Saleh v The Nominal Defendant

In my view the Plaintiff's instinctive reaction to these circumstances was both reasonable and appropriate. He applied the footbrake which, on Mr Jaouhar's observation, did not appear to slow the vehicle, most probably because an insufficient period of time had elapsed for the Plaintiff's vehicle to appreciably slow down in juxtaposition with the lane changing manoeuvre that had occurred to his right and ahead of him. In my view what probably occurred next was that the Plaintiff then applied the handbrake hard as an emergency measure to slow his vehicle down as the vehicle which was by then in front had braked hard, as Mr Jaouhar described in his statement to the police. In the course of these events I find that the Plaintiff most probably also swerved his vehicle hard to the left either before, during or as a result of contact between the two vehicles and whilst this other vehicle was still in front of him. In my view it was this combination of events that most probably caused the Plaintiff's vehicle to spin and skid out of control.

I find that whilst this agony of the moment response by the Plaintiff was extreme, it was nevertheless undertaken reasonably in order to try and avoid a collision with the vehicle ahead in the unexpected circumstances that confronted the Plaintiff and which had been created by the driver of the unidentified vehicle who had overtaken, changed lanes and then applied the brakes hard which required the Plaintiff to react quickly. In my view this did not amount to contributory negligence on the Plaintiff's part as alleged by the Defendant.

There is no evidence that alleged driver inexperience on the Plaintiff's part was a causative factor in the events which led to the collision. The Plaintiff was a licensed driver. He was driving within the applicable speed limit. Whilst the application of the handbrake in the circumstances was not a commonplace manoeuvre it was, in my view, a desperate and reactive collision avoiding measure that was employed by the Plaintiff as a last resort to try and avoid a dangerous situation that had emerged and which was not of his own making. I do not consider that the Plaintiff's split-second decision to employ such an emergency evasive manoeuvre in an effort to avoid a collision could, in the circumstances be fairly characterised as amounting to contributory negligence on his part where the emergency was not caused by him. I therefore reject the Defendant's contributory negligence arguments.

In order to succeed in his claim against the Nominal Defendant the Plaintiff has the obligation of showing that the identity of the vehicle, and by implication, its owner and driver, cannot be established after due inquiry and search : s 34(1) Motor Accidents Compensation Act, 1999.

The Defendant points to the opening address made on behalf of the Plaintiff at the commencement of the proceedings in which Mr Cranitch SC made reference to the Plaintiff's brother having made some inquiries, noting that no such evidence was called in the proceedings. There was no indication given as to when those inquiries were made. The Defendant submits that in the absence of evidence from the Plaintiff's brother concerning those inquiries, it should be inferred that if the brother had been called to give evidence on this point, his evidence would not have assisted the Plaintiff's case concerning proof of due inquiry and search. In my view, in these circumstances, the Plaintiff cannot resist the force of such a submission and I accept the Defendant's submission in this regard.

The Defendant submits that the Plaintiff has adduced no evidence of any inquiry or search. Before considering that submission it is necessary to evaluate the scope for any inquiry and search to have produced results that were likely to have identified the vehicle in question.

The starting point is that Mr Jaouhar informed the attending police of the involvement of another vehicle. The statement Mr Jaouhar provided to the police which refers to "the guy in front" was in my view an attempt to inform the police of the presence and involvement of another vehicle at the scene. In evidence Mr Jaouhar described his observation of seeing a dark purple or orange coloured vehicle which "flew" from the lane adjacent to the median strip and across the front of the Plaintiff's vehicle where it braked. Mr Jaouhar was obviously injured in the resulting collision with the pole and was unwell at the scene with the result that he was taken to hospital. In my view, in these circumstances, there was no scope for him to have made any useful inquiries on the Plaintiff's behalf at the time.

Mr Collin said he saw "flashes" representing vehicles one of which was obviously the Plaintiff's vehicle. Relevantly, he said that he could not recall "specifically seeing a particular colour vehicle or type of vehicle in these flashes". He did not remain at the scene. Miss Cirino said that at the time she did not see any vehicle involved in addition to the small yellow vehicle belonging to the Plaintiff. Neither Mr Collin nor Miss Cirino were in a position to describe the other vehicle to the investigating police at the scene.

There was no further indication from Senior Constable Cassidy that he had ascertained the presence of any other eyewitnesses to the incident for the purpose of obtaining statements. He did not follow-up the reference Mr Jaouhar had made concerning "the other guy" in his statement.

Although it was opened that the Plaintiff's brother had made some unspecified inquiries on the issue of due inquiry and search there was no evidence that the Plaintiff's brother was at the scene at the time and in a position to make inquiries that were likely to be productive of identifying information.

The evidence disclosed that the Plaintiff had a falling out with the first solicitor who had been engaged to advise him in respect of his claim. This is recorded in the notes made by Dr Nguyen in the Brain Injury Unit progress notes in 2004. That solicitor was not called to give evidence however a Tax Invoice dated 23 August 2001 from Cameron, Gillingham Boyd was tendered as Exhibit "L". That tax invoice related to an initial attendance on the Plaintiff in hospital prior to 1 July 2000. I infer from the hospital records and the Plaintiff's evidence concerning his lack of recollection of the events of the collision that such attendance on the Plaintiff would not have been likely to have assisted the first solicitor to identify the unidentified vehicle.

The narrative within the Tax Invoice goes on to identify a series of attendances without reference to dates. These attendances included consultations with Mr Jaouhar, perusing the police report and conferring with counsel concerning the claim. There is nothing within that limited narrative which would tend to suggest that it was possible to identify the vehicle in question.

The Plaintiff's present solicitor, Mrs Milicevic, prepared a Statement dated 16 May 2008. This Statement was tendered as Exhibit "Q" and relevantly stated: "2. On 14 December 2004 I caused my office to place an advertisement in the Torch Newspaper, being the local newspaper for the Bankstown area and the advertisement was run on 22 December 2004. Annexed hereto and marked with the letter "A" is a copy of the advertisement."

No evidence was given as to whether or not a response had been received to this advertisement. Be that as it may, it would seem unlikely that after over 4 years following the incident anyone would come forward as a witness and be able to provide material that would assist to identify the vehicle in question.

This then leaves the evidence of Senior Constable Cassidy. He was unable to identify any other vehicle notwithstanding that he arrived at the scene at about 6.20pm. There is evidence that he had another police officer with him. That officer was not called and his statement or notebook was not tendered. There is no evidence that would suggest he was in a better position than Senior Constable Cassidy to identify the unidentified vehicle.

I consider that the paucity of identifying information emerging from the combined descriptions of Mr Jaouhar, Mr Collin and Miss Cirino concerning any other vehicles in the vicinity necessarily means that even at the scene of the collision, any further attempts at trying to identify the vehicle were destined to be futile.

The Defendant submits that at the very least someone on behalf of the Plaintiff should have approached nearby residents to seek information. On a dark night in winter at an hour when nearby residents were probably returning from work or were busy organising an evening meal I consider it doubtful that anyone in the vicinity would have been outside their homes to observe the events and have anything useful to contribute towards identifying the vehicle in question. I infer this to be so by the absence of details of anyone coming forward and making such information known to Senior Constable Cassidy at the scene.

Such circumstances are not unique. The requirement of due inquiry and search was considered in connection with prior legislation, namely s 30(2)(c) of the Motor Vehicles (Third Party Insurance) Act 1942 in Harrison v Nominal Defendant (1975) ALR 680 where Barwick CJ stated at [332]: "The question is not simply whether due inquiries and search had been made. The terms of the subsection ought to be borne in mind. ... The stipulation that the identity of the vehicle is incapable of being established is made for the protection of the Nominal Defendant. It imposes no obligation, as such, upon the plaintiff; though the plaintiff to succeed must establish that the identity is incapable of being established as in the terms of the section. The word "after" in the subsection does not, in my opinion, require that some inquiry and search must necessarily in fact always precede some other event or the drawing of a conclusion. If, in the circumstances of the case, it is evident that the identity of the vehicle could not be established by due search and inquiry the stipulation, in my opinion, may be held to be established, although no search or inquiry destined to be futile has been made. The section does not, in my opinion, require that in every case, irrespective of its circumstances, some inquiry and search should have been made. Whether or not the identity of the vehicle might have been established after search and inquiry appropriate to the circumstances of the case had been made is a question of fact. That, in my opinion, is the relevant issue in a case brought under s 30 (2) (a) of the Act. It is not whether some search and inquiry has been made. The presence of the word "due" in the subsection emphasizes that the question is whether the identity of the vehicle cannot be established though such search and inquiry as might appropriately be made in the circumstances of the case had taken place."

The requirement of due inquiry and search does not mean that there must be some inquiry undertaken where such a search would be futile.

This decision has been considered and applied on numerous occasions including Nominal Defendant v Swift [2007] NSWCA 56 which dealt with a similar provision for due inquiry and search in s 28(1) of the Motor Accidents Act 1988. In my view the approach taken to due inquiry and search in those cases applies to a consideration of whether there has been due inquiry and search within the meaning of s 34(1) of the Motor Accidents Compensation Act 1999 which is a requirement in this case.

I am satisfied that in the circumstances of this case due inquiry and search would not have established the identity of the vehicle that was involved in the incident. I have come to this view because, realistically, the police arrived at the scene promptly to investigate the circumstances whilst other witnesses were still at the scene. It was their duty to try and ascertain the relevant events. The police investigation did not reveal the identity of the other vehicle notwithstanding that Mr Jaouhar's statement signalled that another vehicle was involved. This may have been due to limited police resources, pre-occupation with ensuring the Plaintiff received help and clearing the road in peak hour traffic and a limited opportunity to further interview and a limited Mr Jaouhar who was injured and dazed at the time.

Even if Mr Jaouhar had been able to provide a more coherent and detailed statement at the time there is no reason to believe that inquiries would have revealed the identity of the unknown vehicle. I am satisfied that once the police and the witnesses Mr Jaouhar, Mr Collin and Miss Cirino had left the scene the trail to be followed to attempt to find the other vehicle was well and truly cold. I am satisfied that by the time this claim on behalf of the Plaintiff was first contemplated, any attempt at due inquiry and search was destined to be futile. In these circumstances I am satisfied that the Plaintiff has fulfilled the requirements of s 34(1) of the Motor Accidents Compensation Act 1999 concerning due inquiry and search.

The nature of the Defendant's challenges to the Plaintiff's credit requires a detailed consideration of the Plaintiff's circumstances as a whole, including his pre-injury and post-injury history and circumstances.

The Plaintiff was born in Beirut, Lebanon on 8 June 1982. He is the youngest of 5 siblings. The family arrived in Australia in 1990 when the Plaintiff was aged 8 years. He left school in mid-1998 when in Year 10 but without obtaining his School Certificate.

The Plaintiff has formally and legally changed his name on a number of occasions. On each such occasion he did so by official certification with the Registry of Births, Deaths and Marriages. He said that he had done this because he had been subjected to teasing. Successively, he has been known as Khodr Mokbel until 11 July 2003, and thereafter as Rodger Mahony until 30 May 2005, and thereafter as Rodger Issa until 2 June 2006 and then ultimately as Khodr Saleh, reverting to his mother's name.

The Plaintiff had a turbulent time at high school. He had been expelled first from Punchbowl Boy's High School and then later from Sir Joseph Banks High School. The Plaintiff stated that he did not like school. He preferred to play football and to train in athletics instead of pursuing studies. The Plaintiff's school reports and records show that his behaviour at school was disruptive. These records show that he was a frequent truant from school, that he had also been involved in fights and that he had exhibited outbursts of poor behaviour towards his peers and towards his teachers.

A retrospective evaluation of the Plaintiff's pre-injury school reports and behaviour by medical experts has raised the suggestion that he may have had the condition known as Attention Deficit Hyperactivity Disorder ["ADHD"]. A review of the Plaintiff's pre-injury school reports confirms that he did not do well at school.

The post-injury neuro-psychological test results suggest that before his injury the Plaintiff was in the low or borderline range of intellectual functioning. Whatever the position in that regard, before his injury the Plaintiff was nevertheless functioning as a wage earning member of society.

Shortly after leaving school and before his injury the Plaintiff and an acquaintance were charged with drug offences involving the possession of heroin and cocaine. His acquaintance appears to have been the principal offender. The result of these events was that the Plaintiff was required to undertake and complete a course of 100 hours of community service.

The Plaintiff's low level of intellectual functioning, as affected by his head injury has had an obvious impact on his ability to provide a coherent history of relevant events in his life. This has posed problems for the medical and other practitioners who have assessed him. This problem has also posed challenges for the assessment of the evidence he gave in these proceedings and for the assessment of damages in his case.

At the age of 14 the Plaintiff had sustained a fracture of his left forearm whilst playing football. There were no lasting consequences from that injury. Otherwise, before his injury the Plaintiff had enjoyed good health without any physical restrictions. On weekends, with his friends he used to play football and athletics. Before his injuries he also used to undertake a weight training regime in a gymnasium.

Before his injuries the Plaintiff had exhibited some behavioural problems. These comprised documented episodes of anti-social behaviour as is evident from the school records. A question arose as to whether this behaviour was possibly influenced by the condition of ADHD. The Plaintiff acknowledged that before his injury he had some problems with temper control. The psychiatric evidence raises for consideration whether, before his injury, the Plaintiff suffered from conditions described as either a Conduct Disorder or an Adjustment Disorder. I will consider these questions when analysing the evidence of the psychiatrists and the psychologists who raised these issues.

The Plaintiff's brother Mohamed Mokbel described the Plaintiff as being a nice kid before his injury. His brother stated that before his injuries the Plaintiff undertook the household tasks that were allotted to him and he described a willingness in the Plaintiff to put himself out for people. The Plaintiff's mother Mrs Siham Saleh described the Plaintiff as a normal boy who helped around the house and interacted normally with other family members. She also described how he used to cut the grass, pay the bills for her and help her generally. She stated that before his injury he gave her no concern over his conduct. She said that when he started high school she was not aware he had conduct problems at school although she agreed that she had later become aware of such problems as the school had asked her to attend in order to discuss them. The school records comprising Exhibit "P" also confirm this. She said she was aware of his expulsions from school.

Before reviewing the medical opinions that deal with the Plaintiff's behavioural and cognitive issues it is relevant to analyse the Plaintiff's school reports and records to obtain some insight into the Plaintiff's pre-injury cognitive status and behavioural problems since some of the experts rely upon their interpretations of this material for the purpose of expressing their opinions on the Plaintiff's pre-injury situation and psychological functioning.

There was no direct evidence of the Plaintiff's school performance during his primary school years. It appears from the history he gave Dr Roberts that when he arrived in Australia from Lebanon he was briefly enrolled in Year 2 at Hurstville Public School before transferring to Greenacre Public School in Year 2. It appears that he continued at that school until Year 6. There were no records or reports tendered with regard to his primary school education. It is apparent that the Plaintiff missed out on Year K and Year 1 schooling in this country which may have had some effect on his adjustments in the subsequent course of his later school years.

In 1995, when the Plaintiff was aged 13, he was enrolled in Year 7 at Punchbowl Boys High School. The records for that year show that he had a total of 11 days of absence. Ten different subject teachers made various comments on his performance which identified a wide range of differing attitudes the Plaintiff had shown to his school work. These ranged from a result in English which was described by his teacher as being really commendable where he achieved a score of 81% and was ranked 3rd in a class of 28, down to being described as an unco-operative student who failed to carry out instructions in History where he achieved a score of 34% and was ranked 18th in a class of 28. Other comments variously referred to deteriorating work due to a poor attitude in some areas to him being capable and having ability and motivation in other areas. His conduct was variously scaled between B and D on a scale of A to D, being awarded a score of D for conduct in 5 out of his 10 subjects. The Year Advisor's comment was that he could do better. It was noted that he was a popular student amongst his peers and his confidence had improved over the course of the year.

In 1996, when aged 14, he was also enrolled in Year 8 at Punchbowl Boys High School. The records show he had a total of 30 days of absence. His school performance attracted a range of teacher comments. These varied from him being intelligent, to him being too casual about his work, being a hindrance of progress due to poor class attitude and effort, needing greater self-discipline and being too easily distracted. His conduct in that year was variously scaled between C and D. He was ranked 4th in a class of 16 in Maths and Science but 20th and 22nd in a class of 23 in Geography and History. In the final school report for the year his Year Advisor commented "Khoder's attitude and behaviour around the school has been appauling (sic)".

It appears that the Plaintiff was expelled from Punchbowl Boys High School at the end of the 1996 school year but there is no documentary evidence of this fact. The circumstances in which the Plaintiff came to be expelled from Punchbowl Boys High School were not the subject of records from that School but I infer from the teacher comments outlined in the reports I have summarised that the expulsion was due to behavioural problems. There seems to be no issue about this.

The Plaintiff's high schooling continued at Sir Joseph Banks High School. It appears from the records in evidence from that school that the Plaintiff was transferred there in early 1997. He then continued his enrolment there in Years 9 and 10 in 1997 and 1998 respectively. This period of the Plaintiff's schooling became more turbulent. The Plaintiff continued to exhibit poor behaviour and this ultimately resulted in his final expulsion from that school. The records of that school show that in November 1997 the Plaintiff was suspended for a week for swearing at a teacher and spitting on the floor. In December 1997 a letter was sent by the school to the Plaintiff's mother concerning threatening and abusive behaviour by the Plaintiff towards other students.

The half yearly and yearly assessment reports for Year 9 at Sir Joseph Banks High School were tendered as part of Exhibit "P".

The yearly report for Year 9 from Sir Joseph Banks High School identifies 7 explained absences and 6 unexplained absences as well as unsatisfactory punctuality. The following general comment was made: " General comment A very poor and disappointing report as Khodor is a capable student who is not working to the best of his abilities. Khodor is disruptive and talkative in most of his classes and can be unpleasant to his own classmates. He needs to commit to his own progress and success by concentrating and participating fully in all his lessons. With consistent effort and a more positive attitude to school Khodor should achieve his true potential next year. Keep trying Khodor and make an effort to be on time and to complete all school work."

In 1998, on various dates, the Plaintiff's teachers recorded comments on his disruptive behaviour, poor attitude to class work and threats to "trash" teacher's cars. The school records show that in 1998 correspondence was sent to the Plaintiff's mother referring to the Plaintiff's inappropriate behaviour and actions, his poor effort and poor work as well as his unexplained lateness and absences. On 23 February 1998 it was noted that the Plaintiff had misbehaved by punching a hole in a classroom wall.

It appears that the Plaintiff was expelled from Sir Joseph Banks High School in mid-1998. The precise date was not apparent from the school records that were tendered.

There is no clear evidence as to what the Plaintiff did with his time in between his expulsion from school in mid-1998 and the commencement of employment which appears to have been at about the end of 1999, a period of about 18 months. It appears that in this period he had encountered some trouble with the police and had served the 100 hours community service order to which I have already referred. This would not entirely explain his absence from the workforce in that period.

The Plaintiff obtained employment in the automotive service industry as a car cleaner and detailer. The commencement date for this work was not identified in the evidence. This appears to have been towards the end of 1999. According to one of the medical histories provided by the Plaintiff, this employment was first with a company called King Car Detailing and then later, with a company called Sydney Prestige. The latter company was operated by a cousin. The Plaintiff stated that before his injury he had worked for that company for about 6 months for 5 to 6 days per week. The Plaintiff said his pre-injury earnings in the employment of Sydney Prestige were of the order of $350 per week net.

