He goes on to recite that, at the time that he had seen him, Laws Junior had suffered 8-10 grand mal seizures.
282 He recites his current position in the following terms:
"He has diplopia [double vision], which was present all of the time. He has a bitemporal hemianopia [blindness in half of the normal visual field], so that some times he bumps in to objects when he walks. This is particularly when in unfamiliar surrounds. He has to be very careful of how he judges distances.
He has anosmia, and his smell has never returned following the CSF rhinorrhea [the discharge/leak of cerebrospinal fluid previously mentioned]. His taste has also been impaired, but he can taste certain food. …
His hearing is decreased on the left side and he has a high-pitched ringing, which is not constant. If he leans on the left side he gets pain in the left arm which, of course, was plated and screwed following the fracture to humerus."
283 Dr Joffe reports:
" ON EXAMINATION
He is a very pleasant man, with a blood pressure today of 130/70; he was in sinus rhythm. There was no abnormality in his cardiovascular system, respiratory system or abdomen.
He has a coronal scar stretching from one ear to the other, and he also has another scar which runs at right angles to this. He has the scar of the tracheotomy and also a scar over the left arm where he had the plate and screws inserted for the fracture of his left humerus.
Neurologically he has pale disks. He has a bitemporal hemianopia, and he has a significant eye-movement disorder, with a left exotropia and a 'see-saw nystagmus [an involuntary, rhythmical movement of the eye]'. This is an extraordinary eye movement disorder, in which as the intorting eye rises, the extorting eye falls. The actual disturbance may give rise to oscillopsia, in which objects appear to be moving.
In addition to this, he has anosmia, and his hearing on the left side is impaired.
OPINION
It is my opinion that John has had a very significant head injury, from which he has been very lucky to survive. He has been left with a number of problems, which are permanent. Apart from the permanent scarring:
He has continual oscillopsia, which in my opinion equates to a permanent impairment of 30 percent.
He has constant bitemporal hemianopia, which I assess as a permanent impairment of 25 percent.
He has anosmia, which I assess at 3 percent permanent impairment.
He has decreased hearing, which in my opinion is 8 percent permanent impairment.
He has seizures which amount to 40 percent permanent impairment."
284 The opinion of Dr Joffe in the scheme of these proceedings, is not controversial. It is a useful summary of evidence in other reports and lay evidence and I will treat it as a submission only. The assessment of Dr Joffe of permanent impairment was intended to be a whole of body permanent impairment and the percentage permanent impairments to which Dr Joffe refers are 104 percent of whole of body impairment. While such an arithmetic process is impermissible because some of the disabilities overlap and they are, after all, only assessments, nevertheless they give, as a convenient summary, an understanding of the level of impairment, otherwise disclosed in other medical reports, of a person who, to a lay observer, appears "normal"; can walk, talk and answer questions, albeit in each case with some difficulties.
285 It is on the effect of the above that the major controversy on the medical reports centres. That controversy is the level of care required of Laws Junior.
286 The claim made on behalf of Laws Junior and based upon the opinions of Dr Stephen Buckley, Dr Jungfer and Ms Shepherd is for 24-hour personal care assistance, 7 days per week provided by way of shifts. There are claims for case management requirements. Given that the life expectancy of Laws Junior has not been reduced significantly, this is essentially a claim for full-time care and assistance for a period of some 50 years from the date of judgment. Of itself, on current costs arrangements, such an order would amount to over $8.5million. As one would expect, given the amount of money involved, the defendants have examined very carefully this claim and have, in that process, adduced evidence relating to the necessity for such a regime.
287 The plaintiff, Laws Junior, relies, inter alia, upon the reports and evidence of Dr Patricia Jungfer. Reports from Dr Jungfer dated 25 September 2002 and 30 August 2005 were tendered in evidence. The reports from Dr Jungfer agitated, themselves, some controversy. Dr Jungfer's first opinion was that Laws Junior required 4 hours of attendant care per day. There were other requirements to which I do not, at this stage, go. Her later report, dated 30 August 2005 and relating to a consultation on 27 July 2005, opines the need for 24-hour per day supervision in relation to attendant care needs. The other matters of care are not much changed before the first and second reports. It is necessary to deal in some detail with these reports.
