Factual background
Injuries and disabilities
6 The plaintiff suffered a closed head injury, which has been described as a blunt injury to the skull. The injury has been characterised as severe. A CT scan and a later MRI scan confirmed the presence of multiple (bi-lateral) intra-cerebral haematomata and bruising in the left temporo-parietal region.
7 He suffered facial injury, including several fractured teeth, a laceration to the lower lip, a laceration to the chin and an injury to the left zygoma. In evidence the plaintiff pointed to facial scarring which he said caused him some embarrassment. Whereas that scarring may well have been prominent in the past, as of the date of trial it was obvious only on close examination.
8 Although a fracture of the skull was suggested in some of the early medical material, that diagnosis was never confirmed. There was bleeding from the mouth and the right ear. Mostly, however, the injuries were to the left side of the head. There were no injuries to hands, arms, chest, abdomen or back.
9 The plaintiff was unconscious when admitted to the Manning Base Hospital. He was then transferred by helicopter to the John Hunter Hospital in Newcastle. On arrival at the John Hunter Hospital he was still unconscious and required intubation and ventilation. He appears to have been unconscious for approximately three days. Although he regained consciousness on 4 January 1990 he remained confused and disoriented. That situation continued up to his discharge from the John Hunter Hospital and transfer to Coorabel (Royal Ryde Rehabilitation Hospital) which occurred on 25 January 1990. The plaintiff's post-traumatic amnesia lasted approximately eighteen days.
10 While in Coorabel, the plaintiff was noted to be unsteady in gait and to have impaired fine motor co-ordination. A speech therapy assessment revealed a range of high-level language deficits while neuro-psychological assessment revealed a slowing in the rate of information processing and some problems with memory and new learning.
11 Following his discharge from Coorabel on 2 March 1990, the plaintiff went home to live with his parents. His behaviour at that stage was appropriate and he apparently willingly helped his parents around the house. As time went by he gradually developed the symptoms of an obsessive compulsive disorder.
12 The focus of this disorder seemed to lie in his growing conviction that there was somehow something "demeaning" and "degrading" about the treatment provided in hospital. He felt that his parents had betrayed him by allowing "all these people to come and gloat over me". He began to refuse to eat food his parents prepared or to allow them to have any physical contact. Any contact provoked an angry response and an elaborate hand washing ritual. At the same time he became quite paranoid and secretive.
13 In early 1993 he moved out of home and rented a unit at Richardson Road, Wingham. He refused to allow his parents into the unit and did his best to avoid social contact. In evidence, the plaintiff described the years between leaving Coorabel and moving to Wingham as "very deep dark depressing years … just basically I would get up and spend my time in a chair looking at a wall, or looking at a TV. That was about as much as I did in those very bad years." (T18 line 21-38) The plaintiff's description of this period was not challenged.
14 The move to Wingham was important to the plaintiff because he was not known there (T.20.36). In late 1995 the plaintiff moved from Richardson Street to a unit in Mallee Close, which was also in Wingham. In 1997 he moved into a unit at Pulteney Street, Taree. In 1998 he moved to another unit at Henry Street, Taree and in 1999 he moved to a unit at 6 Macquarie Street, Taree which is his current address. Throughout the period he has lived alone.
15 Given his presentation when admitted to Coorabel, his physical and mental improvement since that date has been remarkable. As of the date of trial his balance problems had improved to such an extent that he was able to perform domestic tasks although climbing on a chair made him feel "very wary". He had attempted to renew his interest in indoor cricket but his co-ordination had deteriorated to such an extent that he did not continue it. He tried to avoid using ladders. If repairs were needed in the unit, which required the use of a ladder, such as cleaning the tops of windows or replacing a gutter, he would arrange for that to be done through the real estate agency managing the unit.
16 In the shower with his eyes closed he did not feel stable but there was no suggestion that he might fall. The video shown at trial was revealing. It seemed to me that despite the plaintiff's evidence to the contrary, his gait was not entirely normal and there appeared to be some restrictions on his right side.
17 The plaintiff suffered from tinnitus although it had improved considerably. The tinnitus had only occurred after the accident. Whereas it had been originally quite noticeable, the plaintiff described it as a "bit of a nuisance" (T.43.4). For many years the plaintiff experienced what he described as a "rather bouncy, twitchy right leg". That condition had settled down so that of late the plaintiff had not noticed it.
18 Whereas in Coorabel the plaintiff had experienced difficulty in using his right arm and hand, when giving evidence he described the problem as being now a lack of sensation in the hand and fingers. He described it as "a dullness of my right hand". He thought the strength in his right hand was a little less than that in his left.
19 The plaintiff continues to experience headaches although they had considerably improved.
20 He described his concentration problems in the following terms:
"My concentration now, is impaired is how I would describe it since that time. It sort of, sometimes I would have good points where I can focus for a while and other times it will just - I will go right off and just ignore it. Whatever I'm doing I try and just switch out of whatever the situation was.
Q. That has troubled you during your studies with Southern Cross University?
A. That is a big aspect of denying me my full ability with my studies I feel. So it detracts from doing - like you do an assignment or something or essay or an exam because that is like three hours you have got to concentrate all this time.
Q. And what happens when you have to concentrate for three hours?
A. Oh, it's hard work. For moments I will possibly, I will just sort of go off the work a bit and not be focused on it as much as I should be and thus letting me down in my overall sort of task." (T.46.35-55)
21 The plaintiff gave evidence for a day and a half and it is clear that his power of speech has been restored. His diction was quite clear although he did struggle from time to time to find the correct word. He has regained his ability to write.