It would appear from his school records and the predictive estimation of his pre-injury psychological functioning that emerged from the post-injury neuropsychological testing that, but for his injuries, the Plaintiff's working life would most probably have been restricted to marginal, menial or semi-skilled work that would not have placed onerous intellectual demands upon him. Whatever the nature of his pre-injury intellectual functioning, it is clear that before he was injured the Plaintiff was physically fit and had an earning capacity that he was capable of exercising in order to derive income.

The Plaintiff has no initial awareness of being injured. An ambulance arrived at the scene at some time shortly after 6.00pm to assist the Plaintiff and to transport him to hospital. It was noted that the Plaintiff had a head injury and a slight laceration to the scalp. The ambulance report, which comprised Exhibit "B(4)", shows that at the scene the Plaintiff had a depressed level of consciousness with serial Glasgow coma scores assessed at 6, 5 and 6 at 6:15pm, 6:30pm and 6:45pm respectively. This suggests a serious head injury.

The Plaintiff was initially taken to Liverpool Hospital where he was assessed to have had a closed head injury. It was noted that he was irritable when roused. At 9.00pm when his consciousness was re-assessed the Glasgow coma score was noted to have been reduced to a score of 3. A cerebral CT scan revealed evidence of an intra-cerebral contusion in the left basal ganglia region as well as contusional lesions in the parieto-occipital region of the left side of the brain. The initial CT scan at Liverpool District Hospital was also reported to have shown a left frontal haematoma and right frontal hyperdensities with bilateral petechial or surface haemorrhages. The Plaintiff was then chemically paralysed, sedated and intubated for assisted breathing with mechanical ventilation. He was then transferred to Prince of Wales Hospital on the following day, apparently because Liverpool Hospital did not have an intensive care unit bed available to manage his head injury at that time.

During the initial hospitalisation at Liverpool, in addition to his head injury, the Plaintiff was noted to have suffered a fractured right ankle, a fractured left clavicle as well as having sustained soft tissue injuries to the neck and the lower back.

On 6 June 2000, at the Prince of Wales Hospital, the Plaintiff's head injury was diagnosed to be a diffuse cerebral axonal injury with a left frontal haematoma and a right basal ganglia contusion. The right ankle fracture was noted to involve a fracture of the right medial malleolus.

When the Liverpool Hospital and the Prince of Wales Hospital notes are compared it appears that differences have risen in documentation of the injuries to the left and right basal ganglia regions. On the evidence the description of these differences appears irreconcilable. I do not discount the possibility that at some stage when someone was reporting on the neuro-imaging films they may have mistakenly looked at the reverse side of the film. However it is not necessary to speculate further concerning this issue as the discrepancy does not seem to be material and it was not the subject of contest.

During the Plaintiff's initial hospitalisation a divergent squint was noted to have been present. I infer from the course of subsequent treatment that this was probably caused by swelling and pressure within the brain. This appears so because the Plaintiff was taken to the operating theatre where a burr hole was drilled into his skull following which an external ventricular drain was inserted into the right side of his brain to relieve the build-up of pressure. This does not appear to be contentious. The drain remained in place until 9 June 2000 to maintain intracranial pressure monitoring. A repeat CT scan was taken the following day but this was reported upon without comparison with the previous CT scan. This later scan showed a small contusion to the external capsule of the brain, a degree of mild cerebral oedema and the presence of a small amount of air in front of the right frontal lobe of the brain.

The Plaintiff remained in the acute intensive care unit at Prince of Wales Hospital between 6 June 2000 and 15 June 2000 when he was transferred to the high dependency unit of that hospital. During his time in the Prince of Wales Intensive Care Unit it was noted in the records that at that time the Plaintiff was affected by double incontinence apparently due to an injury to the brain stem. I infer from this that the plaintiff had sustained a significant traumatic brain injury.

During the period in which the Plaintiff was an in-patient in the intensive care unit it was documented that he was taken to the operating theatre on 9 June 2000 for a procedure involving an open reduction and internal fixation of his fractured right ankle with the insertion of screws. On 13 June 2000 he was extubated from the ventilator assisted breathing. The Prince of Wales Hospital notes record that the Plaintiff was making slow progress with regard to his post-traumatic amnesia, in both its anterograde and retrograde forms. On 3 July 2000 arrangements were made for the Plaintiff's transfer from the Prince of Wales Hospital to the Brain Injury Unit at Liverpool Hospital however he declined to follow that recommendation and at that time he discharged himself home against medical advice. The discharge summary within the Prince of Wales Hospital notes stated: "… The patient declined rehab and opted for self-discharge against medical advice despite repeated discussion regarding the need for rehabilitation."

As will become evident, the Plaintiff was not assessed at the Brain Injury Unit until 31 March 2004 and even then that assessment was incomplete.

On discharge from Prince of Wales Hospital it was noted the Plaintiff was assessed to be unsafe on mobilising when using crutches. The pre-discharge physiotherapy notes and occupational therapy notes record that he was fatigued on mobilisation and required two by two stand-by support and experienced episodes of loss of balance. Memory impairments were also noted. These matters are of some relevance to an assessment of the Plaintiff's claim concerning the need for attendant care services in the months that followed his discharge from hospital.

Notwithstanding that the Plaintiff declined the initial referral to the Brain Injury Unit, nevertheless he later attended the Liverpool Hospital for out-patient review by orthopaedic and neurosurgical specialists. He attended the fracture clinic at that hospital on 26 July 2000 for the removal of his right ankle plaster. On 28 July 2000 he was reviewed by the Neurosurgery Registrar in the out-patients clinic of that hospital. The Registrar noted that the presenting cerebral CT scan showed numerous particulate type haemorrhages in the corpus callosum as well as bilaterally in the grey-white matter junction regions. A left basal ganglia contusion was also noted. On that occasion the Neurosurgery Registrar's final assessment was that the Plaintiff had sustained a severe closed head injury. The Plaintiff was then referred to his general practitioner for follow-up management.

The Plaintiff saw his general practitioner Dr Rafik Dimitri on 13 July 2000. Surprisingly, for a case of this nature, the only report tendered from Dr Dimitri was dated 26 November 2000. That two page report was addressed to NRMA Insurance Limited. The report stated: "He was discharged from the hospital on 3/7/2000 after a period of intensive therapy on pain killer tablets as well as anti-epileptic tablets Phenytoin . He was referred back to Liverpool hospital for rehabilitation. Since his discharge from the hospital, he began to complain of persistent headaches on a daily basis, impairment of his memory - as well as feeling angry and easily upset. He was not fit to return to work and he was certified unfit to work until 15/12/2000. Due to his persistent complaints, he was referred to Dr Craig Presgrave, consultant neurologist for further management. Dr Presgrave advised neuropsychologic assessment which I understand will be arranged in the very near future. As well as this, he advised to continue with Phenytoin (Dilantin) tablets, for a period of twelve to twenty-four months, assuming that no seizures occur."

If there was a neuropsychological report of the kind anticipated by Dr Dimitri it was not tendered in these proceedings.

Dr Dimitri's report was obviously provided to the insurer pursuant to the authority provided to it by the Plaintiff as was incorporated in Exhibit "1" at page 10 of that exhibit. Neither the insurer nor the Plaintiff introduced further evidence in the form of reports from Dr Dimitri despite the fact that there is evidence in the form of correspondence between doctors showing that Dr Dimitri continued to see the Plaintiff after 26 November 2000.

Exhibit "12" comprises a copy of Dr Dimitri's consultation card shows that he saw the Plaintiff on nine occasions between 13 February 2004 and 16 August 2006. On some of those occasions the Plaintiff variously complained of post-concussive headaches, dizziness and impaired concentration in addition to unrelated matters.

It is apparent from Dr Dimitri's report to the insurer that the focus of his concerns at the time was the Plaintiff's presenting headaches, memory problems and emotional state, hence he referred him to the consultant neurologist, Dr Craig Presgrave.

According to the reports tendered, Dr Presgrave saw the Plaintiff on a total of 6 occasions, namely, 18 October 2000, 14 February 2002, 12 September 2002, 8 October 2002, 22 November 2002 and 10 June 2003.

Dr Presgrave was principally concerned with the headaches and other consequences of the head injury. The only treatment he gave the Plaintiff was the prescription of neuroleptic medications. I will analyse Dr Presgrave's reports when dealing with the mitigation issue.

Dr Dimitri referred the Plaintiff to an orthopaedic surgeon, Dr Medhat Guirgis for assessment and management of his orthopaedic problems. Dr Guirgis saw the Plaintiff on 21 November 2001. Dr Guirgis took a history of the events of the collision, the injuries and past treatment, current problems and then arranged for radiological investigations for further evaluation of the Plaintiff's then current problems. The radiology report that dealt with the Plaintiff's orthopaedic injuries was dated 9 January 2002 and stated: " Left Clavicle

The clavicle appears intact. No fracture or bony injury is noted. The AC joint and the gleno-humeral joint appear normal.

There is evidence of a previous fixation of the fracture in the medial malleolus by means of 2 metallic screws. The fracture is fully united. The ankle joint is normal in position. I see no sigh of significant bone or joint pathology."

On 8 July 2002 Dr Guirgis saw the Plaintiff again. He subsequently prepared a report dated 19 July 2003 for the Plaintiff's solicitor. There was no further evidence of consultations, assessments or reports from Dr Guirgis. Apart from noting the history of complaints, the clinical findings and stating his assessment, Dr Guirgis' report does not refer to any treatment or treatment recommendations.

Dr Guirgis appears to have taken an active role in ensuring the Plaintiff was assessed by other medical disciplines. On 9 August 2002 the Plaintiff was assessed by a psychiatrist Dr S Benjamin at the referral of Dr Guirgis. Dr Benjamin's letter dated 12 August 2002 addressed to Dr Guirgis included the following summary: "… Khodr complained of frequent headaches, poor temperament, and memory disturbances. He said that he found it difficult to concentrate and remember names, events, or dates. He also spoke about explosive temper and poor frustration tolerance. This led to frequent arguments at home. He has not worked for the past two years since his Motor Vehicle Accident. There is no reported history of psychiatric disorders. His medical history is unremarkable except for a left forearm a fracture a few years ago. He admitted to smoking twenty-five cigarettes per day but he denied drinking alcohol or using other substances.

He completed Year 10 at Sir Joseph Banks High School and he worked for three months as a Panel Beater. He subsequently worked in Car Detailing until he suffered with the above injuries.

Khodr presented as an anxious, perplexed and apprehensive man of his stated age and ethnic background. He was a poor historian and found it difficult to remember dates, names and events related to his accident and general health. He was particularly concerned about his bad temperament and he said that he avoided other people because of that. His memory, concentration, attention and abstract thinking were diminished. His Mini Mental State score was 25/30. There was no suggestion of Major Depressive Disorder, nor did he exhibit Psychotic Symptoms. He denied Suicidality.

Khodr most likely suffers from Post Concussive Headaches and possibly a mild Post Concussive Cognitive Impairment . His pre injury level of functioning and Cognitive ability should be assessed through his Year 10 scholastic record to determine the extent of deterioration, if any. I counselled him and I encouraged him to return to part-time employment. He could benefit from prophylactic medications for migraine and a change of his antiepileptic medication to Epilim or Tegretol . He informed me that he was going to see Dr Presgrave shortly. I made arrangements to see him in two weeks. Thank you again for referring this man."

Dr Benjamin saw the Plaintiff on six further occasions prior to sending a report on the history, diagnosis, prognosis and management to the Defendant's insurer. That report was dated 5 March 2003 and noted the Plaintiff had post-concussional headaches and a possible mild adjustment disorder with depressed mood. The Plaintiff was advised to return to seeing his treating neurologist for treatment as his past attendances had been erratic. Dr Benjamin noted the Plaintiff's condition had not yet stabilised and suggested a review in six to twelve months' time.

The Plaintiff saw Dr Benjamin again on 3 July 2003 when his neuroleptic medications were changed from Dilantin to Epilim and a review was arranged in four weeks' time. There is no further material from Dr Benjamin and it is not known whether the Plaintiff returned to see him again thereafter.

Dr Guirgis had also referred the Plaintiff to Dr R Shnier, a radiologist, for a brain MRI. This was carried out on 22 November 2003. Dr Shnier's report of the same date stated: " Exam: MRI Brain

The ventricular system si (sic) normal in size and location.

There is normal grey/white matter differentiation throughout.

There are no ischaemic lesions on the diffusion weighted images.

There are multiple areas of signal abnormality largely represented by areas of haemosiderin deposition in the following locations:

1. In the cortex of the right frontal lobe between the region of the superior frontal gyrus. This extends through the white matter of the frontal lobe to involve the right side of the genu of the corpus callosum.

2. In the cortex of the left inferior frontal gyrus in the region of the pars triangularis.

3. In the cortex of the left superior temporal gyrus anteriorly.

4. In the superficial surface of the left putamen and adjacent external capsule.

No significant focal diffuse areas of atrophy are seen.

Mucosal thickening is noted in the maxillary sinuses in the ethmoid aircells.

There are areas of haemorrhagic contusion involving the cortex on both sides and areas as described as well as evidence of axonal injury in the left cerebral hemisphere and involving the right side of the splenium and corpus callosum."

I infer from Dr Shnier's description of haemosiderin deposition in areas of signal abnormality and his description of haemorrhagic contusion that the Plaintiff had multiple sites of bleeding into his brain which has left areas of scarring and abnormality.

The records of Liverpool Hospital Brain Injury Unit show that on 19 February 2004 Dr Guirgis wrote out a referral for the Plaintiff to attend at that unit for assessment of his brain damage.

After failing to attend an initial appointment at the Brain Injury Unit on 3 March 2004 the Plaintiff ultimately attended on 31 March 2004 when he underwent preliminary assessment by Dr Nguyen, a rehabilitation specialist at that unit. This occurred nearly four years after his injury. The handwritten notes of that assessment are not entirely decipherable but they are of value in assessing the Plaintiff's history. Dr Nguyen noted that the Plaintiff's history was fragmented and that most of the Plaintiff's answers to his questions were "don't know" or "can't remember". Dr Nguyen noted the Plaintiff's behaviour was not particularly agitated and was at times abusive but the Plaintiff had responded to reasoning. I infer from the juxtaposition of the notation "BS" in Dr Nguyen's notes that the Plaintiff appears to have expressed a negative antipathy towards the psychiatric contact he had in the past.

Dr Nguyen noted the Plaintiff's complaints to be consistent right fronto-temporal headaches aggravated by noise, pain in the right ankle including numbness on prolonged standing, memory impairments, including poor appointment attendance which was getting worse, temper problems leading to physical outbursts and fighting with a friend. Difficulties were also noted with problem solving skills as well as with planning and organisation abilities. Some advice was given concerning temper control and how to deal with his family.

Dr Nguyen noted that further information was needed from the general practitioner and that the Plaintiff would ring regarding this. The plan was to await further information and to discuss the Plaintiff at a Brain Injury Unit team meeting scheduled for the following week. A counselling appointment made for the Plaintiff for 4 March 2004 was not attended. Thereafter, there were sporadic attendances on 15 July 2004, 16 September 2004, 18 September 2004, 24 September 2004, 15 October 2004, 29 November 2004 and 6 December 2004.

On these occasions the Plaintiff was seen variously by Dr Nguyen and Mr Delaney, the Brain Injury Unit neuropsychologist. Because of the Plaintiff's history of non-attendance at appointments, these being noted as 4 March 2004, 16 September 2004 and 12 November 2004 it was decided that further neuropsychology feedback sessions would be conducted over the telephone rather than re-booking appointments given the history of poor attendance beforehand.

There were no details of any further attempts at rehabilitation of the Plaintiff adduced in the evidence.

Dr Benjamin's progress reports dated 12 August 2002 and 3 July 2003, which he sent to Dr Dimitri, were tendered as was his report to the Defendant's insurer dated 5 May 2003. I will review this material when reviewing the medical reports that relate to the Plaintiff's cognitive, emotional and behavioural issues.

On 13 September 2004 Dr Nguyen wrote to Dr Dimitri stating that some notable progress had been made with memory strategies since the last review. The Plaintiff's temper control was also noted to be a bit better.

It appears from the neuropsychology report prepared by Mr Delaney on 10 December 2004 that the onus was left on the Plaintiff to pursue rehabilitation. Mr Delaney's report stated: "From the time of his self-discharge from hospital, Mr. Mahony has demonstrated a reluctance to engage in rehabilitation services in order to assist his recovery from his severe injury. For example, he has failed to attend four of eight scheduled appointments with clinicians at BIRU since March this year. It is probable that Mr.Mahony could benefit from specialised brain injury rehabilitation. However, any gains would be reliant upon his level of commitment to the process, reliable attendance at sessions and completion of any "homework" or exercises that may be recommended by clinicians. As such, it is recommended that Mr. Mahony should be required to self-refer to the BIRU in order to access therapeutic assistance. That is, the onus should be upon Mr. Mahony to demonstrate both an interest and a willingness to engage in rehabilitation. In the event that he self-refers, a process of goal setting should be conducted in order to identify appropriate goals that Mr. Mahony desires to work towards. Therapeutic interventions would then be tailored to meet these goals."

It was unfortunate for the Plaintiff that he did not have a case manager allocated to him in order to follow-up the necessary steps that may have assisted with his rehabilitation. He was left with recommendations for coping strategies including the use of a wall calendar, use of his mobile phone as a memory aid, a routine physical exercise regime and referral to a psychologist for interventions for his mood states and anger management difficulties. As to vocational rehabilitation, it was left up to the Plaintiff to express a commitment to such a course. Whilst this was unfortunate in the case of an individual who had cognitive impairments there is no evidence that a more pro-active approach would have made a causative difference.

A review of the initial medical assessment and treatment records reveals that the Plaintiff underwent a remarkable recovery from his severe head injury. At the time he was discharged from hospital out-patient care until the time he went to the Brain Injury Unit at the referral of Dr Guirgis in 2004 there is no evidence that he had been provided with a detailed or specific plan as distinct from general recommendations for rehabilitation or treatment.

The fact that the Plaintiff did not follow the initial medical advice in July 2000 which recommended that he attend the Brain Injury Unit at Liverpool Hospital raises for threshold consideration a question as to whether the Plaintiff has failed unreasonably to mitigate the effects of his injuries: s 136 Motor Accidents Compensation Act 1999.

On the state of the medical evidence tendered I consider that it is not possible to determine meaningfully what likely ameliorative benefits could have flowed from the referral of the Plaintiff to the Liverpool Brain Injury Unit was on 3 July 2000. In fact, the Plaintiff attended at the hospital's out-patient's clinic 13 days later and when he was discharged from the out-patient's clinical several days later that discharge was into the care of his general practitioner.

In these circumstances, and in the absence of evidence as to the nature and the likely effect of the intended treatment at the Brain Injury Unit, I see no rational basis upon which to discount the Plaintiff's damages on account of an apparent failure to mitigate because to do so would require what I consider to be unwarranted speculation concerning the Plaintiff's understanding of the importance of the referral and also the likely ameliorative effects of such a referral. This is especially so where the Plaintiff's evidence suggests he did not understand the significance or the need for such rehabilitation follow-up that was repeatedly suggested to him.

It is noteworthy that by the time the Plaintiff ultimately went to the Brain Injury Unit on the referral of Dr Guirgis in 2004 he was already making attempts at obtaining employment.