288 In the first report, after repeating a number of the matters referred to in other reports, including the presence of significant adynamia, amotivation and difficulties with regards to planning and organising activities on a day-to-day basis, Dr Jungfer opines that Mr Laws "is considered to have a cognitive disorder secondary to a head injury with predominant front lobe impairment and an organic personality disorder adynamic type". She also said:
"Based on his cognitive impairments and personality change I believe that Mr Laws would not be capable of independently managing his financial affairs, nor do I believe that he is capable of instructing counsel. Mr Laws is considered to have 24 percent impairment of whole person for his brain injury with no estimates of impairment for his visual, auditory or olfactory impairments." [This of course was done in 2002 before some of the reports to which I have already referred. It should be pointed out, if not obvious from the title of the proceedings, that a tutor, his sister, conducts the proceedings on behalf of Laws Junior.]
289 Dr Jungfer diagnoses Laws Junior and recites:
"Based on the information provided in the clinical history of Mr Laws and review of the circumstances of the injury in the initial clinical data Mr Laws has sustained an extremely severe closed head injury and has a cognitive disorder secondary to a close head injury with predominant frontal lobe impairment . Mr Laws also presents with an adynamic personality disorder that occurs directly as a consequence of his structural brain injury."
290 Further Dr Jungfer reports:
"Mr Laws has a number of physical impairments consistent with the nature of the injury he sustained. The impairment of balance, hearing, smell and taste, the visual disturbances, are all as a direct consequence of underlying structural brain injury. Mr Laws is noted to have difficulties with regards to his personality. He is immature, child like, emotionally labile, adynamic and minimises his impairments, that is he has an impairment of insight. He has difficulties with regards to his capacity to live independently, he is unreliable and forgetful and has significant difficulties with initiating activity.
Mr Laws demonstrates quite substantial changes with regards to his personality, he tends to worry and cognitively ruminate but not carry through any form of action. He has some motor restlessness and a sleep disturbance. Mr Laws has difficulties with regards to his short term memory functioning and is unable to manage his financial affairs independently. The range and nature of the symptom complaints are consistent with the regions of the brain that have been injured at the time of the head injury.
Mr Laws does not have any acute psychiatric symptomatology, that is he does not have a manic depressive disorder or psychotic condition. His changes in behaviour are enduring and directly as a result of structural injury to the interior and basal forebrain areas. Some of the features of his psychomotor slowing and balance impairment are likely to be related to damage to the mid brain or subcortical regions.
Mr Laws as a consequence of his impairment and injuries has had a dramatic change in the quality of his existence. He has developed post-traumatic epilepsy. He is reliant on his family members for supervision and support. He has lost all social contacts and is unable to return to his pre-injury occupational areas, that is playing in a band and working as a builder. Mr Laws would not be capable of working independently, he will always require structure, supervision and support and with the combination of physical and cognitive impairments it is unlikely that he would be able to find a gainful employment on the open market when considering the cognitive and physical impairments he has.
… It is unlikely that Mr Laws will ever have a normal healthy adult intimate relationship, he is more likely to form a relationship with someone who needs to care for him as is the current quality of his relationship. He would be incapable of independently parenting or supervising his own children.
… He is also vulnerable to exploitation due to his naivety, childlike behaviour and lack of insight. Mr Laws has no past or developmental history of abnormalities."
291 In the latter report, dated 30 August 2005, Dr Jungfer repeats a number of the matters recited in the earlier report. In her executive summary to the latter report she says:
"1.2 Additional to the cognitive impairments he has a post-traumatic seizure disorder, is anosmic and has hemianopia. The regions of the brain that have been damaged by the blast injury include that of the basal forebrain and in particular the olfactory regions and optic chiasma. In addition it is proposed that he has damaged the primary motivational anatomy, that is the nucleus accumbens and other regions that are of a significant role in the maintenance of the motivational state that allows a person to achieve goal directed behaviour. He has planning and organisational impairments but his memory functioning and attentional skills are relatively preserved although there are abnormalities. His seizure control is poor, he has a sleep disturbance and difficulties with regards to his capacity to organise and structure his day-to-day activities. He can be impulsive and has problems with respect to crossing the road and is considered unsafe to be left alone for periods of time.
1.3 He has problems with regards to organising and structuring his day-to-day activities, difficulties in formulating a plan of what to do and then choosing actions that may be available. He has problems sustaining tasks. Currently his mother and girlfriend act as his carers and offer him 24 hour per day care.
