Rafferty-Butfield v Antonio

District Court of NSW|2016-04-08|Before: Mr J

Table of Contents Nature of case, factual background and issues [1] - [3] Summary of findings [4] - [5] Evidence overview [6] - [8] Credibility and reliability of testimony [9] - [16] The plaintiff [10] Mrs Rafferty-Butfield [11] Joshua Rafferty-Butfield [12] The defendant [13] - [14] Ms Tabuan [15] Sergeant Dixon [16] Facts [17] - [86] Plaintiff's pre-accident circumstances [18] - [19] Plaintiff's most probable circumstances but for injury [20] - [21] Events of the afternoon before the accident [22] Events during the course of the evening [23] - [32] Journey to the accident scene [33] - [36] Uncontested admitted facts [37] - [40] Injuries [41] - [42] Initial treatment [43] - [51] Subsequent medical and allied reviews [52] - [78] Immediately noticed effects of injuries [79] - [80] Disabilities that remain [81] - [85] Mitigation [86] Issue 1 - Alleged contributory negligence [87] - [116] Particulars of contributory negligence [88] Statutory provisions [89] - [93] Summary of relevant documentary evidence [94] - [95] Identification of the risk of harm [96] - [97] Plaintiff's duty of care to himself [98] - [99] Consideration of the contributory negligence issue [100] - [112] Consideration of the apportionment issue [113] - [116] Issue 2 - Assessment of damages [117] - [175] Plaintiff's probable life span [118] Past economic loss [119] - [130] Past loss of superannuation [131] Future economic loss [132] - [143] Future loss of superannuation [144] Past domestic assistance [145] - [162] Future domestic assistance [163] - [168] Future treatment expenses [169] - [173] Past out-of-pocket expenses [174] Summary of damages assessment [175] Disposition [176] Costs [177] Orders [178]

Nature of case, factual background and issues

The plaintiff, Mr Dale Rafferty-Butfield, was injured in a motor vehicle collision at about 03:20 hours on 12 February 2012. At that time, he was a rear seat passenger in a vehicle being driven by the defendant, Ms Dana Antonio, on the M4 Freeway near Homebush, NSW, when whilst participating in a race, that vehicle left the roadway, rolled over numerous times, and then collided with a tree: Exhibit "6", p 194. At the time, the defendant was affected by the earlier ingestion of alcohol and methyl-amphetamine.
In the collision, the plaintiff received a closed head injury, a laceration to his right ear and a number of ill-defined jolting soft tissue injuries. The plaintiff brings these proceedings against the defendant in negligence, claiming damages for the effects of those injuries. The defendant conceded the issue of negligence but defended the proceedings alleging contributory negligence on the part of the plaintiff.
The defendant initially claimed the plaintiff was not wearing a seatbelt, but later abandoned that allegation: T136.6. The defendant also claimed the plaintiff had voluntarily travelled in the vehicle at a time when he either knew or ought to have known that the defendant was intoxicated, and that her ability to drive was impaired. The defendant contested the quantum of the plaintiff's claim. The proceedings are governed by the Civil Liability Act 2002 (the "CL Act") and the Motor Accidents Compensation Act 1999 (the "MAC Act").

Summary of findings

I have found the plaintiff was contributorily negligent. I have apportioned the respective culpabilities as being 70 per cent to the defendant, and 30 per cent to the plaintiff. My determination of the quantum issues is as follows: Plaintiff's initial quantum Plaintiff's revised quantum Defendant's quantum Assessed Quantum $1,175,000 $582,835.45 $8,231.45 $181,428.85

After apportionment, the plaintiff is entitled to a judgment in the sum of $127,000.19.

Evidence overview

In the plaintiff's case, oral evidence was given by the plaintiff, and his mother, Mrs Janelle Rafferty-Butfield, and his older brother Joshua Rafferty-Butfield.
The defendant called oral evidence from Sergeant Russell Dixon, the police officer who investigated the accident. In the defendant's case, oral evidence was also called from the defendant, and from Ms Jerelyn Tabuan, another passenger in the defendant's vehicle.
The parties also tendered voluminous documentary evidence which will be referred to where it becomes relevant to do so.

Credibility and reliability of testimony

My conclusions on the credibility and the reliability of the respective witnesses are set out as follows:

The plaintiff

I consider that the plaintiff gave his evidence truthfully to the best of his recollection. His memory of the events leading to the collision was limited. When placed under the pressure of a rapid pace and lengthy cross-examination, at times he became flustered: T78.48 - T78.49. I did not consider his reaction in that regard detracted from his credit, or his reliability as a witness. He made appropriate concessions when they were due. I considered his evidence on the events that he could recall was reliable.

Mrs Rafferty-Butfield

Mrs Rafferty-Butfield gave straightforward evidence in which she described the plaintiff's situation as she knew it to be both before and after the accident. The majority of her evidence was directed to the claim for domestic assistance. I saw no reason to doubt the veracity or the reliability of her evidence and I accept her evidence in its entirety. The detail of her evidence stands to be evaluated according to the factual and legal, including statutory, criteria for assessing damages for domestic assistance.

Joshua Rafferty-Butfield

The plaintiff's older brother, Joshua Rafferty-Butfield gave straightforward evidence on factual matters, including his observations on the plaintiff both before and after the subject accident, and on matters concerning the management of domestic chores. I saw no reason for doubting the veracity or the reliability of his evidence.

The defendant

The defendant gave limited evidence of the factual circumstances leading up to the accident. She was obviously embarrassed at the events which were recounted in the evidence, and acknowledged that she had been extremely guilt-stricken and upset about the accident and its consequences: T220.45 - T221.4.
She acknowledged that in the hours before the accident she had consumed alcohol (T211.46; T213.35 - T214.21; T221.39), she acknowledged that she had been angry and had been arguing with another passenger whilst driving (T216.28 - T216.36), and she acknowledged that shortly before the accident, she had been speeding, and racing with another vehicle on the Freeway: T217.46 - T218.3; TT219.50. I considered the defendant gave truthful evidence concerning those matters.

Ms Tabuan

Ms Tabuan is a friend of the plaintiff. She described the events of the afternoon and evening before the accident, and of her recollection of the events which led to the accident. There was nothing arising from within her evidence, or from her manner of giving evidence, which raised any doubts about the content of her testimony. I considered her to be a truthful and reliable witness concerning the matters that she could recall.

Sergeant Dixon

Sergeant Dixon gave formal evidence concerning the investigation of the subject accident, and concerning the preparation of the Police brief for the prosecution of the defendant. He identified a number of relevant documents that had been prepared in that process. No credit issues arose from the evidence of Sergeant Dixon.

Facts

My findings of fact are as set out in the paragraphs that follow, unless otherwise stated.

Plaintiff's pre-accident circumstances

The plaintiff is presently aged 22 years. He was aged 18 at the time of the accident. He had attended the Newtown Performing Arts High School until the completion of Year 10. He said he was not committed to school work at that time. He was predominantly interested in dance, an activity he had formally pursued since the age of 7 years.
After spending some post-school time at a dance studio, he enrolled in Year 11 studies but did not persevere beyond the first term. He sought work in a fast food outlet for a very short time. He did not enjoy that work. In January 2012 he enrolled in a TAFE course in events management. He was hoping to complete the Certificate course in which he had enrolled, which would have involved one year of study. He then hoped to go on to complete a 12 month Diploma course. He participated in the Certificate course for two weeks before he was injured in the subject accident.

Plaintiff's most probable circumstances but for injury

Given the plaintiff's interest and enthusiasm for the entertainment field, I consider that his most probable circumstances but for the subject accident would have been that he would have completed his educational goals in events management, and he would also have most probably continued to pursue his interest in dance and in the entertainment industry, He also would have most probably pursued work in events management and entertainment, utilising such acquired skills, including, in the hospitality industry. Whilst studying, he most probably would have sought out part-time work in the hospitality industry, probably as a barman.
The nature of those pursuits, and the many inherent variables involved, preclude a reasoned insight into the extent and the frequency with which he would have found work, and the level of remuneration he would have received for such work. However, on the evidence, I consider that the plaintiff's pre-accident earning capacity would have been unrestricted on account of physical considerations. But for the accident, he would have been in a position where he could have pursued a wide range of physical jobs without restriction: s 126 of the MAC Act.

Events of the afternoon before the accident

The plaintiff recalls very little of the events leading up to the accident. Early in the evening, at about 7.30pm or 8.00pm, he, Ms Tabuan, the defendant and Ms Usi, had been invited to go to a party at the home of a friend of the defendant. They left Ms Tabuan's home at about 10.30pm or 11.00pm on that evening, and they had arrived at the party at about midnight. The defendant drove them there in her vehicle. The plaintiff said he had not met the defendant beforehand. Before the defendant had collected the plaintiff and Ms Tabuan, she said that she had consumed a drink of vodka, but that fact was not known to the plaintiff at that time.