On 18 October 2000, at the referral of his general practitioner, the Plaintiff was seen by Dr Craig Presgrave, a consultant neurologist. This assessment was for assessment, management and treatment of his post-traumatic headaches. At that time Dr Presgrave wrote to the general practitioner in the following terms: "I would be pleased to review Khodr if he is prepared to co-operate with arrangements for further assessment of higher mental function and appropriate rehabilitation".

I consider that it is questionable as to what rehabilitation would have achieved at this point given the opinion of Dr Elliott dated 18 October 2000 to the effect that the Plaintiff would be unfit for training for a further 6 to 9 months.

Dr Presgrave saw the Plaintiff again on 14 February 2002 at which time he gave the opinion that the Plaintiff's headaches were of the benign post-traumatic variety. He saw the Plaintiff again for review on 12 September 2002 at which time he voiced his concern about the Plaintiff continuing to drive a motor vehicle as he had declined rehabilitation following discharge from Prince of Wales Hospital. A further review by Dr Presgrave occurred on 21 November 2002 at which time Dr Presgrave again referred to the absence of a rehabilitation assessment but this was in the context of whether it was safe for the Plaintiff to drive a vehicle. At that time Dr Presgrave thought it was worthwhile encouraging the Plaintiff to be assessed at a Brain Injury Unit.

There is no direct evidence that this strong recommendation that was made to the general practitioner was ever drawn to the attention of the Plaintiff or to his Tutor in terms that either of them had understood. Nor is there evidence that any firm arrangements had been made for an actual appointment to enable an assessment of this kind to be carried out.

Dr Presgrave repeated and noted his rehabilitation recommendations when he saw the Plaintiff on 10 June 2003 at which time The Plaintiff was noted to be not particularly receptive to the notion of rehabilitation . Dr Presgrave expressed his hope to the general practitioner that the Plaintiff could be persuaded to proceed to a rehabilitation assessment.

There is no evidence as to what ameliorative effect, if any, such an assessment at a Brain Injury Unit would have been likely to achieve, either in July 2000 when the original recommendation was made, or subsequently leading up to 2003, when Dr Presgrave reiterated the recommendation, or even in 2004 when the Plaintiff did attend for assessment at the Brain Injury Rehabilitation Unit.

In my view the failure to mitigate argument proceeds upon the flawed premise that at the time the Plaintiff was the recipient of advice to undergo rehabilitation he was capable of normal cognitive processes that would have enabled him to appreciate the need for and benefits of a referral to rehabilitation. In the presence of a severe traumatic brain injury and given the Plaintiff's low level of cognitive functioning, to which I will refer later, I consider such a premise to be unsustainable in the circumstances.

Given the nature and extent of the Plaintiff's brain injury, I am of the view that it was the responsibility of others, not just the Plaintiff, left to his own impaired devices, to ensure that he received the appropriate follow-up assessment and treatment. I find this to be so particularly where the Plaintiff declined repeated discussion on his need for rehabilitation. I infer from this fact that there must have been a cognitive impediment to his understanding of the need for such a recommendation to be followed. Accordingly, I am of the view that the Defendant's criticism of the Plaintiff to the effect that he had failed to undertake mitigatory treatment, is misplaced. The situation may have been different if he had a case manager looking after his interests and if it were clearly shown that the Plaintiff had an understanding of the need for and the potential benefits of such treatment.

It is relevant to note the Plaintiff's recorded response to a question asked of him by Dr Wendy Roberts, a psychologist retained by the Defendant when she asked him whether he had received rehabilitation. She recorded his response as follows: "I was going to get out of hospital for a two week rehabilitation course. I refused it. I sort of lost it there in hospital and I refused it. I don't know if it was after that and possibly Liverpool Hospital one day, but I'm not sure and I don't think I have. I'm not sure."

In my view that answer is instructive because on 23 November 2006 when the Plaintiff saw Dr Roberts and related this account he had already been seen at the Brain Injury Unit at Liverpool Hospital on a number occasions in 2004. The quoted answer suggests that the Plaintiff's memory for past events is poor and suggests that he had little insight as to the purpose of rehabilitation.

The assessment of an alleged failure to mitigate requires a consideration of subjective factors. For a failure to mitigate be shown to have been unreasonable, the Plaintiff must have been shown to have been made aware of what treatment was intended, including its likely benefits : Fazlic v Milingimbi Community Inc [1982] HCA 3 at [12]; (1982) 150 CLR 345.

The factors for and against an argument that the Plaintiff had unreasonably failed to mitigate were not sufficiently explored in the evidence for me to arrive at a concluded view on that issue. I was left with the impression that the Plaintiff did not fully understand the need for rehabilitation follow-up as distinct from the need for medical follow-up as was the case in respect of his need for anti-convulsants and assessment of his headaches as sequelae of his head injury as well as assessment of his ankle injury. He did in fact submit himself for follow-up on those matters.

Even if there had been evidence that provided some of the presently absent detail of what was likely to have been achieved by the proposed rehabilitation referral, that evidence and the Plaintiff's apparent refusal to undergo a rehabilitation assessment would have to be weighed against the fact of the Plaintiff's post-injury intellectual limitations and his limited ability to understand the significance and possible benefits of such a course.

In the light of these matters I am not persuaded that the Plaintiff in fact had an understanding of any likely benefits from rehabilitation at the time the recommendations were made to him. I infer from the fact that the Plaintiff attended hospital out-patient clinics for review of his ankle and head injury that he understood the need for such attendances. I infer from the fact that he did not initially attend for the suggested rehabilitation assessment, together with his intellectual limitations, that until 24 February 2004 when Dr Guirgis referred him to the Brain Injury Unit that he did not have a proper understanding of the need for and benefits of such a referral. It is important to note that, properly, a Tutor has brought these proceedings on the Plaintiff's behalf. This fact tends to confirm the Plaintiff's limited understanding of what may or may not have been in his own best interests.

In these circumstances I find I am unable to conclude on the evidence adduced in this case that the Plaintiff has unreasonably failed to undertake mitigatory treatment that would have had a relevant ameliorative impact on the outcome of his injuries and disabilities.

The Plaintiff's oral evidence was given in a reserved manner and with a flat affect for most of the time, apart from when he became frustrated with the process of giving evidence and being questioned. His ability to communicate seemed rather limited and he was relatively inarticulate. In my view this has influenced the content of his evidence. He was not greatly forthcoming on the detail of his disabilities and the manner in which they impacted upon his day to day life. There was evidence that he had problems with word selection and I do not discount the possible impact of stress and frustration whilst in the witness box as having an impact on his ability to articulate his problems. At times he became obviously frustrated when giving evidence. I have to consider this in the light of a medical assessment which suggests that the Plaintiff's fluctuating effort at participating and communicating was a function of his head injury.

The Plaintiff has been seen by a number of medical and other practitioners who took histories from him concerning his experience of current problems and difficulties. These examinations have been variously, for treatment, follow up, assessments carried out at the request of his own solicitors, assessments carried out at the request of the Defendant's solicitors as well as an assessment carried out at the request of the Motor Accident Authority. He gave evidence that he had co-operated with the various doctors who had examined him. He said he did his best to comply when carrying out the tests they had variously asked him to perform. He said he gave them an accurate history and account of his problems.

It is instructive to review the histories the Plaintiff gave to those medical examiners because, subject to determining issues concerning the Plaintiff's credit, those histories provide a general indication of consistency in his complaints and post-injury difficulties. I infer from the Plaintiff's presentation and manner of giving evidence that the one-on-one situation of a medico-legal interview would have been a far less stressful environment for him to relate his problems to the examiner than when he was called upon to answer questions concerning such matters in the adversarial and stressful formality of a court room.

Whilst acknowledging that one of the difficulties in relying on history recorded in medical reports is that unlike when evidence is given in court, the detail of the medical examiner's questions is not exposed to analysis and is only capable of being inferred from the condensation of the answers given on the topic touched upon by the examiner, nevertheless, such condensation is evidence that is available to be considered and weighed in connection with issues arising from the Plaintiff's evidence and in his claim.

The recorded disabilities that the Plaintiff reported to these examiners fell within the areas of first, physical difficulties and secondly, cognitive, emotional and behavioural difficulties.

Physical problems related by the Plaintiff to medical examiners

In the medical examinations in which the Plaintiff was required to describe his physical disabilities, his complaints centred around his right ankle, his left clavicle and shoulder, his neck and his back. I will review the reported medical histories in relation to these matters.

The Plaintiff described experiencing an abnormal balance problem in his right ankle. He said he had been told by others and believed he had an altered gait. He said he experienced occasional numbness in the ankle and an occasional limp. He said the issue of an altered gait caused him embarrassment when he was told about this. He said he experienced pain on standing or walking for prolonged periods and he experienced cramps in cold weather. He also claimed an inability to run or squat.

The Plaintiff's left clavicle had healed but had a pronounced lump on it. He described experiencing occasional "popping" of the collarbone at the sternoclavicular joint on certain movements. He said he was unable to carry out sustained elevated weight bearing movements of the left arm and shoulder. He said his sleep was at times disturbed when he found himself laying on his left side or left collar bone at night. He also described post-concussional headaches.

Cognitive problem related by the Plaintiff to medical examiners

The Plaintiff also gave an account of his cognitive disabilities. These problems centred around impairment of memory and concentration. He described problems of forgetfulness of numbers, names, transient events and details of conversations. He forgets what he has read. As part of his rehabilitation he had been provided with a coping strategy of using a mobile phone to keep lists to remember things, including his scheduled appointments. He described how he had lost several such phones which then needed to be replaced. He described problems with word selection when conversing. He described his tendency to misplace things. Whilst he did not often write, he said he experienced confusion when writing. He also described poor concentration and a tendency to repetition.

The Plaintiff also described experiencing emotional and behavioural disabilities. These problems included impatience, irritability and tactlessness. He described being easily angered, including a proneness to increased volatility and loss of temper when compared to his acknowledged pre-injury tendencies in this regard. He gave examples of punching a wall and a door injuring his hand and of bashing his car with a hammer when he was angry, on each occasion causing damage. He also described an awareness that people talk about him. He also described experiencing frequent headaches.

The evidence given by the Plaintiff concerning his post-injury employment details was imprecise, sketchy and rather vague. A question arises as to whether this was due to a combination of difficulties with his memory and fluctuating effort, both of which have been identified as being of post-traumatic origin.

The Plaintiff's evidence of his post-injury earnings and the available documentary evidence of those post-injury earnings is chronologically reviewed and summarised within the ensuing paragraphs. It is necessary to review the factual detail of the post-injury employment history as this is relevant to an assessment of the Plaintiff's credit.

On 8 August 2000 the Plaintiff was seen by Dr Elliott, a medical advisor of Health Services Australia. It is not clear as to who referred the Plaintiff for this assessment. It could have been a requirement of Centrelink as that organisation is identified as an advisor to the Australian Government but the purpose of the referral is not made clear. In any event, on that occasion Dr Elliott stated that the Plaintiff was unfit for work and training for the next 6 to 9 months, i.e. to February or March of 2001.

Dr Elliott referred the Plaintiff for a neuropsychologist's assessment in 6 to 9 months time for assessment, amongst other things, of work capacity. It is not clear whether the Plaintiff attended for such an assessment and if so, with what result.

It is not known what the Plaintiff did between Dr Elliott's assessment on 8 August 2000 and early 2002.

In early 2002 the Plaintiff returned to his pre-injury employment in a casual capacity at Sydney Prestige where he resumed his driving and delivery duties. In this work he said that he noticed he was forgetful of pick-up and delivery locations. He also said he noticed he was tired and gave the impression that he could not cope with the work. In any event, he was kept on in that employment until Sydney Prestige closed down and ceased to operate a couple of months following his return to work. This left the Plaintiff without employment. There is no confirmation of the Plaintiff's earnings for that two month period of employment with Sydney Prestige, however using the pre-injury figure of $350 per week net as a guide, the Plaintiff's earnings for this two month period equate to approximately $2,800 net.

In February 2002 the Plaintiff obtained an unsigned letter dated 13 February 2002 from Sydney Prestige. That letter was tendered as Exhibit "2". The Plaintiff conceded that the assertion within that letter, namely that he had been employed by Sydney Prestige for the previous two years, was incorrect. That letter was apparently obtained by the Plaintiff in order to assist him to obtain an indulgence from the RTA concerning an impending licence suspension due to commence on 20 March 2002. This is a matter I will consider when assessing the Plaintiff's credit.

The Plaintiff's evidence was that on 3 October 2002 he commenced employment with Dale Ford as a delivery driver. This employment lasted for a short but unspecified period of time. He said he left this employment because of an argument. It was suggested to the Plaintiff that the true reason for his dismissal was that he was unpunctual. The Plaintiff denied that suggestion but correspondence from Dale Ford showed otherwise.

A bundle of employment related documents was tendered in the Plaintiff's case as Exhibit "T". That bundle contained an undated letter from Dale Ford apparently received by the Plaintiff's solicitors on 19 March 2004. That letter identified the Plaintiff's probationary employment with Dale Ford as a washer and driver to have been between 3 October 2002 and 7 November 2002 when it was terminated due to excessive absenteeism and punctuality whilst he was on probationary employment. The Defendant also tendered Exhibit "10" which was a letter dated 7 November 2002 to the same effect. Exhibit "T" shows that his earnings from this employment were at the rate of $374.10 per week. For this five week period his earnings were approximately $1,870 net.

On an unspecified date in October 2003 the Plaintiff obtained casual work as a car detailer for an unknown period for an unknown number of hours per week with Jetboy Car Detailing. There is no evidence of the Plaintiff's earnings in that employment.

Exhibit "T" contains a payroll report from SCC Manpower, which I infer from its name is a labour hire agency. That report identifies the Plaintiff's earnings between 25 January 2004 and 1 February 2004 in the sum of $289.56 net.

Between 18 August 2004 and an unstated date in December 2004 the Plaintiff was employed driving cars for an entity identified as Enfield Auctions. This employment ceased after an episode in which the Plaintiff threw a chair at his supervisor following a disagreement. There is no evidence of the Plaintiff's earnings in that employment.

The Plaintiff's evidence was that from an unknown date in May 2005 until 2 August 2005 the Plaintiff's brother Abbas Mokbel arranged casual employment for him with Auto Group Auctions for 2-3 days per week. The Plaintiff stated that this employment was terminated because he had various disagreements with his supervisor. Exhibit "T" contains some feintly photocopied pay slips from this company that are difficult to decipher. The Plaintiff's PAYG Payment Summary for the year ended June 30th issued by Auto Group Auctions Pty Ltd show a total gross income of $2,593. Tax was deducted in the sum of $244 leaving earnings of $2,349 net.

The Plaintiff's evidence was that between 6 November 2005 and an unknown date in February 2006 he had obtained employment with Pickles Auto Auctions Pty Ltd for 3 months but he left following an argument. It was suggested to the Plaintiff that the true reason for his dismissal was that his work was unsatisfactory. The Plaintiff denied that suggestion and no evidence was called to contradict that denial. Exhibit "T" shows that the Plaintiff's recollection as to his earnings in the employ of this company was incorrect as to the dates. Exhibit "T" includes a PAYG payment summary issued by that company which shows that his earnings in the employment of that company between 17 November 2006 and 2 February 2007 were $7,895 gross from which tax of $1,371 was deduced to leave him with earnings of $6,524 net.

From an unknown date in February 2006 until an unknown date in mid-2006 the Plaintiff worked as a driver for Manheim Auctions Australia Pty Ltd for 3 months. He said that he had left this employment after an argument. It was suggested to the Plaintiff that the true reason for his dismissal from that employment was that he had sexually harassed a member of staff. The Plaintiff denied that suggestion. His denial was partly contradicted by the content of Exhibit "11" which is a letter from that employer dated 10 July 2007 addressed to the Plaintiff informing him that his employment was terminated for misconduct, the grounds being unspecified breaches by him of the company's equal opportunity and harassment policy. In these circumstances, without more specific evidence on the nature of such breaches, I accept that the dismissal was for misconduct but I am not prepared to infer that the misconduct was in the nature of sexual harassment as has been submitted by the Defendant. I will consider the Plaintiff's denial and the employer's letter when assessing the Plaintiff's credit. Exhibit "T" contains an income tax return for June 30th 2007 which provides evidence of earnings derived by the Plaintiff with Manheim Auctions Australia Pty Ltd in that financial year in the sum of $5,202 net.

The Plaintiff's 2007 income tax return also shows earnings for unspecified employment with Metropolitan Filters Pty Ltd between unspecified dates in the financial year ended June 30th 2007 in the sum of $942 net.

Between an unknown date in October 2006 and an unknown date in April 2008 the Plaintiff was employed by Go Electrical as a courier driver. The Plaintiff had been recommended for employment to Mr Dunlop, the proprietor of that business. Mr Dunlop was called to give evidence but was not asked any questions about the period of the Plaintiff's employment with his company.

Mr Dunlop said that the Plaintiff had the use of an available GPS device to assist him in finding locations in connection with his work. However this employment ceased because the Plaintiff used to get lost and he experienced difficulties with his temper. Mr Dunlop stated that when he employed the Plaintiff he did not know he had a brain injury. Initially the Plaintiff performed his duties as a delivery driver satisfactorily. However, incidents in which the Plaintiff lost his temper began to emerge and these came to the attention of Mr Dunlop. Mr Dunlop noticed the Plaintiff's temper was easily triggered without significant provocation. This resulted in Mr Dunlop counselling the Plaintiff about this several times. Notwithstanding the fact that Mr Dunlop expressed the view that he liked the Plaintiff on account of his sense of humour and general likeability, he terminated the Plaintiff's employment on account of temper control issues. I accept Mr Dunlop's evidence in this regard. It was not relevantly challenged. Exhibit "W" comprises a bundle of payslips issue to the Plaintiff from Go Electrical Pty Ltd showing an annual base salary rate of $33,000 gross with full time earnings to 11 January 2008 in the sum of $7,132.97.

The Plaintiff stated that in the gaps between some of these periods of employment outlined above he was in receipt of Centrelink benefit payments but these payments ceased at some stage. It is not clear as to precisely when this occurred.

The Defendant established through a concession obtained from the Plaintiff in cross-examination that since September 2000 the Plaintiff had bought and sold a number of motor vehicles. The Defendant suggested that since that time and up to the time of the trial the Plaintiff was in the business of buying and selling cars. In fact Exhibit "4" which comprises the RTA record of the Plaintiff's acquisition and disposal of motor vehicles shows that the Plaintiff's purchasing and sale of motor vehicles commenced in about 1998. The Plaintiff denied that he conducted a business in this regard but he agreed that he had bought and sold about 5 such cars. When cross-examined on the content of Exhibit "4" which refers to more than just 5 vehicles, the Plaintiff claimed that some of the vehicles he was being asked to agree were his, in fact belonged to his brother.

With regard to his ownership of a number of cars the Plaintiff gave the following evidence in re-examination: "Q. Sir, you were asked a number of questions yesterday about a number of vehicles that you've owned over the years. A. Yes.

Q. In respect to those vehicles, do you recall each and every one of them that you were asked about or not? A. Not quite all of them.

Q. Were you at any stage engaged in buying and selling vehicles for a profit? A. No. No, I wasn't.

Q. What was the purpose in buying so many vehicles over a relatively short period of time? A. Just profit myself .

Q. Did you enjoy cars? A. Yeah, I just - I enjoy cars, yeah."

In the context in which the foregoing evidence was given I do not take the expression "profit myself" to mean that the Plaintiff was carrying on the business of trading in motor vehicles for profit.