1.4 Mr Laws is not capable of paid employment. His injuries and deficits that he now currently has are solely as a consequence of the head injury. They are not amenable to training and his level of independence cannot be improved. Mr Laws' impairments and difficulties occur solely as a consequence of the blast injury. His motivational disorder is as a consequence of structural injury to the brain. Due to an abnormality within this primary motivational circuit, strategies recommended by the occupational therapist of the defendant will not [be] sufficient or effective.
1.5 Mr Laws' impairments and deficits are permanent and there is no prospect for paid employment. He is unlikely to be able to form another intimate relationship and his social networks will remain restricted. He places himself at risk due to his impulsivity and his lack of insight with regards to the extent of his impairments. Mr Laws requires supervision, care and requires 24 hour per day intervention. He is incapable of being left alone for more than brief intervals of time, requires supervision for his washing, meal preparation and activities of daily living. He is incapable of independently managing his financial affairs.
1.6 Mr Laws' impairments and deficits are permanent. There is no further prospect for recovery. While there may be some improvement in his functional level with the use of stimulants this may cause additional problems associated with his seizure control. He could also benefit from the manipulation of his anti-convulsants to improve his seizure control and possible assist with his aggressiveness and irritability."
292 While I have repeated at length the summary of the report I do not attempt otherwise to summarise the report in its details. There are however aspects of the report to which I need to go. Dr Jungfer deals with a number of the reports by a number of other medical practitioners. It is sufficient for my purposes to state that her assessment of those reports is consistent with the summary that I have reiterated above. The diagnosis offered by Dr Jungfer has changed in some significant ways. Apart from the matters referred to in the earlier diagnosis she now (i.e. at August 2005) takes the view that Laws Junior presents "with a diagnosis of a major depressive illness that occurs in the context of a severe closed head injury. He also has features consistent with that of a change in personality, apathetic state due to a closed head injury and a cognitive disorder secondary to a closed head injury. He has grand mal epilepsy."
293 Finally it is necessary for me to repeat the recommendations of Dr Jungfer on the management of Laws Junior. Her report says:
" 11.0 MANAGEMENT
11.1 It would be my recommendation that Mr Laws receive an occupational therapy program that provides structure and activity for him on a daily basis. He requires the presence of attendant care to prompt, stimulate and motivate this activity and to ensure that he persists with such tasks. While he can be left on his own for periods of time, in these periods of time he is prone to impulsive and risk-taking behaviour. He also has a disturbance of sleep. It is my opinion that his care requirements and management requirements are that of 24 hour per day supervision with appropriate structural and of avocational activities.
11.2 A trial of medications such as the stimulants might assist with regards to his level of persistence of tasks or activities but is not a substitute for the care that he requires. Anti-depressant therapy may be of value for his mood symptoms, but this could have a negative effect on his epilepsy. One might recommend some psychological intervention to assist him with regards to his adjustment. Manipulation of his anti-convulsants to assist in regulation of his affect and anger control may also be of value.
12.0 OCCUPATIONAL FUNCTIONING
12.1 Mr Laws in my opinion due to the combination of his cognitive impairments, emotional dysfunction in particular the apathy state is considered unsuitable for paid employment. Due to his multiple other physical impairments and in particular his vision impairments he also is not considered safe to work in a sheltered environment such as a sheltered workshop. He has no functional earning capacity."
294 I turn then to the report of 7 January 2003 of Dr Buckley also relied upon by Laws Junior. Dr Buckley is a Consultant Physician in Rehabilitation Medicine. As one would expect Dr Buckley recites the history of the accident, the past history of Laws Junior and deals with a number of the current problems, most of which have, in one form or another, been dealt with already in this judgment. He lists and explains Laws Junior's visual impairment, hearing problems, poor balance, anosmia, the shaking of his left arm and lack of strength in it, seizures, his memory problems for short-term memory, his variable emotional state and his increased levels of anxiety and aggression and the problems that he encounters in daily living activities and domestic chores.
295 In his report of 7 January 2003 Dr Buckley concludes that the level of care required is less than 24 hours per day. A further report was given on 31 March 2003 but it dealt solely with the capacity of Laws Junior to provide instructions and the need for a tutor. A further report was provided on 24 July 2003 relating to a full time travelling companion and the last report was provided on 9 June 2005. I turn to that report.
