Michaels v State of New South Wales

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MICHAEL GROVE J Friday 14 December 2001 20223/00 - BRETT DOUGLAS MICHAELS v STATE OF NEW SOUTH WALES JUDGMENT 1 HIS HONOUR: The plaintiff (formerly Brett Douglas Gee) was born on 22 April 1976 and was therefore aged nine years on 22 October 1985 when he was injured in the playground of Inverell Public School. It is not disputed that the defendant is vicariously liable for any breach of duty by the school staff to supervise and exercise reasonable care for the safety of pupils. The extent of the duty was described in detail in Victoria v Bryant 1970 44 ALJR 174 and need not be now summarized. The plaintiff was struck by a softball bat being wielded by another pupil and, to an extent, the facts bear some marked coincidence with those giving rise to litigation in Geyer v Downs 1977 138 CLR 91 @ 96. 2 The accident occurred during a lunch break. Pupils were required to finish eating after which they were free to play until the resumption of classes. A southern area of the grounds was for the exclusive use of infant classes but the balance was unrestricted save as to activity thereon which I will now mention. Across a street running along a northern boundary of the school grounds was an oval. I accept the unchallenged evidence of Gregory Johnson, a former pupil that bats, including softball bats, were collected from a storeroom from whence they were distributed. Ball games which involved the use of bats were to be played on the bottom oval, that is, in the area across the street separated from the schoolyard play area. 3 Contrary to that established practice it is said in the Principal's statement dated 23 October 1985 that "selected" girls had been permitted to practice softball in "certain" designated areas of the playground. At the time they were setting up in the playground but the supervising teacher Mrs de Gunst was overseeing children at a pedestrian crossing which connected the school grounds with the bottom oval. Although she was expected but had not arrived at the gathering of the softballers one of them (a Year 6 pupil) was swinging a bat which struck the plaintiff on the head as he passed a shrub next to which the bat was being swung. The plaintiff was playing "tip" with fellow Year 3 children. There is some contradiction about the exact identity of the participants in this game but nothing turns on this. The plaintiff was certainly one of them. A set of written instructions (the extent of publication of which was not demonstrated) required all players to "await the umpire's instructions". There was no evidence as to how the position of umpire was attained but it is reasonable to infer that that function would have to be performed by a teacher or responsible pupil. As Mrs de Gunst, who arrived after the blow to the plaintiff was struck, recorded, the softballers were in the process of setting up the diamond and I conclude that the pupil who was swinging the bat was not doing so in accordance with instructions from an umpire. Accordingly she was doing so in a then unsupervised section of the grounds. 4 I am satisfied that it was in breach of duty of care not to enforce the requirement that games played with bats, a source of obvious potential danger if wielded in a playground, be restricted to the oval and away from the general activity area. Alternatively, if for some reason (none were suggested) there was a need to practice and to authorize it in the play area, a quarantine ought to have been established and a supervisor present to discipline its observance. The need to draw bats from store amply gave notice of intended use and, on the occasion in question, those with the bats were not directed to the oval and away from other pupils engaged in general play nor were any precautions taken to warn them of bat practice occurring in that area or to so supervise those with the bats that a bat would not be swung whilst young pupils were playing in the vicinity. 5 The plaintiff was not a participant in the proposed game or practice and it could not be said that he fell victim to one of the risks thereof such as was the case of the fatally injured pupil in Trustees of Sydney Archdiocese v Kondrajian [2001] NSWCA 308. In the present case the school authorities had departed from the procedure testified to by Mr Johnson and having chosen so to do (permitting practice in the general school play area) did not take adequate precautions to avoid the risk of injury of non participants. It may be said to be unfortunate that the incident occurred pending Mrs de Gunst's intended arrival but there was no evidence of any attempt to coordinate the issue of bats from the storeroom and supervision of the recipients. Reasonable care would demand such coordination. As I have noted, there was no evidence that children including the plaintiff playing in the regular area were warned that others, possibly swinging bats, were being intruded into that area. 6 I find the issue of liability in the plaintiff's favour. 7 The immediate after effects of the accident were precisely recorded by the school nurse Sister Ware (whose qualification and registration are indicated by her post nominal letters "SRN" - the principal's reference to her as a clerical assistant seems to overlook this) and I accept the accuracy of the matters which she has recorded namely: "At 1.15pm Mrs L. de Gunst came to the Staffroom and asked me to come to Sick Bay to look at Brett Gee who had received a blow to the head from a Softball bat. He had a very large swelling on the temporal area on the right hand side of his head. On further testing, he had no pain in the mastoid area but was hyper-sensitive in the area of the zygomatic process. His pupils were equal and he could tell me his name, his teacher's name etc. although his voice sounded very drowsy. A crushed ice-pack was applied and left in position for 20 minutes. His mother was contacted and the doctor contacted to say that Mrs Gee would be bringing Brett down as soon as she arrived in town. His pulse was monitored regularly and was steady and strong. I requested another member of staff to hold Brett's head steady whilst the icepack was removed, having been on for the 20 minutes. Within a minute of this being done, all colour drained from his face, there was no radial pulse and only a faint carotid pulse and he was not breathing. I requested Mrs Duff to ring the ambulance and Brett was given mouth to mouth resuscitation. His pulse returned and his colour improved and he began breathing on his own. Two minutes later his eyes rolled back, his left arm raised in a typical tetany spasm, three was no radial pulse and he once again stopped breathing. Further mouth to mouth resuscitation was given for a short time. The ambulance officers arrived and administered oxygen. As his condition stabilised, he was transferred to the Inverell District Hospital where the doctor was waiting to meet the ambulance." 