At the time of the trial the Plaintiff said he was looking for work as a courier and was following-up an opening in this regard. He gave evidence that the range of remuneration for such work varied between $900 to $1,200 after the deduction of tax.

Ultimately, the relevant questions on the issue of loss of earning capacity are whether, from a practical perspective, the Plaintiff is likely to be employable in the future, as a courier or otherwise, and whether he is likely to be able to maintain and sustain significant employment over the remaining period of his remaining potential working life.

Plaintiff's pre-injury behaviour and post-injury behavioural changes

The material that related to the Plaintiff's pre-injury schooling provided some indication of pre-injury antisocial behaviour and dysfunction. That material is unidimensional in the sense that it was created in the context of a learning and disciplinary setting in early life which is not necessarily indicative that it would represent a continuum of lifelong behavioural patterns. Whilst it is true that the Plaintiff showed hostility, aggression and mal-adaptation to the need to conform to group behaviour whilst at school, it is necessary to evaluate the other available evidence of his behaviour prior to his injury.

Evidence of Mrs Siham Saleh - the Plaintiff's mother

Mrs Saleh gave her evidence through an interpreter so in a sense, it was not possible to gain an insight into possible nuances within the views she expressed concerning her son's behaviour. It must be said that in the circumstances a mother would naturally perceive her son to be in a favourable light. That said, her evidence of the Plaintiff's pre-injury behaviour and level of functioning is nevertheless relevant.

Mrs Saleh regarded her son as being normal before his injury. She gave as pre-injury examples, his compliant behaviour in helping her around the house, including cutting the grass and paying her bills. She said she did not notice any problems concerning his understanding of and responsiveness to what was asked of him. She said he had never displayed any anger or irritation when she had asked him to do something for her. She said he interacted normally in the family situation. She described him as being very active and being involved in sports before his injury. She said she was aware of and disturbed by the fact that after he had left school the Plaintiff was convicted of a drug offence.

Mrs Saleh said that after his injury it took the Plaintiff some weeks for him to be able to recognise her. She also said that after his injury she felt that he was not normal as he used to be. She explained this by reference to his apparent nervousness, she described how he would scream and sometimes punch the wall and try to punch things around the home. She said that to her knowledge he had not behaved like this before his injury. She was apparently unaware of him punching a wall and throwing a chair at school. She said that beforehand he used to be normal and quiet like any other child. I interpret this evidence to refer to his behaviour at home. She described his forgetfulness after the injury and gave the example of him forgetting to pay the rent for her. She also described his forgetfulness of the content of conversations in which he had participated and she referred to his attitude of sadness, nervousness and nihilism.

Mrs Saleh was not cross-examined at all. I accept her evidence.

Evidence of Miss Karoline Tsialis, the Plaintiff's former girlfriend

Miss Karoline Tsialis, the Plaintiff's former girlfriend gave evidence of the Plaintiff's behaviour and demeanour prior to his injury. At the time of the trial she was a registered nurse. She and the Plaintiff were school students together, including a period at St Joseph Banks High School. They had known each other from those times.

Miss Tsialis said she would see the Plaintiff once or twice a week before his injury. She described the Plaintiff's pre-injury personality as being outgoing, outspoken and very friendly. She said she had never had an argument with him. She was aware of his expulsion from school. She was unaware of his use of or involvement with drugs and said of this that if she had known of this their relationship would have ended.

Miss Tsialis said she continued to keep company with the Plaintiff right up until the time of his injury in 2000.

She described how, after the injury she observed that he exhibited post-traumatic amnesia. She said she noticed changes in the Plaintiff's personality in that he had become a lot more angry and had acquired an angry personality. She also said he had become a lot more argumentative. She said that she had never seen this sort of personality in him before his injury. She observed that his memory was short and not the same as it was before the injury. She described how, after the injury, he would forget that she had been over to see him and she found this strange and frustrating. Their relationship ceased in approximately October 2000 and she has only seen him on passing occasions since then.

Miss Tsialis was not cross-examined at all. I accept her evidence.

Evidence of Mohamed Mokbel, the Plaintiff's brother

Mr Mohamed Mokbel is the Plaintiff's elder brother by 5 years. He holds a responsible position in hotel management. My impression was that he gave his evidence in a straightforward manner and without hesitation.

Mr Mokbel described the family as close but surprisingly he said he was "not really" aware that his brother had been expelled from two high schools. There are a number of possible inferences that arise, including the possibility that the Plaintiff chose not to inform his siblings of the fact that he had been expelled from school. The matter was not explored in detail in the evidence. Mr Mokbel described the Plaintiff in the following terms: "Q. What was he like at home, before he had this accident? A. A lovely kid. A nice kid. A very - he's always willing to do anything for anyone. Well, everything that I've asked him to do, he's done it.

Q. Did he do that willingly or were there arguments and disputes? A. Willingly. Yeah. We - yeah - we are a close family so, yeah, yeah."

He said the Plaintiff carried out tasks such as lawnmowing, cleaning and taking out the rubbish when asked to do so without problems.

He described his observation of changes in the Plaintiff after his injuries. These changes included being more short-tempered, agitated, frustrated, angered and he used what I infer was the use of bad language in the home. He had also observed the Plaintiff to punch a wall. He said he had not observed any of this sort of behaviour before the injury. He described this type of behaviour as continuing to the present time.

Mr Mokbel described how he observed problems with the Plaintiff's memory and of needing to be re-taught mundane tasks such as shopping and ironing. He said he had observed the Plaintiff's impatience and agitation at watching a movie. He said the Plaintiff was not like that before his injury. He also described difficulties in communication with the Plaintiff because of his shortness of temper and his frustration. Mr Mokbel had not seen a violent side to the Plaintiff's behaviour before the injury.

Mr Mokbel's evidence concerning the Plaintiff's pre and post-injury behaviour is consistent with the evidence given by his mother and by Ms Tsialis. I therefore accept his evidence.

Medical opinions concerning Plaintiff's disabilities

There was some divergence of opinion amongst the medical and other experts who had examined the Plaintiff concerning the nature and the extent of his residual disabilities. I consider this divergence to be in part due to difficulties experienced by the medical and other examiners in obtaining a history from the Plaintiff, either on account of his memory difficulties, his tolerance for being interviewed at length or in detail, or possibly due to a lack of focus and fluctuating effort on the part of the Plaintiff when interviewed. This difficulty has led some of the medical experts into relying to varying degrees on the supporting documentation provided to them as well as relying upon the content of other reports relating to the Plaintiff for their conclusions rather than relying upon the Plaintiff's history that was provided to them in consultation.

For example, the Plaintiff was examined, on behalf of the Motor Accidents Authority, on 27 June 2007 by Dr Tai-Tak Wan, a rehabilitation specialist. Having considered the array of medical evidence I consider that a reasonable insight into the difficulties experienced by the medical examiners in assessing the Plaintiff's presentation is obtained from the following statement that formed part of Dr Wan's conclusions: " 5. Conclusions

Conclusions of Presentation The clinical presentation is on the whole, consistent with the complaints. Mr Saleh was not a good historian and often gave confusing answers to questions; therefore I have to rely on information in the supporting documents, including reports from other doctors and neuropsychologists. Although there is concern that the claimant may be a liar or not give maximum effort, I believe that the fluctuation in performance is more likely related to his difficulties in learning and executive functions, which are secondary to the traumatic brain injury."

I consider that the foregoing insight, which appears to me to be apt, requires that a careful evaluation of the medico-legal reports is necessary in order to determine the validity and probative value of the conclusions expressed therein by the authors.

I commence with a review of the medico-legal reports concerning the Plaintiff's reported post-injury physical problems.

There is scant evidence from the Plaintiff's treating general practitioner as to the Plaintiff's post-injury pattern of consultations, assessment, treatment and referral. Also absent from the evidence is much in the way of historical detail of any complaints the Plaintiff had made over time to his treating general practitioner about his disabilities.

On 21 November 2001 the Plaintiff was first assessed by Dr Medhat Guirgis, an orthopaedic surgeon who saw the Plaintiff at the referral of his general practitioner. Dr Guirgis noted the Plaintiff complained of discomfort associated with popping and clicking in his left clavicle which has healed with a deformity. He experiences this on movement of the arm in certain directions. Dr Guirgis also noted the Plaintiff's problems with reduced walking tolerance, agility, weight bearing and the experience of pain in the left ankle.

Dr Guirgis re-assessed the Plaintiff again on 21 November 2007 at the request of the Plaintiff's general practitioner. At that time Dr Guirgis noted that the Plaintiff was still troubled by right ankle problems which included reduced walking and running tolerance, an inability to jump and the need to take care with weight bearing. He noted that the two fixation screws that had been inserted to reduce the ankle fracture were still in situ. He also noted the presence of continued mild intermittent complaints in the neck and thoraco-lumbar spine which had worsened over time. He diagnosed this as being due to musculo-ligamentous sprains and strains with possible intervertebral disc involvement. He also noted some abnormal movement restrictions in abduction, adduction, flexion, extension and rotation of the glenohumeral component of the left shoulder joint. 355. As already noted, Dr Wan's rehabilitation report dated 28 June 2007 was in part based on a review of unspecified supporting documentation relating to the Plaintiff which was not identified. This would ordinarily preclude a transparent evaluation of some of the assumptions within such a report which tends to obscure what history Dr Wan actually obtained from the Plaintiff as distinct from making assumptions from the material provided to him : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705. That said, in this specific instance I believe there is a sufficiently broad general climate of similarity between the nature of the Plaintiff's symptoms as recorded by Dr Wan and the problems described by the Plaintiff in his evidence in these proceedings for me to place reliance on Dr Wan's assessment of the Plaintiff's ongoing problems : Paric v John Holland Constructions Pty Ltd (1984) 2 NSWLR 505 per Samuels JA at 509 [F - G]. 356. Dr Wan found that the Plaintiff's physical injuries had stabilised with the result that the Plaintiff has been left with permanent impairment to his right ankle but without severe gait derangement. Logically, this must mean that Dr Wan had found that there was a degree of gait derangement present in the Plaintiff's right ankle. Dr Wan found there was tenderness and impairment to the lumbar and cervical spines. Dr Wan found no rateable impairment to the left clavicle which I take to mean there was a degree of impairment but it was not rateable according to the MAS guidelines. Those guidelines and the assessments that arise from them are not relevant to the task of assessing damages in this case.

Dr Stephen Buckley, a rehabilitation specialist, examined the Plaintiff on 2 February 2006 at the request of the Plaintiff's solicitors. Dr Buckley took a history from the Plaintiff of the physical complaints of ongoing headaches, right ankle pain with cramps, reduced standing tolerance and reduced mobility and agility. Dr Buckley's examination confirmed the Plaintiff had poor balance on the right ankle when compared to the left. He also noted 0.5 cm of wasting of the right calf muscle. Dr Buckley's prognosis for the right ankle fracture was the likelihood that the Plaintiff would slowly develop osteoarthritis in his right ankle joint. He took a history that the Plaintiff experienced pressure-like low back pain that worsened when sitting and with occasional onset after walking. He took a history of neck pain similar to the low back pain. He also took a history of left shoulder problems, including problems with sleeping on the left side and when elevating or reaching with the left arm.

On 9 May 2006 the Plaintiff underwent a rehabilitation assessment by Dr Brian Zeman at the request of the Defendant. In dealing with the Plaintiff's physical problems Dr Zeman recorded a history of ongoing right ankle problems and instability of the left sternoclavicular joint. Dr Zeman thought that the prognosis was for intermittent pain in the left ankle which he characterised to be not significant. Dr Zeman did not record any history of neck and back problems. Dr Zeman's prognosis was for intermittent pain in the sternoclavicular joint on heavy lifting or excessive movement of the left shoulder. Dr Zeman's opinion on the condition of the Plaintiff's right ankle differed from the opinions of Dr Guirgis, Dr Wan and Dr Buckley.

On 20 June 2006 the Plaintiff underwent an orthopaedic assessment by Dr John Cummine at the request of the Defendant. Dr Cummine obtained a similar history to the previous medical examiners concerning the Plaintiff's complaints of ankle, neck and back problems. Dr Cummine thought that since the Plaintiff's ankle fracture was fully united and in a normal position, post-traumatic osteoarthritis was unlikely to develop. The history obtained by Dr Cummine in relation to the left shoulder suggested that the shoulder problem had resolved as he recorded that there was a full range of movement in that shoulder. He did not say whether or not there was a complaint of pain in the left shoulder. Dr Cummine's impression concerning the shoulder problem is at variance with the Plaintiff's own evidence and at variance with the histories obtained by Dr Guirgis, Dr Wan, Dr Buckley and Dr Zeman.

Somewhat bizarrely, there were differences of opinion between these medical examiners concerning the measurement of the Plaintiff's right ankle scar. Dr Wan noted the presence of a hyper-pigmented surgical scar over the right medial malleolus but did not measure it. Dr Buckley measured the scar and stated it was 10cms in length. Dr Cummine thought it was 4cms long and Dr Zeman thought it was 2cms long. The operation note within the Prince of Wales Hospital notes does not describe the surgical incision by length. I am therefore unable to resolve the differing opinions concerning the length of the Plaintiff's scar. It probably matters little but such divergence in measurements by trained observers is somewhat surprising.

The Plaintiff described his experience of problems with his left shoulder. These comprised discomfort including when he sleeps on his left shoulder. He said he avoids heavy weights at the gym on account of his shoulder. He said his shoulder causes him to wake and it feels sore. The Plaintiff also described an upper backache between the shoulder blades. Whether or not this is related to the results of the fractured clavicle or the shoulder problem caused by the fall whilst in hospital is not clear on the evidence.

It is apparent from an incident report form within the Prince of Wales Hospital notes that an incident involving the Plaintiff occurred at about 1:00am on 16 June 2000. At that time the Plaintiff was found by nursing staff to be laying on the floor beside his bed. The incident report states that when he was assessed by a medical officer at 12 noon on that day it was noted that he was complaining about what appears in the notes to be mild left shoulder pain. In infer from this evidence that the Plaintiff had fallen out of his hospital bed and had injured his left shoulder in that fall as it was most improbable that he would have himself got out of bed with his ankle in plaster. The nursing continuation notes before the incident suggests that the Plaintiff was not fully oriented around that time. The continuation progress notes for the period immediately after the incident do not at all refer to the incident as having occurred.

In view of the above entry dated 16 June 2000 in the Prince of Wales Hospital notes, in my view the Plaintiff's left shoulder problems are injury-related in that they have arisen in the course of and as an incident and consequence of his injuries in the collision and his post-injury hospitalisation.

Cognitive, emotional and behavioural assessments by medical examiners

The medical evidence generally identifies the Plaintiff to have significant cognitive problems. The parties are at issue as to the nature and extent of any cognitive problems the Plaintiff may have arisen as a result of the collision. Before resolving those competing issues it is necessary to review and evaluate the opinions of the various sources of clinical information and the opinions of the various experts who had a relevant input into these issues.

The Prince of Wales Hospital Clinical Notes are replete with references to the Plaintiff experiencing cognitive problems during his stay there between 6 June 2000 and 3 July 2000. It was noted that the memory problems which were initially severe had vastly improved but were still evident on discharge from hospital. The nature of the vast improvement was in relative terms.

The hospital progress notes record that the Plaintiff was in the Intensive Care Unit for a lengthy period of time. The notes record that on about 12 or 14 June 2000 administration of the drug propafol was discontinued. On 17 June 2000 it was noted that the Plaintiff knew he was in hospital but did not know his name. On 19 June 2000 he was noted to be improving neurologically. On that day it was noted that he was not oriented to the name of the hospital or the time of day and he could not remember the name of his occupational therapist. He was noted to have exhibited concrete thinking and his concentration was noted to have been reduced. By 20 June it was noted that he was getting assistance with aids to concentration as suggested by an occupational therapist. On 21 June it was noted that he was exhibiting a lack of recall for two-thirds of the pictures he was being shown. On the day of his discharge from hospital it was noted that he kept on forgetting how to use his crutches properly.

I do not read the hospital progress notes as having set up within them a system to serially chart the impairment of the Plaintiff's cognitive problems because from their appearance, content and format they were obviously set up to deal principally with his physical management issues. Nevertheless, those notes give some indication that there were significant cognitive problems evident at the outset of recovery of consciousness. The notes refer to significant post-traumatic amnesia, as has been commented upon by various experts. These notes provide a relative background against which to assess whether there was relevant improvement of symptoms or, as some have suggested, a later exaggeration of symptoms.

Between 18 October 2000 and 10 June 2003 the Plaintiff consulted Dr Craig Presgrave, the treating neurologist who commenced seeing him for follow-up of his head injury at the request of his treating general practitioner Dr Dimitri. A total of seven letters from Dr Presgrave were tendered in evidence. This correspondence related to a total of six documented consultations with the Plaintiff in the period between 18 October 2000 and 10 June 2003. One of Dr Presgrave's letters was addressed to the Defendant's insurer NRMA Insurance Limited with the authority of the Plaintiff and comprised an historical review of Dr Presgrave's assessments of the Plaintiff's history and treatment over time and it did not purport to be a comprehensive medico-legal report. The remainder of Dr Presgrave's correspondence was addressed to the general practitioner. Surprisingly for a case of this nature, it does not appear that the Plaintiff's solicitor has requested a report from Dr Presgrave.

Dr Presgrave's clinical diagnosis was that it was clear the Plaintiff had ongoing problems of behaviour and impulse control and a significant degree of cognitive impairment and behaviour. In November 2003 he thought the degree of the Plaintiff's cognitive impairment significantly interfered with the Plaintiff's ability to safely operate a motor vehicle.

Dr Samir Benjamin, a consultant psychiatrist saw the Plaintiff at the request of Dr Guirgis. Dr Benjamin issued three letters concerning the Plaintiff. The first, dated 12 August 2002 which was addressed to Dr Guirgis provided feedback on the initial referral, the second was addressed to the Defendant' insurer and was dated 5 May 2003 and the third was a very brief note dated 3 July 2003 which was addressed to the treating general practitioner Dr Dimitri to inform him of current problems and current medications. Dr Benjamin saw the Plaintiff in a series of consultations between 2 August 2002 and 2 May 2003. A further consultation occurred on 3 July 2003. Again, surprisingly for this type of case, it does not appear that the Plaintiff's solicitor has obtained a report from the Plaintiff's treating psychiatrist.

Dr Benjamin's report to the insurer included a review of the Plaintiff's background and the past history. Dr Benjamin then set out the psychiatric complaints and a summary of his formal assessment. In view of Dr Benjamin's historical views on the nature of the Plaintiff's cognitive and behavioural issues I extract the relevant portion of his report : "… 4. Psychiatric Complaints (a) Khodr complained of persistent irritability, mood swings and insomnia. He said that he experienced significant deterioration in his memory and concentration following the accident and that he found it difficult to cope with the activities of daily living. He added that he became argumentative and aggressive with other people including his own family. He reported lack of energy, poor interest and diminished motivation. He however, denied severe sense of hopelessness or thoughts (sic) to self or others.

(b) Khodr felt that his main problem was his continuous severe headaches and deteriorated memory and concentration. He felt that these were the main reasons that he could not return to work or cope with the daily life activities.