296 The last report of 9 June 2005 provides an assessment of the care requirements for Laws Junior which include 24 hour per day care by a personal care assistant provided over appropriate shifts; 8 hours per month case manager in the first 6 months at the commencement of any significant new arrangement (say every 5 years) and thereafter 4 hours per month; full time travelling companion; medical care of the following kind: general practitioner 6 visits annually; consultant physician in rehabilitation medicine (traumatic brain injury specialist) 2 visits annually; neurologist, 2 visits annually; ophthalmologist, 1 visit annually and a physiotherapist at 6 visits annually.
297 He also recommends modifications to the bathroom and air-conditioning in his home, membership of a club or gym with heated swimming facilities, a carer who is capable or driving a motor vehicle, funds management and reiterates that Laws Junior is unemployment on the open employment market.
298 In reciting the progress, or otherwise, of Laws Junior, Dr Buckley says:
" PROGRESS
Mr Laws and his family told me that things are going on about the same. He has had no new serious injuries, illnesses, accidents, operations or re-admissions to hospital.
He apparently developed, at one time, however, a mild thrombocytopenia, which was possibly a reaction to Epilim. He said that his lowest recent count of platelets was 122,000 on 28.10.04."
299 Dr Buckley once more recites the ongoing problems in similar terms to his report of 7 January 2003. By that I do not suggest that Dr Buckley repeated the matters but simply noted that in most instances they had not significantly changed. Dr Buckley notes that Mr Laws stated that both arms continue to shake and the left upper arm swells. He also noted that his last seizure was 2 years and 8 months ago although qualified that by a note that his partner felt him "shaking in bed with his teeth gritted, and this condition will last a few seconds. She may wake during such an episode and he is quite okay when she does so. Sometimes when he wakes in this situation he has severe urinary urgency. They said that Dr Joffe has called these 'night tremors'." In connection with his memory there are some differences. Dr Buckley notes in his report of 9 June 2005:
" Memory : Mr Laws continues to write down messages, and without doing so he could not be cued. He would, however, recall a message if he was confronted with it. He forgets when he is told things and when he did things. Sue said, for example, they will have done some activity in the morning and he will tell people 'last week I …'. He will watch the same movies over and over and asks questions during the movie even though they have seen it many times before.
He is unable to read properly due to his eye sight, and the difficulty of remembering what he has already read. He can read one word at a time. He does no cooking, but will make a cup of tea if supervised. They are concerned to allow him to do this independently due to the risk of an accident or leaving the stove on. He has difficulty recalling if he has put sugar in the tea. He needs reminder to take his tablets and to shave and clean his teeth. He rarely showers, preferring to bathe, and the completion of the task is supervised and checked by [his partner] and his mother to make sure that he has completed washing himself, and that he does not go to sleep in the bath or otherwise slip under water. He chooses his own clothes but [his partner] or his mother must place them in order.
Mr Laws himself checks that he has completed all his tasks by doing the same routine day after day. Occasionally he will be sent across the road to the … supermarket, and will obtain one item without a list, but would need a list for more.
He does continue to become overwhelmed with all the items on the supermarket shelves, and usually therefore they shop together with him pushing the trolley and [his partner] or [his mother] keeping their distance from other people. He will nevertheless bump [them] with the trolley regularly."
300 Dr Buckley in this latest report also remarks that the comments from his family were that his temper was worse and he becomes frustrated. The opinion expressed by Dr Buckley in the latest report was that there was in essence no particular change of Mr Laws' condition. However, the family had emphasised in the latest interview the dependence of Laws Junior upon them for his ordinary activities. For that reason Dr Buckley opined that "therefore … my initial suggestion for going 4 hours a day of care, would be insufficient." Dr Buckley said:
"Taking into account, in particular, Mr Laws nighttime activities and his very poor sleep, I now believe that he would require the full time care and supervision of another person.
In view of the fact that he gets up so frequently at night then he would require care in a manner which is not of a 'sleep over' nature, but rather where there is a person available at all times.
I therefore propose that he requires 24 hours a day supervision by other people, and that a significant proportion of this 24 hours would be waking care."