22 In relation to his personality difficulties and Obsessive Compulsive Disorder (OCD) Ms Greta Goldberg, a clinical psychologist qualified on behalf of the defendant, had this to say in July, 1999:
"Symptomatic Patterns suggest that Mr Knight is exhibiting a florid psychotic process that includes personality decompensation, social withdrawal, disordered affect and erratic behaviour. He appears to be quite confused withdrawn and preoccupied with occult or abstract ideas, and he may feel that others are against him because of his beliefs. He may appear quite apathetic, tends to spend a great deal of time in fantasy, and might have at some time experienced hallucinations, blunted or inappropriate affect, and hostile irritable behaviour. He appears confused and disoriented and he may behave in unpredictable or highly aggressive ways. Personality decompensation, disorganisation and thought disorder are likely to persist.
Interpersonal Relations Profile suggest that Mr Knight may be experiencing disturbed relationships with others. His behaviour may appear socially inappropriate and he is likely to have very poor social skills. His emotional detachment appears to be of long standing duration. He appears to be very insecure, lacks confidence in social situations and becomes extremely anxious around other people. Individuals with this profile are typically rigid and over controlled, tend to worry excessively and may experience periods of low mood in which they withdraw almost completely from others. His generally reclusive behaviour, socially introverted lifestyle and tendency towards interpersonal avoidance are likely to be stable over time."
23 In relation to the origin and existence of the OCD, Ms Goldberg said:
"Mr Knight's symptoms are consistent with an organically based process of psychotic disorders in thinking, affect and behaviour and could well be associated with the organic brain damage he sustained in the accident/incident. His symptoms do not appear to be confined to Obsessive Compulsive behaviour such as hand washing but also extend to thought disorder self reference extreme social alienation and affective withdrawal. Formal personality testing (MMPI-2) confirms a probable psychosis which according to Mr Rawlings (sic) report may have predated the head injury (Richards 4 June 1990). The history given suggests possible pre-existing dependencies and coping difficulty, insofar as he worked only for his father and no school reports are available to clarify his previous mental health. The possibilities of any pre-existing Obsessive Compulsive Disorder symptoms would imply familial factors which may be in part genetic.
However it is also clear from all documents and reports that a severe head injury was sustained and that a minimal traumatic brain injury has occurred. The physical and psychological trauma associated with this injury would certainly have caused a significant decompensation of personality problems that may have been pre-existing. Medication is indicated and his responses to this may assist in clarifying his diagnosis further."
24 In relation to cognitive functioning Ms Goldberg said:
"The extent of cognitive damage
There appears to have been some moderate deterioration from previous cognitive level. In particular the head injury has resulted in a moderate level of impairment of thought processing visuospatial information and for complex memory function. Currently his cognitive functioning appears to have stabilised and is slightly improved since the 1994 assessment by Mr Rawlings although memory functioning is slightly worse than in 1994. Test results indicate moderate right hemisphere and frontal lobe damage."
25 Ms Goldberg saw the plaintiff again in February 2004 and summarised the results of that examination as follows:
"Seen after a four year interval Mr Knight's clinical presentation is not significantly changed in terms of his agitation and fixated thinking. His life situation remains isolated and he has given up attempts to work or study. He accurately describes himself as still having some aspirations and abilities but not the staying power to achieve things. Base line comparisons with available neuro cognitive test scores between 1998-2000 show that cognitive inefficiency is still persisting. Score fluctuations from memory reasoning and executive skills are partly moderated by co-morbid psychiatric symptoms of depression thought disorder and Obsessive Compulsive symptoms."
26 My observations of the plaintiff while he gave his evidence conform with the observations of Ms Goldberg and of Mr Rawlings. He often interpreted questions in a very literal sense and became fixated on particular issues. From time to time he became irritated during cross-examination in an inappropriate way.
27 There is no real dispute between the plaintiff's medical practitioners and those of the defendant that he is suffering from a significant personality disorder and that this disorder had been brought about by the injuries sustained in the incident. The only disagreement was that Dr Lucire, a psychiatrist qualified on behalf of the defendant, diagnosed a major depressive illness with paranoid features. She did not think that he was suffering from a true obsessive compulsive neurosis but from what she called "Organic Orderliness". She defined that term as being a way of dealing with anxiety by being ritualistic and tidy. Nevertheless, she agreed with the other psychiatric/psychological specialists that his disabilities were consistent with brain damage.
28 Dr Klaas Akkerman, psychiatrist, has treated the plaintiff since July 1993. That treatment has been consistent, although there have been occasions when the plaintiff has failed to attend for periods of up to ten months at a time. He diagnosed an Obsessive Compulsive Disorder secondary to brain injury, together with a major depression which was fluctuating in its course. He also noted that various anti-depressant medications had been tried in relation to the plaintiff but had failed to produce any improvement. The plaintiff's tendency to arbitrarily go off such anti-depressant medication I see as a product of his obsessive personality and a consequence of his injuries rather than a failure to mitigate his damages by taking appropriate anti-depressant medication.
29 I accept that the plaintiff does suffer from an Obsessive Compulsive Disorder and from a fluctuating depression, such as described by Dr Akkerman and as further elaborated by Ms Goldberg and Mr Rawlings.