(a) Khodr presented as an anxious, perplexed and apprehensive man of his stated age and ethnic background. He was a very poor historian. He gave contradictory answers and he also confused the different dates and events. His Mini Mental State Examination on 9 August 2002 was 25/30. This also fluctuated over the following several months.

(b) There was no evidence of Psychotic Phenomena such as Formal Thought Disorder, Delusional Thinking or Perceptual Abnormalities. He denied Obsessive Compulsive Phenomena. His Cognition was unremarkable and he denied Suicidality.

6. Psychiatric Diagnosis Khodr most likely suffers from Post Concussive Headaches . The possibility of Post Concussive Cognitive Impairment is probably less likely given his pre accident level of functioning. He may be suffering from a Mild Adjustment disorder with Depressed Mood . 7. Attributability These injuries were most likely precipitated and significantly caused by the Motor Vehicle Accident on 5 June 2000. 8. Psychiatric Management (a) Khodr was advised to return to his treating Neurologist for further management of his headaches and to consider replacing Dilantin with Epilim or Tegretol.

(b) Over the past eight months, Khodr's attendance has been rather erratic and irregular. He told me that he had not seen his treating Neurologist when I saw him recently on 2 May 2003. I advised him to do so in the near future.

(c) I have not felt that Khodr's mental state warrants the use of an antidepressant medication, at least at the present time. I have not prescribed him any medications.

9. Prognosis and Psychiatric Impairment (a) Khodr's condition does not appear to have stabilised as yet and further improvement may occur as a result of Neurological treatment in the future.

(b) His condition may be reviewed after six to twelve months of treatment to comment on any residual psychiatric symptoms, if any."

It is apparent from the evidence tendered in the proceedings that the review foreshadowed by Dr Benjamin did not take place, or if it did, it was not the subject of a report.

It is clear from Dr Benjamin's report to the insurer in 2003 discounted the likelihood that the Plaintiff had post-concussive cognitive impairment. The expressed basis of that opinion was by having regard to the Plaintiff's pre-injury level of functioning. It is not evident upon what material Dr Benjamin had formed that view. I view Dr Benjamin's opinion in this regard with some considerable caution because it appears to be based on a false premise, namely that the Plaintiff suffered only a concussive head injury whereas in fact it is beyond dispute that he also suffered a severe traumatic brain injury and haemorrhages which has resulted in radiologically proven areas of abnormality in the structures of the Plaintiff's brain. Further, Dr Benjamin's views have not been borne out by the results of neuropsychological testing and subsequent psychiatric opinions.

On 13 September 2004 Dr Nguyen of the Liverpool Brain Injury Unit arranged neuropsychological testing of the Plaintiff. These tests were initially delayed due to the Plaintiff's unspecified ill-health however the clinical neuropsychologist within that unit, Mr Delaney, ultimately carried these tests out over the course of two occasions, namely, 24 September 2004 and 15 October 2004. The correspondence and notes within the notes kept by the Brain Injury Unit made it clear to the Plaintiff's solicitor that this neuropsychological assessment was for clinical purposes and not for medico-legal purposes. It appears that the Plaintiff's solicitor had asked for the assessment because there was no funding available for an external assessment. Mr Delaney noted significant cognitive weaknesses and concluded that some aspects of the Plaintiff's presentation related to longstanding ADHD and other aspects were of post-traumatic origin, namely the frontal lobe pathology: "Mr. Mahony is a 22-year-old man who reportedly sustained a severe traumatic brain injury in a motor vehicle accident approximately four years prior to this assessment. Details of his initial clinical presentation and management and the findings of MRI brain scans are supportive of a diagnosis of severe traumatic brain injury. The neuropsychological profile is indicative of weaknesses in verbal attention span, working memory, flexible thinking, thinking speed, new learning and memory functioning, visuoconstructional abilities, and higher order executive abilities including concept formation, complex problem solving, impulse control and self monitoring. In addition, Mr. Mahony is reporting severe symptoms of depression and anxiety. There is also a history of aggressive behaviour. Mr. Mahony describes this as an exacerbation of a premorbid trait. The history, in combination with his performance on this assessment, indicates that Mr. Mahony probably had premorbid verbal earning difficulties. Aspects of the history are also suggestive of longstanding symptoms of attention deficit hyperactivity disorder. As described, Mr. Mahony's effort fluctuated throughout the course of this assessment and was noticeably poor when cognitively challenged. The extent to which motivation was underlying Mr. Mahony's fluctuating effort remains questionable, but was not assessed formally in great detail as this assessment was conducted for clinical purposes. Based upon the overall quality of his performance, it is probable that Mr. Mahony's fluctuating effort was mostly, if not entirely, attributable to a fundamental difficulty in harnessing his cognitive resources to apply himself to tasks . An inability to efficiently apply one's cognitive resources and effort to tasks is not an uncommon sequelae of a severe traumatic brain injury with frontal lobe pathology."

On 15 July 2004 Dr Nguyen's plan was to get involved with the management of the Plaintiff's problems after settlement of his case and in the meantime, to review the Plaintiff in 2 months' time. On 16 September 2004 the revised plan made was to have the Plaintiff assessed by Mr Delaney the neuropsychologist and then review the Plaintiff in December 2004. Earlier, on 13 September 2004 Dr Nguyen had written to Dr Dimitri suggesting that he would like to review the Plaintiff again after the completion of that testing. The evidence trail of the involvement of the Brain Injury Unit in the assessment and management of the Plaintiff's brain injury problems peters out at this point.

On 2 February 2006 Dr Buckley, the rehabilitation specialist retained by the Plaintiff's solicitor examined the Plaintiff. He issued his report on 28 February 2006. His opinion was that the Plaintiff's traumatic brain injury was in the very severe or extremely severe range. Dr Buckley thought that the physical examination of the Plaintiff revealed a sign of frontal lobe impairment and impairment of balance suggestive of an altered central nervous system. He arrived at this conclusion using what he described as the conventional criteria for assessment. In doing so he considered the content of the clinical neuropsychological test results obtained by Mr Delaney and in particular, he identified and considered an issue relating to the Plaintiff's fluctuating effort that was queried to have been evident throughout the course of that assessment.

Dr Buckley noted that the phenomenon of fluctuating effort is to be expected in a brain injury of the severity sustained by the Plaintiff. He was of the opinion that the fluctuating effort in the Plaintiff's case was likely to relate to the brain damage causing difficulty with concentration rather than being due to an intention to deceive. Dr Buckley's opinion in this regard takes on some importance and needs to be evaluated in view of the challenges the Defendant has made to the Plaintiff's credit.

On 9 May 2006 Dr Zeman, consultant rehabilitation specialist examined the Plaintiff at the request of the solicitor for the Defendant. He issued his report on 25 July 2006. He recorded his view that the Plaintiff was a poor historian who gave inconsistent answers concerning his history. Dr Zeman's report makes it clear that he required additional information before finally completing his report. However, since that further information had not been provided to him by those who had retained him he furnished what I take to be a tentative opinion only following his examination of the Plaintiff.

In that tentative opinion he expressed the view that the Plaintiff did in fact receive a severe traumatic brain injury, the prognosis for which he expressed in the following terms: "… There is an increased risk of post-traumatic seizures due to his traumatic brain injury. In my opinion, his overall ability to lead a normal life and life expectancy have not been significantly affected by the accident. ..."

Dr Zeman's quoted comment concerning the Plaintiff's ability to lead a normal life has to be read in the context of the effects of the brain injury. It is difficult to see how the Plaintiff could be said to be able to lead a normal life with his reported brain injury related problems.

Dr Zeman had some difficulty in identifying the effects on the Plaintiff of the traumatic brain injury. He expressed this difficulty in the following term: "… He does not have any obvious peripheral neurological signs such as weakness or sensory loss in the limbs . If there has been any brain injury, this has affected higher brain function. Unfortunately, it then becomes difficult to distinguish any such injury from his prior problems with behavioural difficulties and poor scholastic performance.

In my opinion, his behaviour since the accident with compliance and related issues is consistent with traumatic brain injury superimposed on an exaggeration of prior behavioural problems. Before the accident, he had a long history of behavioural problems at school and subsequently. He had a patchy work history and this as of predominantly unskilled work. The accompanying reports indicate that he has done some similar work after the accident."

It appears from the first of the two preceding quoted passages that Dr Zeman's physical examination of the Plaintiff was of a limited nature for it did not reveal the imbalance problem with the Plaintiff's right ankle that had been identified by other medical examiners to be a consequence of the Plaintiff's brain damage.

Dr Zeman offered the following conclusions: "In my opinion, he did sustain significant brain injury in the accident but has made significant recovery since. The effects of the brain injury have been blunted by his prior behavioural problems and scholastic difficulties . As a result of the accident, he does not require any further imaging investigations, surgery or similar major interventional procedures. There is insufficient information available to determine whether he needs ongoing GP or medical specialist consultations about possible seizures. Ideally, he should be properly assessed by a traumatic Brain Injury Service including neuropsychology assessments, but this has not occurred because of poor compliance.

In my opinion, the accident has not resulted in significant physical problems to require any domestic, handyman or gardening assistance. Furthermore, he does not require any major house modifications, air conditioning, a swimming pool, car modifications or mobility aids as a result of the accident. For general health measures, he would benefit from a cessation of smoking program. On his general presentation during the assessment, I would not consider that he requires financial management as a result of the accident. He did not do well at school before the accident and on that basis alone would likely obtain some benefit from financial management. However, this does not mean that the accident causes a need for this."

Dr Zeman's opinions on issues concerning home modifications, air-conditioning, swimming pool and modifications remain obscure as there were no such claims made on behalf of the Plaintiff in these proceedings.

Dr Zeman clarified the notion of reduced functioning due to injury with the following evidence: "Q. You say that in your view his current functional problems are a combination of the effects of the accident, brain injury superimposed on prior behavioural and educational related issues. Is that right? A. That's correct."

Dr Zeman's comment that the effects of the brain injury have been blunted by the prior behavioural problems and behavioural difficulties is difficult to understand. First, there was no evidence that at the time of his injury the Plaintiff was still exhibiting behavioural difficulties although this was obviously a possibility. Secondly, it is difficult to see how the scholastic difficulties which related to the Plaintiff's period at school were continuing to have any or any significant impact on the Plaintiff at the time of his injury. This is particularly so when he was in employment that did not appear to be cognitively challenging for him and where the nature of his work meant that he was not called upon to exercise himself scholastically.

If Dr Zeman was seeking to convey the notion that the assessment of the difference between the Plaintiff's pre and post-injury intellectual functioning is of limited effect or difficult to determine that is another matter but he did not say that. If he was seeking to convey the notion that the effects of the injury have been to make the Plaintiff more blunt in the sense that he became more forthright and less restrained then this has to be evaluated as a possible compensable consequence of the Plaintiff's injury because the principle is that the Defendant must take the Plaintiff as he is found.

In cross-examination Dr Zeman suggested that in the case of someone with a very low level of intellectual functioning before a severe traumatic brain injury they could possibly have no apparent change after such an injury. He then agreed that someone who had a low level of pre-morbid functioning could ill-afford even a small decrement to his level of functioning: "Q. Indeed, but there's also a third possibility, isn't there, that a person who was a marginally functional person before could be tipped over into the non-functioning region? A. Yes.

Q. So that if someone who started out with a low level of IQ, you knock a few spots of him, it just makes it more difficult in life for him, doesn't it? A. It can, yes.

Q. A person who was otherwise destined for a relatively unskilled occupation, even if you knock a few points off and he's at a low level to start with, could find it difficult to get and retain work, couldn't he? A. Well - well, I'm not sure what you mean by get and retain work.

Q. Well, get work and keep it. A. Well, yes, it's possible."

Dr Zeman sought to explain the difficulties of pre and post-morbid comparisons: "Q. The effects of, yes. A. I think what I'm trying to say is that before the accident he had behavioural and education problems and didn't have a - a career pathway. I mean, he merely - it was really unclear whether he was actually working at the time from the information that I got. At one stage they said he was car detailing, at another one that he wasn't. He - his employment from the various reports - and I don't - haven't gotten an up to date one since - since this - since my report which is about two - two years old now, I think - he - he - his employment situation hasn't really changed.

The - there were reported behavioural problems before. He still has behavioural problems. He presented as being not very bright on the assessment and on the reports - school reports, et cetera, he presented as not being very bright. That's one of the reasons why I suggested that ideally he should have a neuro-psych assessment just to clarify that. I mean, I've got to do an assessment on what I see."

I consider that it is necessary to treat Dr Zeman's conclusions with caution because he did not have the opportunity of undertaking a qualitative comparison between the pre and post-morbid behavioural problems when forming his opinions. For example, he was incorrect in his assumption concerning the Plaintiff's pre-injury employment situation in which he was employed with Sydney Prestige. Dr Zeman seems to have incorrectly assumed that the Plaintiff was not in employment before his injury and that position had not changed after his injury.

On 11 May 2006 the Plaintiff was examined by Dr John Watson, a consultant neurologist at the request of the solicitor for the Defendant. Dr Watson issued his report on 14 October 2006. He obtained a history from the Plaintiff that all forms of his memory had been adversely affected since the injury. He also noted problems of concentration comprehension, word selection, impatience, depressed mood and increased aggressiveness. In addressing the questions asked of him by the Defendant's solicitor concerning the Plaintiff's disabilities Dr Watson stated:

"The difficulty in this case is to work out how much of the abnormalities result from the accident and how much was pre-existing. It is clear from the records that Mr Mahony lacked effort at school, was easily distracted, was often absent, had a very bad attitude and behaviour and extremely poor academic performance. Ultimately he was expelled from high school in May 1998 because of his unexplained absences, lateness, truancy, lack of application and failure to do assignments. His teachers thought that he was rude, offensive, disruptive and defiant. As many such behaviour/cognitive problems can also result from a significant head injury, it is very important in Mr Mahony's case to take his pre-existing constitution into consideration, whether attributing these to the accident or not." 392. In his ensuing commentary Dr Watson stopped short of making definite prognostic conclusions. He appears to have found himself hampered in expressing prognostic statements about the Plaintiff's ability to lead a normal life but acknowledged that the Plaintiff is likely to have cognitive problems as a result of his injuries. He referred to the absence of what he described as " a proper, medico-legally focussed, neuropsychological assessment" which he felt was needed. It has not been explained as to why Mr Delaney's clinical neuropsychological assessment would not have been considered by Dr Watson to be adequate for diagnostic purposes.

393. Dr Watson remained tentative in expressing his final conclusions on attributability of the Plaintiff's problems to the effect of his injuries. He noted that his report had been completed at the request of the Defendant's solicitors notwithstanding that he had not been provided with the further documents that had been foreshadowed to be provided to him. The terms of the final section of his report make this abundantly clear. There is no evidence that Dr Watson was ever provided with the material he had requested nor is there evidence that he was ever asked to revisit his tentative conclusions after being provided with such further material. His opinion on the attributability of the Plaintiff's problems to the effects of the collision was left in the following terms: " 9 Apportionment of disability

Mr Mahony had the type of accident that would normally be expected to lead to some cognitive and behavioural change. The difficulty in assessing his case is that I do not have a neuropsychological assessment from the medicolegal perspective that would help answer this question and I have a lot of material available suggesting that his pre-accident cognitive and behavioural states were by no means normal. Moreover there was some behaviour and ways of dealing with the interview questions that suggested that he was not at all putting forward his best efforts in addressing the questions I was asking. Accordingly I would expect some of the disabilities that he displays to be potentially related to the accident. I cannot be any more precise than this except to say that the greater part of his difficulties is probably pre-accident.

I am not aware of any prior or subsequent injury or other conditions that might contribute to this assessment difficulty." 394. It is clear from the terms of his report that Dr Watson did not consider the possible relevance or impact on his assessment and conclusions of the phenomenon of fluctuating effort that had been remarked upon by Mr Delaney, Dr Buckley and other practitioners who had assessed the Plaintiff's presentation. In my view this confirms that his assessment is incomplete.

From reviewing the material listed in the Appendix to Dr Watson's report it is apparent that he had been given a copy of the materials from the Brain Injury Unit but he did not comment upon the clinical neuropsychological testing report of Mr Delaney that was contained within those materials. I consider this to be a significant omission from the commentary. I will not speculate as to why or how this has occurred nor whether it was followed up, other than to note that Dr Watson's appraisal of the evidence was left incomplete. In this regard, I do not regard Dr Watson's incomplete opinions to provide an adequate basis for contradicting any of the other expert opinions which have been the subject of evidence in these proceedings.

On 5 July 2006 Dr Smith, the consultant neuropsychiatrist examined the Plaintiff at the request of the Defendant's solicitor. He issued his report on 6 July 2006. Dr Smith's neuropsychiatric examination of the Plaintiff led him to the view that the Plaintiff was a glib historian who was reluctant to provide information regarding his history prior to his injury. In his oral evidence Dr Smith explained that by his use of the term glib he meant the Plaintiff was not consistent in his presentation in that he was not persistent. Dr Smith said this was in part explained by his cognitive problems. Dr Smith stated his impression of the Plaintiff in the following terms: " He impressed as a man of dull intellect and limited vocabulary"

In his oral evidence Dr Smith was asked the following questions about the effect of the injury on a pre-existing dull intellect: "Q. I suppose what you say of him being of dull intellect and limited vocabulary probably applied both pre and post-accident. A. I suspect so.

Q. But if he had the sort of brain injury that we know that he had there's every likelihood that his intellectual capacity has been further lowered as a result. A. You'd expect so from that degree of injury."

By his answers it is clear that Dr Smith expected that the Plaintiff's intellectual capacity would have been lowered as a consequence of his injury.

It appears from the cross-examination of Dr Smith that he had access to the Plaintiff's reports from primary school as did Dr Roberts, the psychologist retained by the Defendant. These records were not tendered in evidence in these proceedings. In this regard Dr Smith agreed that the Plaintiff's presentation that had pervaded his schooling suggested that he suffered from some form of ADHD. He also agreed that because the Plaintiff had arrived in Australia as a young child this may have been associated with a problem of cultural acclimatisation that would have affected his early schooling.

Dr Smith carried out what he described as a limited physical examination which revealed to him that the Plaintiff exhibited a sustained left palmar mental response and poor balance on the right side when compared to the left. He stated that he had not detected any other neurological abnormality. I infer from Dr Smith's description that the Plaintiff's sustained left palmar response and poor right-sided balance that were detected by Dr Smith are in fact neurological abnormalities.

In his report Dr Smith's neuropsychiatric assessment commenced with the following statement: "Clearly Rodger is a grossly unreliable historian. Consequently reliance will have to be placed on documentary evidence. Unfortunately this is scant."

In adopting the foregoing methodology, following his clinical consultation and a review of the Plaintiff's pre-injury school results and history of anti-social behaviour, Dr Smith formed an adverse view of the Plaintiff's credit. He stated: " The available information thus indicates that he was a liar , that he was aggressive, that he had little respect for figures in authority, that he could be unpleasant towards his peers, that he applied himself poorly to school work and possibly also to work, and that he was using illicit substances and possibly dealing in them. It will be necessary to examine his full Police File but it is likely that he fulfilled the criteria for a diagnosis of Antisocial Personality Disorder."