8 Inverell Hospital admission notes include an observation that the plaintiff was cyanosed when CDA (ambulance) arrived. Nursing notes record that he was incontinent of urine at A & E (casualty) and vomited twice after admission. At 3.50pm he was transferred by air to Royal North Shore Hospital Sydney. Shortly before departure from Inverell Hospital (at 3pm and 3.30pm) ward notes record sluggish RTL (reaction to light) and irritability. 9 On admission at Sydney he was wide awake and well oriented. A right temporal skull fracture was found which was described as "depressed - width of skull". He was scheduled to be seen by a neurosurgeon Dr Grant and given 100 mg Dilantin and doses (60 mg) prescribed. 10 He was however discharged on 25 October, the relevant summary containing the following: "There was bruising and tenderness in his right temporal region but CNS examination was otherwise normal. The morning following admission, a CT brain scan was performed and a fracture of the right parietal bone was noted. There was a very shallow extracerebral collection noted on the right side beneath the fracture. A large extracranial haemorrhage was also noted. He remained well throughout his admission, and was discharged to home to the care of his parents on 25/10/85 and no medications for follow up with his local doctor." 11 It would seem that the prescription of Dilantin was precautionary and over the next several years the plaintiff was neither presented for treatment in respect of any perceived consequences of the accident (given his age I would not have expected him to seek it for himself) nor did he partake of any routine medication. 12 He returned to school and in accordance with family moves the plaintiff left Inverell Public School and was enrolled sequentially at Tabulam Public School, Bonalbo Central School and Casino High School. A complete series of school reports is in evidence. They are quite laudatory. Something was sought to be made of a "parents comment" (Tabulam mid 1987) which read "very pleased with his report. We know he will try in anything relating to school. But wished he would be the same at home" apparently endorsed by his father who was not called as a witness. However his absence was impliedly explained by reference to a gross breakdown in family relations, a factor in the plaintiff abandoning his family name of Gee and adopting the surname Michaels. The comment provides some slight corroboration that the plaintiff was exhibiting some poor behaviour at home. Whether such is to be sourced in injury is associated with major issues in dispute at trial. 13 The plaintiff's final school report (Year 11 Casino High School) was endorsed as a "pleasing report" but there was an estimate that he was capable of improvement "with more attention being paid in class". He left both school and home and went to live with a girlfriend's family. This girl had been in Year 12 at the school. She was pregnant to him. This pregnancy miscarried but a further pregnancy resulted in the birth of a son on 23 September 1994 at which time the plaintiff was eighteen years of age. He was employed for about a year during this period collecting trolleys at Woolworths Supermarket at Casino. Prior to that he had undertaken some brief work experience. 14 The relationship which had led to the birth terminated after about eighteen months. There has been acrimony and litigation about custody and access to the child. Some time was spent at trial on credit issues concerning an ex parte order obtained by the plaintiff but little light was thereby cast on the central issues. The plaintiff entered a further relationship described by his counsel as "the next long term relationship". Two more sons were born of this relationship on 24 December 1995 and 6 March 1998. A marriage took place on 10 February 1997, separation of the parties in August 1998 and a subsequent divorce. 15 Evidence was led of further "long term" relationships with other women culminating in a current association in respect of which the plaintiff testified that there would be an official engagement on 21 November 2001. 16 The plaintiff's employment with Woolworths had been terminated following a dispute with a superior which he claimed related to the number of trolleys to be manipulated in a single collection. The employer issued a termination advice which showed assessments of his ability as poor, productivity as low, attendance as irregular, and conduct as poor. Re-engagement was emphatically recommended against. Subsequent employment has been sporadic. In the early part of 1996, the plaintiff as part of a "new work opportunities" scheme undertook a training course at Casino Memorial Hospital scheduled to extend over six months. The plaintiff's descriptions in chief were somewhat obscure but he indicated that he did not complete whatever the course involved which apparently had connection with general maintenance and he was sent to work in the garden. More detailed circumstances were examined in cross examination but the ultimate significance is that the plaintiff was not offered any position at the hospital. In early 1997 he worked for two months as a meat packer. He testified that he could not remember how he came to leave. He was married at about this time and recollected that he commenced to receive unemployment benefits about a month later. In 1998 the plaintiff worked for brief periods as a courier driver for Discount Freight Express at Lismore and Ballina Taxi Trucks. 17 The last employment engaged in by the plaintiff was with TNT South Lismore. His form of application for employment is in evidence. It contains a number of inaccuracies but of importance is the negative response to a question about suffering any relevant disability. The plaintiff was interviewed on behalf of the employer by Mr Lowe whose evidence I accept unreservedly, in particular his contradiction of the plaintiff's testimony that he told "TNT (that is Mr Lowe) that he was in fact suffering from epilepsy but was advised by the interviewer to answer in the negative." Mr Lowe's evidence includes the circumstances of the plaintiff's leaving employment apparently because there had been some domestic upheaval. As Mr Lowe commented "all we really needed to know was whether he wanted a job or whether he didn't". I conclude that he did not, but such a conclusion must be looked at in the context of the plaintiff's claim that a wide spectrum of his behaviour is inspired, or at least affected by the after effects of the accident. I do not accept the plaintiff's evidence that he "lost" this job because he was required to do some cleaning rather than work in the job as a loader/driver for which he was employed. His description of the circumstances of the termination of this employment I find to be invention. 