The trial judge referred to the previous law in this respect and quoted a sentence from the judgment of Windeyer J in Thatcher v Charles (1961) 104 CLR 57 at 71. This was a dissenting judgment but the passage in which the sentence appeared accurately reflected the previous law and merits quotation in full. The judge said (at 71-72):
'… In theory it might seem that the most serious physical injuries should always attract the heaviest damages. Therefore it is sometimes suggested that damages given in cases of paraplegia should be regarded as at the top of a scale and used as a basis for other estimations. But that involves an erroneous hypothesis. Compensable loss depends not only on the severity of the physical injury but also on the consequences for the individual. No two injuries are really the same; and the consequences of apparently similar injuries vary infinitely for different individuals. Thus amounts given in different cases may be harmonious in principle, although appearing disproportionate when the physical injuries alone are regarded. Measuring in money such things as pain and suffering or the impairment of capacity to lead life to the full really involves dealing in incommensurables. It is an attempt to weigh imponderables. The law insists that it be done, but can give no sure guidance on how it is to be done.' " (McClellan AJA)
46 Fundamental to the defendant's submission is the proposition that there is no evidence capable of satisfying the Court that the plaintiff had any real appreciation of pain and suffering and loss of amenities of life, in particular what he had lost. Criticism was leveled at the case presented on behalf of the plaintiff on the basis that the plaintiff should have been called and an attempt made to elicit evidence from him. I do not agree with that criticism. Apart from the considerable inconvenience to the plaintiff in his injured state, it was noted by Professor Jones that his soft dysarthic speech pattern made history taking from him impossible in many respects. I do not believe I would have been assisted by the presence of the plaintiff.
47 What the evidence reveals is that the plaintiff has a reduced appreciation of pain and suffering and what he has lost. It does not go so far as to establish that he has no such appreciation.
48 Doctor Gilandas, a psychologist, made this assessment in March 2004:
"1. Unable to walk with a four-legged walking frame due to extreme physical restrictions.
2. Difficulty in talking and unable to express himself with others. Only his family have learned to interpret and understand him to some extent. He is virtually cut off from others and "locked into" his own world. Professionals who work with Robert have to speak very clearly and slowly and he communicates with a "yes" or "no".
3. Impairment of memory and concentration. His mother says that he repeats himself.
4. Unable to engage in the activities of daily living. He needs help with showering, shaving and toiletry. He is unable to prepare his own meals but he can slowly feed himself. He cannot live at home and requires 24 hour care in a group support home."
49 Neuropsychological testing assessed him in the mentally retarded range as to his IQ, although he retained reading skills. In relation to his appreciation of his condition, Dr Gilandas said:
"He lacks insight and judgment re the extent of his deteriorated state and thus is merely mildly depressed."
50 The evidence of his mother was that the plaintiff became very frustrated when trying to communicate with her and others because of his inability to find appropriate language. There was also evidence of the plaintiff becoming angry with his mother and seeking to avoid her. These reactions, when taken with his reduced IQ, would indicate some appreciation of what he has lost.
51 The plaintiff says that he does remember that he was assaulted. The extent of that recollection was not expanded on. Nevertheless, the sheer extent of the injuries suffered by him can only be consistent with a savage and sustained beating. Although there was no specific evidence as to what the plaintiff experienced at that time, it can be inferred that the pain must have been significant. Such an approach is consistent with that approved in Del Ponte v Del Ponte (1987) 11 NSWLR 498 at 502-503 in relation to the assessment of pain and suffering and loss of enjoyment of life in children who suffer such injuries at an early age and are consequently unable to give evidence concerning what they have experienced.
52 Every time the plaintiff moves with his restricted ability to ambulate, he would be reminded of his physical restrictions even though that appreciation is not complete. The plaintiff would be similarly reminded every time he tries to speak. There is evidence of impulsive behaviour on the part of the plaintiff leading to falls and injuries sustained in falls, albeit such injuries were not serious consisting of such things as a lacerated elbow and the like. These are matters which can be properly taken into account under pain and suffering and loss of enjoyment of life.