Events during the course of the evening

During the evening at the party, over the course of about 2 hours, the plaintiff had consumed about 4 to 5 cups of punch which contained alcohol. He did not feel that either he or Ms Tabuan had been affected by the alcohol that they had consumed. When they left the party, they proceeded to walk towards the defendant's vehicle.
At that time, the defendant and Ms Usi were arguing, screaming, and "getting loud" at each other. The plaintiff said that he had the opportunity of observing the defendant at that time. He said that at the time, he saw she was walking around, and that she appeared to be "fine". He said he had not noticed anything about the defendant that made him think she was affected by alcohol. However, the plaintiff's evidence in that latter regard must be evaluated and discounted in light of other incontrovertible evidence on that subject.
The plaintiff did not recall having any conversation with the defendant before he had entered her vehicle, other than observing that the defendant was very angrily disposed towards Ms Usi, who needed to be helped into the back seat of the vehicle, where the plaintiff was also seated.
The vehicle was then driven by the defendant to the car park of McDonalds, a fast food outlet on Parramatta Road at Five Dock, where they all remained for about an hour. The plaintiff did not recall much detail of the events at the McDonalds car park. At some stage whilst at the McDonald's car park, he recalled Ms Usi laying down on the ground, or on the roadway, at the entry to the car park.
In contrast to the plaintiff's evidence that he had not previously known the defendant, the defendant said she had previously met him a couple of times. In my view, nothing of credit significance turns on that divergence within the evidence.
The defendant had consumed a number of alcoholic drinks whilst at the party. Those drinks initially comprised pre-mixed vodka drinks, and then the alcoholic punch. She recalled having "probably five or six or more standard drinks". It appears that in addition, she also consumed a number of cups of punch: T213.48 - T214.22.
Ms Tabuan had observed the defendant drinking alcohol during the time they spent at the party, but she offered no estimate of the quantity of drinks consumed by the defendant: T225.38. At the time the group left the party, Ms Tabuan was unsure of the defendant's state of sobriety: T226.49.
Ms Tabuan recalled that before the defendant drove away from the party, a discussion had taken place as to who should drive the defendant's vehicle. The participants to that discussion were the defendant, Ms Usi, and someone named Rana, at whose home the party took place, and the plaintiff: T227.20 - T228.2.
The effect of the conversation was that Rana had asked whether the defendant was alright to drive. The plaintiff had also asked a question, the content of which was not explored in the evidence, but the conversation resulted in the plaintiff offering to drive if the defendant was "still intoxicated": T228.4 - T228.9. I infer from that evidence that the plaintiff knew that the defendant's ability to drive was likely to have been impaired by her consumption of alcohol.
In that conversation, the defendant responded to the effect that she was "fine", and then she proceeded to drive, albeit erratically, and aggressively: T228.11 - T228.42. At that time, Ms Tabuan described her own state, and that of the plaintiff, as "pretty cruisey by then": T229.8. I infer from that evidence, that both the plaintiff and Ms Tabuan were also both affected by the alcohol they had consumed.

Journey to the accident scene

The defendant recalled she was still arguing with Ms Usi whilst at the McDonald's car park. She recalled all four members of their group being within the car when they left the McDonalds car park. The intention was for the vehicle to be driven to Ms Tabuan's home: T217.28 - T217.32.
The defendant recalled that in the journey, she was speeding and racing on the roadway with another vehicle before her memory of the events ceased: T217.40 - T218.3; T219.45 - T220.1. She said she had felt fine to drive her car from the party, and she said that she felt that her ability to drive had not been affected by alcohol: T218.39 - T218.45. Clearly, on the objectively known facts, those conclusions involved significant misjudgements on the defendant's part.
Ms Tabuan described her concern over the defendant's ability to drive at that time as being "a 50/50": T230.18. She said that she herself "was tipsy as well": T230.31. She described the defendant's driving actions prior to the racing incident with the other vehicle just before the collision as "relatively" fine: T231.2.
On a consideration of that evidence, I find that the plaintiff was in a position to observe the defendant's angry and argumentative behaviour towards Ms Usi before he entered the vehicle, and given that they had all been at a party where alcoholic drinks had been consumed, he ought to have been concerned about the defendant's capacity to drive safely at that time: T216 - T217.

Uncontested admitted facts

By reason of the plaintiff's non-contest of a notice to admit, the plaintiff must be taken to have admitted, for the purposes of these proceedings, that at about 4.40am on 12 February 2012, when a blood sample was taken from the defendant about 50 minutes after the accident, that first, the defendant had a blood alcohol concentration of not less than 0.084 grams of alcohol in 100 mls of her blood, and secondly, at that time there was present in the defendant's blood 0.02 mgs per litre of the drug methyl-amphetamine: Exhibit "6", pp 116 - 117. Other evidence revealed that on testing, the defendant also had 0.03 mg/L of free morphine in her blood: Exhibit "6", p 278. The compelling inference is that the defendant's blood alcohol level was at, if not above, the 0.05 legal limit at the time of the accident.
The evidence of the defendant having alcohol and methyl-amphetamine in her blood justifiably based the formal admission of negligence on her behalf.
The evidence of the defendant's methyl-amphetamine and free morphine levels requires cautious interpretation. There is no evidence to suggest that the plaintiff was actually aware or ought to have been aware, that the defendant had taken methyl-amphetamine before the subject accident. I therefore propose to disregard that particular evidence in my consideration of the issue of alleged contributory negligence.
The evidence of the defendant's intake of alcohol, and the likely outward observable signs in the defendant of the effect of such intake, and the likelihood of the plaintiff's awareness of such matters, falls into a different category to methyl-amphetamine and free morphine, and therefore such evidence must be taken into account in the consideration of the allegation of contributory negligence.

Injuries

In the events of the collision, the plaintiff sustained a head injury. The only visible sign of that injury was a significant laceration to the pinna of his right ear. At the scene, ambulance personnel found the plaintiff in a supine position on the ground, in an agitated state, for which he was given a series of doses of Midazolam totalling 15mg before arriving at the hospital. The clinical notes stated that the plaintiff had extricated himself from the crashed vehicle, and was found supine and agitated at the accident scene, and that he required the administration of Midazolam: Exhibit "B", p 6. At the scene, he was noted to have been combative: Exhibit "B", pp 13 and 20.
Following the administration of Midazolam, the plaintiff's Glasgow Coma Score had dropped significantly. As a consequence, he was intubated by ambulance personnel at the scene, and then taken to the intensive care unit ("ICU") at Westmead Hospital. A cervical collar was also applied to the plaintiff by ambulance personnel: Exhibit "A", p 55; Exhibit "B", p 6. The plaintiff also apparently had multiple grazes over his right forearm and hand but those latter problems have resolved: T68.

Initial treatment

Whilst in the ICU at Westmead, the plaintiff remained sedated and intubated. Coincidental with the time when it was planned that he be weaned off that breathing support, he self-extubated: Exhibit "A", p 1. The plaintiff became calm after self-extubation: Exhibit "B", p 27. It was then determined that he was in a stable state.
A head CT scan was carried out on the plaintiff and it reportedly found that he had some fluid in his nasal cavity. From a mental perspective, he appeared normal and alert. At that time, his only physical injuries were noted to be a lacerated right ear and a cracked lower 7th tooth: Exhibit "A", p 1. A nursing note made at 01:30 hours made mention of some bruising over the right side of the neck, at a superior lateral location: Exhibit "A", p 45. It is difficult to determine the full course of the plaintiff's treatment at Westmead Hospital because a full set of notes was absent from the evidence.
The plaintiff underwent an operative debridement and repair of his right ear. On reading the discharge note in isolation it appears he was discharged from Westmead Hospital at 12:00 noon on 13 February 2012, on antibiotic medication, with a follow-up planned in a further week, and a planned follow-up with the Brain Injury Rehabilitation Service Clinic in a further 4 weeks: Exhibit "A", pp 1 - 2.
However, the Westmead Hospital clinical notes relating to the plaintiff's admission also record that he had remained there between 13 February 2012 and 15 February 2012, and some notes of a number of follow-up appointments were also tendered as part of Exhibit "B", pp 1 - 80.
A copy of the plaintiff's ambulance transport report was included in those records: Exhibit "B", p 78. The scanned copy of the handwritten contents which were tendered is difficult to decipher: Exhibit "B", pp 4 and 78. The ambulance officers recorded a history of the plaintiff having been involved in a "2 car MVA + impact ? high speed". The source of that recorded history was unclear.
At hospital, the care of the plaintiff progressed through the emergency department, the ICU, the operating theatre, and then the high dependency unit before discharge: Exhibit "B", p 6.
The plaintiff's surgery involved debridement and repair of his left ear laceration: Exhibit "B", p 7. The end result of the remaining cosmetic defect is evident in Exhibit "C".
On 12 February 2012, the nursing notes taken at Westmead Hospital recorded someone's opinion that there were no seatbelt marks on the plaintiff's body: Exhibit "B", p 25. That evidence, which seems to have been at odds with the bruise marks found on the right side of the plaintiff's neck, is ultimately of no relevance, given the defendant's abandonment of the seatbelt defence.
On 25 May 2012, the plaintiff attended Westmead Hospital's medical neuropsychology clinic for an assessment: Exhibit "B", p 79. In that assessment session, it was noted that he was amnesic for the events of the accident: Exhibit "B", p 83. The notes of that psychological interview record an account of the plaintiff having questioned the defendant before the accident as to whether she had been drunk. It was also recorded that, despite the defendant's denials, she had alcohol and the drug ecstasy in her blood, as was found to be the case after the event: Exhibit "B", p 84; Exhibit "6", pp 116 - 117.