18 For completeness I should record that the plaintiff for a time held a licence which authorized him to drive a bus of limited size and he did so for a time in order to avoid a Sunday school having to pay for some other driver. He does not have a currently effective driving licence. 19 Asked by counsel upon what he currently survives the plaintiff responded "Newstart" which I infer is a current euphemism for unemployment benefits. 20 The plaintiff's claims of injury are scheduled in particulars under Part 33 filed in January 2000 and affirmed in his Differential Case Management statement filed in the following June and they are as follows: "(a) Brain Damage; (b) Temporal lobe epilepsy; (c) Post operative concussion; (d) Fractured skull; (e) Headaches; (f) Emotional disturbance (g) Acute post traumatic seizure; (h) Large extracranial haemorrhage; (i) Right sided extracerebral collection." 21 The central issues of dispute at trial were whether the plaintiff suffered and is suffering from temporal lobe epilepsy as a result of the accident and, if so, the extent of any consequences thereof for which the defendant is liable. 22 There was general unanimity in the medical opinion that definitive diagnosis of epilepsy was a matter of considerable difficulty. There are uncommon occasions when a qualified diagnostician may see a manifestation but this has not happened in this case. There was a telemetric EEG and video recording performed over six hours in May 2001 under the supervision of Dr Mohamed. No seizures were reported or recorded nor did the graph reveal epileptiform features. These negatives do not disprove the plaintiff's claim that he does suffer from epilepsy, and, as remarked by Dr O'Neill: "As always, the diagnosis of epilepsy depends on the clinical history." There was no dissent from this proposition of clinical history dependency. 23 I shall turn in due course to diagnostic conclusions but first make some observations about the plaintiff and his mother who were the historians whose contributions were necessarily significant to any clinical determination. Particular scrutiny is inspired by the content of a letter dated 26 March 1993 to the then current family general practitioner Dr Vasan (now deceased) from Dr Petroff, a consultant psychiatrist which stated: "Thanks for referring Brett Gee. This sixteen year old lad presents with a history of being aggressive with mother claiming that all this started after the lad was hit on the head with a baseball bat at the age of eight. I was somewhat puzzled by the presentation as there appeared to be no clear precipitant for the referral, there did not appear to be a great degree of pathology and mother seemed to want to see her son as fairly disabled and needing supervision and care. It was not till the end of the interview that it all came clear. Brett is being prepared for a court case and the family hoped to get lots and lots of money for his hit on the head." 24 I do not conclude from that content that either the plaintiff or his mother is set upon a course of deceit but their evidence should be assessed with knowledge of appreciation and consciousness in them that proof of disability will be productive of financial gain. 25 The plaintiff's credibility was not assisted by his testimony about the TNT employment to which I have already made reference nor was it assisted by his response to a request by counsel for the defendant to produce the medication which he claimed to be currently taking. The evidence need not be reproduced (see T200-201) but I find it difficult to accept that the plaintiff was being candid when he said that he missed (taking his medication) "a few days here and there" when what he eventually produced demonstrated that he could only have been taking medication at less than half of the prescribed occasions. I acknowledge that there is evidence of general difficulty in achieving patient compliance in this regard and I would accept that many people, including the plaintiff, would be likely to lapse especially if the immediate need for medication was not being subjectively felt. It is notorious that, when symptoms remit, people who do not feel the need, omit to continue maintenance medication despite objective diagnosis that they need to take it. Nevertheless the testimony left me with some reservations about the completeness of any candour on the part of the plaintiff. He claimed to have no memory of school or family life prior to moving to Inverell. If that be so, I would not in any event attribute it to the accident. More significance surrounds his description of post accident events. He spoke of a constellation of symptoms including headaches, aggressive impulse (initially focussed on his younger brother and later on partners) and inspiration to be disruptive at school with consequent adverse effect on his performance. 26 In isolation I would regard these claims with some reservation as bases for diagnosis but there are other matters which I consider strongly supportive of the plaintiff. He made complaints of olfactory sensation which others present at the time were able to determine were illusions. Such a hallucination is a poignant and even classical manifestation suggesting the existence of epilepsy. I do not consider that the plaintiff could reasonably have known this and thus invented the symptom and I accept that his descriptions were genuine. By the same token, even if perhaps not as forcefully demonstrative but again acceptably, were descriptions of circumstances referred to at trial as "spacing out". I do not need to elaborate the various expressions used by witnesses to describe these happenings. The situation was colourfully but more than adequately defined by the plaintiff himself who said "it's like the lights are on but nobody's home". Additionally there were descriptions of what have been termed déjà vu experiences. Spacing out and déjà vu experiences are significantly capable of being contributorily diagnostic of epilepsy. 27 The plaintiff's mother was the only family member called as a witness in his case. Her assertion that there had been an extreme breakdown in family relations between the plaintiff and others was not contradicted. It is convenient to mention that I am satisfied that some information from Dr Quinn apparently based upon answers given by Mrs Gee and which were unsupportive of the plaintiff's case should be put to one side as unreliable. It is plain that Mrs Gee did not manipulate the keyboard of a computer (a means constructed by the doctor for gaining information) correctly and the results recorded answers which were not intended responses by Mrs Gee. Of course among the answers some may be intended and some not but I cannot effectively distinguish between them. I do accept her description of the plaintiff burning his bottom when skylarking near a pot bellied heater after a bath and hence I reject the use of the history of the consequent burn to the body as a basis for rumination (or more) by a medical examiner retained by the defendant that the plaintiff may have been the victim of abuse. 