53 The observations of Professor Jones in May 2004 provide a useful picture of the plaintiff:
"I found Robert Manning to be a severely impaired thirty-one year old man who related pleasantly but superficially to this referee. His face expressed little emotion and he stared somewhat blankly around the room or at the examiner. He attempted to answer various questions and some of the responses were understood, although he had a soft dysarthric speech pattern which made history taking from him impossible to the extent of the above information.
He recalled the first name, surname and title of the examiner and did not know the location. He correctly recalled the month, date and year. Attempts to recite the months of the year in retrograde order started well, slowed, and was then abandoned after four months. He could not provide a serial 7's response and his ability to calculate change was inconsistent and occasionally flawed. He could not recall any recent current affairs. He knew the name of the prime minister of Australia, but not the premier of New South Wales and he correctly identified the President of the United States. When asked about events in Iraq he said that he did know.
Perceptual tests were substantially impaired although he could draw a person but with an ataxic pattern of movement and he had difficulty holding a pencil. Fine movements and patting movements were poor and there seemed to be in addition to an upper motor neuron syndrome, dyspraxia for physical function. The right finger nose test was normal but he seemed incapable of undertaking that on the left although power seemed close to equal bilaterally. He said that he could smell eucalyptus but did not know what it was and could smell lavender but again could not identify it. He spoke with a very dysarthric speech pattern, could read a printed passage but was unable to interpret it. One noted that he also used an alphabet board and phrase board to communicate with others. He walked with a slow shuffling gait in a walking frame. Upon his departure he retrieved an open can of coca-cola from the waiting room bench indicative of the fact that he had recalled having left it there."
54 I have concluded that the plaintiff certainly has a reduced appreciation of his pain and suffering and a reduced appreciation of those physical faculties and mental faculties which he previously had but which now he has lost. His situation is similar to but not identical with the injuries under consideration in Marsland v Andjelic No 1 (1993) 31 NSWLR 162. In that case the brain-damaged plaintiff had retained sufficient cognitive function so as to afford him some insight into the extent of his injuries and consequent disabilities. Nevertheless, this was said of him:
"Tragically, the appellant denied that he was brain damaged. He had maintained that he was more independent and employable than any view of the evidence would support. The appellant had undoubtedly permanent frontal lobe impairment. This affected his impulse control reality, insight and judgment. He also had problems in planning, verbal fluency, high level reasoning, abstraction skills, cognitive flexibility and utilization of error information." (p169D)
55 Despite that plaintiff's restricted insight and appreciation of his disabilities, the Court of Appeal had little difficulty in assessing his damages as for a most extreme case under the Motor Accidents Act 1988. Section 17A of the Act authorises this Court to have regard to the reasoning process in other cases if not to the assessment of damages in those cases. It seems to me that a similar approach to that followed in Marsland No 1 is open in this case.
56 I am also not persuaded by the defendant's submission that an assessment of non-economic loss is essentially a subjective exercise and that objective considerations should be given only minimal weight. That was certainly the situation under the common law. Under the Act, however, courts are required by s16 to follow a methodology of assessment which of necessity involves reference to a table specifying percentages and which implicitly invites a comparison with other similar injuries. In my opinion that approach injects an additional element of objectivity into the assessment of non-economic loss under the Act which was absent from the common law as considered in such cases as Skelton v Collins. The reference in s17A to a comparison with other cases confirms that greater weight is required to be given to the objective seriousness of injuries under the Act than under the common law. Nevertheless I accept the main thrust of the defendant's submission that the subjective effect on each individual of his or her injuries remains the major determinant of the entitlement to damages for non-economic loss under the Act.
57 Taking those matters into consideration I am of the opinion that the plaintiff's entitlement to damages for non-economic loss is much greater than that submitted on behalf of the defendant and goes well beyond a mere nominal assessment. I agree that the plaintiff's reduced appreciation of what he has suffered and what he has lost is a factor to be properly taken into account in reducing the extent of the plaintiff's entitlement to non-economic loss. Nevertheless, there is sufficient evidence to satisfy me that not only has the plaintiff suffered major and significant injuries in an objective sense but that he has some real appreciation, albeit not a complete appreciation, of his injuries and what he has lost. As indicated, every time he eats or seeks to ambulate he is reminded of his disabilities. I would assess the plaintiff's entitlement to non-economic loss at 80% of a most extreme case, ie $320,000.