Subsequent medical and allied reviews

The tendered medical evidence was sparse and represented an incomplete array of reports. The paragraphs that follow record a limited factual chronology extracted from the reports which followed the medical and allied assessments of the plaintiff. Where relevant, those chronological events are also annotated with a summary of the opinions of the various practitioners who saw the plaintiff on the dates recorded.
On 25 May 2012, the plaintiff had an initial neuropsychological assessment by Dr Susanne Meares at Westmead Hospital neuropsychology unit. In her ensuing report dated 1 June 2012, Dr Meares concluded the plaintiff's neuropsychological test results suggested he had few residual effects from his brain injury. She also noted the plaintiff's elevated anxiety symptoms may be impacting on his attentional abilities: Exhibit "A", p 4.
On 16 August 2012, the plaintiff was assessed by a psychologist, accompanied by his mother. There were some handwritten notes made of that assessment, but no report: Exhibit "6", pp 32 - 43.
On 27 September 2012, the plaintiff was again assessed by a psychologist. There were some handwritten notes made of that consultation, but no report: Exhibit "6", pp 44 - 46.
On 12 October 2012, the plaintiff was examined on behalf of the defendant's insurer by Dr David Bowers, a consultant specialist rehabilitation physician. Dr Bowers recorded a history of episodic anxiety, especially concerning motor vehicles, tenderness and abnormal shape of the right ear lobe, left-sided neck pain, intermittent lumbo sacral pain, and according to the plaintiff's mother, personality change, and poor concentration when in conversation. On examination, Dr Bowers detected short term memory problems. He noted the plaintiff was independent of personal care and simple domestic tasks. At that time, the plaintiff reportedly acknowledged he was capable of doing heavy and awkward domestic tasks. Dr Bowers considered the plaintiff's unfitness for work would have been for a period of about 6 weeks: Exhibit "6", pp 47 - 53.
On 29 October 2012, at the request of his solicitors, the plaintiff was examined by Dr Stephen Buckley, a consultant rehabilitation physician: Exhibit "A", pp 82 - 84. Dr Buckley identified a difference in the type of neuropsychological assessment that had been undertaken by Dr Meares, and a more formal forensic neuropsychological assessment, but suggested that any such repeat examination be postponed until 2 years post-accident. At this initial examination, Dr Buckley observed a level of anxiety in the plaintiff, and suggested a psychiatric follow-up.
On 4 November 2012, at the request of his solicitor, the plaintiff was examined by Dr Clark, a consultant psychiatrist. In his ensuing report dated 11 November 2012, Dr Clark expressed the diagnosis that the plaintiff had many of the symptoms of a Post-Traumatic Stress Disorder with overlapping symptoms of well-defined fronto-temporal brain damage: Exhibit "A", pp 9 -10. He elaborated upon that diagnosis, stating that the plaintiff had an organic brain syndrome or dysfunction: Exhibit "A", p 11. He supported those opinions by reference to the detailed descriptions which are set out in his report: Exhibit "A", pp 12 - 17.
On 13 November 2012, at the request of his solicitors, the plaintiff was examined by Dr Paul Teychenne, a consultant neurologist, who then prepared a report in which he summarised the plaintiff's history, including that which was obtained from the plaintiff's mother. He also set out his findings on his neurological examination of the plaintiff, but expressed no diagnostic opinions as to the plaintiff's disabilities. He recorded Mrs Rafferty-Butfield's opinion that since the subject accident, the plaintiff's personality had changed: Exhibit "A", pp 39 - 42.
On 29 November 2012, the plaintiff was again assessed by a psychologist whilst accompanied by his mother. There were some handwritten notes made of that assessment, but no report: Exhibit "6", p 45.
On 4 December 2012, at the request of his solicitors, the plaintiff was examined by Dr Peter Giblin, a consultant orthopaedic surgeon: Exhibit "A", pp 67 - 71. Apart from noting the loss of a right lower molar tooth, Dr Giblin did not identify any bony injuries. From the perspective of his speciality, he considered the plaintiff had suffered soft tissue injuries to his right ear, cervical spine, right hand and low back.
On 5 December 2012, the first record appears of complaints made by the plaintiff of low back pain and right sided neck pain and stiffness. He made those complaints to Dr Giblin: Exhibit "A", p 68.
On 13 December 2012, the plaintiff was again examined by a psychologist, but there is no report of that consultation, only some handwritten notes: Exhibit "6", p 46.
On 18 December 2012, at the request of the defendant's insurer, the plaintiff was given a work suitability test by Ms Elyce Greenaway, a social worker and occupational health consultant: Exhibit "6", pp 56 - 61. Ms Greenaway assessed the plaintiff as having some barriers in his path for "returning to work". Those included post-injury psychological symptoms, long term unemployment, absence of a driver's licence and minimal experience with previous employment and vocational skills. She concluded there were no functional restrictions which limited the plaintiff's work capacity.
On 14 April 2013, at the request of his solicitors, the plaintiff was re-examined by Dr Teychenne, whose second report was more detailed than his first report. In that second report, Dr Teychenne stated that the evidence indicated to him that the plaintiff had suffered a head injury. He noted the history of difficulty with concentration and recall, flatness and lethargy, and confirmed his view the plaintiff had suffered a traumatic brain injury. Dr Teychenne considered the plaintiff would have difficulty with any form of employment that required memory function, sustained concentration and thinking agility. At that time, Dr Teychenne expressed a guarded prognosis. He suggested a brain MRI to look for evidence of previous cerebral contusion or evidence of diffuse axonal injury. There is no evidence that suggestion was followed. Dr Teychenne also recommended psychological or psychiatric contact for the plaintiff's anxiety and post-traumatic stress disorder: Exhibit "A", pp 43 - 48.
In another report, also dated 14 April 2013, which principally dealt with assessment of whole person impairment questions, Dr Teychenne went on to state that the plaintiff's cognitive function was expected to improve over the first 18 months following a head injury. He also stated that the plaintiff required a psychiatric assessment with regard to his PTSD and his anxiety: Exhibit "A", pp 49 - 50.
On 29 May 2013, Dr Buckley re-examined the plaintiff and issued a further report, in which he reviewed his earlier findings in light of the neuropsychological assessment by Dr Meares that was provided to him for his comment. He suggested a further neuropsychological assessment as Dr Meares' previous assessment, in his view, did not constitute a forensic evaluation. In stating that view, he did not imply any criticism of Dr Meares' earlier assessment. The issue was one of timing for the testing to take place. Dr Buckley reiterated his earlier expressed concerns over the plaintiff's problems with anxiety, cognition and again recommended obtaining a psychiatric opinion: Exhibit "A", pp 82 - 84.
On 2 May 2014, the plaintiff underwent a psychiatric examination by Dr John Baker, a Medical Assessment Service Assessor: Exhibit "6", pp 62 - 81. Dr Baker had available to him some other MAS reports that were not tendered in evidence, namely, from Dr Boland and Dr Fitzsimons. Dr Baker concluded that the plaintiff was suffering from an adjustment disorder with mixed anxiety and depressed mood, without any plans in place for further treatment.
On 22 May 2014, at the request of the defendant, the plaintiff was re-examined by Dr Bowers who noted the plaintiff had been assisted with his self-confidence by having seen a psychologist. Dr Bowers also noted significant psychological symptoms (at Exhibit "6", p 83) as well as ongoing neck and back pains. Dr Bowers stated that his earlier opinion in his 2012 report remained essentially unchanged. He also suggested the plaintiff's symptoms were being contributed to by a possible anxiety disorder: Exhibit "6", pp 82 - 89.
On 1 October 2014, at the request of his solicitors, the plaintiff was re-examined by Dr Clark, who then prepared a second report in which he reiterated his earlier view that the plaintiff was suffering from post-traumatic stress disorder, and permanent brain damage, the latter requiring confirmation by neuropsychological testing : Exhibit "A", pp 20 - 31.
On 28 October 2014, at the request of his solicitors, the plaintiff was examined by Dr Teychenne for a third time. In his ensuing report dated 6 March 2015 (Exhibit "A", pp 51 - 63), after updating the history from the plaintiff and from his mother, the details of which included occasional unfiltered sarcastic commentary, grandiosity, hypomania and periods of depression, Dr Teychenne identified a number of cognitive deficits, particularly with memory, mild slowness in thinking, occasional word block, and difficulty concentrating. He reiterated his view the plaintiff had cognitive deficits as a result of a traumatic brain injury. He noted the plaintiff had an executive function deficit, including when using a computer. Dr Teychenne considered the combination of the plaintiff's problems of anxiety, panic reaction, bipolar mood disturbance and loss of tact, could interfere with his employment in a range of fields, including acting and clerical work. He considered the plaintiff's behaviour comprising a tendency to make insulting remarks without considering the consequences, was consistent with frontal lobe disorder, which would also inhibit his employability, and could also worsen his prognosis.
On 9 November 2014, at the request of his solicitors, the plaintiff was re-examined by Dr Giblin: Exhibit "A", pp 72 - 75. From the perspective of his specialty, Dr Giblin noted the plaintiff had ongoing symptoms in his low back, and right shoulder when he sleeps on it, or when he tries to use it in a heavy fashion, with apparent limitation in carrying out the heavier domestic responsibilities. Dr Giblin considered the plaintiff remained fit for work which excluded heavy repetitive bending, lifting and twisting. He considered that the plaintiff may be a candidate for further medical investigation of his lumbar spine should his condition become aggravated or deteriorate. As I read Dr Giblin's report in that regard, he raised the possibility of surgery, such as a discectomy, in a speculative context.
On 6 March 2015, Dr Teychenne prepared a separate report which dealt with whole person impairment issues which do not require further analysis for present purposes: Exhibit "A", pp 64 - 66.
On 30 June 2015, Dr Giblin provided a commentary upon the zero whole person impairment assessment of the plaintiff arrived at by a Motor Accident Authority Assessor, Dr Baker. In that commentary, Dr Giblin exposed what he considered to be the selectiveness of the assessment criteria, as follows : "I have read the physical examination findings on page 4 and these findings are consistent with insurance requirements. The documentation review on page 4 has no reference to radiological investigations. It is noted that the Motor Accident Authority Certificate dated 27th March 2014 allocates 0% Whole Person Impairment for a closed head injury and soft tissue injury to the cervical and lumbar spine. It is noted on the same page that the Motor Accident Authority Assessor found no great impairment. The medical documents from Westmead Hospital indicates that Mr Rafferty-Buttfield had a closed head injury from which there is no apparent gross early neurological sequelae. However, the closed head injury, per se, carries an increased lifetime risk of the onset of epilepsy. It is estimated that this is in the order of at least 1%. As such it is my view that this represents a brain impairment. The ejection from the motor vehicle, at high speed indicates that his body was subject to significant, unrestrained violence. Given the persisting symptomatology in his lumbar spine, it is my view that there is a reasonable causal connection between the diagnoses of a soft tissue injury to his low back and the subject accident. One of the fine medical traditions is an open discussion among colleagues in relation to matters of medical diagnosis in the interests of heightened diagnostic precision. The views expressed above are accordingly presented with that tradition, and are in no way intended as a personal comment or criticism of any colleague with whose views I disagree." [Exhibit "A", pp 76 - 77]
On 14 September 2015, at the request of his solicitors, the plaintiff was re-examined by Dr Giblin: Exhibit "A", pp 78 - 81. Dr Giblin updated the previous history to record that the plaintiff's symptoms were mainly around his lower back, and to a lesser extent, his neck and left shoulder. The plaintiff reportedly complained of aggravation of his back symptoms on standing for more than 20 minutes or walking more than a kilometre. He noted the plaintiff's condition remained stable. He assessed the plaintiff as being fit for full time work which excluded heavy repetitive bending, lifting and twisting, or associated labouring duties. No further treatment needs were identified.
On 15 September 2015, at the request of his solicitors, the plaintiff was further re-examined by Dr Clark, who then prepared a second report in which he described the plaintiff's ongoing complaints as anxiety, low back pain, neck pain, memory loss and headaches. He noted the plaintiff was working part-time as a bartender, for between 3 and 6 hours per day, and that he participated in household tasks, such as cleaning and shopping, although some housework was restricted. Dr Clark was of the opinion the plaintiff no longer had any specific signs of PTSD, and he noted the prominent symptom was the neuropsychological effect of the accident on recent memory function. He recommended the plaintiff be reviewed by a treating psychiatrist: Exhibit "A", pp 33 - 37.
On 2 December 2015, at the request of the defendant, the plaintiff was examined by Dr Arthur Shores, a consultant neuropsychologist. Dr Shores interviewed the plaintiff and his mother separately, and read a number of documents that had been supplied to him by the defendant's representatives. An examination of the report of Dr Shores reveals that some of those documents were not tendered in evidence in these proceedings. Dr Shores carried out a formal cognitive assessment of the plaintiff, the results of which were in the average range, except for working memory, which was in the low average range. He concluded the plaintiff had intact intellectual functioning, but there was nevertheless evidence of mild emotional disturbance. Dr Shores concluded there were some difficulties experienced by the plaintiff concerning mild residual executive dysfunction, and that the plaintiff's presentation was consistent with frontal lobe damage. Dr Shores considered the plaintiff's acquired cognitive deficits were as a result of a mild as opposed to a moderate traumatic brain injury, but not of sufficient severity to prevent employment in duties for which he had the potential before the accident. Dr Shores was of a similar view with regard to the plaintiff's ability to perform day-to-day domestic tasks. He considered the plaintiff's condition to be stable: Exhibit "6", pp 101 - 115.
On 15 March 2016, at the request of the plaintiff's solicitor, Dr Buckley was asked to furnish a further report. He reviewed the neuropsychological opinion of Dr Shores. He noted Dr Shores' identification of mild post-traumatic brain injury and associated impairment in the plaintiff. He stated that he had no reason to disagree with the opinion of Dr Shores, but he would require a further review of the plaintiff before expressing a more definitive opinion. He commented that brain damage is highly likely to affect the plaintiff's day-to-day functioning in a significant way. As I read his report in that regard, Dr Buckley was speaking in general terms. He saw no basis upon which to refute the opinion expressed by Dr Shores to the effect that the plaintiff would have no significant consequences of the behavioural deficits that arose from his traumatic brain injury: Exhibit "A", pp 94 - 98.

