Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron - [2008] NSWSC 406 - NSWSC 2007 case summary — Zoe

NSWNSWSC

Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron

[2008] NSWSC 406

Supreme Court of NSW|2007-09-28|Before: Patten AJ, Ms J, Mr P

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Source facts

Court

Supreme Court of NSW

Decision date

2007-09-28

Before

Patten AJ, Ms J, Mr P

Source

Original judgment source is linked above.

Judgment (649 paragraphs)

[1]

INTRODUCTION: 1 The First Plaintiff to whom, in order to avoid confusion and without meaning disrespect, I shall hereafter refer as Omar in action 20105 of 2005 (the earlier action) claims damages in respect of injuries sustained at his place of employment 18 Hume Highway, Chullora (the factory) on 7 August 2002. The Second Plaintiff in the earlier action (Mr Kouri), and the Third Plaintiff (Mrs Cohen), are Omar's parents and sue for mental or nervous shock, arising out of their son's injuries. 2 The Plaintiff (Kaybron) in action 13906 of 2007 (the later action) was Omar's employer at relevant times. It sues under s 151 Z (1) (d) of the Workers Compensation Act (WCA) to recover, by way of indemnity, compensation paid in respect of Omar's injuries. 3 At the hearing Omar, Mr Kouri, and Mrs Cohen were represented by Mr B Hull with Ms J Lonergan. P & M Quality Smallgoods Pty Ltd (P & M) was represented by Mr S Campbell SC with Mr P. Perry; Austec Panel Systems Australia Pty Ltd (Austec) by Mr S Donaldson SC with Mr D O'Dowd; Vidual Pty Ltd (Vidual) by Mr P Webb QC with Mr G Hickey; and Kaybron by Mr G Parker with Mr P Khandhar. 4 The hearing, which concerned both issues of liability and of damages, altogether occupied some 40 days. There were many hundred pages of exhibits.

[2]

THE PLEADINGS IN THE EARLIER ACTION: 5 The somewhat prolix and complicated pleadings were amended on several occasions, including during the trial. Ultimately, Omar, Mr Kouri and Mrs Cohen relied on their Second Further Amended Statement of Claim dated 26 November 2007, filed in court by leave. I will hereafter simply refer to this document as "the Statement of Claim". 6 In the Statement of Claim, Omar pleaded, as I will briefly attempt to summarise, that at material times he was employed as a general hand at the factory owned and occupied by P & M; that P & M contracted with Austec to carry out certain works in the factory (the works); that the works included the removal of the ceiling above a curing room; that Austec subcontracted part of the works to Vidual; that the ceiling to be removed supported the compressed cement sheet floor of an alcove on a mezzanine floor, open to workers at the factory; that Vidual removed the ceiling thereby leaving the floor of the alcove without support; and that Omar, in the course of his employment, entered the alcove, causing its floor to collapse whereby he fell 4.6 metres to the floor below and suffered catastrophic injury. 7 It was pleaded that each of the three defendants had a duty of care to Omar, which was breached. It is unnecessary to dwell upon the particular breaches asserted except to say that they were comprehensive. A cause of action based upon asserted breaches of the Occupational Health and Safety Regulation (the Regulation) was also pleaded. Again, it is unnecessary to detail the particular breaches relied upon. 8 P & M admitted on the pleadings that it owned and operated the factory where Omar worked as an employee of Kaybron. It also admitted contracting with Austec for the carrying out of the works but put in issue other matters alleged. It denied negligence and breach of statutory duty. It also alleged contributory negligence by Omar and placed reliance upon s 151 Z of the WCA claiming that Kaybron was (in the event of liability by P & M) a joint tort feasor. 9 Mr Kouri and Mrs Cohen both pleaded that they suffered nervous shock as a result of becoming aware of Mr Baghdadi's injuries. P & M put in issue the elements of that claim. 10 Austec put in issue most matters alleged against it but admitted that it contracted with P & M to carry out the works and asserted that part of the works was subcontracted to Vidual. It denied any breach of duty, either statutory or at common law. It also relied on the provisions of the WCA. 11 Vidual denied that it subcontracted with Austec. It asserted that Austec, in fact, subcontracted with a company related to Vidual, namely Special Transformers Pty Ltd (Special Transformers) and that it carried out the relevant work. In any event, Vidual denied breach of duty, either at common law or by statute, and pleaded contributory negligence by Omar. It also pleaded that in the event it is found liable to Omar, it is entitled to contribution from Kaybron as a joint tortfeasor. 12 Omar, Mr Kouri, and Mrs Cohen, in their reply to Vidual's defence, pleaded that it is estopped from asserting that it was not relevantly a subcontractor of Austec and is also estopped from asserting that it did not carry out relevant works at the factory. 13 The three defendants to the earlier action brought various cross claims. P & M cross-claimed against Austec seeking indemnity under the terms of its contract or, alternatively, indemnity or contribution pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (the Law Reform Act). I have treated this as being in issue between P & M and Austec, although I have been unable to locate a formal defence. 14 P & M also cross-claimed against Vidual seeking indemnity or contribution under section 5 of the Law Reform Act. Vidual denied liability in respect of this claim. 15 Austec cross-claimed against P & M, Vidual and Kaybron. Against all three, it sought indemnity or contribution under section 5 of the Law Reform Act. Against Vidual, it claimed a contractual entitlement to indemnity under an implied term. Vidual denied liability in respect of this claim. 16 Vidual cross-claimed against Kaybron pursuant to section 5 of the Law Reform Act. It also, under the same section sought indemnity or contribution against both P & M and Austec. It may be taken that all three put the claims in issue, although the pleadings themselves seem rather confused and extremely confusing. PLEADINGS IN THE LATER ACTION:

[5]

21.5 states that the Plaintiff has made payments to or on behalf of the Worker for medical or related treatment and domestic assistance that was not reasonably necessary and therefore were not made pursuant to the (WCA)." 18 P & M denied any breach of duty, statutory or otherwise; pleaded the contributory negligence of Omar, and denied that the sum claimed by Kaybron represented "payments" which (Kaybron) was required to pay under the WCA. P & M also pleaded that any right of indemnity which Kaybron may have against it is diminished by the contribution to which P & M is entitled under section 151 Z (2) of the WCA in respect of Kaybron's own breach of duty. 19 Austec, perhaps unnecessarily, cross-claimed against P & M and Vidual for indemnity or contribution pursuant to section 5 of the Law Reform Act. THE ACCIDENT: 20 It was common ground and, as I have indicated, largely admitted on the pleadings that as at 7 August 2002, Omar was employed by Kaybron as a general hand at the factory, where P & M was engaged in the production of smallgoods. 21 It was also common ground that Omar's actual workstation was a "boning" room on the ground floor and that he had free access to an amenities room in another part of the factory. His route from the boning room to the amenities room took him up some nearby stairs along a lengthy corridor running in an east/west direction on the mezzanine floor thence along another short corridor from which descended another set of stairs to the amenities room 22 The southern wall of the long corridor at one point opened into a small vestibule from which a staircase led to the ground floor. A few metres to the west of this vestibule there was another opening in the southern wall of the corridor. At the mouth of the opening was a metal plated step 670mm high to which was attached a two step metal ladder. Beyond the step was, what was described in evidence, and which I will hereafter call an alcove, about 1200mm long and about 800mm wide. At the end of the alcove was a door, numbered 427 on plans, which opened inwards towards the alcove. Beyond the door was a large area between the ceiling of the ground floor rooms and the pitched factory roof. The area, provided with walkways, was used for the housing of factory machinery. The alcove and door were obviously designed to provide access to such machinery. There were similar points of access to the ceiling area in other parts of the factory. 23 At about 1.30pm on 7 August 2002, Omar was found by Mr Steven Lindner and Mr Roger Timms, lying unconscious on the concrete floor immediately underneath the alcove. Pieces of the pressed cement board which previously constituted the flooring of the alcove were near him. A gaping hole appeared in the floor of the alcove above him. 24 Although no one saw Omar fall, it is to be inferred that he entered the alcove and that the floor gave way under him. He fell a distance of 4.6 metres on to concrete. He has since been unable to speak or otherwise provide any explanation of what occurred. P & M: 25 It is convenient to commence a review of the evidence in this somewhat complex case by referring to the testimony given by other workers for P & M at the factory who were called by Mr Hull. 26 The most senior of them was Mr Tony Stills, now General Manager Projects. To a large extent his evidence in chief was constituted by the admission into evidence as exhibit AR of a Record of Interview conducted on 9 September 2003 with Mr David Singh, a WorkCover inspector, supplemented by some additional written information subsequently sent to Mr Singh. The Record of Interview and the supplementary information, after some debate, were, with insignificant exceptions, admitted as evidence against all defendants. 27 Mr Stills was actually employed by another company in what might be described as the P & M Group, Homebush Unit Trust Pty Ltd, but his role as at 7 August 2002 was Project Manager for P & M, which traded as Primo Smallgoods. Kaybron is another company in the group. He was responsible for P & M's large capital works projects at various plants and abattoirs. He reported to the Managing Director and the General Manager of Plants and Abattoirs. He had been with P & M since about October 1999. 28 The boning room where Omar worked was, he said, 50-70 metres from where he fell into an area then known as the "Laboratory Area". This became, following completion of the works in progress at the time of the fall, the "New Salami Processing Area". 29 Mr Stills described the place from which the Plaintiff fell as "a raised alcove off the corridor (which) provides for service and maintenance access to the ceiling space above the factory". He said that the ceiling space was also known as the "Suspended Ceiling Area". He said that the corridor was used by workers "as transit from the amenities to the production area". 30 At the time of the fall, according to Mr Stills, Austec, under contract, was constructing five new salami rooms involving "demolition of wall and ceiling panels, concrete curbing (sic) and construction of new panel and curbing (sic) and associated services". He said that it was classified as a "minor" project and that he had no direct involvement. He said that Mr Livio Versi, whom he described as "Chief Engineer", would have been responsible. Mr Versi reported to General Manager, Mr Peter Treneman. 31 After the accident, Mr Stills said that access to the alcove from the corridor was blocked with a plywood sheet. I interpolate that it appears this was done within hours if not minutes of Omar's fall 32 In earlier records of interview on 8 and 12 August 2002, Mr Stills said that he had been aware of the progress of the works, "I have stuck my head in there about three or four times", and had noticed that the ceiling had been removed. 33 As to the implication of the ceiling in the works, there were these questions and answers: "A. Originally I did not expect the ceiling to be removed. However, it became apparent that equipment that was to sit above the "Salami Curing Rooms" in the ceiling void would create a conflict between the rafters and the existing ceiling. The equipment would not fit in the ceiling void. It was known before the works were started that the ceiling was required to be removed.

[31]

Q. Whether that was independently, on your own, or whether that was with Mr Versi, or whether that was in the course of these meetings by the working party? A. Yes. " 40 Mr Stills agreed with Mr Webb that he continued to have some involvement with the works, in that he recalled that on one occasion from the ceiling side of the alcove he observed that the door to the alcove was barricaded and unable to be opened. His recollection was that this was before any works were commenced. 41 He also recalled an occasion when he and Mr Versi went to the alcove together and Mr Versi tried unsuccessfully to open the door. He could not recall whether there were two separate inspections or whether they were carried out on the same occasion. Nor could he recall whether Mr Versi tried to open the door standing on top of the metal plated step or from within the alcove itself. So far as he could remember, there was no tape across the entrance to the alcove at the time of his inspection. He did, however, see tape across the opening on more that one occasion. He agreed with Mr Webb that the corridor is busy and that he had occasion to pass along it from time to time. 42 Referring to the stairs located close to the alcove, Mr Stills said that these were removed as part of the salami room works, possibly by P & M maintenance staff, and that before Omar's accident the opening in the corridor was blocked off with plywood. 43 Asked whether it would have been simple and inexpensive to block off the opening to the alcove with plywood, Mr Stills said "if you had decided that that was a risk". 44 Mr Livio Versi said that like Mr Stills, he was employed by Homebush Unit Trust Pty Ltd as Chief Engineer. He said he worked at relevant times for P & M and had technical qualifications pertaining to food machinery. His work involved him in the engagement of contractors. 45 Mr Versi's records of interview with Mr Singh, respectively dated 13 June 2003 and 1 August 2003, and his statement dated 13 June 2007 were admitted as exhibit X and largely constituted his evidence in chief. He said that he reported to Mr Treneman and in conjunction with him and Mr Stills organised the salami room works. He said that Austec quoted for the job and this was followed by a written order. There was no other written contract. 46 In his statement Mr Versi explained his involvement with the new salami rooms: "Some time in the early part of 2002, I became involved in a working group that was looking at the provision of more rooms for the production of salami at the Chullora site. The group consisted of Peter Treneman, the General Manager, David Newman, the Factory Manager (Production Manager), Tony Stills, the Project Manager and myself. From time to time other employees were consulted about particular issues in relation to the work. I cannot now recall how many meetings of the group were held, but ultimately it was resolved that five additional salami rooms would be constructed in the area then occupied by the laboratory. The laboratory consisted of a number of adjoining rooms including an office, storeroom, and more than one laboratory room.

[32]

I have referred to salami rooms, and I have seen documentation that refers to salami curing rooms. I should say, strictly that these rooms were referred to as Travaglini Rooms after the brand of meat processing machine operated in them. The production of salami was not their only function, but it was their largest. At the time there were twenty-nine Travaglini Rooms, twenty-six of which were used for the production of salami and three for other purposes. The decision to add an additional five Travaglini rooms was not seen as a major project. In the scheme of things at the Chullora plant, it was a renovation or modification on a relatively small scale. The total renovation consisted of 180 square metres in a 20,000 square metre building. The Travaglini machines were part of my responsibility. For this reason, and because no plans for the renovation had been drawn up, I was asked to speak to the proposed builder. The proposed builder was Austec Panel Systems Australia Pty Ltd. Austec was at that time engaged in a project on behalf of Primo at the Scone plant. I understood that other providers would be involved in the project, such as fire-sprinkler people, electricians, plumbers and concreters. But responsibility for the work of demolishing the existing lab and constructing the new rooms would fall to the builder. This was to maintain an access corridor for the other rooms. But no structural design of any kind was performed by Primo. Nor did Primo have any hand in the demolition or the construction work. I arranged to meet Joe Zadro of Austec Panel Systems on site. To the best of my recollection this was between 2 days and a week prior to the submission of Austec's quote on 22 May 2002. When I met Mr Zadro, I conducted him on an inspection of the existing laboratory, the site of the proposed renovation. I provided him with a copy of the relevant page of the original drawings for the construction of the Chullora plant. While in the laboratory, I said to Mr Zadro the following: "This wall is a starting point for the new rooms"

[44]

When I first saw the blue tape fixed across the entry to the alcove, I was aware that the door to which the alcove gave access had been securely barred from the ceiling side. I knew for the reasons recorded in paragraph 37 of this statement, that the door could not be opened. The handle could not be depressed, and a secure bar prevented the door from opening. I also knew that the reason for securing the door in this fashion was that it was intended that the ceiling beyond the door be removed, creating a void immediately on the other side of the door. When I observed the blue taping, I assumed that its purpose was to deter persons from entering the alcove to attempt to open the door. I did not regard the blue tape as guarding against any danger, as I knew that the door could not be opened even if someone entered the alcove. I had no idea that the floor of the alcove itself would be dangerous. I had not been so informed by Austec, by Mr Lindner, or by any other person. When I saw that the blue tape had fallen from its position, I replaced it, but did not for the reasons I have stated above, consider any further step was necessary." 58 The work of demolition of the laboratory walls, partitions, and ceiling extended over some days. The demolition workmen, including Mr Lindner, then left the site for "a week or so" while British Paving came on to the job and installed concrete plinths on what was to be the floor surface of the new salami rooms. 59 At about 1.30pm on 7 August 2002, Mr Versi was told of Omar's fall. He went to assist and telephoned triple O for an ambulance. He observed the hole in the floor of the alcove. 60 Mr Versi estimated that about 250 workers in the factory used the corridor up to 4 or 5 times a day. 61 Mr Roger Timms was employed as a fitter at the factory, reporting to Mr Versi, and was present in the factory at the time of Omar's fall, being in a stairwell about 25 to 30 feet away when he heard a loud crashing noise. He went to investigate and found Mr Baghdadi lying on the floor. He checked his pulse and breath and arranged for an ambulance to be called. 62 He looked up and saw the hole in the alcove floor. He then went to the alcove to investigate and said there was nothing barring entrance to it, although there were remnants of blue tape attached to the sides of the opening from the corridor. He had noticed blue tape there when he passed on previous occasions. Mr Timms said he was familiar with the area between the ceiling and roof of the factory as he frequently had reason to enter it in the course of his work. 63 On one occasion, Mr Timms said that after the ceiling had been removed but before Mr Baghdadi's fall, he went into the alcove, opened the door into the roof space and tried unsuccessfully to reach and repair a leaking valve. This piece of evidence was in such conflict with other evidence, which I accept, as to the securing of the door before the ceiling was removed that I think Mr Timms was mistaken as to the occasion. I reject this part of his evidence, which was not, in any event, of particular importance. 64 Another witness, Mr Steven Bertram, was also employed by Homebush Unit Trust Pty Ltd in August 2002. He was the Human Resources Manager responsible for all employees who worked for P & M at Chullora. He said that there were in all about 20 employer companies. Kaybron employed about 50 workers out of a total of about 900 who worked at the factory. He described Kaybron as a "service company designed to employ some members of the employees, certain groups of employees that worked in the factory at Chullora". He agreed that he was referring to those who worked in the boning room AUSTEC: 65 The only employee of Austec who gave evidence was Mr Zadro. As with P & M workers, he was called in the Plaintiff's case, although an affidavit sworn by him on 2 October 2007 was filed by Austec. 66 Mr Zadro, a plumber by trade, said that he first had contact with the former owners of Austec when he performed plumbing contracts for them. Later, he became manager of the Austec business and he and his wife acquired the company about 1993. He said that Austec manufactures "sandwich panels" used as wall and ceiling panels in a variety of industrial applications, including the construction of cool rooms. It contracts for the supply and installation of the panels it manufactures and also for associated work such as the dismantling and disposal of existing panelling. However, it subcontracts all installation and dismantling work. 67 His first association with P & M related to a project it had at Scone, in respect of which he dealt with Mr Stills. In connection with the Scone contract, Mr Steven Lindner introduced himself and according to Mr Zadro's affidavit said: "I used to work for James Hardie doing the building work for their panelling projects. I have built a number of large cold stores and have a lot of experience with panel installations. I have just returned from South Africa where I have been contracting and I am setting up a contracting business here. If you need a contractor for your panelling projects I would be interested."

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I do not know what, if any, agreements existed between Vidual and Special Transformers in relation to the performance of the salami room works." 74 As to the progress of the works, Mr Zadro's affidavit stated: "By 18 July 2002 most if not all of the old sandwich panels, including ceiling panels, had been removed. Around that time Lindner had left the Chullora premises pending Austec's direction to return to site to construct the new salami rooms. Before the new salami room walls and ceilings could be installed it was necessary for British Paving to construct the new concrete hobs that would form the bases of the new walls and other concreting work." 75 On or about 18 July, Austec received an invoice from "Special Transformers Pty Ltd, trading as "Special Transformers and Installations". The invoice for $7,000 referred to "Primo strip out of existing panels for new salami curing room". The invoice of $7,000 plus $700 GST was paid. 76 Mr Zadro said, in effect, that before Omar's accident, he noticed nothing unusual about the floor of the alcove and saw nothing to suggest to him that the stability of any upstairs area, including the corridor and the alcove, would be "jeopardised by the removal of wall ceiling panels downstairs". 77 In cross-examination by Mr Donaldson, Mr Zadro said that when he walked through the alcove with Mr Lindner and then into the roof space, he noticed that the walls of the alcove were sitting on the ceiling below but the floor of the alcove was higher than the ceiling outside and therefore appeared to be attached to the walls of the alcove. 78 He agreed with Mr Donaldson that Austec, Mr Lindner, and P & M were prosecuted in the Industrial Relations Commission and that Austec, on advice, pleaded guilty to the charge that contrary to section 8 of the Occupational Health and Safety Act, it being an employer failed to ensure "that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". 79 Mr Zadro told Mr Campbell that when he quoted for the works in May 2002, he did not carry out a "risk assessment". 80 He also told Mr Campbell that he did not see a tape barrier or a warning sign at the opening to the alcove, although he could see "where it had been". He said that he did not tell either Mr Lindner or Mr Versi that the barrier had been removed. He agreed that he was aware that Mr Lindner had put up the tapes as part of his subcontract, although he qualified that answer by saying "it was never an item stated". 81 In answer to Mr Campbell's questions about his conclusion that the alcove floor was attached to the walls, Mr Zadro agreed that he made no further inquiries upon the subject and that he drew his conclusion on the basis of his experience in panelex construction. He said that he did not turn his mind to the possibility that the flooring was supported by what are known as "top hats" which, in turn, rested on the ceiling. Having looked at photograph 84, in exhibit AT, he agreed that the height differential between the ceiling and the floor of the alcove could have been bridged by "top hats". VIDUAL: 82 Mr Webb called Mr Steven Lindner. He said that he first commenced to erect insulated panels as part of the construction of refrigerated rooms as an employee of James Hardie in 1994. The company provided him with training. 83 He continued to work as an employee until 1996 when he went into business on his own account as a contractor in the same field. In 1999, he began to work under contract for Austec. 84 The first contract with Austec related to P & M's work at Scone and for that he prepared a written quotation. For subsequent jobs, he agreed orally on a price with Mr Zadro or with Mr Ham. Once he established a relationship with Austec, it had enough work to keep him busy. He said that the panels manufactured by Austec were similar to the panels manufactured by James Hardie and there was little difference between the work he performed for Austec and the work he had been used to with James Hardie. 85 His arrangement was that Austec provided all materials and plant. He provided labour, his own and that of his employees, and tools of trade. He estimated his charges by reference to an hourly rate and his calculation of the time a particular job would take. 86 He said that he and his wife were the directors of Vidual. She worked in the office and used a computer to produce letterheads on stationary, invoices etc. She also carried out banking and attended to other administrative tasks. 87 He testified that in mid 2002, he had a conversation with Mr Zadro or Mr Ham relating to work to be performed for P & M at Chullora. He went to the factory to inspect the site and spoke to Mr Versi. He knew Mr Stills from the job at Scone. 88 He could not remember when he started work at Chullora but said his first job there was to repair a faulty door. He also could not remember when he started the main work but said he would have had an employee, Mr Jim Haigh, with him. 89 Mr Lindner said he was present at the factory when the stairs near the alcove were dismantled. At Mr Versi's request, although he had played no part in the dismantling of the stairs, he had blocked off the opening in the wall of the corridor with a piece of the panelling supplied by Austec. 90 Over objection, because the matter had not been put to Mr Versi, I permitted Mr Webb to adduce evidence from Mr Lindner that he, at one point, spoke to Mr Versi about blocking off the alcove in a way similar to the blocking of the opening to the stairs, which had been removed. He said that he was told not to, for the reason that, as I understand the evidence, it was intended that the alcove would continue to be put to use as a means of access to the ceiling space. As the ceiling was being lowered this would have necessitated the construction of stairs on the ceiling side of door 427. As the alcove was effectively blocked immediately after the accident and as the alleged conversation was not put to Mr Versi, I am not satisfied that it occurred. 91 Mr Versi did, however, tell him to tape up and secure by that means the opening to the alcove from the corridor. He provided some tape and a sign for the purpose. Mr Lindner said that he then, from the ceiling side, with an iron bar, prevented the door from being opened and he also placed blue tape across the opening and attached a cardboard sign with a warning message. 92 This means of restricting access to the alcove, if that were the purpose, was obviously ineffective, as it is clear from the evidence that the tape dropped off or was pulled off by passing workers. I am satisfied that by the time of Omar's fall there was no tape across the opening and it is unlikely that the sign was attached as it could not be located afterwards. 93 It is also plain that the intention of both Mr Versi and Mr Lindner was focused on door 427 and not on the floor of the alcove. It is difficult to understand why they thought it desirable to discourage people, even in such a half hearted fashion, from entering the alcove when the door at the end of it, which, if opened gave rise to obvious danger, was effectively barred. 94 In any event, I accept Mr Lindner's evidence on the subject. I am satisfied he did exactly what he said he did. 95 Mr Lindner said that he removed the walls and ceiling of the existing rooms underneath where Omar fell, with the aid of a forklift or scissors lift brought in for the purpose. He said that he had a recollection of removing the ceiling in the vicinity of the alcove. Asked whether there was anything else there, he replied, "I didn't see anything which shouldn't have been there". 96 After removing the ceiling and the walls of the rooms to be demolished, he went to another job for about 3 weeks, returning a day or so before the accident. According to his testimony, other tradesmen had been there in the meantime; refrigerator pipes, fire pipes and electrical wiring having been taken away. I should say that I do not accept this part of his evidence, which is inconsistent with other evidence, and what I regard as the probabilities, that the pipes and wiring were removed before Austec started work under its contract to dismantle the existing laboratory walls and ceiling. More significantly, the concrete plinths had been constructed and the area was ready for him to erect the panelling for the 5 new salami rooms. 97 During his time at the factory, Mr Lindner said he saw Mr Versi every day as he would routinely inspect progress of the work. He would also organise any work required to be done by P & M's own maintenance staff. He gave evidence of an occasion when he and Mr Versi were standing in the area where the new rooms were to be constructed when they looked up and saw from the ceiling side (the ceiling having been removed) the handle of door 427 being turned. Mr Lindner called out and went upstairs to investigate. He found that the blue tape he had placed across the entrance to the alcove had fallen down. He said that he reattached it and replaced the warning sign. 98 Mr Lindner identified from records produced by Department of Fair Trading, an application for registration of the business name "Special Transformers & Installations" in his wife's handwriting. The application was dated 20 June 2002 and showed that the application was made on behalf of Special Transformers, the proposed business was "Construction of Cold Storage Units", the proposed date of commencement of business was 1 July 2002 and principal place of business was stated to be 1 Argyle Street, Arncliffe NSW. According to Mr Lindner, he and his wife Lesle were the directors of Special Transformers. 99 Mr Lindner identified an invoice exhibit 3D-25 addressed to Austec dated 26 July 2002 on the letterhead of Special Transformers & Installations. The invoice related to work at Orange. There was this exchange with Mr Webb: "Q. What happened at 1 Argyle Street, Arncliffe, Mr Lindner? A. That was where we manufactured transformers and I run the construction company out of, Vidual as well.

