived at a middle course for which there was no support. This submission was not articulated in the amended grounds of appeal, save to the extent that it was said to underlie ground 11, which is the contention of manifest excess. None of the appellant's written submissions addressed this challenge. It raises a false issue. 74 There was evidence from Dr Webster and Dr Robertson supportive of the need for 24-hour care because of David's vulnerability to suicidal ideation. While his Honour's preference was for the evidence of Dr Webster and Dr Robertson as to the extent of David's psychiatric illness, he did not accept that 24-hour care was justified. He took into account Dr Maguire's evidence that he, Dr Maguire, had never encountered a 24-hour regime to address the risk of suicide. It remained, given the disabling effect of David's psychiatric illness, that his Honour assessed a need for a significant level of care for the remainder of David's life arising from the condition. The estimate of the number of hours reasonably required by reason of the psychiatric injury is necessarily imprecise. The finding that Mrs Burns, to date, has been providing 40 hours per week referable to the needs created by the accident, is not a finding that all of David's needs are being met by that number of hours. It is a finding of the number of hours that Mrs Burns has devoted to care arising from David's psychiatric condition, in a context that includes her own ill health and the other demands placed on her. 75 In making an assessment for the future, his Honour assumed that for the next 10 years Mrs Burns will continue to provide services at the same level. The assessment that for the balance of David's life from June 2017 he will need care for 11 hours a day by reason of his psychiatric injury embodies the acceptance of the evidence of Dr Webster, Dr Robertson and Dr Edwards as to the poor prognosis. There is no logical inconsistency in his Honour's finding of the extent of the past provision and assessment of the future reasonable and necessary care needs created as the result of the injuries sustained in the accident.

Kaszubowski v McGuirk

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Judgment (16 paragraphs)

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Cases Cited (9)