Immediately noticed effects of injuries

About 2 weeks after discharge from hospital, the plaintiff resumed attendance at his TAFE course but he found he had fallen too far behind in that course, and after persevering for about a week, he decided not return to that course: T22.38 - T23.11.
At the time, he had thumping head pain, he experienced aching at the back of his head, and he felt self-conscious and uncomfortable about the appearance of his disfigured ear: T23.12 - T23.44. He felt "flat", he fought with his family (T24.25 - T24.30), within a few weeks of the accident, he began to notice he had problems with his memory, and he noticed he was experiencing pain in his lower back in the region of the thoraco-lumbar spine: T26.14 - T26.38. He began to notice he had very poor concentration: T27.6. He also noticed he had depression, he felt sad and lonely, and felt unhappy a lot of the time: T27.46. He also described having become nervous and anxious.

Disabilities that remain

Given that I have accepted the plaintiff as a credible witness, I am satisfied that the medical and allied practitioners who have provided reports following their examinations of the plaintiff, have accurately summarised his complaints. I take those summaries to be evidence of his injuries and disabilities: Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25, per Heydon JA at [70]; s 60 of the Evidence Act 1995.
The common theme emerging from the above review of the medical evidence is that the plaintiff has frontal lobe traumatic brain injury which has left him with residual problems affecting his executive functions, and some ongoing cognitive and psychological difficulties, including poor concentration, which impact subtly, but recognisably, on his day-to-day functioning, including with potentially adverse implications for future employment and employability.
I also accept that the plaintiff has developed low back pain and neck pain as a result of the jolting injuries he received in the subject accident.
The plaintiff remains self-conscious about the appearance of his right ear, as shown in Exhibit "C". He remains forgetful about where he places objects. He continues to have back pain, especially when lifting heavy objects. He experiences reduced motivation. He continues to remain anxious. His self-esteem is reduced. He is disorganised in his life. At times he has difficulty remembering some choreography steps. These matters obviously adversely affect him when he presents for interviews and when he seeks to pursue employment opportunities. Given the descriptions in the medical reports I have reviewed in the preceding paragraphs, I find these problems are consequent upon the plaintiff's frontal lobe brain injury which resulted from the trauma of the subject accident.
Those problems also include accident-related anxiety, impaired concentration, irritability, misplacing objects, and difficulty managing the money he currently receives from Centrelink. The plaintiff's mother described changes in his behaviour since the accident. These matters included a flatness in his demeanour, argumentativeness, having a "short-fuse", needing to sleep a lot, and forgetfulness. I accept her evidence on those matters which she described. Although the plaintiff has lost a right lower molar (Exhibit "A", p 68) there is no evidence that this has caused him any significant ongoing difficulties.