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Vidual ceased trading approximately one month after the accident in question (during or about September 2002) and was liquidated approximately one year later. At that stage we still had Special Transformers for whom I worked together with Lesle until the business of Special Transformers was sold to Star Delta in 2003." 117 It is convenient to deal at this stage with Vidual's defence that another entity, viz Special Transformers Pty Ltd, was vicariously liable for any tortious acts of Mr Lindner at the factory in June, July, and August 2002. 118 Mr Webb had admitted into evidence many documents, which he relied upon as indicating that after the end of June 2002 the business, hitherto conducted by Vidual, was assumed by Special Transformers. Among those documents are agreements dated post 30 June 2002 purporting to be between Austec and Special Transformers & Installations and invoices dated after 30 June 2002 on the letterhead of Special Transformers & Installations addressed to Austec in respect of work at the factory as well as at Scone and Orange. There were banking records to show that the amounts paid on the invoices were credited to a bank account in the name of Special Transformers & Installations, apart from the payment banked on 25 July 2002 of Vidual's invoice dated 25 June 2002, which was credited to a bank account in the name of Vidual. Mr Webb also relied heavily on Austec's order dated 4 July 2002, already referred to. 119 The material upon which Mr Webb based his submissions constituted a reasonable, if not compelling, case that after 30 June 2002 Austec contracted with Special Transformers trading as Special Transformers & Installations, rather than Vidual. However, as it seems to me, there are difficulties in Mr Webb's submission that such a contractual relationship applied to this case. 120 I am satisfied that the oral contract made in May 2002 between Mr Zadro and Mr Lindner was so made on behalf of Austec and Vidual respectively. I am also satisfied that it was an entire contract for the subcontracting of the labour component of the contract entered into between P & M and Austec. I have no doubt that the charge of $1,125 made by Vidual for the work performed at the factory on 22 June 2002 formed part of the contract price of $18,000 agreed between Mr Zadro and Mr Lindner and was treated as such by both Austec and Vidual. 121 Therefore, in my view, what Mr Webb is asserting (as he recognised) is that there was a novation of the contract, the burden of it being incapable of assignment without the consent of Austec, as to which there was no evidence (Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 per Collins MR at 668).

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122 Novation would have involved a new contract to which Austec, Vidual, and Special Transformers Pty Ltd were parties. Although such an agreement may be inferred from the circumstances, the inference should, in my view, be less readily drawn in cases where, as here, the contract has been partly performed before the novation is alleged to have occurred. In my opinion, in this case, the inference could be equally available that Vidual has subcontracted part of its contract, or, for convenience, has given a revocable mandate to Special Transformers to invoice and collect debts due to it. See the discussion by Windeyer J concerning revocable mandates and novation in Olsson v Dyson 43 ALJR 77. 123 Nor do I regard the order of 4 July 2002 from Austec addressed to "Special Transformers & Install" as of contractual significance. There already was a substantially performed contract in existence between Austec and Vidual. The reason for the document mystified Mr Zadro and, neither Mr Ham, nor anyone from Vidual, gave evidence as to why it came into existence. In particular, there was no explanation for the absence of Mr Lindner's wife from the witness box. I would have expected Vidual to call her and in her absence I infer that her evidence would not have assisted Vidual's case. Moreover, Mr Lindner himself was not asked about it. 124 As Windeyer J pointed out in Olsson, the question is one of fact. The matters relied upon by Mr Webb, virtually exclusively documentary records, are to be balanced against the very explicit statements and evidence of Mr Lindner, the alter ego of Vidual, and such unchallenged circumstances as the name Vidual on Mr Lindner's vehicle and shirt. In the result, I am not persuaded, on the balance of probabilities, that a novation of the agreement was proved. I leave aside the question whether in any event there was consideration to support a novation. 125 I am satisfied that at all material times, Mr Lindner performed work at Chullora for P & M under a contact between Austec and Vidual and that Vidual is vicariously liable for his negligence. EXPERT EVIDENCE: 126 I remain unpersuaded that there was much benefit to be gained from expert evidence as to any causal connection in law between Omar's accident and a breach of duty of care by one or more of the defendants, although there was a considerable amount of such evidence and it was of assistance in seeking to understand the mechanics of what occurred. During the trial, experts Dr Ross Trethewy, Specialist Engineer retained by Omar, Mr Hugh Cowling, Specialist Consulting Engineer, and Dr John Cooke, Consultant Architect retained by Vidual, were directed by me to meet and thereafter list the matters upon which they were in agreement and those upon which they were not in agreement. The statement prepared following the meeting, exhibit AY, indicated that they were not in disagreement on any matter. The 11 matters upon which they agreed were as follows: "1. A conventional and straightforward method for building small intermediate floors within a large industrial, steel framed building is for the floor structure to comprise steel members suspended from the steel roof beams by means of steel hangers. Other mezzanine floors within the subject building (factory premises located at 18 Hume Highway, Chullora) are depicted on the subpoenaed drawings as comprising steel members suspended from the roof beams bay steel hangers. The structure of the subject floor at door 427 is not shown in detail in any drawings.

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(2) An employer must ensure that, if construction work is likely to reduce the stability of an existing building or a building in the course of construction so as to endanger a person, shoring is used or the appropriate measures are taken to prevent the collapse of the building." SUBMISSIONS AS TO LIABILITY: 135 All counsel provided written and eloquent oral submissions on liability. Mr Campbell submitted that P & M was not shown to have breached the duty imposed upon occupiers of premises by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180. He pointed out that the risk that Omar would fall through the floor of the alcove did not exist prior to commencement by Austec of its contractual obligations and that, as a general rule, there is no duty to prevent a third party from harming another. 136 He submitted that an occupier is under no duty to inspect its premises for the purpose of discovering unknown and unsuspected defects. 137 In Mr Campbell's submission P & M was not in control of the performance of the work contracted to Austec and was not responsible for what it or its subcontractor did in performance of the contract. He contended that Austec and Vidual were in a different position, in that they had the capacity to fully consider the ramifications of the work they undertook. 138 P & M, so Mr Campbell submitted, in effect, was entitled to rely on the performance of its contract by Austec, a highly experienced contractor in the field and that, on the authorities, this was not a case where P & M had a non delegable duty. 139 In any event, according to Mr Campbell's submissions there was no breach of duty by P & M, in that Omar had no need to use the alcove in the course of his work and should have been aware of the warning sign placed by Mr Lindner. P & M had no reason to know that the alcove floor presented a danger. 140 As to asserted breach of statutory duty, Mr Campbell pointed to the change, comparatively recent, in the nature of occupational health and safety legislation from an emphasis on specific regulation to one where more general standards or systems are prescribed. He referred to Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 where the court discussed whether breach of the regulation gave rise to a private cause of action but did not need to decide the question. 141 In any event, so Mr Campbell submitted, there was no evidence that P & M was an employer to whom the Occupational Health and Safety Regulation applied, there being no evidence that it had any employees. 142 Mr Donaldson submitted that Omar has not identified any relationship which imposed upon Austec a duty to protect him, nor has he identified any negligent act or omission on Austec's part. So Mr Donaldson contended, sole responsibility for what occurred rests with Vidual, which controlled the manner in which the relevant work was performed. 143 In relation to breach of statutory duty, Mr Donaldson submitted that the regulation did not impose any obligation upon Austec and breach of the regulation did not, in any event, give rise to a private cause of action. In his submission, the obligation to comply with the regulation fell upon P & M as controller of the premises and Kaybron as Omar's employer. 144 Austec had no entitlement, let alone an obligation, so Mr Donaldson submitted, to prevent access to the alcove before commencing work under its contract. It was for Mr Lindner to take such steps during the course of the work as were necessary to avoid the creation of a dangerous situation. 145 Mr Webb devoted much of his submissions to the issue whether Vidual or Special Transformers Pty Ltd contracted with Austec, a matter upon which I have already ruled against his client. 146 In respect of other aspects of liability, he contended that P & M owed a duty to Omar, as owner and occupier of the building where he worked, as designer and controller of the works, and as a de facto employer of Omar. He pointed out that although workers at the factory were employed by various entities, all manufacturing and trading, so far as the evidence revealed, was conducted by P & M and that apparently only one letterhead was employed for all companies in the group, that of Primo Smallgoods, which was the trading name of P & M. 147 In Mr Webb's submission the alcove should have been effectively blockaded from the corridor by P & M before any work commenced and that, whatever the position of Vidual, the overwhelming responsibility for what occurred was that of P & M. 148 Mr Parker submitted that the works created a dangerous situation, which gave rise to a non delegable duty of care on the part of P & M, which it should have discharged by barricading the alcove from the corridor. 149 Mr Hull, after referring to section 5B of the Civil Liability Act submitted: "The structural support for the alcove floor could not be determined without a detailed inspection of the sub-floor surface, it could not be ascertained by a visual inspection. If a detailed inspection was not carried out, which was not done by any one of the Defendants, then the only way to adequately safeguard people from placing their weight onto the alcove floor was to barricade the opening to the alcove, which was obviously a simple and cost effective solution to the risk (see Tr. 553/35 - "a very simple job"). The risk ought to have been considered by each of the Defendants. If the risk was not eliminated then serious consequences could ensue if someone did fall 4.612 metres. Given that there were more than 1,000 people movements along the corridor every day, the probability that serious harm would occur if care were not taken was high." 150 He referred to what the High Court said in Zalugna and to its adoption of the statement by Deane J in Hackshaw v Shaw (1984) 155 CLR 614: "... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk."

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ATTRIBUTION OF LIABILITY: 151 In my opinion, the liability of P & M is to be considered in accordance with those principles, that is the ordinary principles of negligence. Omar was effectively employed by it and it was aware that he regularly used the corridor into which the alcove opened. 152 In accordance with ordinary principles, there was the necessary degree of proximity between P & M and Omar. P & M knew that the ceiling to be dismantled lay underneath the alcove floor. Although it did not possess details of the construction of such floor, in my opinion, a reasonable man in its position would have foreseen the possibility that the ceiling provided support for the floor. The reasonable man would also have foreseen the very considerable danger that removal of support for the floor would present to workers in the factory passing along the corridor and for whatever reason diverting into the alcove. 153 An effective remedy was simple to achieve and cheap. In my opinion, a reasonable man in the position of P & M, having weighed the remedy against the magnitude of the risk, would have had little hesitation in barricading the alcove from the corridor before work commenced. 154 In the result, in my opinion, P & M breached the duty of care which the law imposed upon it towards Omar and his fellow workers. It should be held liable for his loss. 155 It becomes unnecessary to consider Mr Campbell's submissions regarding such matters as whether the work was dangerous; whether there was a non delegable duty; vicarious liability; breach of statutory duty; etc. However, I reject his submission that the answer to P & M's liability lay in its contract with Austec. The negligence of P & M was not in the manner the work was carried out by Austec but in its failure to identify the hazards of that work, warn against them and where, as here appropriate, take steps to overcome them. 156 In my opinion, Austec was also negligent. Mr Zadro, for whom Austec is vicariously liable, inspected the site more than once before the contract between P & M and Austec was entered into and regularly during the course of the works. His company contracted for the major part of the works, including the removal of the ceiling and, in my opinion, owed a duty to take reasonable care not to endanger the safety of factory employees of whose presence he was clearly aware. In my opinion, a reasonable man in Mr Zadro's position would have recognised the potential risk to the integrity of the alcove floor. He failed to do so or, indeed, so far as the evidence relates, make any attempt to assess the risks posed by what Austec had contracted to do. 157 Although Austec actually subcontracted the labour component of its contract, this did not, in my opinion, absolve it from a finding of negligence. As in the case of P & M, the negligence was not in the manner of discharging its contract, but in its failure to perceive and overcome the potential impact upon other structures. A reasonable man in the position of Mr Zadro would, in my opinion, have required that the alcove be blocked before work commenced. 158 It is also my view that Vidual, vicariously responsible for the acts of Mr Lindner, was negligent. In one sense, Mr Lindner had a better opportunity than either Mr Zadro or Mr Versi to become aware of the danger to which removal of the ceiling gave rise. It seems plain that once the ceiling of the old laboratory was dismantled it would have been patently obvious to anyone who cared to look that the structural integrity of the floor of the alcove was seriously impaired whether the purlins were still attached or, as seems more likely, had come away with the ceiling, despite not being noticed by Mr Lindner. 159 In relation to both Austec and Vidual, as I have reached a conclusion based on common law principles, it becomes unnecessary to consider whether there was any breach of the regulation and, if so, the consequences thereof. It is noteworthy, however, that both the statute and the regulation emphasise the need to identify and overcome potential risks and hazards in work places. 160 I am satisfied that Omar lawfully entered the alcove. His purpose in doing so, in the absence of a capacity to give evidence, was not identified. He may have been simply curious as he passed along the corridor, or he may, as Mr Hull speculated, have sat down to tie his shoelaces. Although contributory negligence was pleaded, no counsel submitted that in any way he failed to take reasonable care for his own safety. In passing beyond the opening to the alcove, he exposed himself to grave danger contributed to by the negligence of each defendant. Any one of them could have quickly and cheaply negated the danger. APPORTIONMENT OF LIABILITY: 161 As to the distribution of liability between themselves, I have reached the conclusion that each of the three defendants should be held equally liable. In my view, in broad terms, each was equally responsible and each had the same opportunity to identify the danger and act to overcome it. 162 Accordingly for the purposes of section 5 of the Law Reform Act, I would hold it just and equitable to apportion liability equally between the three defendants. However, both P & M and Austec claim the right to a contractual indemnity and it is convenient that I proceed to deal with that aspect of the matter. 163 So far as P & M is concerned, Mr Versi in his statement, part of exhibit X, said that within a few days after receiving the two quotations from Austec earlier referred to, he prepared the order addressed to Austec on P & M's order form, number 30611. The order form has endorsed upon it "subject to the conditions endorsed on the reverse hereof". However, Mr Versi's evidence was that he faxed a photocopy of the order form itself, but not the reverse side to Austec. 164 His evidence as to how he drew the reverse side of the order form to the attention of Austec was confined to the statement: "At some later stage I detached Annexure "D" (the order form) from the book and handed it to someone, I cannot recall when that person was on the premises of Primo Smallgoods." 165 Clause 14 of the conditions on the reverse side of the order form relevantly provided: "Clause 14. In the case of work performed on the purchaser's premises …. (c) Indemnity - vendor shall indemnify, defend and hold purchaser harmless in all claims, liabilities and damages arising from the work performed." 166 Mr Zadro, in his affidavit sworn 2 October 2007 denied ever receiving the original order form. So far as the evidence reveals, no one from Austec other than Mr Zadro was ever on site. Moreover, Mr Versi said that he could not recall ever seeing Mr Zadro on site. 167 Given the state of the evidence, I am not satisfied that P & M proved that conditions containing the indemnity were ever drawn to the attention of Austec and accordingly it becomes unnecessary to consider whether the terms of the indemnity are sufficiently wide to encompass P & M's liability. The claim for contractual indemnity was alternatively put on the basis of an implied term in the contract, reliance being placed upon Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 and Oxley County Council v MacDonald [1999] NSWCA 126. 168 Whilst I have no difficulty in light of those cases and other authority upon the implication of contractual terms, in implying into the contract between P & M and Austec, a term that the work contracted for would be performed in a good and workmanlike manner and with materials suitable to the task, the rest of the argument, as it seems to me, has difficulties. 169 Austec's contractual obligation was that it would, in a good and workmanlike manner, dismantle existing structures and erect new ones in their place using appropriate materials. Unlike the situation in both Florida Hotels and Oxley County Council, Omar's injuries were not, in my view, causally connected to a breach of that obligation. Rather, they arose from a breach of Austec's common law duty of care, unrelated, except in the broadest sense, to its contract. 170 In the circumstances, I would not imply a contractual obligation that Austec indemnify P & M in respect of Omar's action and I dismiss P & M's claim for contractual indemnity. 171 For the same reason Austec's claim for indemnity against Vidual, based entirely upon the implication of a term into their contractual obligations, should suffer a similar fate. Vidual contracted to perform the labour component of Austec's contract with P & M. There was, as I understand the evidence, no breach of its contractual obligations. Rather, there was, as I have found, a breach of its common law duty of care. Austec's contractual claim for indemnity against Vidual should be dismissed. MR KOURI: 172 Mr Kouri was born in Lebanon on 2 November 1946. He had 13 siblings. His father died when he was five and at eight he was obliged to leave school and work. He was employed in a carpentry shop near his home and since then his employment and his hobbies have involved woodwork. 173 He met and formed a relationship with Judith Cohen, an American citizen, in the United States. Omar, a child of that relationship, was born there on 2 September 1980. He married Judith Cohen when Omar was about 3½ but the marriage was dissolved a few years later. After this he continued for a time to live in the same state, Florida, as his former wife. Omar resided with her but Mr Kouri saw him frequently and contributed to his upbringing. 174 In 1992, while visiting his brother in Western Australia, he met a woman, Nina, with whom he kept in touch following his return to America. They married subsequently and, in the result, Mr Kouri in 1998 migrated to Australia with Omar to live there with his new wife. Both he and Omar acquired permanent residency status, although both remain citizens of the United States. 175 Initially, they lived in Perth but Mr Kouri, who had acquired considerable expertise as a builder of timber stairs, was unable to find suitable employment. During the short period of about 2 months, he remained in Perth, Omar enrolled in a TAFE college. 176 In search of employment, in early November 1998, he travelled to Sydney by truck and was followed about 2 weeks later by his wife and Omar. He immediately found employment with A W Tod, Stair & Joinery Co Pty Ltd, builders of timber stairs. He established a home in a rented flat at Ryde. As I understand the evidence, Omar was undecided as to what he wanted to do in life, but had periods of temporary employment, including about 7 months when he worked with his father. Mr Kouri's wife worked in an aged care facility. 177 For a time Omar returned to live with his mother who had remarried and was living at Savannah in Georgia. He came back to Australia, however, about July 2000 when, according to Mr Kouri, "he'd become somehow a different human being, all together as a human man, really become absolutely magnificent". He expressed a wish to work with his uncle, Mr Ray Baghdadi, an employee of P & M, and this came about in October 2001. The job required very early starts, and Omar was usually in bed during the week by 8.30pm. He was very interested in music and had booked to enter and paid for a sound engineering course, which was to commence on 8 August 2002. 178 As to his assessment of Omar's life prior to 7 August 2002, there was the following exchange with Mr Hull: "Q. Prior to 7 August, what was your assessment of Omar's happiness in his life? A. When he came back and we lived together, I would say in all honesty it's the most wonderful year of my life a father can have, a companion, my son as a companion, as a mate for me. It was absolutely magnificent. I mean, it was just as a trademark of a young man of 20 years old and so on. It was just remarkable, the way - well, I could tell you many instances. One time I was - 4 o'clock in the morning, I hear him coughing and getting up ready for work. He was really coughing severely and, remember, Omar born in the tropics and Sydney weather was a bit severe for him in the winter. So I get Omar up - he was ready to go to work. I said, "What's the matter with you? You sound sick." He is really sick. I said, "I'm going to work." I said, "But you are sick." He said, "I can't really disappoint them. They depend on me, and I can't take time." I said, "No, no, you're not going to work", so he called his employer and they gave a week off with pay.