Having spent a little more than an hour in consultation with the Plaintiff in order to prepare his report, Dr Smith then sent that report the next day. I consider the unparticularised label of "liar" without any balanced explanation to justify the use of that term including a discussion on a range of possible alternative formulations including for example, fluctuating effort, to be somewhat extreme in the case of someone with a dull intellect and super-imposed brain damage. In my view, based on seeing the Plaintiff in the witness box for some hours fielding pertinent questions, including reacting when pressed, an hour seems a very short period of time in which to form a balanced view.

Notwithstanding Dr Smith's comment as to the Plaintiff's credit it is clear from his report that his opinion was expressed to be in tentative and incomplete terms in that Dr Smith advised the solicitors who had retained him that he was wanting to have access to the Plaintiff's primary school records and full police file as well as wanting to be assisted by access to the psychometric test results. He offered to comment further when provided with these materials. On the state of the information that was then before him Dr Smith nevertheless felt that he was able to conclude: "He certainly suffered a serious head injury in the accident, the initial CT scans indicating that he had suffered diffuse axonal injury and the later MRI scan indicating bilateral brain damage."

Dr Smith's commentary on the Plaintiff's cognitive problems were then expanded upon, without objection, when Dr Smith gave his oral evidence. There was no supplementary report from Dr Smith that indicated he had formed anything other than an incomplete assessment of the Plaintiff.

In essence, Dr Smith identified the process of maturation over time as a factor that tends to ameliorate poor behaviour exhibited by adolescents with behavioural problems. He identified this as a process which in his view took decades, and which did not simply occur during adolescence or in the twenties. He said that his impression of the Plaintiff was that pre-injury, his reported behavioural problems indicated that he was in the middle of the spectrum of antisocial personality disorders.

Dr Smith was asked to assume that before his injury, when the Plaintiff was away from the school environment, he did not display violent tendencies, short temper or discernable personality problems. Those assumptions were grounded in the evidence of the Plaintiff's mother, his brother Mohamed Saleh and his former girlfriend, Karoline Tsialis. The following question and answer within Dr Smith's evidence on this topic were, in my view, revealing: "Q. Doctor, it appears that in the last couple of years he had some issues at school with some violent tendencies but I want you to assume that we've heard evidence from the girlfriend that he had for some three years prior to this accident from 1997, and that she saw him on a regular basis, and during that period of time whilst away from the school environment he otherwise did not display any violent tendencies or short temper or any personality disorder that she could discern of that type.

But subsequent almost immediately following the accident he began to exhibit the same sort of symptoms about which he complains through to the present time, the short temper and inability to get along with people, misunderstanding what they say, poor judgment in that area. That would suggest that he's probably suffered from some frontal lobe problem as a result of this accident in addition to whatever problems he had before. A. If you accept that evidence, yes."

This evidence is relevant to the interpretation of Dr Smith's earlier evidence of his views to the effect that the more severe the underlying personality disorder the longer it would take to achieve a degree of behavioural improvement through the maturation process. In my view this evidence suggests that if the lay evidence which underpinned the assumptions put to Dr Smith are accepted then the Plaintiff's behavioural problems would appear to be due to authority issues he had at school rather than being due to a deep seated personality disorder.

On 23 November 2006 Dr Wendy Roberts, a consultant psychologist retained by the solicitor for the Defendant examined the Plaintiff over the course of some 6 hours. She issued her report on 19 December 2007.

The consultation session was lengthy, starting from 9 o'clock in the morning and finishing in mid-afternoon incorporating three breaks including a half hour for lunch. At some stage during that time the Plaintiff was tired and slept during one of the breaks.

Dr Roberts obtained a history from the Plaintiff and then set about administering her tests. The report of Dr Roberts summarised the material she reviewed for the purpose of preparing her report. The documents reviewed by Dr Roberts comprised treatment records, medico-legal opinions and documents produced under subpoena, including some material that was not tendered in evidence in these proceedings. That material included a report from Greenacre Public School and what she described as a Department of Education Student Record Card for years 1 to 6. As that material was not tendered in evidence in these proceedings it was not possible to assess the contextual importance of it or the representative nature of the summary. The summary of that material that was prepared by Dr Roberts was not objected to. It was in the following terms:

"7.42 The file from Sir Joseph Banks High School includes a report from Greenacre Public School for 6S, indicating that Mr Mokbel had been involved in sports and peer support. He was a choir member and was capable of being polite and co-operative, but rarely made the effort to work to his ability. Behaviour and concentration had not been satisfactory. He was easily distracted and worked only under direct supervision. Performance was marked in a range of A = outstanding, B = high, C = satisfactory, N = needs further development and I = following individual program. Application ratings were A = outstanding, B = high, C = satisfactory, D = low and E = minimal. Mr Saleh's ratings were N in two subjects (Knowledge and Understanding in Science and Technology and Maths (Space)). Other ratings for performance were C. Application ratings were C to D in key learning areas and in other subjects, application ratings varied from high down to low. 7.43 There was an undated student evaluation report. He filled this out and indicated where he needed to improve (including getting very angry).

7.58 Also included was Mr Saleh's student record card indicating that he attended four primary schools (Hurstville, Bexley, Hurstville South and Greenacre). In 1st Class, 1989, he missed 1½ days, in 2nd Class, two days, in 3rd Class, four days, in 4th Class, two days, in 5th Class, five days, and in 6th Class, 1994, 15 days. In 1st Class, it was noted t hat he arrived half way through the year and was very anxious to do well and tried very hard. English improved quickly. ESL and teaching for learning difficulties was helping. He had good understanding of concepts.

7.59 In 2nd Class, 1990, he was following an individual program in reading. Other subjects were rated in a range for performance of A = outstanding, B = high, C = satisfactory, D = low and E = minimal and application similarly. Ratings for his performance and application in all areas other than Music were all C - D.

7.60 In 3rd Class, 1991, all ratings for performance and application were C - D, except for an E for application in Talking and Listening in first semester.

7.61 In 4th Class, 1992, all ratings for performance were C - D, except for a B for Social Studies and B for effort throughout in second semester.

7.63 In 6th Class, 1994, ratings for performance and application were only given in some subjects in second semester (with the rest of the form blank) and were all C - D.

7.64 General comments for 2nd Class wee that he lacked the confidence to attempt new things and required one to one assistance and was very reluctant to write. He needed to develop a more settled attitude.

7.65 In 1991, he had responded well to positive comments and had become very settled. He was attempting all tasks.

7.66 In 1993, he was making very pleasing progress in all subjects. He maintained that progress and was keen to do well, but could be upset and/or disruptive when involved in playground hassles. He was working on a Year 5 program. There was no indication that he had contact with the counsellor and there were no problems with vision and hearing."

Dr Roberts then set out her test results which recorded her results for the testing of the Plaintiff in the areas of intelligence, memory, new verbal learning, verbal fluency, visuomotor planning and organising, visuomotor attention tracking, reading, and conceptual sorting. She also administered tests which, when she first referred to them, did not indicate the Plaintiff to be malingering in his test performance. She noted his co-operativeness and over familiarity by which he had asked her personal questions. Her assessment of relevant personality factors revealed the Plaintiff obtained high scores for hostility, memory and concentration problems, depression, anxiety, alienation, interpersonal sensitivity and paranoid ideation.

The impression I gained from reading this section of the report of Dr Roberts is that it did not indicate any problems or concerns over the Plaintiff's level of co-operation with her evaluation session. That observation is of some importance because at the end of her report Dr Roberts makes inconsistent reference to the Plaintiff's vagueness as an historian and raises concerns over his possible exaggeration and the genuineness of his responses.

In the analysis section of her report concerning the Plaintiff's testing Dr Roberts thought the Plaintiff's IQ scores fell within the borderline to low average range. She thought it clinically significant that the memory test results revealed him to be in the retarded to low average range. She also indicated her view that differences in IQ and memory scores were clinically significant and she observed that he had performed below expectation on five out of eight memory indices covering the range of visual immediate memory, immediate memory, auditory delayed memory, visual delayed memory and general memory. Dr Roberts noted that the Plaintiff's ability to learn and recall new information was in the low average range. She noted his reading skills to be poor, his verbal fluency varied from average to below average. She expressed concern over the validity of his performance on testing of malingering.

Dr Roberts proceeded to summarise the history and her testing and she then stated her key conclusions in sections 10.10 and 10.11 of her report in the following terms: " 10.10 Results of this assessment indicate that Mr Saleh is of borderline intelligence with memory skills below expectation in many areas, but his ability to learn new verbal information is generally consistent with IQ. He showed mixed results on testing of a range of cognitive abilities, some of which are likely to reflect pre-existing difficulties in academic areas and others which may reflect difficulties attributable to the accident which is the subject of this claim and others are likely to reflect conscious exaggeration. Some cognitive deficits would not be unexpected, given the severity of the head injury, but the extent of this is likely to have been exaggerated on this occasion. Also, the task of teasing this out is difficult because he was a vague historian and there is an absence of information on him, particularly in the form of other neuropsychological assessments, including the two which were apparently done in January and April 2006. Also with regard to Mr Delaney's report, I have not seen this and I only have second hand information on that. I wish to see the report, together with all numerical data from all neuropsychological assessments which have been done since the accident. In the case of Mr Delaney, this would need to be subpoenaed from the Neuropsychology section of the hospital. It would also be helpful to have an up to date MRI scan, as I understand that one has not been done for three years. It would also be helpful to interview someone who has know (sic) him both before and after the accident as he was a rather vague historian.

10.11 With regard to the Particulars of Disabilities, on current evidence, Mr Saleh does seem to have memory loss, but the extent of it is unclear, due to validity issues. He did not seem at all anxious or depressed. This is inconsistent with his test scores. Personality changes are reported, but I would like independent information to further clarify this. His claims of physical disabilities invite medical opinion. There was no evidence that he met criteria for an adjustment disorder. He reported difficulties with his temper, but showed no evidence of this at this appointment. His pre-existing history needs to be taken into account. The issue of diminished motivation needs addressing via interview with an independent person. He did not complain of insomnia now he is working or mood swings, but does have reported aggressive behaviour (see above however in relation to premorbid history). His loss of concentration, as claimed, was not evident on testing, as concentration was one of his better skills and similarly with attention span. The issue of his ability to manage money is one which needs canvassing via an independent person. He did not describe alienating others. With regard to a claim that he is unable to sustain an ongoing relationship, he told me that he has been in a steady relationship with his girlfriend for 3½ years and plans on marrying her. He told me he takes no medication and denied any difficulty sitting fro long periods."

In essence, Dr Roberts has identified the Plaintiff to have borderline intelligence with memory skills below expectation, a learning ability for new information consistent with his IQ which she had previously noted to be in the low to borderline range. She also noted mixed results reflecting pre-existing difficulties in academic areas and other results that may reflect difficulties attributable to his injury. She raised the possibility that some of the results were likely to reflect conscious exaggeration on the Plaintiff's part.

The impression I gained from reading the conclusions in the report of Dr Roberts is that her report remained incomplete or provisional in that she wanted access to further information that was not provided to her to finalise her opinions. In this regard she suggested a subpoena be issued for Mr Delaney's neuropsychological test results. For some unknown reason that information, which by then was already available to the Defendant's solicitors and which has been tendered in evidence, had not been made available to Dr Roberts.

For some reason Dr Roberts suggested a repeat MRI scan for the stated reason that the previous one had been performed three years earlier. No medical witness who gave evidence or who had provided a report in these proceedings saw fit to make such a recommendation or suggestion. The utility of this recommendation by Dr Roberts was not pursued and remains obscure, particularly since Dr Roberts did not have neuro-radiological qualifications to interpret the existing scan for adequacy or otherwise.

The ultimate comment made by Dr Roberts in her report demonstrated the inconclusive nature of her report when she stated: "10.13 With regard to the issue of his inability to manage any award for damages, I would like to see some independent information on this in the form of being able to interview someone else about him. I will be happy to offer a final opinion when the additional information is available. This plus the reports requested should also help to clarify the extent of the exaggeration/ inconsistencies which I have noted above . In the interim, there are some concerning inconsistencies which makes it difficult to separate out any genuine cognitive/emotional deficits from exaggerated ones and he is clearly an unreliable historian."

The inconclusive nature of her report is tellingly demonstrated where Dr Roberts has focussed on the Plaintiff's vagueness as an historian and as suggested that it would be helpful to interview someone who had known the Plaintiff both before and after his injury, presumably to obtain a clearer insight into the effect the injuries have had on the Plaintiff's level of functioning.

Absent from the analysis provided by Dr Roberts is any discussion on the issue of the Plaintiff's variability of effort with the potential for that phenomenon to be seen as a consequence of the Plaintiff's traumatic brain injury, as has been considered by other expert witnesses who have provided reports in this case.

Notwithstanding that her report was inconclusive, in her oral evidence in chief she nevertheless gave the following evidence: "Q. Dr Roberts, as you've set out in your report, you attempted to use such materials as you were given to attempt to assess the position of Khodr Saleh, both in his behaviour and academically, before the accident, is that right? A. Yes.

Q. The report records your views about Mr Saleh's capabilities academically and his behavioural patterns before the accident of course? A. Yes.

Q. Did you think that the materials that you were given were sufficient to establish the opinions which you put in your report? A. Yes."

Dr Roberts was given further materials to consider before giving oral evidence. She did not provide a supplementary report. Her additional evidence was given without objection. Dr Roberts said she had read the evidence of the Plaintiff's former girlfriend, Ms Karoline Tsialis prior to giving her oral evidence. Her evidence concerning this additional material which she had previously flagged as being of potential help was: "Q. Has reading that evidence caused you to change your opinion in relation to the conclusions which you drew in your report dated 19 February 2007? A. No, it basically hasn't caused me to alter my views other than to strengthen my concerns about inconsistencies and that goes to the issues of credibility."

The basis of her remaining concerns following her reading of that material, which I consider to be highly relevant to the issue of the validity of her stated conclusion, remained unexplained in her evidence other than by repeated reference to such concerns.

In her evidence in chief Dr Roberts was taken to a factual description of an aspect of the Plaintiff's pre-injury behaviour, namely an incident in which he had thrown a chair at a high school principal. Dr Roberts was also taken to the Plaintiff's post-injury history of a conviction for supplying heroin. Of these events she stated that in the case of the chair-throwing incident, she said this raised additional concerns over his pre-morbid temper, impulsivity and violent behaviour. In the case of the conviction she said it strengthened her concerns about the credibility or reliability of information, presumably from the Plaintiff. The logic of this latter comment by Dr Roberts is difficult to follow. The conviction was not for an offence involving dishonesty. In those circumstances it is difficult to see how that undermines the reliability of information provided by the Plaintiff. Insofar as the conviction involves a breach of the criminal law, in my view it is a matter that goes to credit but an evaluation of that credit point has to be tempered by an analysis and balanced discussion concerning the Plaintiff's post-injury problems, i.e. the Plaintiff's traumatic frontal lobe brain damage.

Dr Roberts gave evidence that on 12 February 2008 she had received a letter from a person she identified as a Dr Casey Metcalf. She said that letter enclosed a copy of Mr Delaney's neuropsychological test results from the Brain Injury Unit concerning the assessments he carried out on 29 September 2004 and 15 October 2004. The Defendant did not tender any such correspondence from Dr Metcalf nor was it explained so the context and provenance of this correspondence has been left unclear.

Dr Roberts then proceeded to give opinion evidence interpreting Mr Delaney's test results in conjunction with her own later results. There was no report tendered from Dr Roberts in compliance with r 31.28 of the Uniform Civil procedure Rules 2005 in relation to this additional opinion evidence and no objection was taken to this course. Dr Roberts gave the following evidence comparing Mr Delaney's test results with her own: "Q. Dr Roberts, I really want now in light of the material that you set forth in your report, the additional material obtained from Mr Delaney and the evidence as you've read it given in this case, to ask you about your opinions on key matters. Dr Roberts, in your opinion did any brain injury in the motor accident cause any appreciable diminution in the intellectual capacities of Mr Saleh? A. No.

Q. Did any brain injury in the motor accident cause any obvious or appreciable variation in what would have been his predicted behavioural patterns? A. I doubt it."

The basis for these very brief opinions remained opaque to analysis and in my view they should therefore carry little if any weight : Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705.

When Dr Roberts compared her test results with those of Mr Delaney she said: "Q. You've looked at those. Did Mr Delaney undertake a wide spread of tests or at least as wide as yours? A. His was a more limited assessment.

Q. But some of the tests he undertook coincided with yours. A. Parts of, yes.

Q. You've attempted to produce a schedule which shows a comparison between the tests which is meaningful to you and probably meaningful to Mr Delaney but you can assume not meaningful to me. In general, when you looked at your own results and compared those with Mr Delaney what did you find out? A. There were some areas of consistency. There were some that were inconsistent.

Q. In any event, looking at what Mr Delaney was able to produce on testing does it cause you at all to alter your opinion as expressed in your report dated 19 February 2007? A. Basically not other than to strengthen concerns about reliability of results and to want to - it would be very helpful to have the results of the other assessments that were done.

Q. Questioning the reliability of results, are you there saying that either you or Mr Delaney or both of you were unreliable, or what are you suggesting when you say that it causes you to question the reliability? A. What you're looking at in neuropsychology test results is patterns of consistency or inconsistency from which you can then determine or infer what the problem areas are. Where there are areas of inconsistency in results it raises concerns about reliability and credibility."

Dr Roberts seems to have had as her primary focus her concerns over the Plaintiff's credibility. The additional material led from Dr Roberts then led to further questions: "Q. Dr Roberts, I just want to ask you now, in light of all the material, your report, your interview, your testing and the additional materials which you've obtained, are you able to say, in your opinion, whether, given what you understand of Mr Saleh's likely course, pre-morbidly, whether any brain injury suffered in the motor accident has had an effect on his likely pre-injury earning path? A. You're talking in terms of - of head injury, not - not any physical injuries.

Q. Yes, I sorry, I should have made that clear. A. That's a little hard to answer. I doubt that it would have an appreciable effect but it is a little hard to answer because it depends very much on how someone progresses with conduct disorder and the sort of problems that he had beforehand."

In cross-examination Dr Roberts agreed that in her review of the Plaintiff's pre-injury school reports, in which she looked for evidence of both function and dysfunction, she doubted that the Plaintiff's apparent behavioural decline at school reflected an organic problem. I interpret her answer to mean that before his injury the Plaintiff did not have brain damage. In my view this evidence raises in stark relief the need to gain an insight into the post-injury cognitive problems and to distinguish them from the likely progression of the pre-injury non-organically based behavioural problems.

When Dr Roberts was pressed on the subject of her opinion about the possibility of the Plaintiff having malingered in her testing of his performance she retreated to the position of wanting further information and other assessments. When pressed further she agreed that she based this view on the variable results she obtained from him in relation to the tests for malingering and related concerns over his performance in those tests. Dr Roberts ultimately agreed that she had not come to a concluded view on the issue of malingering because of her need for more information, some of which still remained outstanding.

In the context of what she acknowledged was severe brain injury, Dr Roberts referred to the Plaintiff's inconsistencies and discrepancies between her own testing and that of Mr Delaney which caused her concern. She gave the following evidence in this regard: "Q. It doesn't suggest that he wasn't trying either for you or Mr Delaney, though, does it? It could have been due to wandering attention after a couple of hours of testing, it could have been due to any number of factors. Do you agree with that? A. There were inconsistencies there. There were other inconsistencies and I sought access to extra information to help to clarify my concerns.