Mitigation

Following his accident, the plaintiff sought and obtained treatment for his injuries. The defendant made no submissions to suggest there had been an unreasonable failure on the part of the plaintiff to mitigate his losses. Accordingly, any assessment of his entitlement to damages should not be reduced on account of any mitigation questions: s 136 of the MAC Act.

Issue 1 - Alleged contributory negligence

The defendant submitted that there should be a finding that the plaintiff was contributorily negligent, and that the relevant apportionments of culpability should be 60 per cent to the defendant, and 40 per cent to the plaintiff.

Particulars of contributory negligence

The defendant pleaded the following particulars of contributory negligence: 1. Failing to wear a seatbelt. (An allegation that was abandoned during the course of the hearing: T136.6) 2. Travelling as a voluntary passenger in a motor vehicle when he knew or ought to have known that the defendant was intoxicated and her ability to drive was impaired. 3. Failing to take any or any proper care for his safety.

Statutory provisions

Section 5R of the CL Act relates to the determination of claims of contributory negligence, and provides as follows: 5R Standard of contributory negligence (1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
Section 5S of the CL Act provides as follows: 5S Contributory negligence can defeat claim In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.
The issue of contributory negligence, which must necessarily be determined by the provisions of s 5R and s 5S of the CL Act, also necessarily invoke the provisions of s 5B and s 5C of the CL Act: Solomons v Pallier [2015] NSWCA 266, at [48].
Section 5B of the CL Act provides as follows: 5B General principles (1) A person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions. (2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things): (a) the probability that the harm would occur if care were not taken, (b) the likely seriousness of the harm, (c) the burden of taking precautions to avoid the risk of harm, (d) the social utility of the activity that creates the risk of harm.
Section 5C of the CL Act provides as follows: 5C Other principles In proceedings relating to liability for negligence: (a) the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and (b) the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and (c) the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.

Summary of relevant documentary evidence

The above provisions will be considered and applied following a review of the relevant documentary materials. The defendant relied upon voluminous documentary material within Exhibit "6" on the issue of contributory negligence. In essence, that material comprised: 1. A pharmacologist's report dated 1 June 2012 from Dr Judith Perl: Exhibit "6", pp 23 - 31. Dr Perl raised the spectre that the defendant had consumed more alcohol than she had intimated, and having regard to known and identified data on alcohol elimination rates, Dr Perl considered the defendant's blood alcohol concentration would have been over the legal limit at the time of the accident, and that her driving reactions, visual and perceptive skills, and motor co-ordination would have been impaired, and that the potential for risk-taking behaviour whilst driving would have increased; 2. A notice to admit facts and authentication of documents: Exhibit "6", pp 116 - 117. Those matters have already been outlined at paragraphs [37] to [40] above; 3. Copies of Police records produced pursuant to subpoenas for production: Exhibit "6", pp 118 - 269. That material dealt with formal matters of record concerning the Police investigation of the accident. During a Police interview, the defendant conceded that she had driven recklessly (Exhibit "6", p 173, Q & A 199) and that she had lost control of her vehicle (Exhibit "6", p 175, Q & A 214); 4. Copies of documents produced on subpoena from the Department of Analytical Laboratories: Exhibit "6", pp 270 - 388. That material largely comprised scientific interpretative tables that were employed in the expert pharmacological analyses of the defendant's blood samples; 5. A pharmacologist's report dated 27 May 2015 from Dr Helen Dauncey: Exhibit "6", pp 90 - 100. That report recorded that at 05:16 hours on 12 February 2012, the plaintiff's blood results showed only a low concentration of ethanol (Exhibit "6", p 94, at par 5.20), and that on pharmacological analysis, the defendant's blood alcohol concentration was most probably 0.104g% (Exhibit "6", p 95, par 6.3) which led Dr Dauncey to the view that at the time of the accident, the defendant was "at least moderately intoxicated": Exhibit "6", p 95, par 8.3. 6. Dr Dauncey went on to describe a range of diminished cognitive and motor impairments that were likely accompaniments to the defendant's degree of alcohol intoxication, including possible intermittent difficulty with speech, significant disinhibition of mood, and typical alteration to facial appearance recognisable as being that of someone who had been drinking, including the likely evident smell of alcohol: Exhibit "6", p 97, par 8.7. Dr Dauncey concluded that within the half hour before the accident, anyone in the immediate presence of the defendant would probably have been able to recognise some of those symptoms or signs, including moderate intoxication, as the likelihood was that the defendant would not have looked sober: Exhibit "6", p 97, par 8.9 and p 100, par 11.3.
The plaintiff sought that a limiting qualification be applied to limit the utility of the Police materials described in the preceding paragraph: s 135 of the Evidence Act 1995. I consider that the above summary adequately reflects the boundaries of a qualifying order made pursuant to that section.

Identification of the risk of harm

In the consideration of the defence of alleged contributory negligence, it is necessary to first identify the relevant risk of potential harm to the plaintiff before proceeding to a consideration of whether the plaintiff was in breach of the duty of care that he owed to himself in the circumstances under review.
In addressing that question, I consider it to be beyond argument that when a person in the plaintiff's position on the night in question accepted a ride in a motor vehicle to be driven by someone who had been at a party drinking alcohol, accepting the ride foreseeably involved undertaking the risk of injury from a collision, in the event that the driver of that motor vehicle failed to adhere to the standard of reasonable care when at the controls of that vehicle.

Plaintiff's duty of care to himself

In such circumstances, the plaintiff's duty was to pay due regard to his own safety, and to determine for himself, whether or not it was safe for him to accept a ride in the defendant's vehicle, having regard to the circumstances which he either knew or ought to have known, concerning the defendant's likely state of alcohol affectation, and her related capacity to maintain safe control of the motor vehicle.
The manner in which that duty of care ought to have been discharged by the plaintiff was by making relevant observations from the defendant's appearance and manner, and by asking relevant questions concerning the defendant's alcohol intake, and her ability to drive in the light of such circumstances.