28 Mrs Gee traced the plaintiff's post accident history as manifesting itself by complaint of headaches, development of mood swings and spacings out. She observed deterioration in temper control and aggressive behaviour particularly towards the plaintiff's brother. She was one of the recipients of his complaints of untoward olfactory sensations and what might broadly fit the description of déjà vu experiences. 29 She produced a few pages from a notebook which purported to be a log of complaints of headache by the plaintiff. I do not think that what was produced was the original diary (T166.16-T166.24) and the evidence about it is less than satisfactory (see T174). I do not accept the extracts as an indicator of actual frequency but I do accept that the plaintiff did complain of headaches from time to time. 30 As above recounted the plaintiff left the family home and went to live with a girlfriend and her parents when he was aged about seventeen. That girl, now Mrs Claydon, gave evidence that her observations were that the plaintiff got on well with those with whom he interacted at school; that during their relationship (which ended in December 1994) he made no complaint of headaches, took no medication, worked (particularly in the employment at Woolworths) and drove a car. She was called by the defendant and her evidence was plainly not designed to advance the plaintiff's case. However in answer to a question obviously related to the claims of spacing out (manifested by staring blankly into space) she testified: "Q. Did you ever see him during that period between May 1993 and the end of 1994 staring blankly into space? A. There was a couple of occasions where I had actually spoken to him and he didn't answer me and I just thought he was ignoring me but to just sit there and stare, no, I never did." 31 Although I note the qualification in her evidence, given the source and circumstances, I conclude that the testimony on probability lends some support to the plaintiff's claims on this aspect. 32 On the topic of headaches, I do not conclude that visits to Dr Kingston, an eye specialist in Inverell, in June 1983 and July 1986 have any significance in deciding issues in the case. His report is not persuasive that the headaches complained of post accident are allied to some prior condition nor on the other hand that they are in fact related to head injury. 33 My impression is that the plaintiff's parents in the years immediately post accident, living as they did in a small rural community, simply allowed matters to drift along and I think it is not unreasonable to infer that they probably hoped that things would get better insofar as they observed anything untoward about the plaintiff's development. It would be expecting a great deal of parents necessarily to recognize non dramatic symptoms which were themselves capable of being masked by behaviour patterns as their son passed through the difficult transitions in the years of youth. 34 By early 1989 however I am satisfied that the combination of complaints and behaviour by the plaintiff was such that his parents had deduced that something was wrong or at least needed investigation. Consequently Dr Tierney, a general practitioner was consulted and he sought the assistance of a neurologist and a physician, Dr Reid and Dr Laird respectively. 35 Following his first consultation (12 April 1989) Dr Laird thought that the plaintiff did "have temporal lobe epilepsy" and that this was responsible for symptoms which had apparently been described to him principally by Mrs Gee. Her descriptions were substantially consistent with the case being presented by the plaintiff. Counsel for the defendant pointed to the absence of express complaint of spacing out but in the light of an overview of the matters which I am sketching and will continue to sketch, I do not find the omission determinative. I note that it was Dr Laird who suggested consultation with Dr Quinn at his "behaviour modification" unit where there was the unfortunate encounter with technology with the complication concerning history taking which I have mentioned. Despite this, Dr Quinn diagnosed a "behaviour disorder almost certainly related to temporal lobe dysfunction." In November 1990 Dr Laird reported that new symptoms were complications of the head injury and, affirming his diagnosis of temporal lobe epilepsy, opined that the plaintiff was likely to require anti convulsant medication indefinitely. In February 1997 he mentioned that the plaintiff was "still spacing out" at school which he defined as thinking of an answer to a question but being unable to articulate that answer. The phrase used by Dr Laird necessarily suggests that he had earlier reports of the phenomenon and this fortifies my view that the absence in the reports of earlier mention does not materially assist in determination of the issue and does not persuade me to uphold the contention on behalf of the defendant. 36 The series of reports from Dr Laird recount prescription of medication from time to time principally Tegretol and Dilantin. 37 Dr Alison Reid administered and interpreted a series of EEGs. The earliest (24 February 1989) was reported on and included this comment: "This is quite an abnormal record with a widespread excess of slow activity. In addition there is a very prominent focal disturbance in the right posterior temporal region and this looks as if it could well be potentially epileptogenic although it is not in undisputedly (sic) so." 38 After a trace on 20 April 1989: "This trace continues to be very abnormal for a lad of this age. The background activities are disorganized and there is a persisting prominent focal disturbance in the right posterior temporal region." 39 Then on 1 June 1990: "The background activities continue to be diffusely moderately quite abnormal. There is a prominent focal disturbance in the right posterior temporal region with marked paroxysmal activity arising from this site suggesting a strong epileptic tendency." 40 But the last of her series (6 July 1995): "The trace exhibits a localised slow wave abnormality on the right temporal region but there is no associated epileptic spike discharges." 41 I do not conclude from the lastmentioned that it invalidates the earlier analyses. It is clear from the tenor of all the medical expert evidence that difficulty in temporal lobe epilepsy diagnosis is markedly contributed to by the circumstance that testing of various kinds may posit normality although the condition is in fact present. This is also exemplified by the "normal" CAT scan of 10 March 1999, yet both before and after that test, EEGs were giving the readings of abnormality which I have mentioned. The plaintiff was not capable of subjectively influencing these tests. 