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Q. The point you're making is that he enjoyed life and enjoyed working? A. He absolutely - I mean, he was focusing on a journey as a young man. He wants to do sound engineering. It's an 18-month course. We talk about it, we discuss this 18-month course, and after that they find him employment and he goes on for higher education in the same business, so, yes, we discussed all that." 179 At that time, Mr Kouri said that he was extremely fit and enjoying his work as a stair maker - "stairs is a very unique business because every stair is like a different challenge". 180 At about 2pm on 7 August, his nephew, "Mo", telephoned him at work and said "Be ready for me, I'm going to pick you up in about 15 minutes". From the tone of his voice Mr Kouri gathered something was wrong: "He comes in and pick me up, I get in the car, and two or three minutes later on I said, "What's going on? What happened?" He said, "Omar have an accident." I didn't make too much of it. In business I have seen a lot of people injured, cut fingers, you know. My boss have two fingers. So I didn't make too much of it - could be broken legs, missing fingers, whatever. I didn't - on the way to Liverpool Hospital - he said he's in Liverpool Hospital. On the way to Liverpool Hospital I picked the phone - I never have mobile phone before that point, before my son's accident, because I'm from the old school, perhaps - anyway, so I took his mobile phone and called my brother Ray. He was at the hospital." 181 In the telephone conversation, Mr Ray Baghdadi told him "it's serous". Asked how he felt then, he replied: "Well it's extremely hit home. I mean, he didn't explain to me he fell on his head or anything like that, because by then we're very close by Liverpool Hospital when he said it's serious, and he didn't go into detail. I went into shock. I got it from his mouth, "It's serious." So how serious could it be." 182 When they arrived at Liverpool Hospital, he ran into the hospital foyer and was escorted by relatives to the Intensive Care Unit where he saw Omar lying on a mattress: "and his face, it's not recognisable because the blood was everywhere - ears and mouth and nose and everywhere else, and it's been a long time coming. It's been a long time. It's been a long time, so it was a shock. It was a shock, and I don't know how long I stayed there. I drop on the floor and I was weeping, you know, I was crying. I think Dr McKechnie came in very shortly after that, if I could recall that, and he said the whole family - by then all my family was there, my brother flew in from Brisbane, my other brother flew in from Perth. But Dr McKechnie came in and said to me, "Look, we need to do this, and that and the other. That's what we need, to cut a flap and release the pressure off the brain, otherwise, you know, it's a matter of life or death. That's what we need to do." And then one of my brothers who was here, I think, I can't recall who it is, tried to ask the doctor questions. I said, "Excuse me", I told my brother, I said, "Dr McKechnie, please do what you can. I don't want to waste your time" and then that's what he did, took Omar in and cut the flap off and brought him back to - put him on the mattress in an isolated room in the IC unit, glass room, due to fact that it was for people with severe - so they don't get any infection or anything like that.

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Q. Did you go home at all? A. No. I was still in my clothes. I pretty much beginning to stink, you know, I'm sorry, for this. I was in my work clothes, my work has glue on my clothes, and everything else." 183 He telephoned Omar's mother on the night of the accident and she arrived 3 days later, by which time Mr Kouri had still not returned to his home. Asked how he felt in that period, he replied: "How I felt? I felt hopeless. I felt - I can't express to you how I felt as far as emotion, you know. I mean, he's your son, your loved one. It's just you see him that way. I wouldn't wish that on anyone. I wouldn't want anyone to see that or go through that. I mean, if my son would have been, let's say, passed away, then my life now would have been, you know, perhaps back to normal because, I mean, we all lose loved ones, but to see that, you know, and to live through it is pretty shocking. It's the worst scenario human beings could go through probably is this one here." 184 After Mrs Cohen arrived, he went with her to Omar's room, "she was weeping" and after about ½ an hour he left the hospital for the first time since arriving. He went to his brother's house at Yagoona, where he had a shower and changed his clothes. 185 Omar was in the Intensive Care Unit for 3 weeks, during which Mr Kouri spent most of the time with him, sleeping on a chair in his hospital room. Once he overheard a doctor saying that Omar's chances of survival were very low, "it was just, it was just like somebody stabbed you in your heart". 186 Omar was moved from the Intensive Care Unit to the brain injury recovery ward on 13 September 2002. Mr Kouri was not permitted to stay there beyond 8pm but he would return before 7am the following day. He would then sit with him throughout the day, trying to talk to him, massaging his feet etc. He said that he found it very hard to leave at 8pm. 187 At night, he returned to the flat at Ryde where he had been living with Omar. He was there alone, as before the accident his wife Nina had separated from him. He said that he drank himself to sleep every night with vodka. 188 On 28 October 2002 Omar was discharged from Liverpool Hospital and transferred to Ryde Rehabilitation Centre. However, on 13 November he was returned to Liverpool Hospital for various surgical procedures. By then, he had developed an egg sized odorous hole from dead tissue in his sacrum area, which concerned Mr Kouri to such an extent that on one occasion he started screaming in a loud voice in the hospital corridor. He feared his son was dying. However, the wound responded to treatment and eventually healed over a lengthy period. 189 By January 2003, Mr Kouri said that Omar's face had resumed its pre accident shape. He had not returned to his employment but was being paid workers compensation for a previous shoulder injury. He returned to work during 2003, but did not work a full day. 190 In the meantime, in September 2002, he consulted his general practitioner, Dr Peter Cook who prescribed medication, including Prozac (a drug he said he had never previously taken) and recommended that he consult a specialist. He consulted Dr Karima Soliman at Auburn, "a couple of times". Afterwards he consulted Dr Sue Adams from time to time. He took medication as prescribed, which helped, particularly Prozac. For a while he continued to drink alcohol to excess. Since September 2005, he has regularly consulted Dr Helen Clarke, a general practitioner who specialises in counselling (cognitive behaviour) and family therapy. 191 Mr Kouri who continued to visit Omar every day in the rehabilitation unit at Liverpool Hospital at one point became concerned that Omar was being left alone for long periods, "strapped to a table with his head slumped and drooling from the mouth". He made representations to "the insurance" about this and a nurse was provided day and night to be with Omar. This had a calming impact: "That's when I began to somehow ease off a little bit, you know, the stress and the booze and things like that, beginning to focus a bit more." 192 Even after he resumed work, he went to the hospital every day and tried to help with Omar's showering, an assistance, which some nurses welcomed and others did not. He would leave the hospital about 9am then, five days a week, go to work for several hours before returning to the hospital. At weekends, he would basically stay with Omar all day. 193 He initiated the discharge of his son from hospital, convincing doctors that he could provide at home what was being provided in hospital. A number of people were involved in this, apparently led by Dr Adeline Hodgkinson. Among other things a suitable home at Ryde was located for him to rent and it was to this home that Omar was discharged from hospital in October 2003. Omar has continued to live in the house with his father. In addition Omar has always had at least 2 carers, 24 hours a day working 12 hour shifts. 194 Mr Kouri continued to work for A W Tod, but before leaving for work, he prepared Omar's breakfast and lunch from provisions he had bought. When he returned from work about 3.30pm he prepared Omar's evening meal and spent the rest of the day with him until Omar went to sleep about 8pm. As there were always carers present, Mr Kouri established what he called his "private space" in the garage. He would also wake Omar in the mornings and for about two hours talk to him and give him stretching exercises. 195 Notwithstanding the presence of the carer's, Mr Kouri said that he, quite often during the night, attended Omar "just to see how he's doing, temperature, cold, hot, warm……. I always make sure if he's hot, I make sure he's cool, if he's warm - all these things". He also assisted the carers in showering Omar. 196 Mr Kouri's employment with A W Tod was terminated in October 2005. After this, he adopted what he described as a "hands on" role in caring for his son. Previously he had only on one occasion interrupted his constant attention to Omar by going to Melbourne in early 2005 to watch his nephew Marcos Baghdatis play in the Australian Tennis Open in Melbourne. Although he reached the final, Mr Kouri telephoned him and said "I hate to miss your final with Roger Federer but I really can't stay here any longer because I miss my son. I have to go home". 197 In or about June 2006, he arranged to be put on the pay roll of Global Advantage (Global), which was providing and continues to provide Omar's carers. He said he found the physical demands of a carer very difficult: "The difficulty with it really is it's just too much for me to be there with him 12 hours as a worker and to be able to stand on my feet by the end of the day. My back's been shot, my span of attention is gone and I just couldn't do it." 198 Cross-examined by Mr Campbell, Mr Kouri agreed that Omar's job with P & M was the longest job he had since leaving school and his first regular employment. He told Mr Campbell that his other son Michael (not by Mrs Cohen but the product of an earlier marriage) lives in Canada and that he sees him infrequently. He agreed that of all the relationships in his life, Omar has been the one constant for whom he has always felt and cared most about. He agreed that even with 2 carers in the house, he assists with Omar's physical comfort whenever he thinks it appropriate. Mr Kouri said that Omar is visited regularly by a physiotherapist, Mr Philip Wheen and by a speech therapist, Ms Margie Logan, twice a week. He said that a Mercedes Sprinter van was provided by the Workers Compensation insurer for Omar's use about two years ago, previously, when required, a taxi for the disabled was hired. Omar is taken on regular outings by motor vehicle to movies, shopping centres, parks etc. 199 Mr Kouri denied Mr Campbell's proposition that Omar presently receives care at a higher level than he needs. He agreed with Mr Donaldson in cross-examination that since May 2002, he has had serious work related problems with his shoulder and was working under some physical restraint. He had refused to have surgery and had found physiotherapy painful. As at August 2002, he was unable to lift more than 5 kilos with his left arm and unable to use it above shoulder height. He was still seeing doctors about the injury in March 2005. 200 He told Mr Donaldson that his marriage with Nina ended early in 2002. As a consequence, he was depressed and consulted his general practitioner, Dr Peter Cook. He could not recall whether he was referred to a psychiatrist, nor whether Prozac was prescribed, but conceded he might have been taking Prozac in the period prior to the accident. Mr Webb, during his cross-examination of Mr Kouri, had admitted into evidence as exhibit 3D -3, a statement made by Mr Kouri before Omar's accident as to his duties with A W Tod. He agreed the document was accurate except in so far as it stated that his duties included loading stairs on to a truck. He agreed that before the accident his normal work hours were 7am to 3pm, although he said there was some flexibility in them. He was paid $35 per hour for a 38 hour week. 201 Mr Kouri told Mr Webb that at the time of giving evidence he had no disability or pain in his left shoulder. Demonstrating, he lifted his left arm into the air and rotated it. However, he claimed that it was still painful in May 2003. He agreed with Mr Webb that he continued to obtain from Dr Cook certificates as to his unfitness for work due to an injured left shoulder until January 2003, when he returned to work. He admitted that in the period from August 2002 to January 2003 he was not wholly unfit for work as in that period he was fit for the selected duties, which he was performing on the day of Omar's accident. 202 He told Mr Webb that while employed as Omar's carer by Global, he earned about $60,000 per annum, working 12 hour shifts. His taxable income from A W Tod in the period after the accident was respectively, 2003 - $48,000, 2004 - $44,000 and 2005 - $43,000. 203 In the period between leaving A W Tod in October 2005 and going on the payroll of Global about June 2006, he told Mr Webb that he spent virtually all day, every day, in assisting with Omar's care, despite the fact that he also had 2 carers. 204 It emerged during Mr Webb's cross-examination that during the period of about a year he was employed by Global, he injured his back while turning Omar in the shower. He said that he had never injured his back previously throughout his working career and that as a consequence, he took time off work with Global and received workers compensation payments for about 6 weeks. He also had physiotherapy and was provided with a waist belt to aid lifting 205 He said by the time he returned to work with Global, his back was better and he denied that it was the reason he gave up his employment with Global, he explained: "Working with Omar 12 hours a day is very difficult work and, like I said, I was a worker, I have a co-worker who worked with me, and I would not have a chance to take a break like I used to. I have to be there for him 12 hours a day, besides cooking and shopping and lifting and showering and all these things. At the end of the day, I physically, total - my total physical very, very, very tiring, not just my back. Physically was more, probably - it was physically more tiring than anything else, you know. I was tired. I can't - I can't be there 12 hours. It's just too, too hard for me." 206 Mr Kouri said that in addition to working 12 hour shifts for Global, he continued to provide care for Omar beyond that for which he was being paid, such as shopping, food preparation and cooking and the training of new carers. 207 At the time he gave evidence at the end of September 2007, Mr Kouri said that he had not looked for work since resigning from Global. Asked the reason, he replied: "Because whether I get paid or not, I want to be looking after my son until I be able to settle my son and have the right people and the right carers and the right environment and perhaps have someone or two, I could train them and enlighten them on Omar's taste in food and so on. I haven't felt comfortable yet to be able to leave my son." 208 Later, he added: "The physical toll I have, I don't think I am capable of going back to my heavy lumber lifting, all that stuff, because my back become a bit - like I said, my back get hurt by just walking around and helping my son, so I could imagine, if I'm going to be lifting stairs and wood and all that stuff, it would be impossible for my back to handle that." 209 Asked whether he could see himself performing light sedentary work, he replied, "I could see myself managing my son's affairs". He said that he could not see himself having the capacity to work for somebody else in a sedentary capacity. 210 In relation to his 2007 tax return, Mr Kouri was cross-examined by Mr Webb about his claim for a deduction of "travel for job $1,528". Asked to explain the deduction, Mr Kouri gave the unconvincing explanation: "A. I don't have no idea. Maybe perhaps I'm using my vehicle to get his grocery, not his vehicle - I don't know. I used my vehicle to buy his grocery and everything else, because his vehicle's too big to go to shopping centre and places like that.

[196]

THE EVIDENCE OF MRS COHEN: 213 Judith Renee Cohen was born on 21 December 1957 in Florida USA. She is the mother of Omar and married his father a few years after Omar's birth. They were divorced in 1986. Following the divorce, Omar lived with her and his father lived about 5 hours drive away. When Omar was about 16, she moved to Leesburg, Florida, about an hours driving time further away from where Mr Kouri lived. Nonetheless, he continued to have frequent contact with Omar. 214 In 1998, she met Mr Steve Cohen and they married the following year, establishing a home in Savannah, Georgia. At about that time Omar went to Australia to live with his father, "I didn't want him to go but I didn't want to stop him from growing". 215 He returned to the USA for a short time, but then, having attained residential status went permanently to Australia in July 2000. She maintained contact with him through weekly telephone calls. 216 With a science qualification, she worked as a data processor in medical rooms and in a pathological laboratory until she moved to Savannah. There she worked full time as a transcriptionist at a hospital within St Joseph Candler Health Pathology Laboratory until October 2000, when she changed her employment to the Memorial Health University Medical Centre. She worked again full time as a transcriptionist at the Curtis and Elizabeth Anderson Cancer Centre within that organisation. That was her employment at the time of Omar's accident. 217 At about 4.30am on 7 August 2002, she received a telephone call from Mr Kouri, the burden of which was that Omar had been hurt, "that it didn't look good" and that she should go to Australia as soon as she could. 218 Her reaction was "panic and fright. It was the worst, something you really don't want to hear has happened to your children and your children are so far away". 219 She speedily arranged to travel to Australia. As her passport had expired, the intervention of a congressman was required for an expedited renewal. She arrived in Australia on Saturday 10 August and was met by Mr Kouri's brother and taken straight to Liverpool Hospital where her former husband was waiting for her. 220 She then went to the Intensive Care Unit to see Omar. He was extensively bandaged and swollen. She was given some information as to the treatment which he had undergone. 221 She remained at the hospital, which provided her with accommodation until she returned home on 27 August. With short breaks, she remained at Omar's side. He was unconscious but she talked to him, read to him and held his hand. All her expenses were paid by the Workers Compensation insurer. 222 Altogether up to the trial, she visited Australia 12 times. The expenses of all but the first and the last visit, which was for the purposes of the trial, (with the possible exception of a visit in September 2003) were met by herself. 223 During the first visit she was given a prognoses by Omar's treating doctors, "It was quite upsetting. You know you really at that point there is not much, there is not much hope from what they think and from what they see and to be face to face with that, I wouldn't wish it on anybody". 224 Regarding her return home on the first occasion, there was this exchange with Mr Hull: "Q. How did you feel about having to go back to the United States on 27 August 2002? A. I didn't want to. I was so scared and I didn't - the nurses were coming in and they are bringing me boxes of tissues and they are talking to me and they are waiting and they are soothing you. They want you to expect the worst, because it might happen.

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Nonetheless, she retuned to work and "did the best that I could". 227 On 24 October 2002, she returned to Australia. By then, Omar was on the 4th floor of the hospital in the brain injury ward and was breathing on his own. Again she talked to him and held his hand, although there was little apparent change in his condition: "I don't know if he knew that I was his mother but he knew that I loved him; that I was there with him; that he wasn't alone. That was most important. " 228 Asked whether her presence with Omar helped her, she replied: "A. Yes, it did. Sad as it was, and as hard as it is, being there with him, yes, it did. I mean, it's hard to see. There's no doubt about that. Hard to go through what you're going through, but it's easier than being on the other side of the world, wondering what's going on. " 229 On her trips to Australia Mrs Cohen left not only her husband behind but also her mother, aged 78, in ill health with pancreatic cancer, two brothers and a sister. 230 Asked why she returned home from the first trip after 3 weeks, she replied: "A. Well, I need - Steve and I are - it's a lot of money to be over here. I have to keep working over there. Go back to work. I was trying to keep my job. I was trying to keep - I guess I felt a lot of pressure. I tried to keep my job, to keep some income coming in, to be able to come back and forth, to be able to take care of expenses back home. I've not - I don't work, and couldn't work, while I was over here. It's the guilt of being away from - trying to be there for everybody. " 231 In the United States, she consulted her general practitioner, Dr Paul Bradley, on 15 November 2002 and was referred by him to a psychologist, Dr Gayle Rozantine. Since November 2002 she has seen Dr Rozantine weekly and sometimes twice a week. She intends to continue doing so. 232 Some of her medical expenses were paid by her husband's health fund but she claims the difference in her action. 233 She next arrived in Australia on 28 December 2002 and remained until 11 January 2003. Again she stayed at the hospital where Omar remained a patient. She again felt "bad" about returning home but was able to resume her employment. 234 At the end of 2003, her employment was terminated, "Used 24 weeks of leave of absence within 12 month period of time. No job available when she returned". 235 In the meantime during 2003, she had visited Australia again from 1 April to 30 April; 19 July to 2 August; and 18 September to 4 December. She was in Australia in October 2003 when Omar was discharged from hospital to the house at Ryde. She participated in discussions as to the arrangements put in place for his care. 236 Prior to Omar's discharge from hospital, she always stayed in accommodation at the hospital. She said she spent 95% of her time by his side and 5% in her room. 237 In the period from January to October 2003, she noticed a change in Omar in that he became able to raise a thumb when she spoke to him. He was able to provide "yes/no" response to her questions. She believed that he recognised her. 238 Not only did she continue to telephone daily after Omar's discharge from hospital but before this from early in 2003, she frequently sent him faxes with short messages. 239 In relation to the job she lost at the end of 2003, she said: "A. I really loved that job. I loved everything about it. It was such a great - I'd still be there, but my concentration level just wasn't there any more." 240 During 2004, Mrs Cohen worked for an employment agency performing general office and other work when required. In that year she did some transcription work for CSCM, a radiology group and some work for Red Wing Brands of America. She was unable to find suitable full time work. 241 After Omar went to the house at Ryde, Mrs Cohen stayed there in a spare bedroom whenever she visited Australia. Her relationship with her former husband living under the same roof, she said, was very stressful. Once for a time she moved to an apartment elsewhere but said that this was paid for her by someone else and that otherwise she cannot afford to stay, other than in the Ryde house. Fortunately with the passage of time, she has found that living in the same house as Mr Kouri's has become less stressful. 242 Mrs Cohen unsurprisingly said that Omar's accident has had an impact upon her marriage" "We - um, Steve is very supportive. It's been hard how he's kept on with it, you know. I just - I am grateful for that. It has changed a lot. I am not a wife any more. I - I waited - it was my choice but I waited until Omar was out of school and on his own and grown before I decided to pursue anything like this on my own, another marriage, because I was - it was very important to me to raise Omar and it still is, so I decided - I met Steve and I decided that since Omar was gone I would let this get farther and Steve is a wonderful man. He loves and cares for me a lot and maybe that's - but I'm not - I'm not the wife that I would like to be for him. I'm not - I'm not a decision-maker. I'm not - it's just really turning into an empty marriage and I am sorry for him - to him for that. My priority comes first for my son and how long he understands that and accepts it, I don't know. It's been a big strain, of course. " 243 Presently, she takes prescribed medication, including Hyzaar for high blood pressure and Lexapro for depression. 244 Before the accident, Mrs Cohen said she had always been in good health apart from occasional common ailments. Her only prescribed medication was for blood pressure. 245 As to the future, there was this exchange with Mr Hull: "Q. And since the accident, you have told us about the work that you have done. How do you feel about your capacity to work now? A. I've lost my ability to focus and concentrate on things like I used to. Every kind of work that I have done has always required a fair amount of that ability because of the positions I took on and I just - my work suffers from it, from the - what life has brought me right now." 246 When she is with Omar these days she said that she prepares his meals; has breakfast with him; sits with him during his meals; reads to him; watches television with him; and goes through a family photograph album. Asked by Mr Hull about Omar's sense of humour, she replied: "I don't know if he thinks I've just lost my mind or am just crazy but every day - it doesn't matter what I can do to make him laugh, he laughs, and then he must be thinking, oh, my gosh, don't do that in public. Just - we had this - there was this picture I took out of a magazine. A paper. It's this cat and it's supposed to be this cute, loveable cat that's been raised in a zoo, and they are showing it for the first time, and it is just sitting there, and he was doing it too. It's really silly. We just did funny faces, made this cat-like face, and he copies me with what I'll do. He'll try.

[199]

His humour - we can watch TV together and you can look at his face and watch his face and see him smile. He knows what's going on when you see it. He's just got a wonderful sense of humour. His ability is now just touching the surface. Being able to move with it all. He is just a happy person." 247 She believes there has been an improvement in Omar's physical capacity, particularly under a new physiotherapy and occupational therapy program. He has acquired the ability to move his arm and can respond to her request to breathe easy and relax. She gives him a lot of verbal encouragement, particularly if he seems to have done something new. She believes that carers are no substitute for the support and encouragement she, as Omar's mother, can give him. 248 Mrs Cohen produced a Father's Day card, which she said Omar selected and wrote the word "Dad" on. She said he was able to hold the pen in his right hand and write the word while she supported his elbow. 249 Finally, in evidence in chief, Mrs Cohen said that Omar is her only child and that she had hopes that he would marry and have children. She herself intended to work to retirement at age 65. 250 Mrs Cohen agreed with Mr Campbell in cross-examination that she had had bilateral carpal tunnel problems and had surgery to both her wrists. As to the suggestion that this might have affected her typing skills, she said that since the surgery she had not done much typing work and had not been able to put her wrists to the test. 251 She also agreed with Mr Campbell that the notice terminating her employment made no mention of dissatisfaction with her work performance. She said that if there had been no determination she did not think in December 2003 she would have been able to continue in the employment. 252 She did not agree that Omar had difficulty learning new things but added, "you have to be very patient". She conceded that he has a lot of restriction on his ability to communicate and that his memory is impaired. However she said, "I can talk to him". 253 Her evidence to Mr Campbell was that Omar has no difficulty understanding anything she says to him and that he communicates with her in a way she find reliable, although she recognises that he has brain injury. According to her testimony: "A. I've noticed that whereas he might remember things from the past where we lived in the United States and growing up, he remembers those things, whereas he would not remember - he doesn't remember things that have happened - it's very scattered in his memory. He might not remember - you have to remind him the day every day we are in Ryde and not in Savannah. His long-term memory, things in the past he remembers. It's a difficulty with remembering just bits and pieces since the accident." 254 She agreed that she relied on Omar's ability to communicate 'yes' or 'no' by putting his thumb up or down, and that necessarily any conversation needed to be initiated by her. However, she was optimistic that he will be able to progress in the use of a computer with the aid of DynaVox and that this will enable him to initiate conversation. She said she had researched the software and her optimism was based on more than her confidence as a mother. 255 In relation to the Father's Day card she agreed that she had put the pen in Omar's hand but said that was to help him out, as he is capable of picking it up himself, as he can pick up a spoon. 256 As to her feelings about the injuries to Omar, there were these questions by Mr Campbell and her answers: "Q. Is this right, that every day that you see Omar you are reminded of what he was once like; is that right? A. Yes.

[253]

A professional physiotherapist is an important person in something like this because that ensures a specific professional continuity of the body of Omar. Apart from the continuity of parental love and involvement, there is some changing of the guard so to speak, and a professional physiotherapist would have the base line well and truly entrenched in the physiotherapist's mind to ensure the maintenance of correct body movements. I can stop there if you like, but it goes on and on." 274 Apart from skin breakdowns, Dr Lowy identified other hazards as choking and aspiration. He noted, however, that he has strong cough reflex "which is a life saving thing for him". He said he is also theoretically at risk of respiratory disease and infection. 275 Having regard to what he described as "the extraordinary nature and commitment of the carers and his pristine body condition" he estimated 20% as maximum loss of life expectancy. He described Omar's situation "remarkable, it is truly unique". 276 Dr Lowy, who in an early report said that Omar should be turned two hourly, agreed that four hourly would suffice nocturnally. He said that physiotherapy should continue indefinitely. He though it reasonable to decide not to insert a supra pubic catheter for nocturnal urine collection because of the added risk of infection it carries. Asked whether he supported the appointment of a case manager, he replied: "Oh, well, now we're talking. Look, if I may just digress, the problem with modern medicine in general is lack of a case manager. That's a really - it's a universal problem, I think, in all aspects of treatment today. Too many players, not enough supervisors. Now, look, Omar's whole person management is a complex thing. It's wonderfully managed, in essence, by his parents, particularly Sam. However, much - as much as Sam loves him, there are professional components that he is not always aware of and professional treatments that can facilitate some shift in Omar's well-being and maintenance of his health.

[255]

It is not really possible for any one of the immediate treating health professionals to maintain an overview such as that of a case manager and it applies, I'm saying, to most medical conditions, certainly most chronic medical conditions and, therefore, I have propagated the idea from the very beginning that there should be a case manager and to me the continuity of a case manager is of vital importance and I have been a bit disappointed that the case managers have changed over the years for one reason or another, but I guess my expectation is unrealistic, but, nevertheless, a case manager and the relevant continuity that that person can provide, I think - I did consider was vital, is vital and will be vital for the rest of Omar's life." 277 Finally, in evidence in chief, Dr Lowy maintained his enthusiasm for the continued involvement of the speech pathologist, Ms Margie Logan: "Absolutely. I have written in my reports, I know - I am so impressed by the movement and the shift that - all I can say is the loving care and attention of Margie Logan is truly exceptional and not even a family member. I regard her as a magic woman. She does extraordinary things and she has gained his affection, which I witnessed, instant pleasure and recognition of Margie Logan by Omar and I have seen that on two separate occasions more than a year apart and her involvement now in the last couple of years is vital and I would continue that indefinitely so long as she can continue to do it. Marginal as the improvements might be, she is an active, positive influence in Omar's well-being and his survival." 278 Dr Lowy agreed with Mr Campbell that his involvement with Omar commenced when he was contacted by his solicitor and that initially his role was as a "facilitator" between Omar's family and the hospital. He said he was an advocate for Omar. 279 He told Mr Campbell that he did not agree with the proposition made in a recently published text edited by Zasler Katz and Zafonte that the quality of care does not have any effect upon the life expectancy of a person with traumatic brain injury. 280 He was cross-examined upon the subject of Omar's urine control over night. He said that, as far as he was aware, the present method of placing a bottle between his legs was working satisfactorily. However, he agreed that a uridome could be more satisfactory but having examined Omar said there might be problems with attachment. The third option suggested, the insertion of a supra pubic catheter, Dr Lowy said carries a risk of infection, albeit the same risk as the other devices inserted in his body. However, he conceded that a catheter could reduce the amount of care Omar needs at night and agreed that every time he is turned when the bed is wet, his skin is placed at risk. 281 Asked by Mr Campbell whether he would have expected that any real improvement in cognitive function would occur within the first 2 years, he replied, "in the major functions, correct". 282 He agreed with Mr Donaldson that taking account of Omar's height, 6 feet, 5 inches and weight over 80kg, the level of his spasticity and the need to protect his sacral pressure area, it would be safe for two carers to transfer him between his bed and his wheel chair. He suggested that at least one of the carers should be a strong man and that both should be properly trained. 283 Mr Parker, in his cross-examination of Dr Lowy, focussed on the characteristics of the treatment which had been provided. There was this exchange: "Q. And the treatment has been, in your view, beneficial for Omar? A. Optimal.

[278]

There is a global impairment in cognitive functioning. Memory, language, mental concentration and executive functioning, as for instance in relation to planning or problem solving are all severely impaired. He is now alert for electric wheel chair control for brief periods only, and can feed himself for short periods using a spoon in the right hand." 291 In relation to future treatment and rehabilitation needs, Dr Adler said that the V/P shunt and spinal pump will require periodic revision and possible replacement. He said that regular half yearly rehabilitation specialist reviews are needed and that he will require regular injections of Botox, which he regards as the key to the function of his right hand grip, his only means of communication. 292 He said that he will also require a general practitioner's visit monthly to monitor and manage chest infections, small pressure sores, bowel regime and anti epileptic drug levels and yearly review by a neurologist for supervision of epilepsy drug management. 293 Dr Adler estimated that Omar's neurological recovery would not likely plateau for a further three years. 294 He identified the need for a dietician, an occupational therapist and a speech therapist. As to the last mentioned, he said that Omar's capacity to initiate communication will be a critical milestone, which he predicted would be achieved over the next 18 months. He said a speech therapist would also maximise his swallowing ability. 295 Under the heading "Leisure and Community Outing", Dr Adler said: "With any further cognitive improvement, Mr Baghdadi will become more prone to boredom and will have to have a more structured program of stimulation, and leisure. He will always be severely physically incapacitated, and therefore opportunities need to be made available to him. The speech therapist and occupational therapist would already contribute to his leisure activities, and the attendant carer in community outings. A leisure therapist would ensure adequate stimulation and recreational activities. This would be essential if there is some further improvement, to maintain a satisfactory quality of life at this relatively young age. This may involve between 2 to 4 hours a week of leisure therapist involvement." 296 As to Omar's personal care needs, Dr Adler said: "24 hour care is needed as Omar is immobile in bed, and will require assistance of all personal care needs. Also feeding him and monitoring his fluid needs, food intake, the environmental temperature is required. He will need the taking of observations such as temperature, and pulse, due to the risk of medical complications such as chest infection and the impaired autonomic function seen in brain damage of this severity.

[282]

This assessment of his personal care needs does not assume that his parents are available." 297 As to Omar's other requirements of daily living, Dr Adler said that a computer is important; he should have an electric powered wheelchair capable of being controlled by Omar or an attendant; at a house with appropriate wheelchair access; a light weight wheelchair; a modified van or car; hydraulic lifts for the wheelchair; a lifting hoist in his home; a special hydraulic mattress; a commode chair; an internal feeding pump; suction equipment and incontinence pads. He also said that a house with environmental temperature control is essential 298 As to life expectancy, Dr Adler opined that Omar's life expectancy is approximately 75% to 80% of normal, depending on the level of care provided. 299 Mr Campbell cross-examined Dr Adler regarding his opinion as to Omar's life expectancy and put to him apparently conflicting views in learned publications based on epidemiological studies, including Shavelle and Strauss in the USA and a publication edited by Zasler Katz and Zafonte, published in 2007. 300 As I understand his evidence, Dr Adler, notwithstanding the studies and very close and detailed cross-examination by Mr Campbell, preferred his own opinion of Omar's life expectancy to that which may derive from the studies. 301 On the subject of nocturnal urine control, Dr Adler maintained strong opposition to the insertion of a supra pubic catheter which he described as a "last resort": "Q. Well, do you say a last resort in respect of the latter because of the risk of infection? A. Risk of infection. It's an invasive procedure, it has risks just putting it in and there are long-term risks, one of which is infection. There are other complications too. It is a serious decision to move onto a supra pubic catheter. It is an option, but not one that you would make hastily only because there was some bed wetting in the absence of other complications such as pressure sores actually developing as a consequence of that.

[284]

Q. Well, that is not to say that he doesn't have, from time to time, some trouble with his skin, is it? A. Well, my understanding is there have been no episodes of any sort of skin breakdown over the last three years and in theory there is increased risk. All I am saying is in actuality the practice hasn't actually - you would have thought by now if this practice was going to lead to problems it would have and it hasn't. That's all I'm saying. " 302 Dr Adler agreed that his evidence was based on what he had been told about the absence of skin breakdowns. He also agreed that the lower sacral area where Omar had a lengthy period of pressure sore development and poor healing was vulnerable and would always be vulnerable, thereby putting him at increased risk. He agreed, after some evidence of Ms Goldthorpe was read to him and he was shown notes of Royal Rehabilitation Centre Sydney compiled from early July to the end of September 2007, that control of urine spillage was a very significant issue and that the use of a uridome should be reconsidered. He maintained his view, however, that the insertion of a supra pubic catheter would be inappropriate. 303 Dr Adler said that the reason Omar needs 2 carers at night is because with urine spillage he may have to be moved. He said that there are, however, other reasons: "Reducing chest infection risk and also if there's any medical complication such as a fit." 304 He also said that Omar has, or has had, a Nimbus variable pressure bed which automatically changes the area which is subject to the pressure of lying still while asleep and that such beds reduce the need for a patient to be turned at night. However, he added that it would not necessarily follow that 2 carers would not be needed: "See, I don't see a Nimbus bed being superior to side-lying in a person with a sacral pressure area problem. There is no evidence that shows, despite the manufacturer's marketing claims, that it is a - it will ensure against development of a pressure area. They may claim that you can leave someone lying on this for eight hours and there is no problem, but there is really no proof certainly that it is really at the end superior to the approach that's been taken and there are, I would suggest, given that lack of evidence, one would need to be quite cautious, because I would be quite nervous about him being left on his back given the history of that sacral pressure area. I think that would be taking an excessive risk.

[297]

So although I have expressed in my report I haven't tried to quantify it, I've just sort of given it a pro rata number of hours per week over a year, but in fact it's likely that would be the most efficient way of using a speech therapist; to maybe have a periodic review but then when the opportunity arose for a speech therapist to capitalise on some improvement, whether it's improvement in intellect, improvement in physical functioning, improvement in his ability to sit, all of these factors dictate his capacity to use these sort of devices. But I agree fundamentally with what you're saying in that there will come a plateau. I don't think it's right through now. There will come a time when he will not need extensive speech therapy. I am not proposing that this is required ad infinitum. I would suggest though that people's needs change as they get older. Communication devices are rapidly improving over time. He's developing head control. There may be opportunities to allow him to use his head control if that improves a bit more to operate devices, so there's a bit - it's a bit of a dynamic area with Omar, both in terms of improvements with technology, subtle improvements with Omar. Even though they're small they can have big implications in terms of his ability to use communication devices." 307 Mr Campbell questioned Dr Adler concerning a report of Associate Professor Wayne Reid, to which I will make reference later in these reasons. In light of Professor Reid's findings, Dr Adler was asked whether "it seems very unlikely indeed …….that he'd ever get to the stage where he could initiate communication in the manner .. you have described", he replied: "My answer - I would say it is possible, it is possible. Based on what I have seen, less so on that neuropsychological report which is a partial assessment as can only be conducted on a severely head-injured person. There is possibility of simple initiation, of simple requests, nothing complex. No, I don't think I - he'd be able to use an air conditioner, but a light switch, possible, a request for water, possible." 308 There was further cross-examination upon the neuropsychological testing performed by Professor Reid: "Q. And we know from Professor Reid's test that three times he couldn't learn one of seven words, the fourth time he did learn one of the seven words, but on the fifth trial he was again unable to learn any of the seven words; that's right, isn't it? A. I accept that. I'm not surprised.

[300]

One of the tests used is the Raven's Progressive Matrices test. I mean, that's an abstract test. I mean, that's not easy - there's a hammer in a box. How does that compare to a sandwich in a, what, car, bag, et cetera. So it's analogies, it's abstract thinking. I'm just pointing out that some of the tests used he's going to do extremely poorly because they're looking for his ability to operate at quite a high level. We know that he doesn't. I'm not surprised that he would fail miserably at any test of abstraction, but he does have a learning ability. That's been proven. Mr Reid has to limit his - probably does have to limit his conclusions to the tests that he applies. You know, but it doesn't mean that the tests should be valued more than what we actually observe the person to be doing." 309 In re-examination, Dr Adler told Mr Hull that Botox resistance occurs in a significant number of people and that Botox may not be something which can be maintained indefinitely. 310 Yet another rehabilitation specialist, Associate Professor John Yeo, gave evidence in the Plaintiff's case. His reports were dated 4 June and 20 November 2007. For the purposes of the earlier report, he saw Omar on 31 May 2007 at the Head Injury Unit of Royal Rehabilitation Sydney. 311 Professor Yeo recorded: "Since his discharge from hospital he has not required re-admission for any serious complications associated with his traumatic brain injury. The patient remains with a profound loss of cognitive function and spastic tetraparesis with the spasticity modified to a degree in both lower limbs as a result of the intrathecal Baclofen pump. He continues however to require medication to control his susceptibility to epilepsy. The patient has had an intensive course of physiotherapy, occupational therapy and speech therapy." 312 And also: "His father confirmed that over the past twelve months his son, Omar had experienced an improvement in self-awareness and was able to have limited use of his right hand with movements to assist with feeding and was aware of his environment and appreciated his father's presence. He has been in training to develop some keyboard skills using appropriate splintage and special technology. He has still been unable to speak any words and only utters some sounds. He identifies "yes" or "no" in reply to questions by moving the thumb of his right hand. The patient remains incontinent of urine and faeces. He has pureed food by mouth given by an informed and careful carer and fluid is given through the gastrostomy tube (PEG). The patient continues with medication to help control his susceptibility to convulsions. His last seizure was approximately one week ago." 313 Professor Yeo's findings on examination were: The clinical examination on the 31.5.07 confirmed that the patient has a permanent tetraplegia with spasticity mainly demonstrated in both paralysed upper limbs. He has less tone in the paralysed muscles of both lower limbs due to the affects of Baclofen delivered by the subcutaneous intrathecal pump.

[303]

In the lower limbs, no useful voluntary movements were demonstrated in either lower limb. There was generally diminished tone in the muscle groups of both lower limbs and the patient appeared to have useful pain and proprioception in both lower limbs. He has poor balance and needs full support whilst sitting upright in his wheelchair. The patient required the assistance of two carers during the consultation." 314 Under the heading "Discussion and Conclusion", Professor Yeo said: "Mr Baghdadi has suffered serious head injuries in the work related accident of 7.8.02. He remains with a permanent and profound cognitive loss and functional tetraplegia with spared sensation. He has a permanent neurogenic bladder and bowel and remains prone to the complications of convulsions (at presently reasonably controlled by medication), increased risk of respiratory tract infection, urinary tract infection and trophic skin ulceration. The patient has very limited ability to communicate his needs due to this cognitive loss. He does however, appreciate the presence of his father and demonstrates a level of awareness of his environment." 315 He continued that Omar has benefited from "an appropriate intense rehabilitation program" and suggested that it should continue. He said that he requires a personal carer 24 hours a day and noted that 2 carers are required for dressing and undressing and for management of bowel bladder and skin. He also noted that Omar requires "appropriate nutrition given by informed and dedicated carers and that he is prone to regurgitation with reflux and possible inhalation. He endorsed the regime proposed by Ms Jan Van Groningen of 2 carers available from 7am to 9pm followed by a single "sleep over " carer from 9pm to 7am. In addition, he recommended domestic assistance, regular review by a physiotherapist and an occupation therapist and regular review by a general medical practitioner and by a neurologist. 316 Upon the important question of life expectancy, Professor Yeo said: "I have calculated Mr Baghdadi's life expectancy to be 62% of the years that now remain. This calculation is based on the assessment of his permanent tetraplegia (77%) with a further reduction of 5% for his susceptibility to post-traumatic convulsions with a further 5% reduction because of poor posture and lack of ability to regurgitation during feeding. Mr Baghdadi's severe and permanent disabilities are the direct result of injuries, which he sustained in the work related fall on the 7.8.02. No further significant recovery will occur." 317 Professor Yeo reviewed Omar at his home on 15 November 2007 and subsequently reported to his solicitors. He confirmed his previous findings but noted: "The patient is unable to utter any spoken words and has a widely divergent gaze. He indicates a "yes" or "no" by movement of the right thumb and has slight movement in the right forefinger. He can manage to place some food in his mouth with the assistance of a splint but requires, for his safety and well being, a full-time carer" 318 In this later report, Professor Yeo revised his previous estimate of life expectancy upwards to 67% of the years that now remain because of the absence of regurgitation during feeding. He also modified his opinion as to the extent of overnight care required, expressing the opinion that 2 carers are required 24 hours a day. 319 In this second report Professor Yeo also suggested that Omar would benefit from the provision of a small heated spa pool, which would allow him to achieve some degree of movement. 320 Questioned about a chapter entitled "Life Expectancy" in a book, Brain Injury Medicine Principles and Practice, contributed by Shavell and others, he, in effect, preferred his own analysis of Omar's life expectancy broadly, as I understand it, because the chapter, which was a statistical survey, did not permit a close enough analysis of the care provided to the members of the groups within the survey. 321 In oral evidence, Professor Yeo told Mr Hull that although generally speaking after 2 years post injury, a patient has plateaued, in Omar's case because of the Botox injections, he is showing improved functioning after 5 years. He said that he is "still learning". As to how long Botox should be considered and how long speech therapy should continue in a head injured person, he said that Botox has only been widely used for 2 or 3 years. I interpolate that according to Dr Lowy, Botox injections were administered to Omar as long ago as 2003. 322 The subject of whether it is appropriate for Omar to continue living in his own home was raised by Mr Hull. There was this exchange: "Q. Can I ask you just two questions about that topic. First of all you have now had the opportunity of seeing him in his own home rather than in the hospital. Did you form any views about his insight and therefore the appropriateness of him living in his own residence as distinct from some form of institutional care? A. Mr Baghdadi has recovered from his severe cognitive loss as a result of brain damage a good deal of awareness. He responds to his father and mother. He responds to his carers. He responds to a visitor, be it a professional visitor such as myself or others. He has a means of communication which is essentially one of moving a thumb and forefinger to verify or deny whatever suggestion has been put to him in conversation. Therefore it was my interpretation that he had an understanding and an appreciation of his environment. For that reason medically I would not recommend that he would be nursed in the future in an institution.

[311]

Q. Just speaking about the patient's wishes, have I got the right impression, if I can put it that way, that a lot of what you understand to be the wishes of Mr Baghdadi about these matters has been derived from what Mr Kouri has told you about what Mr Baghdadi feels? A. Yes." 325 In answer to Mr Donaldson's questions regarding Professor Yeo's change of heart as to the desirability of providing a spa pool for Omar, Professor Yeo said he based this on photographs of Omar in the pool apparently enjoying himself. He did not have any information as to the number of times Omar went into the pool or as to whether he performed any exercises. 326 It is convenient to refer next to the evidence of Ms Joanna Goldthorpe who qualified as an enrolled nurse in England in 1989. She worked there as a nurse and came to Australia in January 2005 to take up a position with Global, where she became involved with the care of Omar. Her role is to coordinate the rosters for and the work of the carers and to liaise with Global. She also liaises with Omar's therapists and with his parents. In certain respects, she said, she regards herself as a case manager but Omar's parents also perform that role. 327 She said that the therapists in regular attendance upon Omar are Ms Margie Logan, speech therapist; Mr Phillip Wheen, physiotherapist; and a podiatrist. 328 Normally 2 carers are in attendance but a third person comes in every second day for 2 hours between 9am and 11am. This third carer helps to shower Omar, the evidence being that he has an enema and a shower every second day. 329 Ms Goldthorpe said that she personally, with the assistance of only one other person, had bathed Omar on the bath table in the laundry and found it very difficult because of his size. He has to be held on his side while his back is washed and this is very difficult for one person when he is wet and slippery. Originally, the third person assistance was provided by Mr Kouri but since he hurt his back, Global has provided a third person each second day. 330 Ms Goldthorpe outlined the carers responsibilities as including giving Omar his medication; eye drops every 4 hours during the day; feeding him with meals prepared by Mr Kouri and Mrs Cohen, a long and difficult process; supplementing his nutrition; and giving him water via the gastrostomy or PEG tube. 331 She said that between 7pm and 8pm Omar goes to bed for his night's sleep, being transferred from his wheelchair. She washes him, arranges him on his side and positions a urinal bottle between his legs, which is checked every 20 minutes, or more frequently if he coughs. At 11pm he is repositioned on his other side and the urine bottle is also repositioned. The same procedure occurs again at 3am. At 11pm when he is turned he is given Tegretol via the PEG and fluid. At 3am he is given fluid only. Omar wakes between 5.30am and 6am, when his face and hands are washed and he is given a drink. 332 She said that she has been on duty when the urine bottle has moved, causing urine to spill and necessitating the bed linen being changed around Omar, a task which requires two people. According to Ms Goldthorpe, the urine bottle can spill up to several times a night but some nights there is no problem. I note that to some extent in relation to nocturnal urine problems, Ms Goldthorpe's evidence conflicts with the evidence of another carer, Mr Robert Messitt, to whom I will make reference hereafter.

[315]

335 Ms Goldthorpe said that one of the duties of the carers is to monitor the PEG, which is a potential source of infection. The balloon which holds the tube in Omar's stomach deflated at 11.30pm some months ago and the tube fell out. This necessitated Omar being taken by ambulance to hospital. The fact that the tube remains in place has to be constantly checked. In any event, Dr Nielson changes it at about 3 monthly intervals. 336 On alternate days when Omar is not showered, he is given a full wash in bed before being dressed for the day. Each afternoon there is normally some therapy, Omar sits at his computer and he may have an outing or simply sit in the garden. The program is unregimented but everyday he is exercised by his carers who also attempt some speech therapy and splint his legs to prevent his muscle contraction. Asked how long is it appropriate for Omar to sit in a chair, she replied that it is about three and a half hours, "enough time for him to go to the movies and come back". 337 Normally he has his evening meal about 5.30pm and he watches "The Simpsons" on television at 6pm. 338 Asked by Mr Hull whether she had noticed any change in Omar's insight since January 2005, she replied: "A. Um, Omar is a lot more responsive, and even though you - what you see is just question and no answers if you speak to Omar you can tell a lot more in emotion in Omar he's - and he is freer with his emotions so he will laugh appropriately and you can see distress more. If you were to have a conversation with him he picks up on the, on any, on the environmental constraints around him so if there's a little bit of conflict, or there is, or even if you are not feeling too good, if the staff aren't feeling too good Omar will let you know, but that he will ask you if you are okay. " 339 When Omar watches television or a film, she said that he laughs in appropriate places. She was present when he went into the swimming pool during the 2006/07 summer, "he had a huge smile the whole time that he was in the pool". She identified the photographs depicting him in the pool with a smile on his face and with his thumb up. 340 In December 2006, Omar was taken on holiday to Nelson Bay. He was accompanied by his father and 3 carers working in shifts. She said that number was inadequate for Omar's needs as it required each carer, in effect, to work for 16 hours at a time. 341 According to Ms Goldthorpe, there has been noticeable improvement in the function of Omar's right arm since the Botox injections commenced. She said that he is being encouraged to feed himself and, with assistance, he brings 2 or 3 spoonfuls of food to his mouth each meal. 342 She agreed with Mr Donaldson that a more suitable commode chair than the one now available to Omar would obviate the need for a third carer to assist with showering. He could be transferred from his bed into a suitable commode chair with the available hoist. 343 I next make reference to the evidence of Ms Michelle French, an occupational therapist by profession, who has conducted her own practice since 1992, primarily dealing with children and adults with severe and multiple disabilities and impairments. 344 She assessed Omar at his home on 13 April 2007 and recorded his presentation in these terms: "Omar presented as a severely and multiple disabled man in his mid twenties, with limited voluntary movement. He was lying in his bed with attendant care support upon our arrival, and was assisted in all bed mobility, personal care routines, and transfers by his attendant care workers.

[319]

Bed controls, switch mounting systems and an environmental control unit which coupled with an intensive switching program would maximise Omar's potential to gain functional independence. A gym mat, a height adjustable plinth, a height adjustable stool. Slings A motorised wheelchair with attendant controls for use outside his home. A manual wheelchair for use in the home. A lounge chair. A Roto high profile pressure cushion. A custom built home. A laptop or notebook computer with docking station. A variety of software packages. Alternative access systems for use with some of the software applications. A multi function printer. An electronically height and angle adjustable desk. A therapeutic bath. An electric shaver Assessment by an incontinence specialist. A set of 48 neckerchiefs annually. A fully adjustable bed such as the "Volker" bed. Incontinence covers for his pressure mattress. Domestic assistance, home maintenance assistance and garden maintenance assistance. A wheelchair accessible van such as the van he currently uses. A set of Decpac portable access ramps for accessing the community. Visits to his mother in the United States: 4 weeks of holidays annually. Regular occupational therapy. Case management services. A tilt table. Various positioning rolls and wedges. A gel pad. An annual allowance of $500 to provide appropriate equipment items associated with daily hand care routine. A wax hand bath. Wax replacements. Hand towels, rubber gloves and cream. A weekly massage. A mobile hoist. A ceiling hoist" 346 Ms French estimated the annual cost of the home equipment she suggested at $46,450 ($893 per week). She also costed occupational therapy and case management services on an annual basis at $14,840 ($285 per week), plus one off items totalling $75,314; and her recommendation for domestic assistance, home maintenance assistance, and gardening assistance at $13,137 per annum ($252 per week). Finally, she costed, according to four different scenarios, the provision of attendant care such costing ranging from $463,733 per annum ($8,918 per week) to $673,888 per annum ($12,960 per week). 347 In her report and in oral evidence, Ms French said that she regarded the present system of showering Omar on a shower trolley as unsatisfactory. In her view, a shower commode chair or a hydro-bath would be preferable, as posing less risk of damage to his already vulnerable sacral region. 348 Upon the subject of a hoist, she gave this evidence to Mr Hull: "Q. And can you just explain the advantages to his Honour of the hoist ceiling system in relation to his mobility? A. Yes. At the moment Omar has been - all his transfers, so from bed to chair, chair to bed, chair to shower trolley, are being completed by use of a mobile hoist. That's the hoist on wheels. The sling is placed under him and he is hoisted up. It is a cumbersome way to transfer him and it is when you talk to people who are being transferred using a mobile hoist they actually don't feel very secure in that way. What I have recommended is a fixed track ceiling hoist, so we install a fixed track along the ceiling and there's a hoist bar that comes down from that. We attach the sling to that. The advantages of using a fixed track ceiling hoist is that with two carers you have one carer walking with Omar and then turning him around and if you were transferring him into his wheelchair you would have one person at the back of the hoist sling pulling Omar back into position using the hoist sling and one at the front positioning him to make sure he is seated and positioned in his wheelchair correctly and comfortably the first time. Similarly with a fixed track ceiling hoist, you run the fixed track directly into the bathroom and over the bath so it is a direct transfer from bed straight into bath and it is the only time the hoist sling is usually left in place is underneath the client while they are in the bath.

[343]

Q. I won't go over the ground that Mr Campbell has already gone over but based upon Omar's progress to date, it is unlikely that he is going to achieve a functional level that makes it either necessary or appropriate for him to be controlling those things, isn't it? A. I disagree. I don't think his switching has been fully explored or optimized as yet and all he needs to utilise an environmental control system is the ability to use a single switch. When I assessed him, he demonstrated very clearly that he is able to use a single switch. I think it is more the issue that he hasn't had the opportunity to date to use an environmental control system." 356 In re-examination, she told Mr Hull that her recommendation for the provision of an adjustable change table was predicated on Omar being showered in a commode chair or bathed in a bath. 357 An important issue in the case concerns the extent of Omar's continuing need for speech therapy. The principal witness in his case on this subject was Ms Margie Logan, although I have already made other references to the subject in the evidence, especially of Dr Lowy. 358 Ms Logan, in her report dated 15 February 2007 to Turks Legal, the solicitors for Kaybron, said that she has been treating Omar twice weekly since 31 October 2003. She said that there have been 2 periods of inexplicable deterioration in his functioning, including swallowing and communication abilities, first in September/October 2005, and again in January/February 2007. On both occasions he was hospitalised for investigation of his shunt. 359 She put into 2 categories her treatment of Omar, namely "Swallowing" and "Communications". After reciting early difficulties with swallowing, she noted, "as with all of Mr Baghdadi's treatment, progress was steady but very slow". 360 She said that Omar progressed to being able "to reliably take food from a spoon by closing his lips around it by December 2004". In early 2006, she said he had progressed to a level where, "he was able to take isolated pieces of soft food which he could with some competence move voluntarily from the centre of his tongue to his molars (usually left) and masticate before swallowing". Great care needed to be taken in feeding him due to the danger of choking. 361 In a supplementary report dated 15 November 2007, Ms Logan said under the heading "Swallowing": "Omar was nil by mouth after an undiagnosed deterioration in his swallowing abilities in February 2007 at the time of my report to Turk Legal. Within weeks of this he improved to his previous level and has since been taking an oral diet of pureed foods and thickened fluids. In addition, he has recommenced taking some very small sips of unthickened fluid via a teaspoon or straw dropper. He swallows (sic) remains severely impaired. He required modified fluids and food and full assistance to feed him though he has recently commenced feeding himself with a spoon." 362 In her February 2007 report, Ms Logan commenced the section on communication: "Initially Mr Baghdadi's responsiveness was sporadic due to his limited ability to initiate any voluntary movement so that he was often rendered locked in. Initial assessments were painstakingly slow due to the inordinate amount of time, and amount of assistance it took for Mr Baghdadi to produce a single response. Determination of his linguistic abilities took many months to determine. Nonetheless, it was eventually established that Mr Baghdadi basic auditory comprehension and simple reading were intact. He was able to demonstrate an ability to name objects and answer questions. Mr Baghdadi was highly motivated to verbalize and many months have been spent working on achieving voluntary vocalization and mouth movements. He can now coordinate a forceful exhalation and redirect his air out his mouth rather than nasally to produce an audible exhalation like a whisper. He can produce some voluntary vocalisations when lying flat can reproduce these on instruction in this posture. Only on occasions can he voluntarily produce voice when seated without vocal stimulation (e.g. airway penetration, coughing or hiccough). Mr Baghdadi has had some impressive improvements in his mouth movements though he remains non functional in terms of oral communication. He commenced being able to widely open and close his mouth to command. He can become stuck with his mouth open and have difficulties closing it again. Training has been undertaken to modify these movements and to move towards more purposeful oral mouthing. Mr Baghdadi can now mouth his name on occasions." 363 After explaining that most of Omar's communication training has involved using augmentation to allow him to communicate non verbally, she said: "Various switches were tried that might enable Mr Baghdadi to select items with minimal movement on a device that scans choices (e.g. on screen keyboard). No devices tried at this time were successful due to difficulties with scanning, or limited motor function. In order for Mr Baghdadi to improve sufficiently that he might be able to use a switch for communication purposes he needed something available to him in order that he could mass practice. To this end, a Playstation 2 was purchased to enable him to engage in purposeful and timely activation of a switch for practice purposes. He required assistance and, on occasions, verbal prompting to achieve initiation of switch activation to participate in a game. He could only use part of the console (either the button or joystick but not both) so needed assistance to use any game. He did improve his accuracy and timeliness of switching through use of the Playstation 2.

[347]

Mr Baghdadi can do some writing with a pen legibly and independently on occasions - for example correctly writing "Wed" when asked what day it was. When he is assisted he answers questions unknown to the assistant". 365 As to his cognition, Ms Logan said: "Cognitively, Mr Baghdadi demonstrates chronic memory and new learning problems. He was disoriented to time and place, however, he does have the capacity to learn with mass repetition, and now recalls where he is and often the day of the week. He recognizes people he has met before and can learn names with mass practice. With his improved capacity for expressive language due to improved use of typing, writing etc. it has become apparent that generation of ideas is somewhat limited for Mr Baghdadi. He finds open ended questions, at times, overwhelming and when questioned indicates that he can't think of a response e.g. "what would you like for lunch?" At times he can't think what to write when composing a card or email to his mother. At other times, though, he answers similarly complex question such as "Who is your best friend?" He types or writes appropriate questions to initiate conversations e.g. "What are you doing at my place?" 366 In her report of November 2007, she said that a re-assessment of Omar's language abilities had occurred over the previous 3 weeks. She said that he answered verbal "yes/no" questions with his thumb and demonstrated an ability to read and comprehend passages up to 2 sentences. Omar was able to match correctly written words to pictured objects, shapes, numbers, letters, colours, and items around the room and body parts. He was able to recognise words read aloud from a choice of 6. 367 Under the heading "Expression", she included these comments: "All verbal expression had to be written, typed or multiple choice due to Omar's inability to speak. At the time of this testing handwriting was the most independent and quickest form of response so was used for most of the testing purposes.

[425]

Q. The scope for improvement after that time is very limited; that's so, isn't it? A. In terms of restoration of function, yes." 377 Later in the cross-examination, Ms Logan said that she estimated it would be another 4 or 5 years before "we can really reliably develop the system so that Omar can use it with people independently". 378 I have already mentioned Mr Robert Messitt, one of Omar's regular carers since August 2005. He gave evidence as to the activities performed by carers from the time Omar wakes up between 5am and 6am. He was unchallenged upon his testimony that feeding Omar, bathing him, administering an enema every second day, checking his skin, attending to his oral hygiene, laundering towels, linen etc., making his bed, dressing him, performing other household duties, making notes, exercising him, carrying out procedures recommended by the physiotherapist, applying arm splints, assisting Ms Logan when she is in attendance, and carrying out exercises suggested by her when she is not present, keeps both carers fully occupied all day. Sometimes, late in the afternoon, they take Omar into the community, a shopping centre or the cinema, which Omar seems to enjoy. 379 Mr Messitt said that in previous positions he has been involved in the use of a uridome, but so far as he is aware, a uridome has never been trialled on Omar. According to Mr Messitt, Omar's penis " has been retracted a lot and that is why it hasn't been used'. 380 In the week he gave evidence, he said that a piece of equipment called a Mag 7 arm was being trialled, this device being designed to support and aid arm movement. 381 Mr Messitt supported Ms Goldthorpe's evidence as to Omar's typical daily regime and as to the carer's duties. He said that Omar moves a lot during the night with spasms and stretches. With experience, he said he has learned to avoid spillage from the urine bottle, the last one being a year previously. 382 According to Mr Messitt, Omar has one other long term carer, Richard Cresham, apart from Joanna Goldthorpe. They themselves train new carers as part of their responsibilities.

[429]

Q. And in terms of manual assistance in relation to the use of the commode chair what would your expectation be? A. My experience has been that sometimes more manual assistance is required to keep repositioning the client because they fall to one side or they slip and we've also experienced significant pressure problems with the seating used in some commode chairs. " 388 In the earliest of several reports, Ms Van Groningen recommended that a registered nurse should be retained to lead Omar's care team: "This recommendation is based on the fact that Omar has a complex medical history and remains at risk of seizures, blockage of his VP shunt, chest infections and may require complex wound management if his skin breaks down. It has been my experience that if the care team are provided with a competent and enthusiastic registered nurse to lead the team, assist with assessment of complex medical issues, prepare care plans, supervise medication administration and documentation, provide resource material and staff training, monitor rosters, act as a liaison person between staff and the family and be available for out of hours consultation (within reason), that the overall care provided to the client is of a higher standard. This is generally because a registered nurse has a greater theoretical nursing knowledge base from which to draw nursing and medical information and the confidence and experience to apply this information to complex care situations." 389 Ms Van Groningen repeated this recommendation in her most recent report dated 10 October 2007. 390 She was cross-examined by Mr Donaldson as to whether it is a practical possibility to engage carers for short shifts. She said that most agencies require a minimum, being 4 hours for a registered nurse and 2 hours for a personal care assistant. 391 The final medical witness called in Omar's case was Ms Kate Pickering, a registered nurse employed by Drake Medox as manager of its medical division, a position she has held for 5 years. Her employer, as I understand her evidence, acts as an employment agency for nurses and other medical personnel. She attended Omar in his home over a period of 2 hours and observed the care provided to him. She noted and believed it to be necessary that 3 carers were involved in his transfer from his bed to the shower trolley. She thought this necessary, both for the health and safety of the carers, and also to reduce the risk of breaking Omar's skin. Like Ms Van Groningen, she was of the opinion that a registered nurse should be part of Omar's care team. 392 In her present role as manager of NSW, ACT, South Australia, and Northern Territory, she said there are in excess of 25 people with high complex needs on her employer's books who live in the community. She costed Omar's care on an annual basis at $806,766, including an allowance for a registered nurse working 40 hours per week to coordinate his care needs having regard to his complex medical history. 393 Ms Pickering, however, agreed with Mr Campbell that the present system is working well with Mrs Goldthorpe, an enrolled nurse, effectively the care team leader. 394 She was questioned by Mr Campbell as to the difference between the regime she proposed and the regime presently in place: "Q. And can I ask you this question Miss Pickering please, is the regime that you have set out in these schedules effectively the same as the regime that Mr Baghdadi is currently receiving? A. I believe not.

[482]

The subsequent helplessness and powerlessness that this induces in Mr Kouri reminds him of the many time Mr Kouri has felt hopeless, and powerless since Omar's injury. Efforts to limit this would hopefully go some way towards reducing the chronicity of Mr Kouri's symptoms of post traumatic stress disorder and depression." 410 Dr Clarke updated her previous report in a report dated17 November 2007 in which she emphasised the extent to which his attention to Omar following the accident has been "all consuming". 411 In the report, she expressed the opinion: "At the time of writing my first Treating Doctor's report dated 8 March 2006, I concluded that Mr Kouri was suffering from post traumatic stress disorder with consequent depression. Having treated Mr Kouri for a further 20 months, my opinion remains unchanged. Despite the fact that Mr Kouri's mood and motivation have improved slightly in the past few months his overall outlook for recovering from PTSD is poor. Mr Kouri's general medical health has deteriorated over the past five years. This deterioration can be partly attributed to the normal ageing process. However, I believe that this deterioration in Mr Kouri's health is in excess of what would have been expected if his son Omar had not sustained the severe injuries that he did." 412 She proceeded to state a number of conclusions, one of which being: "Not return to work as this would be likely to exacerbate his hyper vigilance and may cause a worsening of PTSD and depression symptoms." MEDICAL REPORTS - MRS COHEN: 413 Medical reports in respect of Mrs Cohen were tendered as exhibit G. She also was examined at the behest of her solicitors by Dr Robertson and Dr Phillips. She had previously sought medical intervention in Savannah. 414 Dr Robertson who examined her on 9 November 2004 diagnosed "Pathological Bereavement Reaction", which he pointed out is not within DSM IV. He said the DSM IV diagnosis is probably of a chronic adjustment disorder with depressed mood. 415 Dr Phillips assessed Mrs Cohen nearly a year later in September 2005. The history taken by him included: "She was in the United States when she received a telephone call from Omar's father at approximately 5.30am 7 August 2002.

[510]

It is hard to know whether Ms Cohen's current psychological symptoms are temporary (albeit relatively chronic in type), or whether they will continue in the future. Whilst I do not doubt the plaintiff's underlying psychological resilience, she will have to contend with Omar's ongoing extreme handicap, this militating against her full recovery. More likely than not, the plaintiff should make some useful progress with treatment but I do not foresee her making a full recovery." 420 Dr Phillips reassessed Mrs Cohen in July 2007 at a time when she was making her 13th trip to Australia. He took a history of continuing symptoms: "She is fearful that she might die and she questions herself how her son might cope if this were to occur. She noted that she could not think who might take care of her son in the long-term. In her words, "it worries me a lot". She is "aggravated" by the attitude of her former husband. She noted that he makes comments which she finds to be hurtful. He has told her, amongst other matters, that he does not wish her to stay in his household. She feels a powerful need to take care of her son on an ongoing basis. She wishes that she might live in Australia and then become available on a daily basis to assist with her son's care. She sleeps poorly, particularly when in Savannah. She thought this was the outcome of being "too far" from her son. She has recurrent dreams about her son (with some dreams going back to her childhood, and other dreams of not being able to reach her son). She sleeps for no more than six hours and described herself as "unrefreshed" in the morning. She feels "nervous" at all times. She tends to bite her fingernails in this state. She is concerned by strains within her marriage. She noted her first allegiance is to her son. She has lost confidence generally. She is self-critical about her role in her son's care. She added that she is not able to make major decisions about her son, as she is the alternative guardian. She is unhappy about her appearance, particularly that she has put on a significant amount of weight. She now weighs 197 pounds. She is troubled by a sombre mood just about at all times. She notes her mood is worse when she is separated from her son. She believes that she has undergone a change in personality. She described herself as previously having been a quiet and easygoing person. She added that she now notes herself to be constantly "on edge" and to be ruminating about the unknown. She is troubled by a general loss of motivation. She experiences ongoing fatigue." 421 Finally, Dr Phillips concluded that Mrs Cohen's prognosis "remains uncertain". THE DEFENDANTS' MEDICAL EVIDENCE: 422 Several medical specialists and medical professionals were called by the defendants. I will commence a review of their evidence with that of Associate Professor Richard Jones, a specialist in rehabilitation medicine. 423 Professor Jones first assessed Omar at his home on 6 December 2005. He provided a substantive report of that date and, also bearing the same date, a number of supplementary reports dealing individually with particular issues. The substantive report included: "Mr Baghdadi suffered catastrophic brain damage in a reported incident on 7.8.2002. He is now dependent on others for all personal care and all activities of daily living including those of a domestic nature. His condition is stable and there will be no recovery that might improve his level of independence in personal care and activities of daily living. . Understanding the delicate nature of the personal involvement of Sam with his son Omar, I did not question him extensively on the needs for such an intensive continuing personal care and rehabilitation program. My comments therefore would be directed towards a reasonable program of support and maintenance care for a person with Omar's impairments. The installation of an intrathecal Baclofen pump would seem to have been successful in the control of the difficult hypertonicity and spasm associated with his brain damage. He requires a carer to feed him orally with pureed foods and to access his PEG tube for the installation of fluid and medications. That personal care would require one carer. He has a sling and electric hoist that I believe could be used by one carer, although 2 carers would make the performance of transfers quicker. Such dual carer provision would require I believe approximately 1.5 hours each morning and 15 to 30 minutes in the evening. His other maintenance hands-on therapies could be provided on instruction by his carers who would not need to be trained in nursing but would have empathy for the care of person with severe impairments. His bladder management would be by pads during the day and a collecting system in the evening. That may be a bottle, although one would consider the possibility of a uridome which was reportedly unsuccessful in the past. During the evenings I believe that he would require an attendant carer who could be on sleep-over. It is possible that every 2 to 4 hours he could be turned in bed although the alternating pressure mattress should be sufficient to prevent recurrence of decubitus ulceration." 424 Professor Jones said that Omar requires a wheel chair accessible home and suggested that it be air-conditioned. He also said that he requires a suitable vehicle for transportation outside the home. In his opinion, Omar would not be capable of operating any ambulatory equipment. 425 He then said: "His condition will not improve to any extent that would alter the prescriptions for personal care and he has no vocational potential. He will have recurrent episodes of the complications of his severe impairments including occasional aspiration of fluid or food and saliva, and there is the ever-present risk of upper respiratory infection and ultimately pneumonia. There will develop with the progression of time gastrointestinal problems and there is a probability that urinary tract infections will supervene. Of great importance will be his epilepsy which would appear to recur from time to time despite the exhibition of anti-epileptic drugs. Uncontrollable epilepsy is a possibility and may impact upon his life expectancy. Attritional changes will occur because of his recumbency and may include pressure necrosis and vascular disease that might result in cardio vascular disease. Whilst his carers will provide passive movements, no treatment of a physical nature will prevent the development and permanence of various joint contractures." 426 Professor Jones opined that Omar will require review at least 3 to 4 times a year by his family physician and review by a neurologist or other appropriately qualified person to manage his multiple impairments. He noted that the Baclofen pump may require reprogramming from time to time, as Omar becomes resistant to the doses of Baclofen released by it. 427 Accepting that Omar will be vulnerable to pressure sores, Professor Jones said: "They would have occurred during his difficult acute management and can be reduced in incidence by the use of an alternating pressure bed, a water bed, and appropriate cushions."

[511]

428 Supplementary report B. dealt with the subject of carers: "As a medico-legal referee and in experience of managing person such as Mr Baghdadi and the way he presented on 6 December 2005, I am of the opinion that he would require 2 carers at various times of the day and on other days he could be in the attendance of one carer. Those provisions have been outlined in my report. He will need somebody to be in his near vicinity for 24 hours a day, 7 days a week, and the person during the evening may be on sleepover, although it may be appropriate as a matter of comfort that Mr Baghdadi be turned at 3 to 4 hourly intervals. The use of an appropriate reciprocating mattress would obviate those needs for greater turning and indeed may be sufficiently functional to remove the risk of decubitus ulceration. I can make no comment as to Omar's level of comfort during the evening that might require occasional turns. Clearly he would be unable to turn himself." 429 In supplementary report D, he said that there was no medical indication for a pool and spa, which he said could be potentially dangerous. 430 In supplementary report K, Professor Jones addressed Omar's need for further therapy: "Omar's therapy will be provided by his carer/carers and these treatments may be reviewed from time to time and modified by the physiotherapist or occupational therapist, perhaps at 1 to 2 times per year, the occasional visit of a therapist to provide hands-on treatment would be of little value bearing in mind the constant attention of his carers who will provide various passive movements which may to some extent maintain his mobility, although would not be in any way curative." 431 He added, however, that Omar will need a podiatrist to attend to his hands and feet, which may consume about 1 hour per month. 432 Professor Jones said in supplementary report M that he was not of the opinion that Omar would benefit from vacations, although he thought he would benefit from occasional excursions outside his home. 433 A later report dated 30 March 2006 addressed life expectancy. After recording that Omar is at risk of aspiration of fluid or food and saliva, upper respiratory infection, gastro intestinal problems, urinary tract infections, recurrence of epilepsy, pressure necrosis, vascular disease, and joint contractures, Professor Jones said: "My experience in the management of such severely impaired persons would suggest that he is unlikely to live beyond his 5th decade and it is probable that by the age of 45 he will succumb. This prognosis is made on the basis of experience and bearing in mind the multiple problems that Mr Baghdad exhibits and which are not infrequent in persons having suffered the catastrophic injuries that he has suffered." 434 In his oral evidence Professor Jones told Mr Perry that his expressed opinion as to Omar's life expectancy was not affected by any of the articles and papers earlier referred to in evidence. 435 In relation to his mention of the occasional aspiration of fluids and saliva as a factor in reducing Omar's life expectancy, there was this exchange with Mr Perry: "Q. Now, one of the factors which tends against, in your opinion, an expectation of life beyond a certain age in Mr Baghdadi is recurrent episodes of the severe impairments, including occasional aspiration of fluid and saliva. Doctor, evidence that has been led in this case is that Mr Baghdadi has retained a strong cough reflex. Accepting he has a strong cough reflex and I think you heard him cough when you were at his place in December 2005, did you not? A. Yes.

[517]

Q. Urinary tract infections again doctor have not been a feature of his presentation to date. Is that some cause for optimism in terms of prognosis? A. In a person like Mr Baghdadi, it is often very difficult to diagnose acute infection or even low grade infection. It happens and you don't know it has happened. If it is an acute infection, they are violently unwell. Regularly they get urinary tract infections. You treat them, but that is not always good because they can then get a super infection, a bacteria that becomes resistant. Eventually it will happen. We don't do investigations every week to find out, but eventually it happens more seriously as time goes on. We are looking at a long way down the track. He is in his 20s now. We are looking at another 20 years until he is in his fifth decade." 437 Mr Webb, in cross-examination, pressed Professor Jones upon his opinion that statistics in relation to the life expectancy of persons with spinal injury are largely irrelevant when considering the life expectancy of people with traumatic brain damage: "Q. Professor, you were asked in the life expectancy area of the usefulness of relying as an initial point on the statistics relating to the life expectancy of paralysed people and if you might excuse me with some asperity, it is not very useful because it is entirely different conditions. Could you just enlarge to some extent, please in the life expectancy area upon the difference between somebody who is, who suffered a spinal injury and someone who has suffered, like Mr Baghdadi, a brain injury which has effected a paralysis? A. Well, they are not compatible. You cannot compare them. If you want me to go through all the injuries of spinal injury; it depends on the level, the brain stem region; if they are on a respirator they are going to die fairly quickly. You come to quadriplegia; people may live many many years. Many of my patients were committing suicide. They are going to be dead in a year or two. There may be some of my patients who have been living - I have been around some of my patients 40 years down the track. I have lost a lot very quickly. If you put 40 years and 2 years, statistically the life expectancy is 21 years, but that is a furphy, that doesn't happen. That's why I say to people you have to assess prognosis on the information you have about an individual person. Statistics are fine, that is good to have. Some of the problems with spinal injury are the recumbency problems, the vascular problems are not dissimilar but they are not identical. The bladder problems are quite different. The spinal bladder is not the same.

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440 Professor James Lance AO, neurologist, was also called as a witness in P& M's case. He examined Omar on 27 January 2006 at his home in the presence of Mrs Cohen and 2 carers. In a report dated 31 January 2006, after reviewing Omar's personal background, the circumstances of the accident; the injuries suffered, and the care regime in place, he made these finding on examination" "Mr Baghdadi was lying back in bed, supported by a back rest. His upper limbs were flexed and his lower limbs abducted with plantar flexion at the ankles. He was aware of my presence, fixated with his eyes although with a divergent strabismus (crossed eyes) and indicated to me that he could understand what I was saying as he endeavoured to comply with my requests. He was unable to speak but I could hear him exhale forcibly when he tried to do so. He had a gastric feeding tube in place, which is being used for the administration of fluids. He is fed pureed food by mouth but this sometimes causes aspiration. Fortunately he has a good cough reflex. When he yawned, I observed a reflex flexion movement of his upper limbs. As far as could be ascertained by hand movements, his fields of vision were intact. His eyes were looking down and out and he did not appear to be able to elevate his eyes above the horizontal. Adduction was poor on both sides, more on the left than the right. I interpreted this as partial bilateral third cranial nerve palsies. His pupils were small and reacted to light. There was no ptosis. Sensation of his face appeared to be normal, but I did not test his corneal responses. He appeared incapable of any voluntary movement of his face. I observed a marked pouting response and a brisk jaw jerk. He could open his mouth and protrude his tongue. I did not test his gag reflex. Muscle tone was markedly increased in his right upper limb which was held in the semi-flexed position. He could lift up his right arm to touch his nose and could partially extend the arm. The fingers of his right hand were firmly flexed in contracture but his right thumb was mobile and he used it to signify "yes" by abducting the thumb. He was able to squeeze my fingers with his right hand on request. Muscle tone was greatly increased in the left upper limb which was held in a semi flexed position. No voluntary movement of the left arm was apparent. Muscle tone was not increased in the lower limbs but there was no voluntary movement. I observed that he was wearing an incontinence pad. I was told that he had an ulcer approximately 2cm in diameter in his natal cleft but did not examine this. I was told that he had a methicillin resistant staphylococcus grown from his gastric feeding tube. He has occasionally had chest infections in winter. I was told that his blood pressure was usually recorded at 95/60mmHg. 441 Professor Lance provided this prognosis: "There are few studies of long term survival in adults with severe brain injury. A study by Strauss et al. (1998) of 946 patients aged 5-21 years suffering from traumatic brain injury found that life expectancy for those patient who did not regain mobility within six months averaged fifteen years but, in view of the excellent care that Mr Baghdadi is receiving, he could survive to fifty years or more." 442 Professor Lance, in a separate report, answered some specific questions asked of him by P & M's solicitors including the following with the Professor's answers appended: "Whether Mr Baghdadi's claim for two carers to assist him 24 hours a day, 7 days a week is reasonable? If so why? Mr Baghdadi's claim for two carers to assist him 24 hours a day, 7 days a week is reasonable, because he is completely unable to attend to any of his requirements but has retained awareness of his surroundings. He requires constant attention to positioning to avoid pressure sores and chest infections. Whether in your opinion, Mr Baghdadi requires the use of a hydrotherapy pool? I can see no indication for the use of a hydrotherapy pool." 443 Like Professor Jones before him, Professor Lance would not concede the relevance to brain injury cases of mortality studies focussed on spinal injury. He explained his reasoning: "Q. Amongst the materials that you were sent to consider more recently, were you also provided with a copy of Professor Yeo et al's paper concerning mortality following spinal cord injury? A. Yes, I have. I was.

[541]

Q. Do you think he would ever be in a position to initiate use of a more sophisticated communication device? A. No. 447 He conceded to Mr Campbell that although he had examined many patients in a similar situation to Omar at various points of their illness, he had never been responsible for continuing care. 448 He had this exchange with Mr Donaldson: "Q. So that with someone such as Mr Baghdadi, while Botox injections might appear to free up a limb and make it capable of being stretched in a way that couldn't have occurred before, does it do anything to address the neurological problem which is preventing voluntary use of the limb? A. No." 449 The next witness to whose testimony I shall make reference is Ms Barbara Merram, the Public Affairs Director of Southern Cross Community Healthcare, an organisation which provides healthcare and services throughout Australia. She is a registered nurse by training with over 35 years experience and has held her present position since 1984. Her duties include: "Public relations (liaison with politicians, senior government bureaucrats, government departments, non-government agencies, insurance companies and law firms) Case management (assisting with the establishment of care programs for high dependency new service users) Medico-legal services (medico-legal assessments and reports, court attendance as an expert witness and attendance at case conferences)." 450 In November 2007, Mrs Merram, for P & M, made an assessment of Omar's care and support needs by reviewing relevant documentation and a DVD. In her report dated 30 November 2007, she noted: "Current Equipment - Non Disposable · Equipment includes: · Electric adjustable bed with rails · Electric ripple mattress · Commode chair (Unused) · Shower bed/trolley · Hoist · Hand held shower nozzle · Recliner lounge chair · Powered attendant wheelchair (with tilt function) · Ripple cushion for chair · Tilt table · Ramps for house access · Portable suction device. 451 She recorded that Omar is incontinent and fully dependent in all activities of daily living. Her conclusions seem to be summarised in the following paragraphs of her report: "All the reports provided appear to address Mr Baghdadi from a medico-legal perspective only, with little consideration given to community care needs. It was observed in the DVD and during the review of documents that the care and support regime is clinically and hospital orientated, laborious and, in my opinion, inefficient and excessive. The care completely lacked the intent of the basic premise of community care, which is to improve the quality of life of the individual as per the Home and Community Care National Standards and to "See the ability, not the disability". In my opinion, it is important for Mr Baghdadi's personnel to recognise that he is disabled, but he is not unwell. There appears to me to be an excessive focus on therapies and insufficient focus on providing a routine, which enhances as far as possible his enjoyment of life. His routine should be re-organized so that he is finished his therapies by 11.am each morning and given more time to relax or participate in outings. Activities focused on entertaining stimulation seem to be lacking. Music therapy in relation to activities provides a calming environment with music selected to match the task. In my opinion, Mr Baghdadi would greatly benefit from community integration and socialisation suitable to his level of disability. In regards to Mr Baghdadi's skin integrity and history of broken areas, it is my opinion that continued and constant physical handling of a person can be detrimental to their skin integrity. Further, in my opinion, he should not be woken at frequent intervals during the night. Mr Baghdadi requires a care regime which provides for the presence of two personnel for showering and transfers, and which provides sufficient resources to attend to all of Mr Baghdadi's care requirements and domestic tasks. Those requirements would be quite easily satisfied by a roster which provided three personnel on over lapping shifts of 8.5 or 9 hours, together with additional assistance for short periods twice a day. We currently have about 40 service users with care requirements very similar to Mr Baghdadi, and they are all adequately cared for in arrangements of that kind. It is not uncommon for people with a brain injury to become irritable, particularly with multiple people present. There is no necessity or need to have in excess of 2 people present at any time. The fewer people present the more likely Mr Baghdadi will be able to focus on the tasks at hand. An appropriate roster would be as follows: 0700 to 1530 - involves all activities of daily living 0800 to 1100 - second person to assist transfers with bowel regime, personal care, making bed, passive exercises and tilt table. 1400 to 2300 - overlap with am shift for reporting and transfers for rest period. 2000 to 2100 - second person to assist with transfers, evening hygiene. 2230 to 0730 - overlaps with evening and morning shifts for reporting and safe transfers. The hours recommended by Southern Cross for this program are 30.5 hours per day (this exceeds our general regime for a program like this which would be 27.5 hours daily). In my opinion, it is appropriate for Mr Baghdadi to have "inactive " night care. Given the information provided in Progress notes written by the current team, it would seem likely that within this night shift, eight (8) hours could be considered inactive. An inactive sleepover is an eight hour period where the service personnel are allowed to sleep on duty. If the service personnel is required to attend the service user for more than 1 hour in total during the night or attends the service user more than twice, then the whole 8 hour shift is paid at the full standard hourly rate as per the day of the week." 452 Ms Merram costed her program at $407,926 per annum ($7,845 per week) with an active night shift or $341,819 per annum ($6,573 per week) with an inactive night shift She identified further costs for shopping and home maintenance of $5,682 per annum ($109 per week). 453 In cross-examination by Ms Lonergan, Ms Merram agreed that she had not met Omar, nor had any employee of Southern Cross carried out a care assessment of him. She had, however, watched the DVD, exhibit J, in evidence. 454 Ms Lonergan questioned Ms Merram concerning Omar's night time urine management: "Q. What was your plan within the context of your report for the night-time urine management of Mr Baghdadi? A. My plan would be to revise it. I suggest to you that for any gentleman lying in bed at night with a plastic or metal thing stuck between his legs is a less than adequate way of urinary management. There are a number of alternatives. One could be supra pubic catheterisation but that is the decision of the treating team. I specialise in care. I am not a doctor. So, the alternative to that is in fact incontinent pads which are now designed to remove the moisture away from the body." 455 And later: Q. Do you find that with management of issues such as night-time urine management it is a bit of trial and error process? A. I find that in the long term care of anyone with a profound disability or ill health that requires that they receive a lot of care, that it is extremely important that you normalise their life and make them comfortable. …………………………… Q. In any event Ms Merram you still didn't have any particular plan put in place for night-time urine management for Mr Baghdadi? A. No.

[557]

Q. Why can you say you can express an opinion for the need to turn Mr Baghdadi which might be different than the doctor? A. I think the doctor's role is to prescribe treatment and advice to the provider delivering the care. It is the care provider's responsibility to provide the doctor with information in delivering care in the community." 458 I found the philosophy underlying Ms Merram's recommendations alluring, in so far as it emphasises that Omar's care should be focussed on enhancing, as far as possible his enjoyment of life. My impression from watching the DVD, exhibit J, is that his life is very bleak indeed, and involves almost constant demeaning and undignified interferences with his bodily integrity. In saying this, I mean not the slightest criticism of his dedicated and very professional carers. Moreover, I am not unaware that much of what I have referred to as interference with his bodily integrity has been established as clinically necessary for his continued good health. As Ms Merram pointed out, Omar is disabled but not unwell and for this I do not doubt that credit must be given to his carers. 459 Another witness called in P & M's case on the issue of Omar's care and other requirements was occupational therapist, Ms Joanne Oates. After evaluating Omar at his home in a report dated 3 September 2007, she opined that while he is currently well cared for, in her opinion he does not need 2 carers 24 hours a day "providing that a suitable environment and access to necessary equipment is established for Omar". 460 She took the view that his current dwelling is inappropriate and should be replaced with a house more suitable to his needs. She recommended domestic assistance, personal care and property maintenance regimes which she costed from the current price list of Calvary Silver Circle at respectively $65 per week, $4,233 per week (subject to increase on shower/enema days) and $28 per week. 461 She also recommended that Omar be provided with equipment etc. which she costed at $373 per week, and occupational therapy costed at $87 per week. A substantial part of Ms Oates recommendations for equipment etc. related to the provision of a "KCI Therapulse ATP Pulsating Air Suspension turning Bed" at a unit cost of $158,000. 462 She said that such a bed "will allow the carer to safely reposition Omar. The prescribed bed delivers pressure, shear and friction relief, improves blood and lymph flow, and the automated turning and positioning reduces nursing workload and minimises risk of musculoskeletal injuries". 463 She elaborated upon this in evidence in chief: "Q. You've told us under comments why it is that you have recommended that bed? A. Yes.

[560]

OMAR'S ACTION - ISSUES IN CONTENTION: 465 As is apparent from my review of the evidence, after finding liability on the part of all defendants, there is much common ground between the parties but there are also matters, wholly or partly unresolved, which include: · Omar's life expectancy. · Whether Omar should be compensated on the basis that he continues to live in the community or on the basis that he is placed in a group home or nursing facility. · Whether damages should include an allowance for appropriate home renovations. · The extent of Omar's care needs. · The extent to which Omar requires provision for further medical treatment and therapy. · Whether there should be an allowance for Omar to take vacations including visits to his mother in the United States. · Whether it is reasonable to allow for the provision of a motor vehicle suitable for Omar's transportation. · Whether Omar should be allowed a sum for the provision of a swimming pool. · Whether provision should be made for a case manager. LIFE EXPECTANCY: 466 A deal of evidence was given as to Omar's life expectancy, a matter about which there was substantial conflict. Although I will need to express a view, obviously it can be little more than speculation about an event unlikely to occur, on any view of the evidence, for at least 20 years and in an era where the state of medical knowledge may be vastly superior to that which pertains today. 467 Omar was 27 at trial. An Australian male of that age had a further life expectancy of about 58 years. All the medical evidence was to the effect that a person injured, as Omar was, is unlikely to have a normal life span for the reasons given. Views differed as to the likely diminution, although I think there was general agreement, with the possible exception of Professor Jones, that to some extent, at least, high quality medical treatment and care is a relevant factor. Dr Lowy suggested a reduction of between 10% and 20%, to between 68 and 76.5. Dr Adler suggested he would live between 75% and 80% of a normal life span (63.75 - 68). Professor Yeo determined a total life expectancy of approximately 66 years. 468 On the other hand Professor Lance suggested he "could survive to 50 years or more", and Professor Jones opined that he is unlikely to survive beyond his fifth decade and "will probably succumb at age 45". 469 Additionally, the defendants placed reliance upon learned papers, including the chapter "Life Expectancy" authored by Robert Shavell and others, contained in a book "Brain Injury Medicine: Principles and Practice" upon which witnesses were cross-examined and which eventually found its way into evidence as exhibit 1D-25. It included in its list of references a publication in 1998 by Professor Yeo and others, "Mortality following spinal cord injury". The chapter dealt with the life expectancy of persons with severe traumatic brain injury. It identified mobility as the most powerful predictor of long term survival and inability to self feed as another significant factor. As I understand the relevant table in the chapter, Omar, if aged 30, would have a life expectancy of another 22 years on the basis that he is immobile and fed by others. However, the cogency of the chapter is perhaps somewhat diminished by the fact that it is an American publication. It seems that life expectancies in America generally are significantly less than those in Australia, although the statistics quoted in the chapter were "years remaining" rather than total life expectancy. Moreover, some significance should, in my view, be given to the high quality of care known to be provided to Omar, against the unknown quality of care given to those in the samples upon which the chapter is based. 470 There are other known positive factors in Omar's case, namely, that to date he has had no chest infection and no urinary tract infection; that he has a strong cough reflex; that he is free from trophic skin ulceration; that he has the dedicated love and care of his parents; and that before the accident he was in good health and did not smoke. 471 Obviously an assessment of Omar's life expectancy in this case is a very important matter, the consequences of a significant over estimate or under estimate being spelled out by Handley JA in G T Pettersen v Bacha (1995) 21 MVR 71. 472 I was particularly impressed with the evidence of Professor Jones on the subject of life expectancy. He seemed to me to have ample qualifications to express the opinion which he did express and he gave, what to me, were cogent reasons for that opinion. He derived some support from Professor Lance but otherwise his estimate of life expectancy was considerably lower than others, including the highly distinguished Professor Yeo, who regarded (contrary to the evidence of Professor Jones and Professor Lance) traumatically brain injured persons as comparable with spinal injury victims with whom he has greater experience. Doing the best I can, relying largely on Professor Jones, but adjusting his opinion upwards to meet what I regard as relevant positive factors, I will make calculations where appropriate on the assumption that Omar has another 27 years of life ahead of him. OMAR'S DAMAGES: 473 Omar's damages are governed by the Civil Liability Act (CLA). Hereunder I deal with damages claimed under their various headings, and in doing so, I shall endeavour to apply the principles regarding the assessment of damages for very badly injured plaintiffs enunciated in Sharman v Evans (1976-1977) 138 CLR 563. I will examine each head of damage claimed and attempt to evaluate it, seeking to ensure that there is no double counting. I will consider the final aggregate for proportionality to the nature of the claim. Non Economic Loss 474 All parties agreed that Omar's claim constitutes "a most extreme case" within section 16 (2) of the CLA. Accordingly he is entitled to an award of $442,000 for non economic loss, an award which recognises that he has, it appears, considerable awareness of his environment (Compare Skelton v Collins (1965-66) 39 ALJR 480)

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Past Loss of Earnings (Past Diminished Earning Capacity): 475 It was not disputed that Omar has been unable to engage in any employment since the accident and that this situation will remain for the balance of his life. This assumption I make for the purposes of section 13 (1) of the CLA. 476 The chartered accountants, GCA Gower & Co, in a report, exhibit AAN, calculated loss up to 30 June 2005 at $74,750, predicated on the assumption that up to that date he would continue working at P& M as a labourer. This seems to me a reasonable assumption and I would allow $74,750 for the period from the date of the accident to 30 June 2005. 477 Counsel for Omar submitted that post 30 June 2005, I should find that Omar would have received average male earnings up to 31 December 2007. There was evidence from his father that he was a hard worker, well motivated towards work, and that he had enrolled in a sound engineering course seeking to improve his employment qualifications. 478 Although I do not think it possible on the evidence to predict how Omar would have fared in the sound engineering course and whether and, if so, to what extent it would have improved his employment prospects, I think it reasonable to compensate him beyond 30 June 2005, when he would have been approaching his 25th birthday, on the basis that by then he would have been in receipt of average male weekly earnings. The net average earnings during the period were $835 per week and his loss for the period from 30 June 2005 to 31 December 2007, which I extrapolate to the date of this judgment was thus $118,570. 479 Compensation for past diminished earning capacity should therefore be allowed at $193,320. "Fox v Wood": 480 Omar is entitled to claim the income tax paid on workers compensation payments made to him in accordance with what the High Court decided in Fox v Wood 55 ALJR 562. The amount claimed is $12,494 . I will allow this sum, although there seems no direct evidence to support it. However, it appears to represent an appropriate proportion of the workers compensation benefits paid, namely about $93,000. Future Diminished Earning Capacity: 481 By January 2008, Omar would have been 3 months past his 27th birthday. As indicated, I think it reasonable to assume that by then he would have been in receipt of male average weekly earnings. There seems no reason to doubt the continuance of his motivation for work, which seems to have come upon him when he commenced with P& M, and which was so noticeable to Mr Kouri. 482 The defendants submitted that, having regard to his work record up to the accident, it is unlikely Omar would have earned an income at the level of average weekly wages and that his future loss, in effect, should be measured by his earnings at P& M, or by reference to the award which may have been applicable if he had successfully completed the sound engineering course he was about to undertake. I think, having regard to Omar's youth at the date of the accident and his newfound motivation, this would be an unfairly restrictive approach. Presently average male weekly wages, are $911.12 net of income tax. 483 In addition to the finding or assumption already made that Omar is 100% permanently incapacitated from rejoining the workforce, my further assumption for the purposes of section 13 (1) of the CLA is that Omar's most likely future circumstances, but for the accident, would have been that he earned average weekly male wages up to notional retirement at age 65. On that basis, the multiplier is 902 and the loss without discount is therefore quantified at $821,830. 484 However, the question remains as to whether, and if so, what discount should be applied. Mr Hull submitted that the discount should be the conventional 15%. However, in this case, I must take into account when assessing compensation for future diminished earning capacity that, on my findings as to Omar's life expectancy, there will be a period referred to in the cases as "lost years" beyond his life span, during which, but for the accident, he would have an earning capacity. The period in this case is approximately 10 years. 485 The principles which bind me are summarised by Sheller JA (with whom Spigelman CJ, Meagher JA, Stein JA and Giles JA agreed) in James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314 at para 87: "In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff's life expectancy is reduced or not: see Sharman v Evans (at 577). Even if the life expectancy is not reduced expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would have enabled the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further." 486 The defendants submitted, as I understand it, that there should be the usual discount of 15% for vicissitudes together with a discount of 50% in respect of the period beyond Omar's life expectancy. That seems to me to be appropriate given that there was no evidence as to Omar's expenditure or likely expenditure in enabling himself to earn future income or to maintain himself. Accordingly, I will discount one third of $821,830 by 50% and two thirds by 15%. The two amounts so produced namely $136,972 and $465,704 total $602,676 which I will allow as compensation for future diminished earning capacity.

[571]

492 The claim is predicated upon Omar's parents providing between them at least 40 hours per week of gratuitous care for the whole of the period since the accident. The claim is disputed by the defendants. It may be stated at once that Mr Kouri has virtually devoted his life to Omar's welfare since the accident. Mrs Cohen has also devoted virtually all of her time and attention to Omar during her frequent visits to Australia. 493 However, the issue is not whether Mr Kouri and Mrs Cohen spent 40 hours per week in attending to Omar but whether there was a reasonable need for their services. The claim in respect of past gratuitous services has its foundation in several pieces of evidence, commencing with the letter by Dr Adeline Hodgkinson to Omar's solicitors dated 12 March 2004, part of exhibit E: "This letter is written to support Judith Cohen's continued involvement in caring for her son, Omar Baghdadi throughout his long stay in the Brain Injury Rehabilitation Unit at Liverpool Hospital. Judith visited from the United States regularly and was closely involved in his rehabilitation program. Omar has severe physical limitations as a result of his injury and although he also has cognitive impairments he is very aware of people around him. His face would light up as he spoke with his mother by phone and when she was with him, especially after a long break, his eyes constantly followed her. She was able to supplement the rehabilitation exercises from the therapist with extra practice and was involved in his nursing care. Since discharge from hospital his care has been transferred to the Ryde area but I have had phone contact with Omar's father and seen Judith when she visited the Unit with Omar on her last stay. Omar continues to progress and benefit from the care system established for him in his home. However, the intensity of his care requirements means that his father, Sami has a major and exhausting commitment to his care, even with the assistance of the therapy and attendant care team. Both he and Omar will benefit from the assistance that Judith can offer either on a regular basis, at least 3 monthly, or more continuously if she moves to Australia." 494 In a subsequent letter to the solicitors dated 23 March 2004, she said, inter alia: "I would like to confirm that the ability of Omar Baghdadi's father, Sami Kouri, and his mother Judith Cohen to spend long periods of time with Omar was particularly beneficial to Omar. They each supplemented the therapy with additional practice, spoke to him and involved themselves in his day to day care. When his parents were present he was able to tolerate the tilt-table well and responded to the interaction positively. It is generally accepted in the Brain Injury Rehabilitation Service that patients who have family visiting regularly providing normal social interaction and providing individual care and attention of the patient are much better off than the patient in a deprived environment receiving only essential nursing care needs and the occasional interaction provided by busy nursing staff. At the point of discharge home, both Mrs Cohen and Mr Kouri had benefited from significant exposure to the rehabilitation needs of Omar and his care requirements. They were able to achieve the transition home smoothly. Both Mrs Cohen and Mr Kouri have each advocated very strongly for their son and Omar has benefited from this. I would anticipate that this close involvement will be required for the foreseeable future."

[572]

495 There are many references in the written and oral evidence to the dedication and attention to Omar, given and provided by both his parents. There is evidence that Mr Kouri and Mrs Cohen, when she is in Australia, prepare his meals and generally assist the carers in carrying out their duties, no doubt to Omar's benefit. However, at least up to the present, since his discharge from hospital, Omar has had 2 carers, 24 hours a day and the evidence satisfies me that they provide adequately for Omar's needs, particularly as a third carer assists with showering. Although, presumably in deference to Mr Kouri, Global does not include food preparation in the duties of carers, there is nothing in the evidence to suggest that the carers would not, if required, involve themselves in food preparation. 496 The defendants, on the subject of gratuitous care, submit that the claim must fail. In effect, they submit that while in hospital Omar was appropriately treated and cared for by trained medical staff and that after discharge from hospital he has been cared for 24 hours a day by carers appropriately trained by Global. Neither Mr Kouri, nor Mrs Cohen make complaint about the quality or adequacy of the care provided, all of which has to date been paid for by Kaybron or its workers compensation insurer. 497 I was referred by the defendants to the decision of Hoeben J in Manning v State of NSW [2005] NSWSC 958 and to the cases there referred to , including the passage from the judgment of Kirby P in Nicholson v Nicholson (1994) 35 NSWLR 308 at 323: "Section 72 (of the Motor Accidents Act) itself refers exclusively to services of a domestic and nursing nature. The services performed by the appellant's sister, which certainly helped improve his level of comfort, could not be classified as fulfilling a relevant "need" in view of the fact that the appellant was already enjoying fulltime hospitalisation. Although it may not be realistic to expect the nursing staff at all times to apply the creams to the appellant, the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant's sister as well for her minor activities. Her Honour was entitled to find that the appellant's sister's services did not represent services within Griffith v Kerkemeyer." 498 Although I do not doubt that the activities of Mr Kouri and Mrs Cohen have improved the level of Omar's comfort, having regard to the quantity and quality of medical and other care provided continuously, 24 hours a day, to Omar since the accident, I am not satisfied that a "reasonable need" within section 15 of the CLA has been proved. Accordingly, I reject the claim for past gratuitous attendant care services.

[573]

Future Gratuitous Attendant Care Services: 499 As I intend to provide for continuing 24 hour care for Omar at what I regard as a reasonable level, for reasons previously advanced, I do not think that a need for future gratuitous care within section 15 of the CLA has been proved. I also reject that claim. Omar's Housing: 500 The case mounted on Omar's behalf is that he will continue to live in his own home, either alone or, as now, shared with his father. Although there were one or two passing references in medical reports and oral evidence to the possibility of Omar living in a group or nursing home, no submissions were addressed by the defendants upon that subject. 501 I am satisfied that it is reasonable for Omar's present living arrangements to continue, that is that he continue to live in the community and not in group or nursing homes. This gives rise to a number of difficulties. The house where he presently lives is rented and while reasonably adequate, is far from ideal. Omar seeks an award, based upon Mr Hardiman's report, sufficient to establish himself in an appropriately designed house of his own. A similar question was considered by the Court of Appeal in Weideck v Williams [1999] NSWCA 346. The plaintiff, Mr Williams, suffered L1 paraplegia when struck by a forklift truck, which fell on him from the back of a vehicle. He had special accommodation requirements for the rest of his life, estimated at 28 years. At the time of the accident he was living in a caravan where, but for the accident, he would have been content to remain. 502 The learned trial judge, Adams J, allowed the plaintiff the cost of suitable land, the cost of a basic house, and the cost of converting the home to accommodate Mr Williams' needs. He deducted a sum for future notional rent. 503 In the course of his judgment on appeal, Davis AJA (with whom Stein JA and Wood CJ at CL agreed) said: "[6] Mr Bartlett submitted that the approach adopted by his Honour was wrong and that his Honour should have approached the matter on what Mr Bartlett described as the traditional basis. Mr Bartlett referred to the approach taken by Orr LJ, with whom Buckley and Sachs LJJ agreed, in George v Pinnock [1973] 1 WLR 118, where his Lordship said at p124-p125:

[581]

[11] In the present case, Mr Williams, prior to the accident, was living in a caravan and it was likely that he would have continued to do so. This fact gave rise to two relevant factors. The first was that an award which included the cost of purchasing land and a home would confer upon Mr Williams the benefit of a capital asset which, apart from the accident, he would not have acquired. The second was that, as Mr Williams would not have devoted any part of his income to the acquisition of such a capital asset, and, as he would now necessarily have to devote funds out of the damages to that use rather than to income earning purposes, it was proper to make allowance for the reduction in his income earning ability which would result from the diversion of money to that use." 504 Omar has lived in his present rented home despite its limitations for more than 4 years. Before the accident, albeit as a very young man, he shared a small upstairs flat with his father. It may be that ultimately he will look for or need to look for other more suitable or more secure accommodation but there seems to be no urgency. 505 Although counsel for Omar submitted that in Weideck, the Court of Appeal allowed the plaintiff the capital cost of a house, that is not my understanding of what the court did. Rather it allowed the plaintiff a sum representing the income he would forgo by applying his own funds towards the acquisition of a property. That, as Davies AJA pointed out, was the approach taken by the English Court of Appeal in Roberts v Johnstone & Anor [1998] 3WLR 1247 and by Mildren J in Rosecrance v Rosecrance (1995) 105 NTR 1. 506 In this case, as I have indicated, Mr Hardiman costed at between $630,000 and $966,000 the purchase of a suitable 3 bedroom house in Ryde and $430,205 to convert such house into suitable accommodation for Omar. It would, I think be reasonable to allow Omar a sum for such conversion costs. However, the sum suggested by Mr Hardiman should be discounted to meet the possibility that he will spend the rest of his life in his present home and the possibility that, in any event, not all the modifications suggested will be found necessary or desirable. I would allow $300,000 for house modifications. In respect of the acquisition of a suitable house, I would again discount the figure suggested by Mr Hardiman to meet the circumstance that Omar remains indefinitely where he is and also to take account of rent forgone. Adopting the approach suggested in Weideck, I would allow Omar a sum equivalent to a net return of 3% per annum on $400,000 for a period of 20 years, using 5% tables. The amount so calculated is $142,154. 507 Thus I would allow $442,154 under this head of damages.

[584]

Provision of Motor Vehicle: 510 It is plain that due to his disabilities it is necessary for Omar to be transported in an appropriately modified, air-conditioned, wheel chair accessible, van. He presently uses a Mercedes Sprinter which has been modified and found suitable. Presumably it will continue to be available to him as it was purchased and modified on his behalf by his employer's insurer. Ultimately it may require replacement but given the small distance travelled to date and the quality of the vehicle, it is likely to last very many years. There was evidence, especially in the reports of occupational therapist, Ms Karen Henry, that taxi services for disabled people in Sydney are limited and unreliable. Ms Oates suggested that a Kia Carnivale might be a cheaper option but conceded that it may be inappropriate for Omar due to his height. Ms French regarded the Kia Carnivale as inappropriate because Omar would find it difficult to get in. On the evidence, I think it was reasonable to provide Omar with a modified Mercedes Sprinter. 511 This claim gives rise to difficulties of quantification and was the subject of a report by Mr Ron Pallone, Consultant Motoring Information Service, National Roads and Motorists Association Ltd. It is put on behalf of Omar that he is entitled to the differential cost of an adapted van as opposed to a standard sedan, together with additional running costs. This contention seems to me to be reasonable in principle and the defendants do not appear to contest it, although they point to the low distance (about 6000ks) travelled in the 2 years since Omar has had the Sprinter. 512 According to Mr Pallone, the difference in cost between an ordinary sedan and a suitable van is about $66,000 and the difference in running costs is about $20 per week depending of course on distance travelled. If the distance Omar travels continues to be very low, the running costs will be much less than those predicated by Mr Pallone and the vehicle presumably will last much longer. 513 Omar's claim was quantified at $360,918 but that assumed a life expectancy greater than I am willing to accept. The defendants proposed a total allowance of $56,736. It is impossible to be precise. I would allow $100,000 under this head.

[586]

Future Pharmaceutical Expenses and Expenses for Therapeutic Aids: 515 Ms French costed the therapeutic aids, appliances and equipment component of this claim and Omar relies on her report, recognising that some components are dealt with separately elsewhere. 516 The approximately 50 items listed by Ms French designed to deal with Omar's physical disabilities in all their manifestations range from the small to the quite large. The evidence did not deal individually with all of the items and disappointingly, the parties could not agree upon them. After excluding components in Ms French's schedule dealt with elsewhere, Mr Hull submitted I should allow $483.91 per week in respect of the Therapeutic Aids, identified by her. In respect of medication and food delivery systems, bandages and dressings, incontinence and hygiene needs, oral care, skin protection, infection control, foods and supplements, ancillary requirements, and hand held battery equipment, stationary and energy and power usage, the sum of $1,661.59 per week was claimed in accordance with schedules contained in exhibit E. The further sum of $207.64 per week was claimed for medication in accordance with Omar's actual usage, most or all of which is prescribed. 517 Under this heading there was thus claimed the sum of $2,353.14 per week, or $1,842,508 over my assessment of Omar's life expectancy. The defendants disputed the size of the claim, suggesting that on its face it was excessive and pointing to the fact that a number of items on the list were commonly found in households. Mr Hull conceded that some of the equipment listed by Ms French is already owned by Omar, although it may need future replacement. The defendants proposed that I allow in all $325.73 per week but this seems too low, given that the starting point must be close to the cost of the prescribed medication. I agree, however, that the list, on its face, appears excessive and suggests that there has been some wastage in the past. A broad brush approach, I think, is required bearing in mind that reasonable need is the touchstone of Omar's entitlement. I will allow $1,000,000 in all for all the matters encompassed by this section of the judgment.

[587]

Computer and Communicative Assistance Devices: 518 It is submitted on behalf of Omar that he requires a personal computer with necessary hardware and software specially adopted for his use in communication, further therapy and recreation. Reliance was placed on the opinion of Professor Reid that without ongoing stimulation of his cognitive and physical functions, he will lose the gains he has made. 519 An assessment of Omar's computer needs was made by occupation therapist, Ms Lynda Hutchinson and such assessment was set out in her report dated 24 August 2007. She had made an earlier assessment in June 2007. 520 Ms Hutchinson's report contains the following passages: "Cognitive Abilities The cognitive abilities experienced by Omar are becoming more apparent through the use of technology. The following was observed: Omar is able to concentrate for 45 to 60 minutes at a time. Omar is able to indicate yes and no to answer to closed questions. While Omar is able to use his computerised communication system to answer some questions, he has difficulty initiating communication. Omar requires repetition to learn new tasks. During the computer activities Omar was able to follow directions. Physical Abilities Since the original assessment Omar has gained some increases in his ability to flex his right elbow, and flex and extend his right index finger and thumb. Current Living Situation Omar currently lives with his father, Sam, in the family home in Ryde. His mother, Judith, lives in the United States of America, however is a frequent visitor staying for several months at a time. Assessment Details Omar's current ability to access and use a computer and related technology was assessed on the 18 August 2007. Margie Logan (speech pathologist) and Judith Cohen (Omar's mother) were present during the assessment. Omar was observed accessing the communication program Dynavox Series 4 Speaking Software for Windows. This software enables the development of customised communication pages and an onscreen keyboard. The page setup used by Omar was developed by Ms Logan and Omar has been using the system since November 2006. Current Computer Technology Omar currently has a Toshiba laptop computer, purchased in November of 2006. Two main programs were purchased for Omar: Dynavox Series 4 speaking Software for communication and Music Factory for recreation. Omar accesses the software through either switch scanning or direct mouse control using the laptop touchpad. Since having access to the computer Omar trialled several access options including: switch scanning, 3M Ergonomic mouse, touchpad, Cherry Compact Keyboard. While he has shown promise with each of these items a clear access method is yet to be determined. Computer Access Mouse Omar can access some of his computer programs via a switch scanning method - items are presented or highlighted sequentially over time and the user makes a selection by pressing a switch. While Omar is able to use this system he has indicated that he finds it slow. Switch scanning however provides a relatively low effort system of accessing computer programs and therefore is an option Omar can use when fatigued or unwell. However, it does not provide him access to all computer functions and programs; therefore a suitable direct mouse control alternative is needed as an adjunct to the switch scanning. Since November alternative mouse options have been trialled, as Omar's ability to isolate and use the thumb and index finger on his right hand has improved. At the time of this review assessment Omar was controlling the mouse movement using the touchpad on the front of the laptop. While this method worked for the majority of movements, due to the design of the touchpad and the movement of Omar's index finger, moving the mouse to the left proved difficult - touchpads respond to movement from the pad of the finger not the fingernail; when moving right (flexing his finger) Omar's finger "curled", to move the cursor left he had to extend his finger, however this caused his fingernail to drag on the touchpad. It was observed that Omar did not have sufficient ability to move his hand, wrist and arm to access the standard mouse alternative, however his laptop computer gave an additional option through the Accupoint. The Accupoint works like a mini joystick. With his wrist resting on the front of the laptop, Omar was able to extend his wrist and index finger to reach the Accupoint. He then demonstrated the ability to effectively operate the mouse control and move the cursor around the screen. Ms Logan, Omar and Judith reported that this method gave the greatest and quickest control of the mouse movement. This assessment has confirmed that: Omar is interested in and motivated to use computer technology; With appropriate access methods, software and support Omar is able to access a computer; and The activities he is likely to undertake with a computer will benefit him in those areas where he has been disadvantaged by his disabilities. The task now is to nominate a reasonable computer system that will enable him to achieve these benefits."

[592]

Future Paramedical Costs: 531 Under this head, Omar claims $930,000 for future physiotherapy, occupational therapy, speech therapy, podiatry and massage therapy and for the involvement in his care of a registered nurse 40 hours per week. 532 In fact, Omar's carers provide daily physiotherapy in accordance with a program established by Mr Wheen and they also spend time in giving Omar exercises prescribed by Ms Logan. 533 The defendants accepted Mr Wheen's recommendation as to future treatment, which involved a short term intensive regime costing $5,142 plus an allowance for a 2 hour quarterly review at a cost of $135 per hour. The cost of this review represents $20.77 per week or using the tables with a multiplier of 783, the sum of $16,262 over Omar's life expectancy. Adding $5142, I would allow $21,404 for future physiotherapy. 534 In respect of speech pathology $508,843 is claimed for the future, predicated on Ms Logan continuing to see Omar for 3 hours each week. The defendants submit that an allowance of 1 hour per week would be reasonable. 535 There is no doubt, in my mind that Ms Logan's professional services have been of considerable assistance in establishing methods of communication with Omar, in maximising his swallowing capability, and in training his carers to perform exercises on an ongoing basis. Despite her optimism, however, progress has been very slow and, on the balance of medical opinion, it seems to me that little further improvement can be expected. 536 In the circumstances, I do not think the very large expense of her continuing involvement with Omar as proposed can be justified against the defendants. I think it appropriate to fix a global sum, which I assess at $75,000 for future speech pathology services. 537 A claim for $22,747 is made in respect of podiatry calculated on the basis of a cost of $25 per week. This claim is contested by the defendants as excessive but having regard to the report of Ms French that toe nail cutting is outside the scope of attendant care support, I think an allowance should be made as claimed. I will apply to $25 the multiplier of 783 and allow $19,575. 538 In respect of occupational therapy, the sum of $150,133 is sought in accordance with the recommendation of Ms French. She identified the following purposes of such therapy: "Work with Omar and his family to identify goals. Plan annual holiday for Omar Plan Omar's visits to his mother's home in United States. Develop Omar's upper limb program. Develop Omar's personal care routines Train and educate Omar's care workers. Review, address and monitor Omar's seating and positioning needs. Consult with architect. Explore a range of recreational and leisure pursuits. Monitoring of splinting needs and manufacture of specialised splints. Input into the establishment of Omar's technology systems and environmental control systems. Provision of written program manuals. Provision of specialised and customised equipment. 539 On the other hand, the defendants relied on the report and evidence of Ms Joanne Oates, who recommended, in effect, the services of an occupational therapist for 35 hours per year at a cost of $87.25 per week. Given that I have excluded from an occupational therapist's consideration at the expense of the defendants such substantial items as planning holidays and overseas visits, and given the constant presence of professional carers, I think the sum sought for occupational therapy far exceeds the bounds of reasonableness. I would accept the defendant's contention but apply my estimate of life expectancy. On that basis, I would allow $68,316. 540 Finally under this head Omar seeks allowances for therapeutic massages and for consultations with a dietician. I would allow the latter claim at $2,710. 541 The defendants dispute any entitlement for therapeutic massage. Ms French recommended that Omar receive a weekly massage subject to prior medical approval, but conceded in oral evidence the he could have a reasonable level of care without it. 542 Ms Groningen mentioned the subject in a section of her supplementary report dated 15 October 2007, dealing with the suggested need for Omar to have the benefit of a professional sex industry worker (PSIW). She concluded the section: "I have not viewed any documentation that indicates that Omar has an interest in pursuing other intimate relationships. Staff available on the day of my visit were unable to comment on whether Omar showed an interest in sexual issues. Whilst I cannot justify PSIW services in this case, human touch is certainly an essential part of a feeling of well-being and I would certainly support the provision of regular massage therapy for Omar." 543 It is, I think, reasonable to allow for an occasional therapeutic massage, although I pause to suggest that if Omar were able to have his way, he may prefer less interference with his body rather than more. I allow $5,000. 544 Generally, I should say that I reject counsel for Omar's submission that in accordance with G T Pettersen v Bacha, in the absence of properly considered assessments and reports from competing paramedical personnel, the court should accept the opinions and costings relied upon on Omar's behalf. It does not seem to me that the Court of Appeal was suggesting that in respect of each element of damage claimed, I should do other than consider it in light of the whole of the evidence and the overriding criteria of reasonableness, both to Omar and the defendants. 545 In all, under the heading Future Paramedical costs, I allow $ 192,005. Past Out of Pocket Expenses: 546 This section raises contentious issues. In large measure, Omar's out of pocket expenses comprise sums paid by Kaybron or its workers compensation insurer. I will need to consider those payments in relation to Kaybron's action. 547 In addition, however, some items were paid by Omar or his parents in respect of which reimbursement is claimed in Omar's action. To the extent of $11,319.34 there was agreement and this sum should be allowed. 548 The sum of $2,872.14 was claimed in respect of telephone calls by Mrs Cohen in the USA to Omar in Australia. That sum does not seem unreasonable, nor do I think it unreasonable to burden the defendant with the cost of the telephone calls, given the relevant circumstances. The calls would fall, in my opinion, within the principles stated by Taylor J in Wilson v McLeahy (1961-62) 35 ALJR 256. 549 In further reliance upon Wilson v McLeahy, Omar claims expenses incurred by his mother in visiting him in Australia. The total claimed is $29,406.55 as itemised in exhibits AAP and AAQ. In all, Mrs Cohen had 12 trips to Australia by November 2007 of which 3 were paid for by Kaybron's insurer. The average cost of each trip was stated as $2,017. 550 I think it would be unreasonable to expect the defendants to pay for all Mrs Cohen's trips to Australia. No doubt her visits had some therapeutic benefit for Omar but the extent of such benefit is impossible to quantify. I think it would be reasonable to allow, in Omar's action, the sum of $8,000. 551 In Kaybron's action there is disputation as to the recoverability of all the items claimed by it. As indicated earlier, the defendants assert that to a significant extent, Kaybron made "ex gratia" payments, which are not recoverable under section 151 Z of the WCA. However, I agree with Mr Parker's submission that the circumstance that a payment made by Kaybron is irrecoverable because it does not fall within section 151 Z (1)(d) does not necessarily mean that Omar cannot claim it as part of his out of pocket expenses. 552 The test, apart from causation, seems to be that set out in Blundell v Musgrave (1956-7) 96 CLR 73. In that case at page 79, Dixon CJ expressed the relevant principle: "It may be safely stated as a general proposition of law that, before a plaintiff can recover in an action of negligence for personal injuries an item of damages consisting of expenses which he has not yet paid, it must appear that it is an expenditure which he must meet so that at the time the action is brought, though he has not paid it, he is in truth worse off by that amount. Generally speaking the question whether he must meet the expense is to be decided as a matter depending upon his legal liability to pay it.". 553 There is a disputed sum of $349,059 paid by Kaybron, ostensibly for the benefit of Omar and causally related to his accident, which Kaybron concedes is not recoverable in its action against P & M, Austec, and Vidual. The sum comprises the rent and rent bond paid for Omar's home; water rates; pest control expenses; car insurance and registration; charges for gas and electricity; telephone charges; the cost of office furniture; travel expenses for Mrs Cohen; transportation and other expenses incurred in connection with the holiday at Nelson Bay; freight delivery costs; bed sheets and other linen; and miscellaneous medical expenses; and expenses for non pharmaceutical items purchase for Omar's perceived benefit. 554 Without further evidence it is, I think, impossible to adjudicate properly in respect of the disputed items. Although Omar himself was unable to give authority for the incurring of liabilities, it seems likely that his father had ostensible authority, and, on that basis, incurred an implied obligation on Omar's behalf to repay Kaybron. On that basis, Omar would be entitled to recover as out of pocket expenses the sums which he is obliged to repay Kaybron and which can be shown to be causally connected to the accident. To mention just one item namely rent, there was evidence that Mr Kouri was, at the time of the accident, paying about $200 per week for the small flat he and Omar were occupying. This flat was wholly unsuitable for Omar and a causal connection, in my view, was established between the accident and the need to move Omar into suitable premises, which were acquired for a rent of about $600 per week. 555 As a very broad brush approach, it may be reasonable to allow Omar one half of the disputed sum of $349, 059.85, namely $174,530. I will provisionally allow that sum, but give the parties leave to reopen the question if they are so advised. 556 Accordingly, I will proceed on the basis that past out of pocket expenses claimable in Omar's action are the sums earlier allowed, or provisionally allowed, in this section, viz $196,721 together with the total of the amounts paid by Kaybron under sections 59, 60 and 60AA of the WCA which are recoverable by it under section 151Z (1) (d). Future General Out of Pocket Expenses: 557 The basis of this claim is set out in submissions made on Omar's behalf: "1.The first plaintiff claims an allowance for his mother to be able to travel to Australia and visit him twice a year at the cost of AUD $4,300 per trip = $8,600 per year for 20 years. (=$110,209). 2. The first plaintiff also claims the expenses relating to telephone contact with his mother in the sum of $140 per week for 8 months of the year (excluding the period she will be in Australia) = $81,722. 3. The first plaintiff submits it appropriate to consider this head of damages as a "global allowance" in the sum of $150,000." 558 The defendants disputed Omar's entitlement to any part of this claim. Given that it is going on for 6 years since Omar's accident and that before it Ms Cohen was telephoning him on a regular basis, I am of the opinion that it would not be reasonable to allow against the defendants any further sum for Mrs Cohen, either to travel to Australia or to telephone him. I do not, of course, mean that it would be unreasonable for Ms Cohen to act in that way, only that the defendants should not be liable for the cost. 559 I make no award under this head.

[594]

"The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick C.J. put it in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968) 122 CLR 649, at p 661 "The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent", and see Chulcough v. Holley, per Windeyer J. (1968) 41 ALJR 336, at p 338. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits" 564 In respect of Omar, the care system in place has, for more than four years, worked exceedingly well. I see no reason to find that it should go to a higher level. 565 The defendants, in fact, submit that only the regime set out earlier in these reasons suggested by Ms Merram should be allowed. According to her, the care roster with an active night shift should cost approximately $7,868 per week or less with an inactive night shift. She is undoubtedly well qualified to give the opinions she expresses and I have already commented favourably on the philosophy which seems to underly them. 566 Obviously a significant factor is the extent to which Omar needs care at night. It may be accepted that because of his size, he needs 2 people, probably including a strong male, to turn him, and accordingly, if he needs turning at night 2 carers must be present. A related problem seems to be the somewhat unsatisfactory arrangement in place for nocturnal urine collection. I am of the opinion that a better solution for urine retention is likely to be found and that it will also be found unnecessary to turn him regularly at night, as this disturbs his sleep. Perhaps, as was suggested, the solution lies with the provision of a more technologically advanced bed. 567 For the above reasons I propose to allow for future care the sum of $8,000,000 which lies between Ms Merram's costing and the cost of the present regime. Of course, how that sum is actually spent is not for me to say, and I repeat my earlier observation that it is not appropriate for me to lay down a care regime for Omar. THE ACTION BY KAYBRON: 568 It is appropriate to deal next with this action as it will permit determination of the sum for out of pocket expenses claimable by Omar. Kaybron, as I have said, seeks indemnity under Section 151 Z (1)(d) of the WCA which is in the following terms: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) …………………………………. (b) …………………………………… (c) ……………………………………. (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)." 569 It was common ground that Kaybron, prior to the trial, had paid compensation to Omar, at least purporting to be in accordance with its obligations under the WCA. This gave rise to two issues namely, to what extent, if any, is Kaybron entitled to indemnity under section 151 Z (1)(d) and to what extent, if any, is any such entitlement to be reduced by Kaybron's negligence in accordance with section 151 Z (2) of the WCA.

[595]

570 As to the latter question, in spite of the somewhat opaque drafting of section 151 Z, it is clear from the authority of the Court of Appeal in I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 that the negligence of Kaybron does not disentitle it from the right of indemnity given by section 151Z (1) (d) but that its entitlement should be proportional to is responsibility as a tortfeasor. 571 The evidence indicated that Kaybron does not carry on business otherwise than as an employer of about 50 workers engaged in P & M's business. Its sole director, according to exhibit 1D-6, was Mr Andrew Lederer who was also a director of all the companies in the P & M Group. 572 According to exhibit 1D-1 Kaybron pleaded guilty before Marks J in the Industrial Relations Commission to a breach of section 8 (1) of the Occupational Health and Safety Act in relation to Omar's accident. The statement of agreed facts put before His Honour included: "The Defendant failed to properly supervise Austec Panel Systems Australia Pty Limited, the principal contractor and Vidual Pty Ltd, the sub-contractor in ensuring that the alcove and the alcove floor located off an access corridor on the first floor of the premises were adequately sealed off or barricaded from the said access corridor." 573 Kaybron, as Omar's employer, had a non delegable duty to provide him with a safe place and system of work. This, in my opinion, it failed to do in breach of its common law duty of care. This was not a case such as Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 where the employer had no connection with the premises where its employee was to work. Although Kaybron did not actually conduct a business at the factory, its director was common to all companies in the group, including the operating entity P & M. 574 In accordance with section 151 Z (2), it thus becomes necessary to determine the degree of responsibility of Kaybron for what befell Omar. Mr Parker submitted that it should be nil, or close to nil, on the basis that there was no evidence that it was in a position to prevent Omar's accident. 575 Mr Parker also pointed out that the breach of the Occupational Health and Safety Act to which Kaybron pleaded guilty was an offence of absolute liability. 576 Relative to the three parties against whom direct negligence was established and whose employees were involved in the works, I think Kaybron's actual responsibility should be regarded as small. I would assess it at 10%. It follows that any indemnity to which Kaybron would be otherwise entitled under the WCA should be reduced by 10%. 577 As to the ambit of the indemnity in this case, it is necessary to have regard to other provisions of the WCA. Sections 59, 60 and 60AA relevantly provide: "59 "hospital treatment" means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes: (a) the maintenance of the worker as a patient at the hospital or rehabilitation centre, (b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and (c) any other ancillary service,

[621]

(6) In this section: "gratuitous domestic assistance" means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay. 578 Sections 66 and 67, respectively provide for additional compensation to be paid in some circumstances to an injured worker in respect of permanent impairment and for pain and suffering. 579 It follows from my earlier findings that Kaybron has established that the injuries suffered by Omar for which he received compensation under the WCA were caused "under circumstances creating a liability in some person other than the employer to pay damages in respect of the injury" within section 151 Z (1). 580 Kaybron accepts, as is undoubtedly the case, that "compensation" within section 151 Z (1) (d) means compensation paid under the WCA. Kaybron submitted that once established that a particular sum was paid under the WCA, the only other relevant consideration, in order to trigger the indemnity, is whether the particular service was reasonably necessary. 581 The defendants submitted that the question of reasonable necessity should be determined by reference to Sharman v Evans. However, I was referred by Kaybron, to State Rail Authority of NSW v Brown [2006] NSWCA 220, a decision of the Court of Appeal given on 7 August, 2006. That decision is reported at 66 NSWLR 540 although as Mr Campbell pointed out the paragraph relied upon by Kaybron in the judgment of Basten JA is not part of the report. His Honour said at paragraph 85: "85 Questions of the reasonableness of a plaintiff's conduct usually arise in circumstances where treatment recommended by an appropriate professional has been refused: see, eg, Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, applied in State of New South Wales v Fahy [2006] NSWCA 64 at [140]. Where services have been used, the cost of particular services has occasionally been disallowed as not reasonably incurred: see generally Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [4.2.1] . In some cases it may be necessary to assess the benefits obtained by a particular form of treatment, against the costs incurred: see Sharman v Evans (1977) 138 CLR 563 at 573 (Gibbs and Stephen JJ). However, the "touchstone of reasonableness" to which their Honours refer will readily be resolved in favour of the plaintiff in circumstances where the treatment has been undertaken at the behest of his employer and the employer's insurer, and pursuant to a statutory scheme which requires such steps to be taken for the ostensible purpose, as noted above, of "the timely, safe and durable return" of workers to the workplace. This was not the choice of some speculative or unproven remedy by an idiosyncratic plaintiff: it was treatment undertaken in compliance with a scheme mandated by the Parliament."

[637]

589 In this case, the Statement of Claim in the later action was not filed until 3 August 2007 and P & M was not joined until 26 October 2007. 590 During the relevant period i.e. since August 2002, the interest rate prescribed for the purposes of section 101 of the Civil Procedure Act has fluctuated between 9% and 10%. That rate would ordinarily be allowed but in this case, having regard to Kaybron's delay in bringing action and for the reasons identified by Basten JA, I think it would be unjust to order interest at such a high rate. It would, I think be appropriate to allow interest on the sums recoverable under the indemnity at 5% per annum. For convenience, I will make the calculation from 7 August 2002 to the date of this judgment, a period of 5 years and 251 days and halve the result. The calculation produces $687,421. SUMMARY OF OMAR'S DAMAGES: 591 My conclusions in respect of Kaybron's claim lead to the provisional quantification of Omar's allowable out of pocket expenses. They comprise the amount referred to in paragraph 556 viz $196,721, together with the sum of $4,834,461 referred to in paragraph 587, less the total of the compensation referred to in paragraph 585, namely $343,275. On that basis I will, provisionally, allow Omar $4,491,186 by way of out of pocket expenses. 592 In summary, therefore, I provisionally calculate Omar's damages (subject to the impact of section 151 Z) as follows: Non Economic Loss $ 442,000 Past Loss of Income (Diminished Earning Capacity) $ 193,320 Future Diminished Earning Capacity $ 602,676 "Fox v Wood" $ 12,494 Past Employer Funded Superannuation $ 17,399 Interest on Past Wage Loss $ 16,149 Future Employer Funded Superannuation $ 54,240 Long Service Leave $ 4,000 Special Housing Costs $ 442,154 Spa Pool $ 40,000 Air Conditioning and Ceiling Hoist $ 13,527 Provision of Special Motor Vehicle etc. $ 100,000 Home Maintenance and Running Costs $ 70,000 Pharmaceutical etc. Expenses $1,000,000 Computer Equipment $ 50,000 Future Medical Treatment $ 217,450 Future Paramedical Costs $ 192,005 Past Out of Pocket Expenses (provisional) $4,491,186 Future Attendant Care $8,000,000 TOTAL: $15,958,600 THE OPERATION OF SECTION 151 Z OF THE WCA 593 Section 151 Z (2) applies to this case in that as I have held Omar was entitled to take proceedings independently of the WCA against Kaybron. For the purposes of the adjustment which the subsection requires, I assess damages against Kaybron in accordance with section 151 G of the WCA as follows:

[638]

Past Loss of Income $193.320 Future Diminished Earning Capacity $602,676 "Fox v Wood" $ 12,494 Past Loss of Superannuation $ 17,399 Interest on Past Wage Loss $ 16,149 Future Lost Superannuation $ 54,240 Long Service Leave $ 4,000 TOTAL: $900,278 594 Omar would have been entitled to a verdict against Kaybron if he had taken proceedings against it for $ 900,278. 595 By virtue of section 151 Z (2)(c), the damages provisionally assessed in favour of Omar against P & M, Austec and Vidual namely, $15,958,600 are to be reduced by the amount by which the contribution which those defendants would, but for Part 5 of the WCA, be entitled to recover from Kaybron, namely $1,595,860, exceeds the amount actually recoverable, namely $90,027. The difference between those two sums is $1,505,833 and, accordingly, Omar's entitlement to a verdict against P & M, Austec and Vidual is reduced to $14,452,767. 596 I would not regard a verdict of either $15,958,600 or $14,452,767 as strikingly disproportionate to the nature of Omar's claim. It would broadly accord with the verdict of $14,202,042 found by Whealy J in Diamond v Simpson albeit for specific reasons it was reduced on appeal to $10,998,692. The plaintiff in Diamond v Simpson seemed to need less care than Omar and had a longer life expectancy. ASSESSMENT OF DAMAGES - MR KOURI: 597 Mr Kouri's action is also governed by the Civil Liability Act (the CLA). As father of Omar he constitutes "a close member of the family" within section 30. 598 In my opinion, within section 32 (1) of the CLA, each of the three defendants ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken. The defendant therefore owed a duty, not only to Omar but also to his parents, a duty which they breached. There was no contributory negligence by Omar. 599 I am satisfied on the evidence to which I have referred that Mr Kouri, resulting from the defendants' negligence, suffers a recognised psychiatric illness, namely an adjustment disorder with depressed mood which has become chronic and pervasive, as diagnosed by Dr Phillips, post traumatic stress disorder with poor prognosis as diagnosed by Dr Robertson, or post traumatic stress disorder and consequent depression as diagnosed by Dr Clarke. None of those doctors was required for cross-examination and no contrary medical evidence was tendered by any of the defendants. 600 I accept Dr Phillip's evidence that Mr Kouri suffered psychological shock in several parts over a period of time and I accept Mr Kouri's evidence as to his feelings initially, and as time has passed, in relation to his son. 601 The accident had a major impact upon Mr Kouri's life, he commenced to drink alcohol to excess; he seemingly lost interest in his employment; he became socially withdrawn; and, as it appears, has devoted himself almost to the point of obsession with Omar's welfare. At one point he was suicidal. He required and still requires medication. 602 Mr Kouri's entitlement to damages for non economic loss is governed by section 16 of the CLA. Mr Hull submitted that he should be regarded as 60% of a most extreme case for the purposes of the section. The defendants, whilst conceding that Mr Kouri "falls into the class of person entitled to compensation for "mental harm"", submitted that the appropriate range was between 27% and 29% of a most extreme case. 603 Counsel pointed to references in the medical evidence to the possibility of improvement in Mr Kouri's condition following further psychotherapy and to Dr Philip's inability positively to validate a diagnosis of post traumatic stress disorder. 604 It is by no means easy to make comparisons between mental harm suffered by plaintiff's such as Mr Kouri and what normally comes to mind when considering "a most extreme case" ;namely such events as quadriplegia, serious brain damage and extremely severe scarring and disfigurement Kurrie v Azouri (1998) 28 MVR 406 per Sheppard AJA. Of course Omar himself presents as a tragic example. 605 Mr Kouri remains physically intact. His cognitive capacity is unimpaired and he has apparently been able to overcome his alcohol problem. Whilst handicapped by mental disorder, he is able otherwise to lead a normal life, or would be if not restricted by his personal, albeit perfectly understandable, choice to devote such a large proportion of his time and energies to the care of Omar.

[639]

606 In all the circumstances, I think 60% of a most extreme case is much too high. I would fix the percentage at 35% resulting in an award for non economic loss of $ 154,700. 607 Past out of pocket expenses were agreed at $5,240. Future out of pocket expenses were claimed at $35,226, largely based on the recommendations for future medication and treatment by Dr Phillips and Dr Clarke. 608 Counsel conceded the need for Mr Kouri to have counselling as recommended by Dr Phillips at a cost of $3,000. It was submitted that I would not accept Dr Clarke's opinion that he needs counselling for the rest of his life. 609 I agree that it is unlikely that Mr Kouri will, in fact, seek regular counselling for the rest of his life. I would allow $10,000 altogether for future out of pocket expenses. 610 In relation to economic loss, it was submitted on behalf of Mr Kouri that he has lost income since Omar's accident, casually connected to the defendants' tort. 611 At the time of the accident, he remained in employment with A W Tod on light duties following a shoulder injury some time previously. That employment was terminated in November 2005 when Mr Kouri was made redundant following a letter to him in the following terms (omitting formal parts): "RE: Position at A W Tod Stair & Joinery You have worked with A W Tod Stairs as a stair builder since November 1998. Until 2 years ago your standards of workmanship and reliability were very good and you were recognized as the leading tradesman. Your knowledge and trade skills were a valuable asset to this company. However, recently your regularity of attendance and quality of work have become unacceptable. Your concentration levels have been noticeably declining as is you inability to work a full day or a 5 day week. Since May1 you have been only able to work a 3 day week. From the 27th October you have been unable to work at all. We are experiencing problems with clients as we are unable to rely on you and are forced to send other tradesmen to finish your jobs. This situation is unacceptable and we are no longer able to use your services as a staircase contractor." 612 Mr Hull conceded that no claim for lost income was appropriate up to November 2005. Loss of income since then is claimed except for the period Mr Kouri worked for Global as a carer for Omar. 613 The defendants submitted that in truth Mr Kouri was made redundant because of his choice to spend about 12 hours per day assisting the professional carers to look after Omar. While I doubt the evidence supports the contention that Mr Kouri was actually spending 12 hours a day with Omar before he was made redundant, I am satisfied that his attention to Omar caused him to neglect his employment and led to its termination. 614 However, in the period between October 2005 and June 2006 when he became employed by Global, he did, according to his evidence given to Mr Webb devote 12 hours per day to Omar: "Q. And in that period between October 2005 and June 2006, you were spending all your available time with your son, weren't you? A. Yes.

[646]

Q. And were you getting up very early in the morning, 6 o'clock, 6.30? A. Correct." 615 Mr Kouri worked for Global for about 12 months performing what was undoubtedly, to a significant degree, quite hard physical work. He resigned because in essence the work became too much for him physically and mentally "Not just my back, my whole physical was shot, including my back'. 616 It was submitted that Mr Kouri left Global's employment because of the injury to his back and physical demands of the work rather than any mental disability. 617 There seems to be a degree of conflict between Dr Phillips opinion as to Mr Kouri's work capacity and that of Dr Clarke, although Dr Clarke's views are more recent and should be respected as those of his treating doctor. On the other hand, Mr Kouri, a man with what I would regard as a strong work ethic did not in his evidence reject the possibility of a return to the work force. I do not accept Dr Clarke's opinion that Mr Kouri is wholly incapable of engaging in employment. Apart from anything else, in my view, the competence and dedication with which he has appeared to supervise Omar's care seems to demonstrate a considerable degree of organisational capacity and tenacity. 618 The defendants submitted that no allowance should be made either for the past or the future in respect of diminished earning capacity. However, I think that a global sum should be awarded as a buffer or cushion to meet the situation that when Mr Kouri is minded to seek employment on the open market, he may, with his mental disorder, find it more difficult than someone without that disorder to secure a suitable position. I would allow in all $50,000 for diminished earning capacity. 619 In the result, therefore I would award Mr Kouri $219,940 made up as follows: Non Economic Loss $154,700 Past out of Pocket Expenses $ 5,240 Future Out of Pocket Expenses $ 10,000 Diminished Earning Capacity $ 50,000 TOTAL: $219,940 ASSESSMENT OF DAMAGES - MRS COHEN: 620 It seems clear that Mrs Cohen has established an entitlement to damages for mental harm similar to that of her former husband. Her claim for non economic loss must be approached on the same basis as Mr Kouri's claim. It was submitted on her behalf that she too should be regarded as 60% of a most extreme case. 621 Again the defendants contended that when compared to what comes to mind when contemplating "a most extreme case", she should receive damages which represent only a modest percentage. 622 Although, of course, as between themselves, the claims of Mr Kouri and Mrs Cohen are not entirely comparable, I think they are sufficiently so to warrant being awarded the same percentage of "a most extreme case". 623 Accordingly, it being conceded by the defendants that Mrs Cohen brings herself within the relevant provisions of the CLA, I would award her $154,700 damages for non economic loss. 624 Out of pocket expenses were agreed at $4,925.40 and that sum should be allowed. 625 Mrs Cohen seeks a substantial sum as compensation for past lost earnings. Earlier, I have indicated that she lost her permanent employment at the end of 2003. She has, according to her tax records earned very little income since. 626 On behalf of the defendants, it was submitted that her economic loss has arisen, according to the evidence, not because of mental illness affecting her capacity to earn income, but rather because of her frequent absences, understandable as they have been, in visiting Omar in Australia. In the defendants' submission no allowance should be made for past loss of income as the evidence does not support such an allowance. 627 On the other hand, Mr Hull pointed out, in effect, that directly and by inference, Dr Phillips provides support for a claim of diminished earning capacity. 628 There is, I think, no doubt that Mrs Cohen has been, and is, a woman agonisingly torn between her feelings of love and responsibility to her husband, family, and employment in America, and those she feels towards Omar in Australia. It is impossible not to have great sympathy for her but, as it seems to me, the conflict does not necessarily mean that her capacity to earn income has been diminished in a way recognised as compensable, either at common law or, so far as the future is concerned, in accordance with the somewhat stricter regime provided for by section 13 of the CLA. 629 In relation to her past income loss, I am satisfied that there has been some diminution of her earning capacity due to mental illness. It is impossible to separate that diminution from the barrier to her continuation in permanent employment presented by her personal decision to make frequent trips to Australia which, indeed, as Mr Hull submitted, may have operated to minimise her general damages. 630 For the purposes of section 13 of the CLA, given Mrs Cohen's past employment, it is likely, in my view, that she will return to the workforce but, as has been the case since the accident, her capacity to earn income will be diminished, both by her non compensable wish to spend as much time as possible with Omar and her compensable mental illness. 631 In the above circumstances, it is appropriate, as with Mr Kouri, to award a lump sum by way of buffer or cushion, which I fix at $75,000 to cover both the past and the future. The question of interest upon that sum does not arise. 632 It seems probable that Mrs Cohen will continue to live in the USA and will continue to have counselling. On the basis that such counselling will be for the rest of her life the "gap" sum of $16,837.78 is sought, namely the difference between cost and insurance entitlement. Although the sum claimed is relatively modest, there should be some discount to meet the circumstance that she will not continue the counselling for life. I would allow $13,000. 633 In summary, therefore, I would award Mrs Cohen $247,625 calculated as follows: Non Economic Loss $154,700 Agreed Out of Pocket Expenses $ 4,925 Diminished Earning Capacity $ 75,000 Future Out of Pocket Expenses $ 13,000 TOTAL: $247,625 ORDERS AND DECLARATIONS: 634 In the light of the above findings, I recognise that there are likely to be matters upon which the parties will seek to make further submissions and possibly call evidence. Those matters will, at least, relate to the management of Omar's verdict. There may also be matters of arithmetical calculation and costs. Accordingly, I defer making formal orders and stand the matter over for mention tomorrow 8 May at 9.30am. At that time I would hope to make such orders as can be made without further debate and to give directions regarding outstanding matters. 635 Subject to any further argument, it seems to me that in accordance with my reasons and finding there should be:

Parties

Applicant/Plaintiff:

Omar Baghdadi by his tutor Sami Kouri & Ors

Respondent/Defendant:

P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron

Cases Cited (27)

CITATION : Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron (No5); and Kaybron (No5) Pty Ltd v Vidual Pty Ltd; Austec Panel Systems Australia Pty Ltd; P & M Quality Smallgoods Pty Ltd [2008] NSWSC 406

Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180 Blundell v Musgrave (1956-7) 96 CLR 73 Diamond v Simpson [2003] NSWCA 67 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Fox v Wood 55 ALJR 562 G T Pettersen v Bacha (1995) 21 MVR 71. Hackshaw v Shaw (1984) 155 CLR 614: I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314 Kurrie v Azouri (1998) 28 MVR 406 Manning v State of NSW [2005] NSWSC 958 CASES CITED : Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 Nicholson v Nicholson (1994) 35 NSWLR 308 Olsson v Dyson (1969) 43 ALJR 77. Oxley County Council v MacDonald [1999] NSWCA 126. Roberts v Johnstone & Anor [1998] 3WLR 1247 Rosecrance v Rosecrance (1995) 105 NTR 1. Sharman v Evans (1976-7) 138 CLR 563 State Rail Authority of NSW v Brown [2006] NSWCA 220 Skelton v Collins (1965-66) 39 ALJR 480 Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166 Tolhurst v Associate Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 Weideck v Williams [1999] NSWCA 346 Wilson v McLeahy (1961-62) 35 ALJR 256.

(1987) 61 ALJR 180

(1965) 113 CLR 588

(1995) 21 MVR 71

(1984) 155 CLR 614

(1997) 14 NSWCCR 486

(1998) 28 MVR 406

(1994) 35 NSWLR 308

(1969) 43 ALJR 77

(1993) 31 NSWLR 162

(1993) 17 MVR 119

(1981) 150 CLR 402

(1968) 122 CLR 649