Q. Dr Roberts, correct me if I'm wrong, I don't want to go from a false assumption but my understanding of these tests is that they are dependent with the results on questions of mood, concentration, distraction. For example, whether or not one has a headache or is fatigued, that sort of thing, is that right? A. Those factors can impact and it's very much up to the testing person to consider those issues, to watch the person, to do the testing yourself, to watch them to ensure or - basically the - the psychologist is there to explain the results.

Q. At what time did you start your testing? A. That testing was started first thing in the morning.

Q. Nine in the morning, I think, now I see page 2 of your report. A. Yes, yes. I usually go straight into the neuropsych testing first and give breaks as we're going along.

Q. At page 32 at paragraph 8.12 you observe that in the morning he took a break, went out into the waiting area, lay down and was observed snoring loudly. I take it he fell asleep. A. He did.

Q. By snoring I suppose that means deep sleep. A. Well, yes.

Q. Do you think that that factor perhaps could explain some of the inconsistencies in your test results? A. I doubt it. He was tired at that point. He did go to sleep but he wasn't yawning, he wasn't noticeably fatigued on the testing that he was doing for me and he had regular breaks. So I doubt that that's a factor and I would normally note that in my test notes if that's an issue and also point that out."

The last quoted answer is difficult to understand given the obvious link between tiredness and sleep.

Dr Roberts agreed that the pre-injury school behaviour was indicative of someone who lacked motivation and didn't want to be at school. During cross-examination it became apparent that Dr Roberts had held a mistaken view about the Plaintiff's pre-injury behaviour and performance. When that error was brought to her attention she acknowledged it and recanted her erroneous view in the following terms: "WITNESS: I would have thought the behaviour was pretty worrying. I don't know many students at that school had difficulties of the sort he did where there were raised issues of AVOs and heroin and cocaine - possible heroin and cocaine dealing in the playground. They are really concerning behaviours, Mr Cranitch.

Q. Well, there's no reference to heroin and cocaine dealing the playground, is there? There's reference talking about cones or being overheard talking about cones. A. I beg your pardon. I do beg your pardon. You are correct there, yes. There was--

Q. Well, why did you say heroin and cocaine? Does that sound better than cones does it? A. No - no, it's not. I made a mistake there.

Q. I see. A. There - he did tell me, and the reason for the mistake was he did tell me about a charge for heroin and cocaine prior to the accident but the overheard conversation, you're quite correct, was to do with cones and I do apologise for that error."

Whilst the error was explained in the last quoted answer this evidence creates a difficulty for the evaluation of the testimony of Dr Roberts because she has clearly formed a negative impression of the Plaintiff's behaviour and it appears from this evidence that her view has been based, at least partially, on a mistaken apprehension of the degree and extent of the Plaintiff's pre-morbid bad behaviour. The difficulty created by this circumstance is that it becomes difficult if not impossible for a tribunal of fact to extirpate a view such as this in isolation when assessing challenges to credit based on such evidence. It raises for consideration the concern that Dr Roberts' other views and professional judgments in this case may have become infected by this acknowledged erroneous view of the Plaintiff's history and the related concerns she repeatedly expressed. The difficulty in attempting to reconstruct, correct and allow for this factor in retrospect is readily apparent when evaluating the validity of an expert opinion.

Dr Roberts acknowledged that a severe brain injury could cause deficits that could become superimposed on a person of already limited intellect. Her evidence to this effect was: "Q. You concede that some cognitive deficits would not be unexpected given what you know about the severity of this head injury. A. Severe brain injuries can lead to cognitive deficits.

Q. So you wouldn't be surprised if there were some cognitive deficits superimposed upon a man of already limited intelligence. A. Such problems can occur.

Q. All the documents you've seen indicate that on any standard form of testing from the clinical notes surrounding the event and so forth by any definition this man had a severe head injury. A. Yes, he did.

Q. The other thing you wanted to see in assessing the consequential possibility that he might have suffered from a frontal lobe injury was what he was like before and what he was like after. That's part of your assessment process, isn't it? A. Yes.

Q. That's why you asked for some interviews with people he might have known. A. Yes, I did.

Q. Apart for Ms Tsiailis did you see any other evidence in the case from his mother or from his brother or from anybody else? A. There - I think the mother and the brother Mohammed gave evidence and a girlfriend.

Q. Would you agree with me that what is clear from that at least when he was out of the school environment when he was back at home he appeared to be behaving as a pretty normal kid and did not appear to be displaying any elements of temper tantrums or violent displays or anything like that on the home front? A. This is before the accident?

Q. Before the accident. A. My recollection - and I read a lot of material yesterday--

Q. It's not a memory test. A. Thank you, Mr Cranitch. My recollection is that they said that he - he did not show those problems at home."

This acknowledgment emphasises the importance of assessing the pre-morbid behavioural situation. When Dr Roberts had her attention drawn to the evidence of an absence of behavioural problems outside the school setting her concerns about the Plaintiff's pre-morbid situation nevertheless remained unabated. The precise basis for this view remained unclear. It appears to have been left simply as a concern. There was no discussion of a range of potential views of the significance of the absence of behavioural problems outside the school setting as would be expected in the logical evaluation of a concern of that kind.

Dr Roberts stated that she doubted that the Plaintiff had ADHD. This issue was then explored in some detail. Dr Roberts tended towards the notion that before his injury the Plaintiff had a serous conduct disorder. She acknowledged that the effect of a brain injury superimposed on a conduct disorder meant it could be less likely to recede as the Plaintiff matured. In this regard her evidence was: "Q. Dr Roberts, you said you doubted it was the case that the plaintiff had attention deficit hyperactivity disorder. Are you able to give me a balanced account of the factors in favour and the factors against that view? A. Yes. Normally if you've got someone with attention deficit hyperactivity disorder, it impacts on pretty well everything. They're not - they have those problems in all areas. What you've got with - with Mister - Mr Saleh is that the school reports indicate that he actually - in subjects that he liked, those were not issues which would indicate that it was a more selective process that related more to interest and motivation as opposed to attention deficit hyperactivity disorder.

Q. So do I take it-- A. The selectivity of it would - would, in my opinion, not support an ADHD explanation and - and the fact that it went - the behaviour, the problems went - deteriorated - the marks deteriorated in the latter part of his - his schooling.

Q. Isn't selectivity a feature of ADHD where the subject doesn't like particular aspects of schooling and becomes disruptive towards those subjects whereas favoured subjects are given full attention? A. You tend - you don't tend to get quite that degree of selectivity with ADHD. It's - it's a very misused label over a lot of years, your Honour. My experience of it where children do actually have ADHD is that it's across the board, they just can't focus or pay attention to virtually anything, they are all over the place across the board. It's not something where it's - it - it's not so selective.

Q. We've heard from Dr Phillips that this condition of ADHD tends to emerge in adolescence and tends to dissipate or with maturation, the subject grows out of it in early adult life. Is that a formulation with which you agree? A. They can grow out of it. I've seen ADHD much younger than adolescence. I've seen it in - in - in quite young children so -

Q. But do you agree with the formulation that with maturation, presumably also the sanctions on antisocial behaviour as one grows older, that people tend to grow out of it in early adult life. A. That can occur but I've seen adults with ADHD too but generally speaking, they - they do but I don't think that was the - the central issue with - with Mr Saleh and I don't think it was an appropriate - it's not a label that I would have put on the pre-accident behaviour on the basis of the reports that I've seen.

Q. So you would identify pre-accident disruptive behaviour but not call it ADHD? A. Yes, I think it's - his behaviour was much more consistent with a pretty serious conduct disorder.

Q. Then of course subsequent to that there's a brain injury-- A. Yes.

Q. --which has it's own behavioural changes, is that right? A. He had a serious brain injury and behavioural changes can occur with those serious brain injuries, yes.

Q. So looking at the effect of the brain injury, is it a factor or not, I'd like you to tell me in your view, whether the changes from the brain injury would have affected the ability to grow out of the behavioural disorder that was pre-morbid. A. It - there can be cases where it impacts. Conduct disorder is not - it's not something that someone necessarily grows out of. They can do but others have seen cases where they've got much worse so there's no necessary "You will grow out of a conduct disorder", although I've seen people where that's happened. I've also seen people where the - quite the reverse has occurred and they've just committed more and more serious crimes and ended up in jail for lengthy periods and when they come out, they're back in again so there's - there's no necessary rule of - of recovery from - from those problems.

Q. Do I take it from your retreat to generality rather than discussion in this case that you're reluctant to express such views referrable to the plaintiff with what you've got? A. There's - yes, there's nothing that says he would have definitely grown out of that and I can't say that with certainty which is why I've given the examples of what I see happening to people in - in my practice. I - I - I can't say that he definitely would have or he definitely would not have grown out of that.

CRANITCH: Arising out of that, can I ask a question?

Q. Whilst you can't say that, does the brain injury render it less likely, which I think was what his Honour was driving at, that if he had this conduct disorder that he would be able to free himself from its shackles in older age because of the superimposed damage? A. It could impact, yes."

I have to evaluate the reasonableness of the opinions of Dr Roberts and the basis of those opinions in the light of the other expert opinions and also on the basis of an evaluation of the factual evidence.

Dr Kaplan - consultant psychiatrist engaged by Motor Accident Authority

On 4 September 2007 Dr Robert Kaplan, a consultant psychiatrist assessed the Plaintiff at the request of the Motor Accidents Authority. He issued his report on the same day of his examination. Dr Kaplan recorded his view that the Plaintiff was a poor historian who had made little effort to answer many questions. Dr Kaplan formed the view that at his interview the Plaintiff was responding to questions in a guarded, controlled and at times evasive fashion. 442. Dr Kaplan appears to have reviewed the reports of other experts and he appears to have placed some significance if not reliance on Dr Smith's adverse view of the Plaintiff's credit. He stated that it was difficult for him to avoid the conclusion that the Plaintiff was being deliberately evasive about aspects of his history.

443. Dr Kaplan concluded his views in the following terms: "As a result of the head injury from the accident, it is likely that Mr Saleh has cognitive difficulties. However this is superimposed on previous problems and his current lifestyle gives little indication that this is causing severe or sustained difficulties in daily life. On that basis, any cognitive difficulties Mr Saleh had from the accident would not constitute a separate psychiatric disorder although they may be determined as being directly due to the head injury.

The head injury caused an exacerbation of premorbid (sic) personality problems, notably aggressive behaviour and outbursts of temper. This has stabilised over the last two years.

The finding is that Mr Saleh's behaviour is an exacerbation of pre-morbid difficulties stemming from Conduct Disorder. This is consistent with Antisocial Personality Traits, the adult version of Conduct Disorder and cannot be attributed to the subject accident.

On that basis, Mr Saleh does not have a psychiatric disorder caused by the subject accident."

444. In my view Dr Kaplan's opinion does not constitute an expert report prepared in accordance with the r 31.23 and Schedule 7 of the Uniform Civil Procedure Rules 2005 and as such, in my view it has diminished weight.

445. This is so for a number of reasons. First, the obvious focus of his report was to asses the Plaintiff's condition according to threshold parameters and guidelines that concerned assessment of the Plaintiff's entitlement to make a claim according to the statutory framework of the Motor Accidents Compensation Act 1999. That process does not coincide or equate with the manner in which disabilities are assessed in proceedings such as these. Secondly, although Dr Kaplan referred to a number of reports and documents that he reviewed for the purpose of making his report, it is not entirely apparent from his report as to whether a full complement of such materials that were provided to him. In such circumstances, a court is more comfortably able to rely upon a report where Schedule 7 has been acknowledged as certain obligations arise with such an acknowledgment.

446. It is clear that Dr Kaplan's report has been prepared for the purpose of advising the Motor Accidents' authority as to whether the threshold for making a claim was met rather than undertaking an expert appraisal of injury, disability, prognosis and attributability for the purpose of providing an expert report to the Court pursuant to r 31.23 of the Uniform Civil Procedure Rules 2005. The absence of such a certification causes me to place diminished weight upon Dr Kaplan's conclusions in this context. In these circumstances I do not consider the views of Dr Kaplan to provide an appropriate basis for contradicting any of the opinions expressed by other experts whose opinions have been the subject of evidence in the proceedings.

Associate Professor Phillips - consultant psychiatrist

447. On 26 April 2006 Associate Professor Jonathon Phillips examined the Plaintiff at the request of the Plaintiff's solicitors. He issued his report on 13 June 2006. Associate Professor Phillips formed the view that the Plaintiff was probably of congenitally dull intellect with some degree of behavioural disturbance before his injury. He offered the view that these underlying problems were exacerbated and were perpetuated by the Plaintiff's severe brain injury. He was of the view that the nature of the Plaintiff's brain injury meant that following the injury it was inevitable that there would be resultant neuropsychological problems.

448. After reviewing the Plaintiff's history as stated and after summarising the materials he identified in his report, Associate Professor Phillips expressed the following opinions: "Mr R Mahoney (previously Mokbel) is a 23 year old single man who is probably of congenitally dull intellect and who probably had some degree of behavioural disturbance during his school years (perhaps in keeping with attention deficit hyperactivity disorder). However the plaintiff was involved in a relatively high-speed motor vehicle accident on 5 May June 2000 during which he suffered severe brain injury which has exacerbated and perpetuated his pre-accident neuropsychological problems.

Mr Mahoney's brain injuries were significant, with his cranial MR demonstrating areas of cortical contusion bilaterally, and axonal injury involving the left cerebral hemisphere and the right side of the splenium and corpus callosum. It was inevitable in the circumstances that Mr Mahoney was going to have neuropsychological problems. Unfortunately, in keeping with is pre-accident dull intellect, and his ongoing problems, he proved to be a poor historian and identified relatively few ongoing symptoms, but with these including bifrontal headache, pain involving his left scapula and right ankle, some difficulties with running (in keeping with injury to his right ankle), poor temper control, poor memory, and difficulties getting and holding employment. There is ample evidence in the various documents to verify that the plaintiff has problems of mood control (anxiety, depression), problems of temper control (with occasional aggression but not directed at people), problems of cognition (including attention/concentration), various aspects of memory (particularly verbal memory), problems of abstract thinking and of higher level executive functioning in general. He requires assistance from his mother in household related tasks and in money management, and he has been a marginal member of the workforce only. He can be said to be significantly handicapped in the smooth conduct of his day-to-day life and to experience a marked reduction in the quality of his life.

Whilst I am not able to confirm that Mr Mahoney has a mood disorder currently, there is adequate documentation to verify that he has had problems with anxiety and depression in the past. More likely than not he had at various times suffered from an adjustment disorder, which would hardly be unexpected given his neuropsychological history.

As best I can assess the situation, Mr Mahoney would never have enjoyed higher level cognitive skills, but in the absence of the accident and subsequent head injury, he would have been able to care for himself and to hold regular but probable unskilled employment. The accident has added very significantly to his burden in life. I do not foresee him being able to live independently, to manage money in a prudential manner or to gain and hold satisfactory employment in the longer term. I do not foresee his handicap changing at any time in the future.

Whilst Mr Mahoney said that he has a girlfriend currently, but noting his problems of temper control, he is likely to alienate those who are close to him in the longer term and not to be able to sustain an ongoing intimate relationship. His capacity to be a satisfactory parent will be compromised additionally.

Diagnostically, and as a consequence of widespread cranial trauma at the time of the motor vehicle accident, Mr Mahoney has a cognitive disorder not otherwise specified DSM IV TR 294.9. This diagnosis refers to a situation where a person has obvious cognitive dysfunction due to the direct physiological effect of a general medical condition (cranial trauma in the case of the plaintiff) and where criteria for more specific brain conditions such as delirium, dementia or amnestic disorder are not met.

In Mr Mahoney's case, his cognitive disorder is permanent and will cause him ongoing disabilities across the important domains of life.

Unfortunately, Mr Mahoney is highly unlikely to respond to further rehabilitation. The plaintiff's problems are permanent and he will have to live within his limitations. Additionally, I do not believe he has any overt diagnosable DSM IV psychiatric disorder which requires treatment currently. He would require treatment, however, if he again developed symptoms of an adjustment disorder, or any other psychiatric disorder. …"

449. Associate Professor Phillips gave oral evidence in which he explained and confirmed his earlier expressed views. In his report Associate Professor Phillips referred to the need to evaluate the results of psychometric testing. It is not clear as to why the solicitor for the Plaintiff had not provided him with a copy of Mr Delaney's report. In any event, Associate Professor Phillips was provided with a copy of the report of Dr Roberts which included the results of her psychometric testing. He was not asked to provide a supplementary report in this regard but without objection he gave oral evidence on this additional material. He said that his consideration of that material did not cause him to change the opinion he held.

450. His interpretation of the psychometric test results was that there was nothing in the results that suggested the Plaintiff was malingering. He expressed the problem for assessment in the following terms: "Q. And, doctor, is that confirmatory of the view and the history that you took in relation to the self same subject? A. I came to the conclusion that the man had suffered brain damage, as a result of the accident. I was cautious in my opinion in that I really wanted up to date psychometric assessing - neuropsychological assessment, and Dr Roberts has provided that and on my view broadly what she has put into her report is supportive of my view, that he does have brain damage. The problem being is comparing his situation now, clearly with some at least behavioural problems and some intellectual dullness, I think would be the best way to put it, in the past.

Q. Yes. Doctor, I want you to assume that the evidence in the case will disclose that he was expelled from one high school, was expelled from the second high school midway through Year 10, that is Sir Joseph Banks High School, with a substantial history of disruptive conduct and absenteeism. Is that consistent with the view you formed of him pre-morbidly? A. Well I assumed on the information - or came to the conclusion on the information available that he was (A) of fairly dull intellect and (B) he had behavioural problems, and the behavioural problems were essentially related to conduct, to impulsive behaviour, aggressive behaviour, boorish behaviour and many - the behaviour overall was uncalled for and out of - out of place in the situation he found himself in.

Q. Right, this is pre-morbidly? A. Pre-morbidly.

Q. Is there a common definition applied to that for a person in the teenage years as he was at the time? A. Well, I mean there's a number of matters that need to be addressed. The first is just the social, cultural, hormonal business of being a teenager and I think it would be fair to say that this man came from a social or cultural group that was - it perhaps didn't put enormous - or within the young male group it didn't put enormous stature or importance on being - behaving properly, and he - he demonstrated that. He - he was impulsive and rude and difficult in his behaviour many times. But beyond that one has to think of a more formal reason for his behaviour at the time and there are two things to consider: one is a - a conduct disorder which is a more formal disorder of personality function, and the second matter to consider is attention-deficit hyperactivity syndrome which in fact some people believe he suffered at that time.

Q. Is that a condition which is - that is the latter condition - is that the sort of condition which is likely to persist into maturity? A. Well, attention-deficit hyperactivity syndrome almost always burns out in the latter years, the latter teenage years and then early adult life. On occasions one will come across clinically a person who seems to have that syndrome in adult life. If that's the case they've always had it earlier on, but that's rare."

451. Associate Professor Phillips was asked to consider the significance of the Plaintiff's post-injury work history and noted that whilst those jobs were not technically demanding and were apparently similar to the pre-injury employment, it seemed that the relative short-term nature of those post-injury jobs was because of the Plaintiff's poorly controlled behaviour.

452. Associate Professor Phillips noted that the Plaintiff's injury was predominantly to the frontal areas of the brain, probably bilaterally but principally to the left side of the brain. He said this type of injury affected higher controls for behaviour including impulse control. He said this type of injury would make an affected person impulsive, unpredictable and not very useful. He predicted the future course for the Plaintiff would be repeated job losses.