42 In January 1992 Dr Maxwell, another neurologist reported on an EEG (undated but its reference number L1.92.20 demonstrates that it is not one of Dr Reid's graphs) "an abnormal EEG probably post traumatic". By April 1992 he reported another graph (L4.94.20) with persistent background slowing but "doubted that this was related to any previous trauma" and in February 1994 another (unreferenced) was said to show moderate background slowing without epileptic features. Again I do not accept these tests as proof of the negative for the reasons given above. A similar comment applies to Dr Gilman's CT scan reported on 14 May 1986. 43 I will turn to medico/legal opinion but before doing so I deal with some psychological material. The collection of evidence of this nature developed between the parties into what Mr Wheelahan QC epigrammatically and in my view, accurately, described as a tennis match. I intend no criticism of the qualifications or sincerity of the match participants but their opinions, replies, rejoinders and rebuttals can be read in their respective reports and testimonies and I will not take time to seek to summarize what can be read there. The caution expressed by Gleeson CJ in HG v The Queen 1999 197 CLR 414 @ par 44 at p429 is applicable to much of the opinion which is advanced. Neither do I overlook the circumstance that the "tennis players" were Ms Anderson and Ms Martin and that there are other reports from Ms Gordon in particular. However in relation to the former Dr Bell observed (after being asked to consider reports) "the dispute between the two psychologists places the psychometric evidence in its relatively irrelevant perspective. The findings provide no evidence at all for the presence of brain damage, but rather in totality indicate that (the plaintiff) has performed very well over the years since the accident." 44 The plaintiff's particulars are not understood to assert frank brain damage as such although Dr Bell's reference is obviously to his opinion (in his report dated 18 May 2001): "I have no doubt that brain damage occurred……….." However his remark offers insight into the role of the psychologist whose expertise is the administration of tests constructed by others and dependent upon their validity (as tests) upon the researches of others. The expertise of the psychologist is in the interpretation of the result following administration of those tests but diagnosis lies within the ambit of expertise of the medical expert. Acknowledging Dr Bell's comment in its context and that it does not relate to the psychological evidence in total, nevertheless I find no assistance in deciding the issues of contest between the parties by reference to the reports or to the evidence of the psychologists as I do not regard them as reliable sources of diagnosis. 45 I should not move on without noting that the plaintiff himself was responsible for much unnecessary analysis as a result of his now admitted absurd exaggeration to Ms Martin that he had been affected by one hundred and fifty seizures per day. 46 The plaintiff qualified Dr McLaughlin a neurologist and Dr Tomlinson a neurosurgeon to give evidence and in due course they did so. Similarly the defendant qualified Dr O'Neill a neurologist and Dr Bell (abovementioned) a psychiatrist, and they reported and testified. Even the most cursory glance at the various curricula vitae demonstrates the impressive eminence of these witnesses in their respective fields. That it may be necessary to prefer one view over another where there is difference is simply a consequence of the necessity to apply the laws of trial, specifically onus and probability. 47 The central issue for decision is whether the plaintiff has temporal lobe epilepsy and of course, if so, whether it has been tort induced. In my view the probability of the existence of the condition is overwhelmingly in favour of the plaintiff's contention. Drs Laird, McLaughlin and Tomlinson support those findings, Dr Maxwell did not specifically resile from them and Dr Bell expressed agreement with Dr Laird's "fairly reliable diagnosis of temporal lobe epilepsy." As it was put at one stage by counsel, Dr O'Neill became "the odd man out". 48 The attack against making such a finding was made by counsel for the defendant painstakingly analysing the detail of histories given by the plaintiff and/or his mother from time to time over the years with particular reference to alleged omissions and inadequacies of description. Taking such a course was entirely compatible with the unanimous view that epilepsy, other than in the uncommon case where the diagnostician sees a seizure, must be made clinically. It was contended that the evidence did not support any causative link between the condition (if found to exist) and the tort. I reject that submission. 49 An argument, ingenuously constructed if I may say without giving offence, ran along these lines. If the plaintiff has the claimed condition of temporal lobe epilepsy to a serious degree, it should manifest itself in complex partial seizures, such seizures alter the level of consciousness of the sufferer. Drs. McLaughlin and O'Neill agree on this. The history does not satisfactorily manifest such loss, therefore the plaintiff should not be found to suffer complex partial seizures and at most, which is disputed, may have suffered simple partial seizures. 50 The submission is dependent upon requiring a level of completeness and accuracy in history giving which I do not consider reasonable to expect in all the circumstances. I would not expect over a span of fifteen years of more, that on every occasion a history would be conveyed with the precision implied to be necessary by the submission. I have not overlooked Dr O'Neill's opinion that the symptoms of sufferers will stereotype themselves but I must make a judgment on probability and based upon the whole of the circumstances. 51 As earlier remarked, I regard it as important that included in the plaintiff's complaints were the olfactory hallucinations, the déjà vu experiences and the descriptions of spacing out. It was contended that the lastmentioned were first recorded several years after the accident but I am satisfied that the first and second mentioned symptoms were not invented and, giving full weight to the reservations which I have expressed, I have concluded that I should accept the evidence of the plaintiff and his mother that he had manifested spacing out on a sufficiently significant number of occasions and coordinate with what would contribute towards reliable diagnosis.