301 Tendered on behalf of Laws Junior was also a report of CDC (Complete Domestic Care), which is a report of an occupational therapist. The last of those reports cites the report of Ms Henry (a previous report of 9 July 2003) and the later reports of Dr Buckley and Dr Jungfer. It deals with the necessity for 24-hour care and the costs associated with the provision of such care. It also deals with the appropriate modifications to the residence of Laws Junior to take account of his needs. It otherwise confirms the approach of Doctors Jungfer and Buckley in their later reports.
302 Dr Jungfer gave evidence on the reasons for her change in opinion (or the change in opinion of the company providing the reports) from 4 hours attendant care to 24 hours attendant care per day. Dr Jungfer was influenced significantly by Dr Buckley's opinion. Otherwise she made it clear that her original opinion was based upon the assumption that there would be post-injury improvement, which did not occur. She remarked that there was probably deterioration in his mental state and he, latterly, had seizures, despite medication change. Her concerns were those together with safety issues and otherwise the more extensive history from his girlfriend and his mother. Lastly Dr Jungfer referred to work she had done for a seminar of occupational therapists being a Brain Injury Interest Group on disorders of motivation in which she had reviewed the English literature in the area and was therefore no longer convinced that training and other therapies were effective.
303 The combination of all of those matters, together with his behavioural impairments in particular, caused Dr Jungfer's change of view. She was, as one would expect, cross-examined on these issues and in particular on the change of view as to the level of care. The cross-examination was thorough and effective. However, it did not dent the view that she held; nor did it undermine the information upon which she relied; nor her conclusions. Given that I accept the evidence of Mrs Laws, in particular, and Ms Badham (Mr Laws' partner), the material upon which her opinion is based is material that I accept as the fact in the matter. This does not mean that I accept 24-hour care or 24-hour care of the kind proposed by Laws Junior.
304 Dr Buckley was also cross-examined. Dr Buckley was cross-examined by telephone because of his commitments overseas. During the course of that cross-examination it was put to Dr Buckley that a brain injury unit, if it were permitted to have involvement with a patient in a position of Laws Junior, might be able to achieve a long-term goal of enabling him to live independently in the community. The answer given by Dr Buckley is instructive:
"I'm a consultant rehabilitation physician operating the Brain Injury Outreach Team in Ryde, not in Westmead, but at the Royal Rehabilitation Centre Ryde in association with Royal North Shore Hospital, and the chance that I could, with the assistance of my highly skilled rehabilitation team, transfer Mr Laws, whose accident was in 1999, from the circumstances that he is actually in now to some new and more independent circumstances, would be, in my opinion, virtually nil."
305 The cross-examination of Dr Buckley otherwise confirmed the basis of the view he has expressed. Dr Buckley was an extremely impressive witness, even over the telephone, as was Dr Jungfer. I accept their evidence and I accept their explanation for the alteration in the requirements for care. Because I accept the evidence of Laws Senior, Mrs Laws and Catherine Laws, and with reservations relating to his condition Laws Junior, I find that the factual basis for the alteration in their recommendation of care levels is made out.
306 The reports tendered on quantum by GWS suffer from some significant problems. None of them, I hasten to add, reflect on the integrity or capacity of the experts who have compiled the report.
307 It seems from the material that I have accepted that there was a significant deterioration in the prognoses for Laws Junior between the early period and later periods. As a consequence the report of Dr Sekel, dated 22 May 2002, on the findings I have made, do not meet the factual circumstances which have been adduced in evidence. Nor does his report of 22 July 2002. On the material that was before Dr Sekel, he came to the view that he "now appears physically and intellectually fit to return to work as a performer in a band". The material that I accept as an accurate reflection of the condition of Laws Junior is such that he neither hears sufficiently well to play in a band nor sees sufficiently well to read music. Loud music induces pain in his ear. Further his capacity to play an instrument as described in evidence is a capacity to play for extremely short periods following which the weakness in his arms and his trembling prevents it. So too does his lack of concentration.
308 Further the assessment of Dr Sekel that Laws Junior is "physically fit to work as a process worker in situations where fine sense of depth is not required" is, on the material adduced in these proceedings, which material is accepted, relating to his condition in later years, manifestly incorrect. The permanent and untreatable loss of hearing, balance, taste and smell and tinnitus, all described in the report of Dr Leon Gillam, tendered by GWS, is seemingly inconsistent with the proposition that he could perform as a guitarist on stage and in the midst of loud music. No countervailing reports are tendered to qualify in any way the issues associated with loss of sight and loss of concentration.