Consideration of the contributory negligence issue

I consider that the plaintiff ought to have realised there was a significantly foreseeable likelihood that the defendant's capacity to maintain safe control of the vehicle may have been impaired by reason of a number of factors that impacted upon her, both at the time he accepted a ride from the party, and at the time he again entered the defendant's vehicle at Five Dock.
Section 138 of the MAC Act relevantly provides: 138 Contributory negligence-generally (1) The common law and enacted law as to contributory negligence apply to an award of damages in respect of a motor accident, except as provided by this section. (2) A finding of contributory negligence must be made in the following cases: (a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident, (b) where: (i) the injured person (not being a minor) or the deceased person was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and (ii) the driver's ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person or the deceased person was aware, or ought to have been aware, of the impairment, unless, in the circumstances of the case, the injured person or deceased person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle, (c) where the injured person (not being a minor) or the deceased person was, at the time of the motor accident, not wearing a seat belt when required by law to do so, (d) where the injured person or the deceased person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so. (3) The damages recoverable in respect of the motor accident are to be reduced by such percentage as the court thinks just and equitable in the circumstances of the case. (4) The court must state its reasons for determining the particular percentage. ... (6) This section does not exclude any other ground on which a finding of contributory negligence may be made. …"
I consider that the plaintiff's circumstances were not such that he had no reasonable option of declining to become a passenger in the defendant's vehicle so as to attract the exempting proviso of s 138(2)(b) of the MAC Act. He could have simply not entered the vehicle after making observations of the defendant's state.
Instead, he knew the defendant had consumed alcohol and raised the question of driving her vehicle himself due to the defendant's intoxication. In my view, the evidence of the plaintiff having asked a question to that effect provides satisfactory evidence that he knew the defendant's ability to drive was adversely affected by her consumption of alcohol. Accordingly, I consider that a finding of contributory negligence must be made against the plaintiff: s 138(2)(b)(i) and (ii) of the MAC Act.
The plaintiff's cited questioning of the defendant's intoxication was reasonable in the circumstances. They had all been at a party where alcohol had been consumed. The evidence shows the plaintiff was not greatly affected. He was therefore in a position to realise that the defendant was affected by alcohol. Otherwise, it would have been unlikely that he would have raised the question of the defendant's intoxication in the context of questioning whether she should be driving when they left the party.
Furthermore, by the time the defendant's vehicle had stopped at the McDonald's car park, it ought to have been patently clear to the plaintiff that the defendant's ability to drive safely had been adversely affected not only by her alcohol intake, which would most probably have led to the observable signs described by Ms Perl and Dr Dauncey, but also because of the defendant's angry behaviour that she exhibited towards Ms Usi.
Independently of s 138(2) of the MAC Act, I consider that a finding of contributory negligence must also be made against the plaintiff for the following reasons.
First, as observed at paragraph [103] above, the plaintiff was aware that the defendant's ability to drive was likely to be adversely affected by her consumption of alcohol. The risk of injury to the plaintiff was foreseeable in those circumstances: s 5B(1)(a) of the CL Act. That risk was not insignificant: s 5B(1)(b) of the CL Act. In those circumstances, I consider that a reasonable person in the plaintiff's circumstances would have declined to enter the defendant's vehicle, both at the time the group left the party, but more relevantly, at the McDonald's car park just before the accident, when the defendant was not only affected by alcohol, but was also exhibiting an angry disposition towards Ms Usi: s 5B(1)(a) of the CL Act.
Secondly, the precaution of no longer being prepared to accept a lift home at the time the journey was about to recommence at the McDonald's car park was something a reasonable person in the position of the plaintiff would have taken: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442, at [124]. Accepting instead of declining the lift at that time, courted a high probability of harm from a collision: s 5B(2)(a) of the CL Act. The type of harm that could ensue for the plaintiff was very likely to be within a range of seriousness: s 5B(2)(b) of the CL Act.
Thirdly, the burden on the plaintiff in taking the precaution of not accepting a lift from the defendant at that time was not great: s 5B(2)(c) of the CL Act. Although this would have meant he would have been temporarily stranded at Five Dock, he was not in a wilderness. He could, for example, have arranged to telephone a family member to organise some other means of transport to his home, or some means of paying for alternative transport to his home, or to the home of someone else who was in a position to pay for a taxi fare for him. There was no social utility in the plaintiff instead undertaking the risk of injury due to the defendant's impairment as a driver: s 5B(2)(d) of the CL Act.
The cited provisions of s 5C of the CL Act do not apply so as to derogate from the above conclusions.
The above analysis compels the conclusion that the plaintiff's failure to take care for his own safety must result in a finding that he was contributorily negligent. Furthermore, that analysis compels the conclusion that but for the plaintiff's failure to desist from travelling in the defendant's vehicle, he would not have been injured: s 5D of the CL Act.
Although the defendant has pleaded a defence claiming the plaintiff voluntarily assumed the risk of injury, and my findings have in effect upheld that defence, this does not necessarily defeat the plaintiff's claim in its entirety: s 140(1) of the MAC Act.

Consideration of the apportionment issue

Consequent upon the finding that the plaintiff was contributorily negligent, it becomes necessary to resolve the question of an apportionment between the respective culpabilities of the plaintiff and the defendant: s 138(4) of the MAC Act. Any apportionment on account of contributory negligence must be on the basis of what is considered to be just and equitable in the circumstances: s 5S of the CL Act and s 138(3) of the MAC Act. This requires that the respective culpabilities be considered and weighed: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492, at p 494.
In my assessment, the defendant's culpable conduct significantly outweighed that of the plaintiff. The defendant was intoxicated, but not so intoxicated that she could not have realised that she should not have driven the vehicle. Furthermore, it was her decision and conduct which resulted in the foolhardy and risk-laden behaviour of racing another vehicle on the roadway, which ultimately led to her own vehicle leaving the roadway and colliding with a tree. Those circumstances necessitate a finding that the defendant be assigned a much higher degree of culpability than the plaintiff.
In contrast, the plaintiff's blameworthy conduct was on a much lesser scale. He was not as intoxicated as the defendant, and since he was in a position to make observations of the kind described by Dr Dauncey, his level of responsibility for his own injuries, whilst significant, was not as great an extent as the defendant's responsibility. Accordingly, the defendant should bear the major share of responsibility for the plaintiff's injuries.
In balancing those considerations, I find that the respective culpabilities for the plaintiff's injuries should be apportioned in the ratio of 70 per cent being the responsibility of the defendant, and 30 per cent being the responsibility of the plaintiff.

Issue 2 - Assessment of damages

In the paragraphs that follow, I set out my assessment of the plaintiff's damages. Notwithstanding the plaintiff's brain injury and the consequential problems which flow from that injury, the plaintiff's circumstances did not meet the statutory threshold for an award of damages for non-economic loss: s 131 of the MAC Act.

Plaintiff's probable life span

In approaching the assessment of the plaintiff's entitlement to damages, there is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At the age of 22 years, the plaintiff has a rounded down probable median statistical life span of a remaining 63 years, of which some 45 years would represent his anticipated working life span. The 5 per cent multiplier for 63 years is 1020.

Past economic loss

At the commencement of the proceedings, the plaintiff's initial claim for past economic loss was identified in the amount of $104,000: MFI "3". In final submissions, that claim was revised down to $50,800: MFI "26", par 1.
The plaintiff's revised claim for past economic loss was for the period 4 March 2012 to the date of the hearing, and comprised the following three elements of calculation extracted from par 1 of MFI "26": (a) 04.03.12 - 04.05.13 $18,000 60 weeks x $300 net per week (b) 05.05.13 - 28.02.16 $28,600 143 weeks x $200 net per week (c) 01.03.16 - to date $4,200 6 weeks x $700 net per week $50,800

The basis for the respective claimed net weekly rates of loss of earnings of $300, $200 and $700 for the abovementioned periods was assumed, and not supported by the evidence.
In contrast to the plaintiff's claim, the defendant conceded an amount for past economic loss in the sum of $7552, being for a period of 64 weeks, at the rate of $118 per week: MFI "5".
In order to establish his claim for damages for past economic loss, the plaintiff must show not only that his capacity to earn has been impaired by his injuries, but that such injuries have caused a financial loss: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.
In cases where a reliable pattern of earnings has not been historically demonstrated, and where the balance of probabilities dictate a likelihood that the plaintiff would have pursued some form of remunerative employment but not quantifiable as to probable earnings, this does not preclude an assessment of a monetary award: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
In this case, the accident occurred before the plaintiff had any significant opportunity to fully explore his future work options, and at that time, he had not yet sorted out his priorities: T48.30. In 2010, he had briefly worked as a cook in a fast food outlet for 2 weeks, but he did not enjoy that work: T14.41 - T15.2. He was not sufficiently engaged in his events management course before the accident occurred to reliably enable future work predictions to be made based on a completion of that course: T15.26. The history of the plaintiff's involvement in performance and dancing activities does not provide a useful guide to an assessment of the claim for past loss of earnings as he has earned very little from such activities, and any such earnings were irregular in nature: T47.14.
It is therefore uncertain as to when calculations should commence for the plaintiff's claim for past loss of earnings. The plaintiff's post-accident earnings from part-time bar work at the Red Cow Inn do not provide a reliable guide to his earning capacity. At present he does not have a driver's licence, and at the time of the hearing, he was shortly due to be interviewed for a service job. He has never worked in a full-time capacity. It is evident from his post-accident memory difficulties (T35.34) and his back problems and related difficulties with carrying heavy weights (T37.26; T41.43), that those matters have been problematic for him in the workplace, and represented obstacles in securing a full-time position.
In 2011, the plaintiff took up an opportunity that his mother had arranged for him to work at a supermarket distribution centre as a packer. That work provided him with $6139 in gross income for 3 weeks of work. However he left that work because he did not get along with some of his work colleagues, and he did not like the work as it involved working "like a monkey": T45.30 - T46.13. From the plaintiff's description of the tasks required in that work, it did not seem to be arduous or skilled work.
In my view, all of the historical factors I have reviewed in the preceding paragraphs, suggest that but for the accident, the plaintiff would have been in the situation where he had not yet sorted out his work priorities, he was still pursuing the idea of a career in the entertainment industry in the performing arts, which would have cost him money to pursue, with uncertainty of reward. His post-accident attempts at mitigating his loss of earning capacity must be assessed in light of the effects of his injuries, especially his head and back injuries, both of which have impeded him in seeking out and maintaining work.
In those circumstances, although it is more probable than not, uninjured, the plaintiff would have most likely pursued some kind of unskilled or semi-skilled work to support his studies and to meet the cost of his dance tuition, and to cover his living expenses, no reliable predictions can be made as to the type of work he would have gained between the time of the accident and the hearing, or the regularity and extent of income he would have derived from such work. Therefore, I consider that the allowance of a general buffer amount is the most appropriate method by which to compensate the plaintiff for his accident-related past economic loss.
Given the irregular nature of the plaintiff's work and the identified imponderables associated with the task of assessing past economic loss, I assess the plaintiff's past economic loss in the buffer sum of $35,000.

Past loss of superannuation

Initially, the plaintiff claimed an amount of $11,400 for past loss of superannuation: MFI "3", par 4. In the plaintiff's final submissions, that claimed amount was reduced to the sum of $5588, being 11 per cent of an assumed finding of past economic loss of $50,800: MFI "26", par 3(a). In contrast, the defendant submitted there should be no allowance for this head of damage. I consider that the irregular nature of the plaintiff's work, and the level of the already assessed buffer amount for past economic loss, adequately includes an allowance for past loss of superannuation.

Future economic loss

At the commencement of the proceedings, it was initially claimed that the plaintiff should receive an award for future economic loss in the sum of $478,000, that amount being the product of a projection of $600 per week net on the 5 per cent tables until retirement age: MFI "3", par 12.
In final submissions, the plaintiff reduced that claim to an amount of $323,136, which was the product of a projection of an assumed loss of $400 per week net over 45 years (x 950.4) to age 67 years, and discounted by 15 per cent for possible adverse vicissitudes: MFI "26", par 2.
In contrast, the defendant submitted that no damages should be awarded for future economic loss.
The principles underlying any assessment of damages for economic loss have already been identified: Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1; Graham v Baker [1961] HCA 48; (1961) 106 CLR 340.
On the evidence adduced, the plaintiff's claim for damages for future loss of earning capacity is difficult to assess in monetary terms. That is so for a number of reasons.
First, the plaintiff has shown a post-injury capacity for non-arduous menial work which provided an income of the order of $2000 per week gross: T46.13. Secondly, provided he is not required to lift heavy weights, there is no reason to doubt that he has the capacity for bar work: T41.35 - T41.44. He left that work principally because he did not like it. Thirdly, as shown in post-accident photographs and video footage, the plaintiff has the capacity to perform a range of physical tasks involved in dance and movement routines, including performing physically dextrous handstands on the sand at the beach: Exhibit "5"; Exhibit "4".
That said, as a consequence of the subject accident, the plaintiff has intermittent back pain, he continues to experience forgetfulness, he has cognitive problems, motivational difficulties, and difficulties with organising himself. Those matters obviously serve to detract from his employability, and from his ability to maintain sustained employment. These represent significant detriments to his earning capacity that must be taken into account in assessing his claim, noting that at present, he is essentially an unskilled job seeker.
On the other hand, as observed at paragraph [139 E] above, as the defendant has demonstrated, the plaintiff had the physical capacity to perform relatively highly paid employment, albeit that he found it to be boring. The plaintiff's reasons for leaving that employment, whilst relevant, do not assist his claim for loss of earning capacity. Apart from the repetitive and uninspiring nature of the work, he felt antipathy from his co-workers whom he believed to be different to himself: T46.30 - T46.35. Whilst those considerations may have justified the plaintiff's decision to leave that position, those factors should not have precluded him from seeking suitable alternative employment of a similar nature.
In balancing those matters, it is plain that as the plaintiff matures in his outlook, and having no other training or work skills, he will be more likely to be disposed to accept the need to compromise his work preferences in return for the financial benefits of being in paid employment.
The ongoing consequences of the plaintiff's back injury, head injury and related cognitive problems require that the plaintiff be awarded damages for future loss of earning capacity. In my view, those matters will most probably have an adverse impact on his capacity to seek out, gain and sustain remunerative employment over the course of his long remaining working life, especially as he ages.
Those imponderable matters are incapable of precise estimation in monetary terms. For that reason, I consider the fairest way in which to compensate the plaintiff for this component of his loss is to award an economic buffer sum, discounted for the likely intermittent nature of the impact of the loss, also incorporating a discount for the present value of the loss received in a lump sum at this stage of his life, and also taking into account vicissitudes, both positive and negative, although such sum, and such factors are not arrived at by the application of any formulae, such as in the case of a projection of future losses using the 5 per cent discount tables: Penrith City Council v Parks [2004] NSWCA 201, at [5]; State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536, at [72]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7], [25] - [27].
On that basis, I therefore assess the plaintiff's damages for future economic loss in the buffer amount of $120,000.

Future loss of superannuation

At the commencement of the proceedings, initially the plaintiff claimed an amount of $62,000 for future loss of superannuation: MFI "3", par 5. In final submissions made on behalf of the plaintiff, that amount was reduced to $42,000, being 13 per cent of an assumed finding of past economic loss of $323,136: MFI "26", par 3(b). In contrast the defendant submitted that no damages should be awarded for future loss of superannuation. In accordance with well settled practice, I assess the loss of the employer funded superannuation component on future economic loss of $120,000 at 13 per cent, namely $15,600. I therefore assess the plaintiff's damages for the loss of future employer funded superannuation in the amount of $15,600.

Past domestic assistance

At the commencement of the proceedings, it was initially claimed that the plaintiff should be awarded the sum of $72,800 for past gratuitously provided domestic assistance: MFI "3", par 8.
In final submissions, the plaintiff's claim for this component of his damages was increased, to reflect three distinct periods, at three different rates of calculation, totalling $82,488 up until the hearing, as follows: (a) 18 hrs/wk x $27 per hour x 26 weeks $12,636 (b) 14 hrs/wk x $28 per hour x 156 weeks $61,152 (c) 10 hrs/wk x $29 per hour x 30 weeks $8,700 $82,488

[MFI "26", par 4]

In contrast the defendant submitted that no damages should be awarded for past domestic assistance.
Although the medical evidence tendered in the plaintiff's case for domestic assistance should not be taken to be prescriptive, it is instructive. Despite Dr Clark having initially noted the plaintiff does little at home because his parents cater for his needs (Exhibit "A", p 11, p 24 and p 36), that evidence does not establish an accident-related need. Dr Teychenne's opinion that the plaintiff required "approximately" 10 per cent domestic assistance did not translate into a practical estimate of hours of assistance required: Exhibit "A", p 63. Dr Giblin was of the view the plaintiff was at present independent in relation to his domestic responsibilities: Exhibit "A", p 81. Dr Clark's final treatment recommendation was for an allowance for a psychiatric review at $400 per session, and medication of up to $100 per month, without defining the suggested treatment period: Exhibit "A", p 36. Dr Teychenne offered no views on those matters: Exhibit "A", p 63.
The plaintiff's own evidence on the issue of a claimed accident-related need for domestic assistance remains equivocal in nature.
The plaintiff said he needed no reminders to go to work: T33.9. Variously, his partner or his mother organised appointments for him (T33.11 - T33.24) but there is no evidence that he was incapable of making arrangements in that regard. His partner occasionally reminds him to pack some items if they go away: T33.25 - T33.32. His mother comes to his home to do washing and household chores for him: T34.2. There is no evidence he is incapable of attending to those matters himself. He is able to shower and clean himself: T52.23. His partner and his family occasionally help him with washing and making meals: T52.35. His older brother is part of his household and helps with the household tasks: T53.7 - T53.30. It is noteworthy that the plaintiff is able to "chip in with that sort of activity" when he has the time to do so: T53.44.
After the accident, for either days or weeks at a time, due to emergent arguments the plaintiff had with his mother and brother, the plaintiff went back and forth between the home of his mother and his father: T70.40. In that time, his father and his father's partner would do the housework: T71.16 - T71.46. There was no evidence that, in that period, the plaintiff had an accident-related need of such tasks being performed for him. In fact he was independent in respect of his personal care and simple domestic tasks: T73.35 - T73.50.
Since the accident, the plaintiff has learnt to manage his forgetfulness with things like shopping by making a list of items required to be purchased: T74.40. The plaintiff's partner does most of the cooking by choice and skill set: T76.25. The plaintiff shares some of the cleaning tasks, such as sweeping: T76.47. The extent of the plaintiff's description of the occurrence of back pain does not suggest an inability to manage routine household chores.
The plaintiff's mother vaguely described how, for "probably about six months", on a continuous day-after-day basis, she would cook for him, and sort out his clothes for whatever he needed to wear: T149.35 - T149.47. In that initial period, she described those matters in the following way: "A. Organising his clothes, yeah, yeah, well I didn't have to wash him or anything like that. He was able to do that but quite often if he was in the shower because he had a sore back or something I'd go in and take him some Panadol, get a towel for him, take him to anything that he needed to go to, any appointment wise. I had to remember all the appointments because he had no idea what he had to do or be. I had to take him to all the doctor's appointments. I'd have to get, book time off work specifically so that I could arrange to be there to take him because he wasn't going to take himself. Q. Why wasn't he going to take himself, what was the problem? A. He was oblivious that he even had an appointment." [T150.27 - T150.37]
Mrs Rafferty-Butfield took the plaintiff to the Westmead Brain Injury Unit on about three occasions, which necessitated her taking a day off work on each occasion: T151.15 - T151.21, She also took him to appointments with his general practitioner and with the treating psychologist, each involving a 2 hour round trip: T151.45. At the time she did this because the plaintiff "didn't know what he was doing": T152.10.
In my view, the evidence does not establish that in those first 6 months, the plaintiff was provided with a minimum of 6 hours per week of accident-related domestic assistance: s 141B of the MAC Act.
In the subsequent period between the end of that initial 6 month period post-accident and until the time of the hearing, Mrs Rafferty-Butfield described the level of her involvement in carrying out tasks for the plaintiff as follows.
First, she stated that "probably once or twice per week" she spent some time organising the plaintiff and his clothes: T154.14 - T154.24. She also cleaned the "shambles" of the "disaster zone" of the kitchen after he had cooked (T154.43) but there was no evidence from which the time taken for that activity would be reasonably discerned.
Secondly, she said that she spent about 3 hours per week driving him around to and from the station, for work and other purposes, a 15 minute walking distance from home: T158.30 - T158.44. She undertook that activity because he was chaotically disorganised (T158.49 - T159.2) and partly because it was "better" and "quicker" than catching public transport (T164.15) and so that she "could make sure he was safe" when he attended performance events, and because she also wanted to watch those performances: T168.26 - T168.34; T167.32. That evidence does not support 15 hours per week of an accident-related need for domestic assistance.
Mrs Rafferty-Butfield's estimate of probably spending about 15 hours per week on that assistance activity (T158.44) has to be read in light of those discounting matters balanced against the paucity of evidence of an identified accident-related need.
The detail of Mrs Rafferty-Butfield's domestic activity, which was carried out for both the plaintiff and his partner, and for the plaintiff's brother who lives in that household, comprises bundling of clothes for washing, hanging and folding for everybody (T171.47), cleaning the house and sweeping, mopping, washing, hanging out washing, and folding the washing: T175.50 - T176.4. She said that she did this to help in circumstances where the three persons in the household for whom these services were provided, were able-bodied and could have swept, and I infer, cleaned: T176.10 - T176.19. She said she did so to help, whilst waiting for the 40 minute washing machine cycle to finish: T176.50. Mrs Rafferty-Butfield acknowledged that the plaintiff was capable of cooking a basic meal, although he did have issues with patience: T177.39 - T177.45. The occasions on which she drove the plaintiff to work because of his difficulties rising on time seemed to relate to the fact the plaintiff had a late night out the night before rather than suggesting an injury-related problem: T179.4 - T179.7.
Whilst I accept that the evidence of the plaintiff's brother Joshua Rafferty-Butfield, who lives in the plaintiff's household, was truthful, including his account of the plaintiff's level of disorganisation (T182.41 - T182.47) and his description of the household chores (T183.15 - T183.35; T184.10 - T185.11), that evidence does not support a claim for an injury-related need for domestic assistance that meets the statutory threshold.
In evaluating the evidence on those matters, I am not persuaded that the statutory threshold of 6 hours per week for at least 6 months has been established in relation to the provision of domestic assistance based on an injury-related need. I therefore decline to make any award for damages for past domestic assistance.

Future domestic assistance

At the commencement of the proceedings, it was initially claimed that the plaintiff should be awarded the sum of $400,000 for future domestic care and assistance, being commercially paid care for 12 hours per week: MFI "3".
In final submissions made on behalf of the plaintiff, that claim was ultimately reduced to a claim for $46,995, this being the projection on the 5 per cent tables of the value of 7 hours per week of care over 5 years (x 231.5) at $29 per hour, without discount for vicissitudes: MFI "26", par 5.
In contrast the defendant submitted that no damages should be awarded for future domestic assistance.
The lay and the medical evidence in support of the plaintiff's claim for future domestic assistance have already been reviewed. Without demonstrating an underlying expertise on assessing the need for domestic assistance, the medical evidence cannot be seen as being prescriptive: Sampco Pty Ltd v Wurth [2015] NSWCA 117, at [83].
I consider that the plaintiff's circumstances are that his partner will in the future largely continue to deal with the task of preparation of meals, so as to obviate the need for the plaintiff to be involved in such matters, noting that in any event, he is not otherwise incapable of preparing a meal for himself if he had to do so. In the meantime, there is no reason for concluding that the plaintiff's present domestic arrangements do not require him to do so: Miller v Galderisi [2009] NSWCA 353, at [21].
As to the household chores such as cleaning, I am not persuaded that the plaintiff has an assessable injury-related need for domestic assistance in that regard. I consider the plaintiff's claim for future domestic assistance has not reasonably been made out on the evidence adduced. I therefore decline to make an award for damages for future domestic assistance.

Future treatment expenses

At the commencement of the proceedings, it was initially claimed that the plaintiff should be awarded the sum of $40,000 for unspecified future out-of-pocket expenses: MFI "26", par 7. In final submissions made on behalf of the plaintiff, that claim was ultimately reduced to a lump sum buffer claim of $25,000 to cover the cost of future medical treatment, including general practitioner consultations, analgesics and possible surgery: MFI "26", par 7. In contrast the defendant conceded an amount of $500 for this head of damage.
The medical evidence regarding future treatment recommendations was to the effect that Dr Giblin suggested an MRI of the neck and lower back, without estimation of the cost and some undefined rehabilitation and psychological support, but no other treatment other than $150 per year for prescription medication: Exhibit "A", p 70, p 75, p 81. He also suggested a possible discectomy, but that was based on speculation: Exhibit "A", p 75. Dr Buckley suggested the plaintiff be enrolled in a multidisciplinary traumatic brain injury rehabilitation programme, but there was no estimate given as to the cost of such a programme: Exhibit "A", p 92.
The plaintiff's evidence was that he did not like the appearance of his disfigured ear and this affected his confidence (T29.24 - T29.29), but he gave no evidence about wanting future surgical repair of the deformity shown in Exhibit "C". Although the plaintiff continues to get upset (T36.36), it has been about 3 - 4 years since he has been treated by a psychologist: T35.40. The plaintiff's brother, or his partner, occasionally massage his back to ease the plaintiff's experience of tension and pain in that area: T37.19. His pain is not of a level that causes him to seek out medical treatment: T42.13; T68.20. He occasionally takes painkilling tablets which he buys over the counter: T42.24; T68.17. He takes painkilling medication, usually Panadol, Nurofen and occasionally Panadeine Forte, for his back on days after he has exerted himself: T142.24 - T142.50. He spends about $7 on a small packet of tablets which lasts him about 4 - 5 days: T143.1 - T143.17.
In those circumstances, I consider that an award of a general buffer amount of $4000 should be included in the plaintiff's damages award for any occasional expense the plaintiff is likely to incur along the lines identified in the preceding paragraphs.
I therefore assess the plaintiff's damages for future treatment expenses in the buffer amount of $4000.

Past out-of-pocket expenses

The plaintiff ultimately claimed $6803 as past out-of-pocket expenses. The defendant $161.45. Ultimately, it was agreed that the plaintiff should receive an award for out-of-pocket expenses in the sum of $6828.85: MFI "26", par 7; T207.8.

Summary of damages assessment

My assessment of the plaintiff's damages is summarised as follows: (a) Past economic loss $35,000 (b) Past loss of superannuation $Nil (c) Future economic loss $120,000 (d) Future loss of superannuation $15,600 (e) Past domestic assistance $Nil (f) Future domestic assistance $Nil (g) Future treatment expenses $4,000 (h) Past out-of-pocket expenses $6,828.85 Total $181,428.85

Disposition

On the basis of the defendant's concession, the plaintiff has secured a finding that the defendant was negligent. The defendant has secured a finding that the plaintiff's injuries were in part due to his own fault and contributory negligence, in the apportioned ratio of 70 per cent culpability of the defendant and 30 per cent culpability to the plaintiff, with damages assessed at $181,428.85. The plaintiff is therefore entitled to a verdict and judgment in his favour in the apportioned amount of $127,000.19.

Costs

As the plaintiff has succeeded on all issues raised in the proceedings I see no basis for a cost order other than that the defendant should pay the plaintiff's costs of the proceedings on the ordinary basis, unless a party is able to show an entitlement to some other costs order, for which there should be liberty to apply, if required.

Orders

I make the following orders: 1. Verdict for the plaintiff in the assessed sum of $181,428.85; 2. Contributory negligence is found against the plaintiff and the respective culpabilities are apportioned in the ratio 30 per cent to the plaintiff and 70 per cent to the defendant; 3. After apportionment, judgment for the plaintiff in the amount of $127,000.19; 4. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis unless a party is able to show an entitlement to some other costs order; 5. The exhibits may be returned; 6. Liberty to apply on 7 days' notice if further or other orders are required.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 25 January 2017

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (50 paragraphs)

Parties

Cases Cited (17)