52 Dr Tomlinson was asked to make a final review of the material and on 19 October 2001 he reported (and later confirmed in oral testimony) that he believes "the case speaks for itself." The plaintiff "has developed post traumatic epilepsy as a result of the (relevant) injury". My review of the evidence leads to accord with that opinion. 53 All of the qualified experts were examined and cross examined. I refer presently in particular to the neurologists and the neurosurgeon. None resiled from the respective central premise advanced in chief but my preference for the views of Dr McLaughlin and Dr Tomlinson was, in addition to matters already mentioned, contributed to by contrast between their respective explanations of reasons for forming and adhering to opinions and the somewhat circumlocutious responses given by Dr O'Neill. Without reproducing them, there are examples at T261-262. 54 No point would be served by my reproducing the content of the reports and evidence which I have accepted. I am not persuaded that Dr McLaughlin in particular formed his opinion on the basis of unreliable history. 55 I have referred to comments by Dr Bell including his agreement with the diagnosis by Dr Laird. Dr Bell's principal report is dated 18 May 2001 and is presented in form as a series of histories and commentaries, however his final opinion was as follows: "Mr Gee (the plaintiff) presents as a young psychopath. The question is whether he was psychopathic before the blow to his head in October 1985. The information about his past is inadequate and internally contradictory. Taking all of the indications to be found in these various documents leads to the conclusion that he has had a psychopathic personality from early in life. (rejected from evidence). The background is suggestive of parental abuse. I suspect that a lot more disorder remains to be revealed in these directions. Since the accident he has certainly been psychopathic. In childhood he earned the diagnosis of oppositional disorder. He has been aggressive towards his family and others. He has had unstable and limited employment. He has had unstable relationships with women. The pattern of this disorder leads to the same conclusion as the hints found in the history of his background. Its cause would be a combination of genetics and disturbed rearing. Neither brain damage nor epilepsy on their own can bring about this type of behaviour. They may make it worse, but they cannot initiate it. The question of cause comes back to whether the head injury could have aggravated a pre-existing sociopathy as well as the other issues of whether it has brought about temporal lobe epilepsy or impairment of mental function. I have discussed the question of epilepsy above. The summary would be that I believe he did have an epileptic seizure immediately after the blow to the head and that for some time he probably did have complex partial seizures. They were barely perceptible and they did not bring about any disability. He continued to do just as well as school. Like others, I have extreme doubt about the history of epilepsy since then, that is, from at least a couple of years after the blow to the head. The general thrust of the EEG investigations and manipulation of anticonvulsant medication seem to rule out epilepsy. Similarly, his performance at school and the results of repeated psychometrics rule out significant cognitive disorder. There remains the question of whether the brain damage could have brought about some of his disturbed behaviour. The injury seems to have been fairly localised to the posterior temporal region on the right side. Injury in this region is not known to bring about disturbance of behaviour or psychological function. It has not been severe enough to bring about the impairment of cognitive function known to be subserved by this part of the brain. Were the injury to have affected the left temporal lobe, some argument could be raised to suggest that it could have brought about psychiatric disorder. As the injury is very precisely located, no grounds exist to raise that argument. If he did really have post-traumatic epilepsy, that condition as well does not give rise to this type of problem. I have referred above to one summary of the scientific literature. I appreciate that many will claim that epilepsy does affect behaviour and cause aggression, but they should be requested to substantiate their opinions with references to the psychiatric literature. Those references will need scrutiny. The allegations in this direction are mostly junk science (Huber, 1993). None that I know of withstand scrutiny. In contrast, the well known causes of this type of behaviour have a firm basis and they are to be found in this case." 56 The defendant bears no onus of proof, nevertheless, unsurprisingly, I did not understand counsel for the defendant to be positively advancing this diagnosis (of psychopathy), nor did he disavow it. 57 Previous mention has been made of the explanation for the plaintiff's having suffered burns to his bottom whilst a child and, insofar as Dr Bell considered that parental abuse was or may have been a factor the information upon which he relied was wrong. If weight is to be given to his opinion, then in my view it was essential that the final sentence of the opinion above cited be elaborated. The sentence is itself cryptic in expression and oral evidence did not remove that quality and I do not accept the opinions proffered. 