309 I have earlier remarked at the inability of Laws Junior to comprehend the full extent of his disabilities. Further his adynamia and amotivation is seemingly crippling. None of these factors seem so have been given appropriate weight in the formation of the opinions of the rehabilitation specialists qualified by GWS. Nor have they taken account of the risk-taking activities of Laws Junior, which activities are seemingly undertaken because he fails to appreciate his limitations.
310 Professor Jones was called by GWS and his report forms part of Exhibit 23. His report is dated 18 August 2005. He refers to the trip of Laws Junior to the examination and his post traumatic epilepsy. He also notes that, as at 18 August 2005, that the last epileptic seizure was June 2005. Professor Jones recites continuing physical disabilities as recounted by Laws Junior and came to the opinion that:
"Mr Laws has suffered severe head injuries with continuing brain impairment notably double vision, visual field impairment, left auditory loss, loss of the sense of smell, and epilepsy. There is sparing of much of his cognition although his memory is adversely affected. I would regard him as independent in personal care and in some activities of daily living of a domestic nature. He lives in a protected environment with his parents and/or girlfriend who undertake domestic chores for him, although I am of the view that he would have the capacity to undertake some of those domestic activities himself with a little extra training."
311 The first aspect of the above opinion is that the physical capacity of Laws Junior to undertake such activities is not in issue in these proceedings. The safety issues addressed by Professor Jones relate to the physical issues associated with his loss of smell and the risk of fitting. Professor Jones is "not of the opinion that [Laws Junior] requires 24 hour per day care". Professor Jones accepts that "the injuries that [Laws Junior] has sustained as a result of the accident of 10 March 1999 have substantially impacted upon his capacity to engage in his normal domestic, social and recreational activities". He concludes that the prognosis of Laws Junior "is guarded and there are many impairments that [Laws Junior] still suffers, although they are more significantly of a cosmetic nature."
312 The only "cosmetic" impairments, on the evidence, is the scarring over the head from ear to ear and perpendicular to it to the temple and the eye movement [the "see-saw nystagmus"]. As such the proposition that the impairments of Laws Junior are "more significantly cosmetic" is rejected. Further this opinion is formed without regard to the most telling disabilities suffered. Professor Jones does not deal with the lack of insight into incapacity; the adynamia and amotivation; and the consequential risks associated with those problems. I cannot therefore accept the opinion. It does not deal with the issues that Laws Junior faces and cannot be an accurate view of his care needs.
313 The same criticism, although different in the details, applies to the report of Tony Mitchell, Consultant Physiotherapist, of 13 August 2003 and, although reference is made to the adynamia/amotivation aspects, to the report of Raymond Field, Clinical Occupational Psychologist.
314 The issue that must then be addressed is the issue associated with the assessment of the level of care and its translation into practical steps for the care of Laws Junior.
315 As previously stated Laws Junior tenders and relies upon the three reports of Ms Linda Shepherd, Occupational Therapist. The report of Ms Kareena Henry, Occupational Therapist dated 9 July 2003 was originally tendered but she was unavailable overseas and the report was withdrawn. Because of Ms Shepherd's involvement in the first report of 9 July 2003 over the signature of Ms Henry the "Henry Report" was the subject of some evidence before the Court. There are three reports tendered authored by Ms Shepherd dated respectively 13 October 2005, 21 October 2005 and 19 April 2006. The defendants, in particular GWS, rely upon the reports of Ms Joanne Oates and Ms Sue Beaver.
316 As a result of the differences in opinion of the occupational therapist, and with the consent of the parties, the occupational therapists relied upon by each of the parties was ordered into a conclave for the purpose of seeking to resolve the differences between them and to answer the question as to the recommended levels of care on certain factual scenarios. Unanimity was not forthcoming and while there is a joint report (Exhibit 11), the report was said, by Ms Shepherd, not to have altered her view as to the need for care.
317 Exhibit 11 commences with a general comment as to the holistic approach of occupational therapists generally and in particular those that were participating in the conclave. The report then sets out five areas of clinical testing and observation to determine an individual's ability. They are: