The ability of the plaintiff to manage his affairs
72 I have already set out a number of medical and lay opinions bearing on this point. Particular reliance in the hearing was placed by the parties on the following material.
73 Ms Apiata swore a number of affidavits in the proceedings, the latest and most comprehensive being sworn on 3 June 2004. I do not propose to set out the substance of that affidavit in detail. Amongst other things, Ms Apiata notes the significant changes observed in her brother both by herself and her siblings after the accident. Those changes involved difficulties with following conversations, inappropriate comments during conversations, unsuccessful attempts to obtain employment and his inability to work with anyone other than family members who could keep an eye on him. He was irritable, depressed and at times suicidal, unable to look after money and taken advantage of by people in this respect. Ms Apiata, who had been living in Australia between 1990 and 1999, returned in 1999 to Ngaruawahia in New Zealand where she has lived with her husband and children ever since. Ms Apiata, when her brother stayed with her family towards the end of 1995, noticed that the withdrawal she had first observed in 1993 was worse as was his inappropriate behaviour. She said that her brother "was simply unable to socialise with others" and in conversation, he could not stay focused on what was being said and would often respond by talking about another topic. She said that he would sometimes take a long time to respond and other people would get frustrated and irritated with him. She said, that he had no common sense. (I think that this is a pointed observation and very relevant to his ability to manage his affairs in the relevant respect). She noted that he did not take the initiative to do simple tasks for himself unless reminded, including day to day matters such as making breakfast or having a shower. He would do it when it was suggested but not otherwise. He lost interest in leisure pursuits. Ms Apiata notes that her brother is on an invalid pension but that he did not budget for items such as weekly groceries or clothes, gives money away to others, I take it for no good reason, and has to be accompanied when shopping because he would otherwise buy items which are inappropriate to his needs.
74 On 22 September 1997 the plaintiff's solicitors received a report from Dr Robert Gertler, a consultant psychiatrist concerning the plaintiff, whom he had examined on 18 September. The mental status examination revealed the following -
"Mr Mabbett presented as a tall, strongly built young man appearing his stated age with obvious scars on the right side of his forehead. He appeared at times to have difficulty in hearing. There was no evidence of significant depression. He seemed anxious at times and would laugh inappropriately. His affect seemed somewhat fatuous. There was no evidence of psychotic thought disorder, no delusions or hallucinations being present. He was fully oriented for time, place and person. His immediate recall was only fair; his long term memory seemed intact. His capacity for insight and his judgment was difficult to determine. His intellectual level appeared within normal limits."
75 Dr Gertler's opinion was that the plaintiff had suffered brain damage primarily as a result of the first accident, when he was noted to have sustained inter cranial damage with persistent structural lesions. Dr Gertler thought the second head injury was much less significant than the first and served only to aggravate the residual effects of the former. He thought that the plaintiff was suffering from a chronic brain syndrome characterised by difficulties in concentration and memory, in particular short-term memory. He noted also that the plaintiff appeared to have become somewhat inappropriate in his affect at times and also frequently irritable with others with some evidence of loss or loss of control. Dr Gertler thought that the plaintiff should not return to his previous work in the demolition industry since he might have problems with his judgment appeared to lack adequate concentration and thus would be accident-prone.
76 When Dr Gertler saw the plaintiff again on 1 June 2004, he was accompanied by Ms Apiata who provided some additional history. Dr Gertler noted that the plaintiff had not lived independently since his last assessment of him but had always been in the home of one of his siblings who "take turns looking after me". Although he had worked, it was only when his siblings were able to obtain it for him. The plaintiff had started a furniture joinery course, which was to take twelve months but after two years he had still not completed it; he found he was unable to cope because of difficulties with concentration and left the course before completing it. The mental status examination results were virtually the same as had been previously observed. Dr Gertler considered that the plaintiff was still suffering from a chronic organic brain syndrome characterised by difficulty in concentration and short-term memory, as well as inappropriateness of affect and occasional irritability.
77 Neither of these reports adverted expressly to the ability of the plaintiff to manage his own affairs. On 6 July 2004 Dr Gertler reported specifically on this point saying that, in his opinion, the plaintiff was incapable of or substantially impeded in the management of his affairs, both in relation to the current litigation and generally. He said that this opinion was based on the fact that, since his initial assessment of him on 18 September 1997 the plaintiff's condition had not improved and he had become progressively more dependent upon his immediate and extended families. Dr Gertler considered that, on the balance of probabilities, the plaintiff's incapacity to manage his affairs arose at the time of the head injury which he sustained in the fall of 3 March 1993. A further supplementary report was made on 9 May 2005. This report reviewed the documentary material, including in particular the affidavits of Ms Apiata, the hospital records and several medical reports. Dr Gertler concluded -
"As a result of the above [material] I maintain that on the balance of probabilities Mr Mabbett's incapacity to manage his affairs arose at the time of the head injury which he sustained in the fall of 3 March 1993. He has had difficulties in concentration and memory since then and has been unreliable in the management of his financial affairs. He has had to live a supervised life with his siblings who have taken him into his homes."
78 Dr Gertler also gave evidence before me. He said that, when he first evaluated the plaintiff in September 1997, he did not specifically consider the question whether he was disabled in terms of looking after his affairs. He agreed that he was able to obtain a coherent history from him, although Dr Gertler assumed that the history he gave him was reasonably reliable since, of course, he was not in a position to objectively assess this matter. As was mentioned in the doctor's report, he was concerned with the somewhat fatuous affect and the anxiety and inappropriate laughter exhibited by the plaintiff. The doctor said that, when he saw him on the second occasion in mid 2004, he thought that the plaintiff was then more vague and perplexed, although this was not so significant as to warrant a note of this development in his report. Dr Gertler conceded, of course, that the last report was not based upon an additional consultation with the plaintiff but arose from his earlier examinations of him. He said, however, that he thought that the report of Dr Shneir (retained by the first defendant) of 12 November 2004 was important since it was an up to date assessment of the state of the plaintiff's brain from a medical point of view. He thought that Dr Shmeir's report confirmed his opinion about the plaintiff's ability to manage his own affairs. So far as the plaintiff's disability in this respect is concerned, Dr Gertler thought that, in a practical sense, it meant that he required help to the extent that he needed to live with a family member.
79 Dr Gertler was shown the reports of Dr Mellick (to which I will come to in a moment), although Dr Mellick got a somewhat different history in respect of alcohol abuse namely that it occurred pre accident (which Dr Gertler did not obtain) he did not see anything in Dr Mellick's report that led him to qualify his own opinion that the plaintiff has a substantial impairment in relation to his management of his affairs. Dr Mellick's description of the plaintiff's behaviour on examination was also significantly different from that which Dr Gertler described but this may be attributed to a different perspective brought by Dr Gertler, a psychiatrist, and Dr Mellick a neurologist, to the observations. Dr Gertler explained it by suggesting that Dr Mellick's description was from a "functional point of view" whereas Dr Gertler would look at him "in terms of his behaviour during the interview". And, of course, the conduct may not have been uniform. Dr Gertler pointed out also that he thought that he also would be, to a greater degree than would be the case with a neurologist, be concerned with matters of mood, temperament and behaviour.
80 Dr Mellick provided the second defendant with a report dated 15 December 2004, having examined the plaintiff, in company with Ms Apiata, on 10 November 2004. He noted that the plaintiff suffered a head injury on 3 March 1993 but had no recollection of the accident which caused that injury. Dr Mellick's report summarises the hospital records concerning the plaintiff's admission, in particular a note made in the outpatient's department when the plaintiff was assessed on 16 March 1993 ("Now well, nil problems") and the neurological observations then conducted that showed no signs of neurological abnormalities. Dr Mellick noted a broadly similar result on outpatient's examination on 30 May 1993. The Neuropsychological Unit report of 11 May 1993, noted by Dr Mellick, prepared by a clinical psychologist working in the Neuropsychological Unit of the Department of Neurology at Royal Prince Alfred History concluded that -
"Against a background of impoverished education and premorbid poor verbal skills, this patient presents with deficits which reflect those problems but with no signs of specific impairment related to his recent head injury."
81 (I interpolate that there was little, if any, information available to the psychologist about the pre-morbid intellectual functioning of the plaintiff apart from what the plaintiff might have told him. This observation, accordingly, needs to be treated with caution.) Dr Mellick noted a history from Ms Apiata that, after the accident, she thought that the plaintiff was "withdrawn" and unable to "stay focused" on a task. She informed Dr Mellick that the plaintiff had continued to live with family members over the past ten years. Dr Mellick took a history (he thought but possibly mistakenly) to the effect that the plaintiff was a heavy drinker before the accident in 1993, which habit had continued. Dr Mellick noted that the plaintiff, "under the circumstances of history taking and physical examination, revealed no abnormalities of mood, temperament or behaviour." In the course of his summary and opinion, Dr Mellick said that the history "suggests that there were no significant psychological, cognitive or psychiatric abnormalities arising directly as a result of the head injury". However, the doctor noted the symptoms described by Ms Apiata and to interpersonal difficulties between family members exacerbated by the plaintiff's heavy drinking. The doctor noted a reported area of brain abnormality in keeping with the long term consequences of the head injury suffered in 1993 in MRI scans performed on 12 November 2004. Dr Mellick commented -
"The absence of evidence of the cerebral lesion [in the plaintiff's presentation, as I read the report] which may be of traumatic origin is in direct measure an expression of the possible limited consequence of that lesion in relation to the production of behavioural, cognitive or other deficits.
It is likely that, if the lesion is of traumatic origin, it would produce adverse cognitive and behavioural consequences. It is, however, clear that when one considers the total context including the long history of heavy alcohol consumption, the effects of this lesion may be small."
82 As I understand Dr Mellick's conclusion, he appeared to accept that the plaintiff was substantially impeded in the management in his affairs but that the medical material he obtained and the clinical assessment which he made did not suggest that the head injury was the cause of this problem. Dr Mellick thought that the history implied that heavy drinking was the potential cause of any such incapacity together with social and educational issues. He noted, however, the MRI investigation and thought that he would not finally commit himself to his viewpoint until he had an opportunity properly to assess the MRI scans. In late January, Dr Mellick took up this point in a further report and noted that the abnormalities shown on the MRI film "should be regarded to be wholly or in part a residuum from the head injury which occurred in March 1993". He thought that the second serious head injury in June 2003 may well have caused additional brain injury and have resulted in an increment in the MRI abnormality. Dr Mellick also noted a report by Dr Anwar, a rehabilitation specialist, of February 2003 noting "ongoing cognitive, physical and psycho-social deficits". That report also referred to a variety of symptoms which included "fatigue, short concentration span, impulsivity, lack of self facing and fatigue management, pure communication and social skills". Dr Anwar described the plaintiff as being "independent in his personal activities of daily living [but] he cannot manage other executive (eg financial, official) activities, for which he needs the ongoing support of his family". Dr Mellick also commented on Dr Cliff's and Dr Gertler's reports. I have already mentioned these. Dr Mellick's referred to a detailed psychological report by Dr Roldan dated October 1997. It is presently sufficient to note, I think, that the plaintiff showed a slow and impaired mentation on presentation which appeared to be inconsistent with the below average to average nature of his psychometric test scores but that it was possible that the accidents in question "may have led to brain trauma induced changes to personality and/or cognitive function". As a result Dr Roldan thought that which I might refer to as the plaintiff's "problems" may have been present pre-accident and that the psychometric test results did not provide evidence of post traumatic deterioration or residual cognitive impairment. Amongst other conclusions, Dr Mellick stated -
"Whilst brain damage is present, it should be regarded therefore to have resulted in no identifiable abnormalities of cognitive function or of other higher intellectual function which can be identified in clinical, neurological, psychological or psychiatric grounds.
The distribution and extent of the brain damage which is clearly demonstrated in the scans would not in my opinion render him incapable of 'providing instructions to his legal advisers'."
83 In fairness, I should note, that Dr Mellick was given further information in May 2005 including the affidavit provided for the purpose of this proceeding by Ms Apiata, to which I will come shortly. Dr Mellick qualified a number of his statements in the earlier reports concerning his understanding of the plaintiff's drinking habits and the nature of the interpersonal conflicts between him and his family. This letter very candidly conceded that there may have been a misunderstanding about the opinion given by Ms Apiata about what might be regarded as "heavy drinking". Dr Mellick thought that, despite the different picture (as I understand it) presented in the affidavit - which I think Dr Mellick accepted - he did not think that the "basic thrust of the intimation" set out in his report required any significant change. Nor did he think any significant change or modification "is required with regard to the neurological insights incorporated" in the report.
84 The second defendant also tendered the report of Dr Seldon Smith, who examined the plaintiff in the company of Ms Apiata on 12 November 2004. Dr Smith considered (of course, amongst other things) that the plaintiff was capable of providing instructions to his legal advisers from the period 3 March 1993 to the date of his examination. In doing so, however, he made assumptions about the nature of the mode of communication between the plaintiff and his legal advisers which were, I think, mistaken.
85 Before moving to the evidence of the plaintiff and his sister in the proceedings I should mention the evidence of Mr Robert Algie who for a time, including mid 2003, had the carriage of the plaintiff's matter within the Carroll & O'Dea. In his affidavit of 17 August 2004, Mr Algie referred to attending a conference on 2 June 2004 with Mr Ken Pryde of counsel, the plaintiff and Ms Apiata. He noted that Mr Pryde asked many questions over a period of about two and a half hours. He said that the plaintiff had difficulty answering many of the questions, which often had to be repeated or clarified. He said that the plaintiff's answers were frequently not responsive. He also displayed unusual reactions during the course of the discussion, on several occasions laughing inappropriately. Mr Algie said that at times the plaintiff had apparently loose recollections of insignificant events, yet at other times appeared to be vague in relation to those events in his life which Mr Algie (I will accept reasonably) considered to be major. He said that it was much more difficult to take a statement from the plaintiff than would normally be expected.
86 The statement is annexed to the affidavit. It is but one and a half pages long and thus relatively brief. I am frankly astonished that it took two and a half hours to obtain. However, when I saw the plaintiff in the witness box giving evidence in the course of these proceedings I saw at once how taking it may well have been a very lengthy process indeed if the plaintiff on that occasion was anything like he appeared to me. I do not propose to analyse his evidence but it seems to me that the overwhelming probability is that the plaintiff as he presented would find it almost impossible to understand the issues in his case, whether of fact or law, sufficient to permit him to appreciate in any sensible way what the proceedings are really about or what the advice he might receive from his lawyers amounted to. It does not at all surprise me that he needs the help of his family to cope with the management of his affairs.
87 Ms Apiata also gave evidence before me. Before moving to a brief description of her evidence I should state that I thought she was a careful and entirely candid and reliable witness. Moreover, she had, by virtue of her experience, significantly better insight into her brother's problems in coping with his everyday life than would, I think, the average person. Ms Apiata is living in New Zealand. Her occupation was a statutory social worker for the Department of Child, Youth and Family in New Zealand, in which position she had been employed for about eight months. She was earlier employed by Hamilton Victims' Support. She has worked in the areas of social work, counselling and the like for some fifteen years and has been involved with dealing with people injured by neglect and physical and mental abuse (including alcohol and substance abuse). Ms Apiata agreed that, before she formally became tutor in the case, she assisted her brother by providing information to the solicitors and explaining to her brother the advice that was being given. She recalled the conference with Mr Kops which I have already referred in which there was discussion about whether the plaintiff should pursue his workers' compensation rights or sue at common law. She agreed that, at the time, it was explained that there were certain risks involved in suing at common law, one of which was that her brother might forego any right to lump sum compensation if he undertook that course. Ms Apiata was asked whether she explained to her brother that it would be a sensible course of action to accept his solicitor's advice. She said -
"I have attempted to explain it in basic language and communication. Yeah. I don't know if he's able to understand it but yes, I have attempted to.
…
Q. So far as you recollect he has never disagreed with you about the advice you have been given by solicitors?
A. No.
Q. Now I would like to suggest to you that, after the meeting with a barrister in September 1997, you and your brother agreed to pursue the workers' compensation course?
A. Yes.
Q. And at that time you were advised by both the barrister and your solicitors that the time for bringing a common law case had already expired?
A. Yes.
Q. And you were advised that if a common law case were to be pursued that would have to be done as a matter of urgency?
A. Yes."
88 Ms Apiata said that, although the first time that the possibility of bringing a common law case was discussed after the meeting with the barrister in 1997 was in the middle of 2001, she thought that consideration of whether or not those proceedings should be commenced had never actually stopped and that she thought that the solicitors had continued to do this. However, she did not chase it up, in substance, because she did not know the legal process and "I had to carry on with my own life in the meantime".
89 Going back to the decision made at the time of the conference with Mr Kops, Ms Apiata said that the decision to proceed with the workers' compensation claim rather than at common law was her decision based on the information provided at the time. She said that her brother was present but she did not "believe he was able to comprehend the discussion to make the decision". And so Ms Apiata took the responsibility for the decision, "in regards to advocating on his behalf", seeing herself as doing the best she could for her brother. She said that her brother was, of course, present during the interview and the lawyers were communicating with him but "I could see and they could see he was not of the state of mind to provide that decision". Ms Apiata said that from 1993 onwards her brother was exhibiting the sort of difficulties that he presently has, including having trouble looking after his financial wellbeing, having trouble living independently, becoming aggressive from time to time. In short, Ms Apiata was aware from the time of the plaintiff's accident of very significant changes in her brother's behaviour. She said that the family attributed these changes to the accident but did not fully understand how it occurred "whether it was mental or whether it was physical, until some years later". It had a significant impact on her brother's life and, indeed, over the years has become progressively worse. There was some improvement when the family put into effect some of the recommendations of Dr Anwar but he was still unable to live independently.