58 Some of the difficulty which I have encountered stems from Dr Bell's no doubt well intentioned patterning of answers to accord with an understanding of his relating to the laws of evidence. Unfortunately counsel made reference to a ruling which I had made excluding a particular comment about the plaintiff's brother but that did not mean that the witness should give artificial reasons for his conclusion but he seemed to so regard it, for example there was this exchange with cross examining counsel: "Q. We are talking about before the accident. You know nothing about his brother before the accident, do you? A. The fact that evidence has been denied me doesn't stop me as a psychiatrist from arriving at a conclusion of what I know about the family. I know that I have to do my job in a different way to the way you have to do your job, and I know at law it may be possible to not take into consideration facts which in medicine I have to take into consideration. I don't wish to force on the court information which it doesn't wish to know. But if you ask me the way I think, and I did think, in relation to arriving at a diagnosis, I have to take into consideration what I have seen and is significant matters clinically. " 59 There are other similar exchanges recorded in the transcript which I will not pause to recite. 60 I do not accept the diagnosis of the plaintiff as psychopathic as distinct, as I understand the purpose of this evidence being adduced by the defendant, from his suffering temporal lobe epilepsy. 61 This brings me to the difficult issue of just what that condition provokes in terms of pain, disability, incapacity or handicap which needs to be identified in order to assess damages. 62 The plaintiff complained of what I will broadly describe as anger management and I am satisfied that his failed relationships with family and women and his failures to maintain employment are probably contributed to in a material way by his lack of reasonable control over his utterances and his behaviour. The next question is whether this situation is related to his epilepsy. I have cited Dr Bell's forceful rejection of the proposition that epilepsy affects behaviour and causes aggression, however, on the other hand, Dr McLaughlin reported: " I would accept the view put forward by Dr Bell that other causes of his rage attacks or temper outbursts be considered apart from epilepsy. However, I would note that aggression occurring between recognized seizures does occur in patients with temporal lobe epilepsy and to quote from Adam & Victor 'that some patients with temporal lobe seizures also exhibit a number of abnormalities in behaviour and personality during the inter-ictal period, also they are often subject to outbursts of bad temper'." 63 I do not consider that epilepsy is the exclusive cause of the plaintiff's bad behaviour but it is likely that other precipitants will come and go and, given the long and persistent history of bad conduct by the plaintiff, I conclude that it is probable that the constant factor of extant temporal lobe epilepsy is a relevantly causative factor in that misbehaviour. That is not to say that sometimes a particular instance may not be entirely precipitated by instant non-epileptic circumstances and in the context of the evidence the best I can do is to bring all these factors into account and endeavour to make a balanced judgment. 64 Other than in the provocation of the condition of temporal lobe epilepsy I do not find that the plaintiff sustained frank brain damage as a long term effect. Nor am I satisfied that the headaches complained of have been shown to be tort induced. In this regard I accept the opinions of Dr Laird who saw the plaintiff over a significant span. At times he attributed the headaches complained of to muscle contraction or tension and to stress in relationships and disputes with current or recent partners or, I would add, possibly family members. I do not overlook the possibility of chain reaction in the sense that the claim of epilepsy being at the root of inability to sustain a harmonious relationship might in turn provoke the situation which led to those headaches. I accept that some headache symptoms should be so regarded but they do not loom large in the overall picture. 65 Dr Tomlinson was asked his opinion about the plaintiff's employment potential. I am conscious of my earlier remarks concerning the dispute between psychologists but Dr Tomlinson used neuropsychological material in what I would regard as an appropriate fashion, that is, as a source of information and an assistance to the clinician. He reported: "The neuropsychology report by Debbie Anderson supports the previous neuropsychology assessment and my clinical impressions. The neuropsychology assessment also provides important information regarding the ongoing management of Mr Michael's epilepsy and also a prognosis for entering the workforce. I believe both of these are poor. I don't believe that Mr Michaels will be compliant with regard to his anti-convulsant therapy. This has far reaching implications. Concerning activities of daily living, if Mr Michaels is not compliant with his anti-convulsant medication, I do not believe that he should continue to have the privilege of driving an automobile. If Mr Michaels is not compliant with his anti-convulsant medication, it is more likely than not that his epilepsy will become more severe and incapacitating. If this is the case then I believe that Mr Michaels would be a candidate for consideration of seizure surgery. The cost of this would be approximately $30,000. I don't believe that Mr Michaels will be able to enter the workforce unless this was in a closely supervised environment. Neuropsychology assessment demonstrates that Mr Michaels' executive functioning is impaired which will affect his ability to maintain employment. This is also compounded by his seizure-disorder."

I interpolate that no claim was advanced seeking indemnity for the hypothesized surgery. 66 Dr McLaughlin reported: "Because of the nature of Mr Michaels' impairment of higher cognitive function as outlined by Debbie Anderson and his relative lack of insight into his problems, I think it is improbable that he will ever be reliable in taking anti-convulsant medication. As I consider that his epilepsy is a life long condition, this effectively means that he is unlikely ever to be fit to hold a driver's licence. Regards his future employment, I consider that his prospects are effectively limited to those types of employment where he works under reasonably constant supervision. Because of the presence of epilepsy it should be noted he would not be safe to work in certain work environments (such as being exposed to power machinery, working on roofs or at heights and working on ladders). I do not consider that he would benefit from rehabilitation." 67 Despite these views, as already noted, the plaintiff continues to drive motor vehicles and engage in employment directly involving so doing. He was submitting certificates from Dr Currie, a general practitioner, to the RTA for the purpose of maintaining licensed status. No doubt the plaintiff's potential handicaps would be markedly reduced if he is medicated but the failure to comply with medication is a commonplace, and as I understand the commentary of the medical experts, to be regarded as a concomitant of the underlying condition. Again, purely on probability, I find the cycle of illness caused by tort, the consequences of it being capable of being ameliorated by medication but the failure to ameliorate it by so doing being traceable back to the illness. It is unnecessary to advert to opinions on employability expressed by Dr O'Neill whose "serious doubts about the plaintiff having any continuing adverse sequelae from the significant closed head injury of 22/10/85" are contrary to the opinion I have preferred and for like reasons the opinion of Dr Bell that the plaintiff's problems are essentially sourced in his status as a "young psychopath" which I have rejected. 68 I turn to assess the ingredients of damage. 69 A table of out of pocket expenses was tendered (Exhibit M). They amount to $5,065 and should be included. 70 The impossible questions are what would the plaintiff have done if uninjured and what will he do in the future in particular in reference to employment. It is clear that after leaving school the plaintiff has had and will continue to have some exercisable earning capacity, significantly enhanced when he maintains disciplined attention to medication. I have elaborated upon the contribution of the condition to lapses in such maintenance. In my view the diminution in exercisable earning capacity induced by the tort is greater by degree. Although nothing like precision can be achieved, the plaintiff is not deprived of damages for that reason: Malec v J.C. Hutton Pty Limited 1990 169 CLR 638; Medlin v State Insurance Commission 1988 127 ALR 180. 71 The defendant contended that damages should not be awarded hence it was not part of its submission to canvass any factors for calculation. The plaintiff submitted that a useful guide could be derived by reference to average weekly earning figures published by the Commonwealth Statistician. I agree. To select any particular employment would be impermissibly speculative. The plaintiff's "driver" oriented occupations have a shadow cast over them by the medical opinion (other than that apparently of Dr Currie) concerning whether he should be licensed to drive at all. In using average weekly earning figures I take into account the notorious statistical fact that in raw numbers, more Australians in the workforce earn less than the average than earn that average or more than it. 72 The present average weekly earnings for adult males is $740 per week nett. It is about seven and half years since the plaintiff turned eighteen. The plaintiff's claim was formulated on the basis that an award for five years (presumably for the purpose of interest dating back from now) at that rate would encompass any necessary discount. The result of the submission was a claim for about $193,000. 73 The conclusion that I have reached is that it will do justice between the parties if the plaintiff's compensable loss of earning capacity is assessed at 65 percent of what it would have been if he were uninjured. If one were to assume a loss of $740 per week for seven and half years, an award of 65 percent results in a figure of $187,590. However that figure does not allow for the probability that the present rate ($740 per week) was no doubt reached in a process of growth over the period nor does it allow for the unknown earnings during actual employment. 74 Taking all factors into account I would award the plaintiff $130,000 for economic loss to date. 75 For the purpose of interest calculation, it is agreed that the plaintiff has received $51,259 in relevant social security benefits. The table of interest rates in Schedule J to the Supreme Court Rules averages 10.66 percent over the relevant period. I award interest at 5.33 percent for 7.5 years on $78,744 namely $31,478. 76 I take a broadly similar approach to future economic loss. Counsel extrapolated figures capitalizing $740 per week over a notional working life of the plaintiff to age sixty five at an assumed 3 percent (multiplier 1215.87) at $899,692 but expressly acknowledged that this was a "maximum calculation" (an assumption of total loss of earning capacity) and that it was not argued that this sum was sought. 77 Applying the stated methodology, 65 percent of the above capitalization results in a figure of $584,800. I need to consider whether there should be discount for preponderance of adverse vicissitudes in the future and I conclude that there should. The "reduction" to 65 percent from 100 percent is an estimate to reflect residual capacity and does not involve the matters usually assumed in applying the conventional discount of 15 percent which I propose to do and I therefore award the plaintiff $497,080 for future economic loss. 78 The submissions on behalf of the plaintiff that I have referred to were conveniently reduced to writing. No similar submission was offered focussed upon expenditure for future treatment or medication. The evidence does not permit an award based upon illusory figures. Insofar as such may need to be accommodated it will be included in non-special damages. 79 The final ingredients are general damages and interest thereon. General damages are necessarily matters of impression. The plaintiff's situation is, on the medical evidence which I accept, lifelong. His condition is a contribution to an inability to settle to a stable and peaceful life. Whilst his condition is not significantly pain producing and there is not devastation in that sense or in the sense of loss of limb or paralysis of bodily function, it is in my view an insidious detriment against the attainment of a contented life. I assess general damages at $140,000. Exclusively for the purpose of interest, I specify one half that sum as representative of loss to date and interest thereon at 2 percent for sixteen years is $22,400. 80 For ease of reference I tabulate the above ingredients: Out of pocket expenses $5,065.00 Economic loss to date $130,000 Interest $31,478 Future economic loss $497,080 General damages $140,000 Interest on general damages $22,400 Total: $700,023

81 I direct entry of judgment for the plaintiff for that total amount. The defendant is ordered to pay the plaintiff's costs. Liberty to apply in respect of undisclosed matters possibly affecting the order for costs. **********

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