453. Associate Professor Phillips thought the Plaintiff's prognosis for succeeding in long-term employment and in a relationship were poor because of the tendency towards impulsivity and aggression. He thought the psychometric testing demonstrated that the Plaintiff's memory problems were due to the consequences of his brain injury.

454. Associate Professor Phillips disagreed with Dr Kaplan's views and stated that it would be rare for a person with brain damage to be able to accommodate absolutely to brain damage and not be impaired in his day to day actions, cognition and behaviour. He thought that perhaps a person with high intellectual capacity, drive and motivation to accommodate may achieve some such accommodation. By implication I infer from this evidence that a person of the Plaintiff's pre-morbid intellectual capacities would fare relatively poorly in accommodating to such brain damage in the face of such impairment.

455. Associate Professor Phillips agreed that the Plaintiff's pre-morbid behaviour showed serious behavioural dysfunction as was evident from apparent threats towards teachers including the chair-throwing incident and his drug conviction that arose after he had left school. Associate Professor Phillips said this behaviour was markedly antisocial. When cross-examined on the proposition that the Plaintiff appears to have had little change in his pre and post-morbid behaviour, Associate Professor Phillips highlighted the need for caution with regard to such a view. His evidence in this regard was in the following terms: "Q. Yes, and in fact on the few assumptions that Mr Cranitch asked you to make today about post-morbid behaviour there doesn't seem to have been any change, don't you agree? A. I think we have to be careful in - I have to be careful in answering that question because if you look at anti-social behaviour in young men, it begins generally round about puberty, it usually reaches a peak somewhere before they are 20 and then dies away. So I don't for one moment doubt the seriousness of his anti-social behaviour but in normal circumstances one might expect that behaviour to diminish to a considerable extent as he matured.

Q. Of course Mr Mahoney is 25 now. A. Yes.

Q. He is still in the age group where those kinds of matters may not have burnt themselves out, that sort of anti-social inclination. A. Yes, it's possible. As I said before, it's really - towards the end of the teenage years that some sense becomes to prevail in young men but I take your point."

456. Associate Professor Phillips fairly conceded that it was possible that the Plaintiff's current behavioural difficulties may in fact be a carry-over from a deeply ingrained antisocial trait that was present before the injury. The nature of his concession concerning this possibility was that he could not rule it out which is a long way short of accepting the proposition. This is an issue that needs to be evaluated when considering the overall effect of the expert evidence.

457. On the question of injury-induced change in the Plaintiff's intellectual functioning, Associate Professor Phillips disagreed with the proposition put to him in cross-examination to the effect that the school information was "very negative to his intellectual performance". He pointed out that pre-injury, where the Plaintiff enjoyed a subject such as a practical subject, his performance was considerably better. He offered the opinion that the Plaintiff's dull intellect, uninjured, would not have precluded him from taking on practical jobs which involved relatively low skill.

458. In re-examination Associate Professor Phillips summed up his opinions on the effect of the Plaintiff's brain damage on his post-injury functioning in the following interchanges: "Q. You were asked a number of questions about this man, possibly displaying what was described as a carry over from his premorbid disposition into his post-morbid disposition and the difficulty of teasing it out - if I may put it that way - on the basis that he exhibited antisocial behaviour as a youth. Is it likely, bearing in mind the MRI scan, his report you had and the psychometric testings from Wendy Roberts and from Mr Delaney or Dr Delaney back in 2004, that that premorbid disposition was going to ameliorate with time as you suggested it might? A. Well I came up with three hypothesis before - two of which would change with time. The three were really that he was just a young boy of his years creating mayhem as best he could and that was going to that type of silly antisocial behaviour, was going to ameliorate with time around about the end of his teenage years, his early twenties. The other one was the diagnosis of attention-deficit hyperactivity disorder which had been made and one would recently anticipate that that would burn itself out at around the same time.

The issue of conduct disorder is a little more complex and it would be fair to say that most kids with conduct disorder also improve with passage of time and some percentage and I wouldn't like to - certainly a minority with a severe conduct disorder will go on to develop antisocial personality traits or even a formal antisocial personality disorder later in life.

I do make a point that conduct - bad conduct have for many young or many adolescent males is normal conduct and it's culturally - culturally it's accepted within their peer group, it's accepted within certain communities and it's just for many young men, a way of existing. If they exist otherwise they will be seen as nerds or they will be seen as whatever that they won't be cool, they won't be part of a group.

Q. Having regard to those issues, would the happening of a brain injury superimposed upon those pre-existing conduct disorders, as you now understand them, have rendered it less likely that he would have grown out of them? A. I'd certainly put it another way, there's no doubt that brain injury, particularly higher frontal cortical brain injury is going to exacerbate or extend any pre morbid conduct problems. It's almost inevitable. I don't think I've ever clinically come across a situation where that hasn't happened."

459. On its face this evidence seems compelling but it has to be considered in the light of a consideration of the entire fabric of factual and expert evidence that relates to the Plaintiff's post-injury cognitive functioning. I will address that task after dealing with the challenges to the Plaintiff's credit.

Unserved neuropsychology reports not served by Plaintiff - MFI "1" and MFI "2"

460. The Defendant called upon the Plaintiff to produce two unserved reports concerning neuropsychological testing of the Plaintiff. These tests were carried out on 21 January 2006 and 20 April 2006. The Plaintiff claimed privilege in respect of these reports. They were respectively marked MFI "1" and MFI "2". The Defendant has made a submission to the effect that it should be assumed from the refusal of the Plaintiff to produce these reports that it must be inferred that if tendered the contents of such reports would not have assisted or advanced the Plaintiff's case. In the circumstances I accept that submission : Jones v Dunkel [1959] HCA 65; (1959) 101 CLR 298. In doing so, I do not consider that the acceptance of this submission in any way undermines the opinions of Mr Delaney or any of the experts who gave evidence in the proceedings.

Defendant's general submission attacking the Plaintiff's credit

461. It is necessary to examine the Defendant's challenges to the Plaintiff's credit. In relation to damages generally, the Defendant has submitted that the Plaintiff was not an honest witness or an honest man. In support of that submission the Defendant sought to make a number of characterisations of the evidence. These included the assertion that parts of the Plaintiff's evidence which were untrue. The Defendant pointed to misstatements made by the Plaintiff to third parties; the avoidance of the obligation to pay tax; attempts by the Plaintiff to avoid the consequences of what was said to be a false statutory declaration in his claim form; misrepresentations made to banks issuing credit cards and wilful deception for financial gain. In addition, in general terms the Defendant pointed to aspects of the medical evidence, the Plaintiff's school reports and his work history which, it was submitted, detract from the Plaintiff's credit.

Review and analysis of Defendant's submissions on the Plaintiff's credit

462. The Defendant's submissions on the Plaintiff's credit together with the responses made on behalf of the Plaintiff are reviewed and analysed in the following paragraphs.

463. In cross-examination the Plaintiff conceded that when he resumed work with Sydney Prestige after he had recuperated from the acute phase of his injuries, he received cash payments for his work with that company. He acknowledged knowing that receiving "cash in the hand" meant that he did not have to pay tax. Whilst such an attitude is generally anti-social and discreditable, the fact remains, as was correctly submitted on the Plaintiff's behalf, it is the employer's obligation to deduct tax from the wages of an employee. The records of Sydney Prestige that might have shown whether or not the applicable tax on the Plaintiff's earnings had been deducted and remitted to the Australian Taxation Office were not tendered nor was their absence the subject of any explanatory evidence.

464. Ordinarily, the Plaintiff's preparedness to acquiesce to a working arrangement in which tax was not paid on his earnings would be a matter that would tend to detract from his credit. However in this case, where such an attitude is in my view influenced by the Plaintiff's frontal lobe brain injury, I consider that such an attitude on the part of the Plaintiff has to be viewed in a less critical light even though such an attitude cannot be condoned.

Allegation the Plaintiff sought to deny as a forgery his signature on a claim form

465. Exhibit "1" and Exhibit "5" comprised the original and a copy of the claim form that was prepared by the Plaintiff's solicitor on behalf of the Plaintiff and submitted to the Defendant to initiate the claims process for these proceedings. The document includes a statutory declaration as to the truth of the content of the form. During his cross-examination of the Plaintiff Mr Watson SC drew the Plaintiff's attention to Q.16 on page 2 of that form which was MFI "3" and which became Exhibit "1". The form contained the following first person description of how the collision had occurred: "I was travelling south along Stacey St in my vehicle Reg MHY 789 in middle lane when an unidentified vehicle travelling in right lane cut across my vehicle into the left lane with warning to exit off the left lane to go to Canterbury Road causing me to take evasive action. As I tried to avoid a collision with the unidentified vehicle I lost control of my vehicle. I applied the handbrake which caused my vehicle to spin out of control and collide heavily into a power pole."

466. The Plaintiff was then taken to signature appearing on page 10 of Exhibit "1" and he was asked to identify his signature on that part of the document. A clear purpose of that cross-examination was to confront the Plaintiff with an apparent inconsistency between his oral evidence to the effect that he had no recollection of the events of the collision and the content of his Statutory Declaration. One of the points that the Defendant was seeking to make was that the content of the completed form, despite the declaration of its truth, was in fact untrue. 467. In support of that proposition the Defendant referred to the cross-examination of the Plaintiff on this issue appearing at T83.16 - T84.11 where the Plaintiff disavowed the signature on the form as being his, and disclaimed the account given in answer to Q.16 of the form, consistent with his inability to remember the events of the day in question. Whilst the Defendant's argument to the effect that the Plaintiff had falsely disavowed his signature on the form in order to avoid the consequences of the content was technically available on the evidence, when the totality of the cross-examination of the Plaintiff on this issue is reviewed, I consider that the Plaintiff's evidence in which he was said to have disavowed his signature was based on confusion and misunderstanding on the Plaintiff's part.

The scope for that misunderstanding and confusion arose because the part of the form which based this cross-examination contained four signatures on the same page, two being those of the Plaintiff and the other two being those of a Justice of the Peace who had certified the Plaintiff's signature. In my view the questions and answers do not reveal with sufficient particularity which particular signatures were the subject of particular questions.

The apparent reason for the duplicate signatures on the claim for was that the document was originally signed and submitted on 10 October 2000 as is evident from the version comprising Exhibit "5" which was received by the insurer on 31 October 2000 and then returned to the Plaintiff's solicitor by letter dated 5 November 2000 with the request for further details to be supplied. That request was subsequently complied with and both the Plaintiff and the Justice of the Peace then re-signed the form on 27 November 2000. That re-signed document became Exhibit "1".

I take the view that the Defendant's submission which I have cited is based on a degree of confusion and misunderstanding on the Plaintiff's part because this issue was clarified by the Plaintiff's answers in further cross-examination at T85.15 and following. There, the Plaintiff differentiated between his own signature on the form and another signature on the form. When the Plaintiff denied one of the signatures as being his it was not made clear as to which of the four signatures on Exhibit "1" he was referring at that time. I consider that thereafter, the Plaintiff became confused and aggressive, consistent with his earlier answer at T84.42 in which he said he did not know what to say. The Plaintiff became defensive to questioning on this topic but I consider that this was not dishonestly so as submitted by the Defendant.

I consider this situation arose because of his level of intellectual functioning and his limited ability to deal with the pace and content of questioning rather than being due to him dishonestly denying his signature. In my view the submission by the Defendant on this point has no merit. I find that this is so because it is plain from the content and effect of the Plaintiff's answers that the Plaintiff consistently maintained he had no memory of the events of the collision and he did not remember giving the instructions that were reflected in the answers to questions in the claim form: T85.47.

The form comprising the exhibit which based the cross-examination was obviously prepared in the handwriting of someone other than the Plaintiff except for the place where the Plaintiff's signature actually appears. I infer that the answers to questions in the claim form were based on Mr Jaouhar's version of events that was related to the Plaintiff's solicitor. I base this inference the Tax Invoice from the former solicitors, Exhibit "L". The terms of the statutory declaration portion of the form signed by the Plaintiff states that the information in the form was true and correct in every respect "to the best of my knowledge".

In my view this phrasing suggests that the requested status of such knowledge could have been legitimately acquired from hearsay sources which is a very different status of knowledge to reading it as an assertion that the information provided in the form was restricted only to the first hand knowledge of the deponent. In my view the Defendant's submission concerning the significance of Exhibit "1" is based on an assumption that an attestation of truth made on the basis of a belief as to the truth of a representation within the document equates to evidence based on first-hand knowledge, in conformity with the laws of evidence.

In my view this problem of confusing an equation of belief with actual knowledge had its genesis in questions asked by Mr Watson SC. Those questions taxed the Plaintiff's recollection of signing the document as is apparent from his evolving answers. The questions which led to the Plaintiff's confusion appear in the following sequence, particularly at the end: "Q. Mr Saleh, you know that you signed page 10? A. Yeah.

Q. You knew that it was a statutory declaration? A. I'm trying to answer you for a second. This is not my signature. This is not my story.

Q. No, I'm not-- A. I can't lie about it.

HIS HONOUR: Don't talk across each other, Mr Watson. Allowing for the circumstances he was trying to explain to you--

WITNESS: I'm trying to explain something. Like I don't want to talk over you but this is for one, like, I'm - I'm looking at it. That's why I wasn't too sure before. As I said, I don't want to lie in this courthouse. That's not my signature because I'll show you how I sign - sign my signature and you can see it--

Q. You're saying page 10 is not your signature? A. I'll tell you why.

Q. No, are you saying that the signature on page 10 is not your signature? A. It's not, you know why? That's not my story. I don't remember the day so how can I say I pulled up the handbrake and I did this and I did that?

Q. No, Mr Saleh, there's a specific question-- A. It's not my statement. It's not my signature.

Q. No, are you saying the signature on page 10 is not your signature? A. It's not my signature.

Q. Are you saying it's not your signature? A. It's my name. I don't - why should I sign twice like, like that. If I was to sign I'd just sign it once.

Q. I'm not asking you whether you signed twice or not. A. That's my signature.

Q. Let's make it clear, you're telling the judge in this case on your affirmation here today that you deny that that's your signature? A. That's my name so that's my signature.

Q. Did you hold a pen in your hand and sign that name? A. I can't remember.

Q. Have a look at it now and just have a look at the form of the signature, the way that it appears to you . A. That's what I'm trying to say; I can't remember. I wouldn't - if I was to remember when I signed my name when I was younger or even now I would sign it once. How come it's twice there?

Q. You will see that whether it's once or twice, it's obviously signed by the same person .

An examination of Exhibit "1 at once reveals that page 10 of the document being cross-examined upon contained four signatures. Given that the form contained four signatures these questions left room for ambiguity and misunderstanding on the Plaintiff's part having regard to his level of intellectual functioning. This position becomes clear in the following continuation of the questioning by Mr Watson SC: "HIS HONOUR

Q. Mr Saleh, do you have reason to believe that that is not your signature on the document you're being shown? A. Your Honour, I don't know what to say to this but if I was to sign, I just sign it once like look at that one and look at that one, it looks a bit different. I don't know, honestly.

Q. I can't look at the document; it's not before me. A. I know.

Q. I'm just asking you, do you have any reason to believe that the signature which has been drawn to your attention is not your signature? A. Not my signature both of them . I probably signed - I don't know.

Q. I'm sorry, I'm not really sure whether it was left, Mr Saleh. Are you saying that you accept that that is or probably is your signature which figures on page 10 of MFI 3? A. That's my signature but--

Q. Did you hold a pen in your hand and make that signature? A. Not both of them .

Q. Are you suggesting to his Honour that somebody has forged your signature? A. I'm not saying nothing. I just said I signed it, I think the first one ..(not transcribable).. that."

Clearly by the above answers the Plaintiff was not suggesting, as has been submitted, that his signature was forged. I consider that he was simply disavowing either one or two of the four signatures that appeared on the page shown to him. In my view what he was simply seeking to convey was that at least one or two of the signatures on page 10 of the form was not his own. In that respect he was correct. In my view the ambiguity of the questioning led to the ambiguity in the answers.

At all times the Plaintiff remained at pains to point out that he could not recall the events of the collision as the following interchange confirms: "Q. Mr Saleh, you told your solicitors, Cameron Gillingham Boyd, that you applied the handbrake to the moving vehicle, didn't you? A. Did I? Well, still to this day I can't remember nothing that happened that day or the day before the accident.

Q. I'm not asking you about the day. I'm asking what you told your solicitors-- A. How can I remember what I told the solicitors when I can't even remember the story when I had the accident?

Q. Mr Saleh, just be careful, sir, just listen to the question. You can't ask counsel questions. A. I can't ask them? I'm just--

Q. Unless you don't understand his question. A. I understand them. I'm telling him, I don't remember telling them anything about this. Does he understand that? He keeps on asking me, over and over again."

In my view, when the whole of the cross-examination of the Plaintiff on the issue of signatures on the claim form is reviewed and considered, it is clear that the Plaintiff was not seeking to falsely deny his signature as has been submitted. Instead, I find, he was, in his own relatively inarticulate and frustrated manner, trying to get to the bottom of the issue which had confused him and on which he was being questioned. I consider that he was endeavouring to explain the apparent dichotomy of differing signatures that had been pointed out to him. In my assessment when the evidence is properly understood this component of the Defendant's attack on the Plaintiff's credit falls wide of the mark and fails to make good the allegation that the Plaintiff sought to disavow his signature as a forgery.

Misrepresentation to credit providers and deception for financial gain

The defendant points to evidence that the Plaintiff had engaged in activity that amounted to fraud consisting of misrepresentations that were made to credit card providers concerning applications made on the Plaintiff's behalf for credit cards to be issued to him. This submission is founded upon Exhibits "3" and "6" which comprise application forms to the ANZ Banking Group Ltd for ANZ Visa Gold Cards in the separate names of Rodger Mahony and Khodr Mokbel. The Plaintiff acknowledged that these applications for credit cards were made however the provenance of these documents and the dates of completion of the documents was not made clear. The application forms were not signed and each of them appear to have been printed from an electronic database cache on 15 November 2005. The circumstances of these applications have not been the subject of explanatory evidence. The Plaintiff said a broker had submitted these applications in his name.

Aside from questions concerning the provenance of the forms and who had completed them it is clear that the forms contain deceptive and misleading information concerning the Plaintiff's employment, assets and other personal particulars. The forms contain untrue particulars concerning details of the Plaintiff's employment and income. When the Plaintiff was cross-examined about these matters his answers to questions were to the effect that he was not sure.

The Defendant has submitted that these forms and the Plaintiff's answers show the Plaintiff has perpetrated an elaborate deception for monetary gain and this has a material impact on the Plaintiff's credit in these proceedings. The Plaintiff has conceded that he ran up substantial credit card debts and has not repaid them. I have to consider the context in which this has occurred. The possibilities are that this was due to the presence of frontal lobe brain damage or that he was unwise in his spending. I also have to consider the possible causative relevance of a pre-morbid anti-social tendency but with the restraints removed due to brain damage. Obtaining credit in different names and incurring unpaid debts with the intention to defraud would detract from the Plaintiff's credit but I cannot view that conduct in isolation from his frontal lobe injury and on the state of the evidence I am not prepared to infer that the Plaintiff had an intention to defraud. I consider the issue to have been insufficiently explored in the evidence to base an adverse credit finding against the Plaintiff.

The Plaintiff obtained these cards in his own names and there is no evidence that he had an intention to deceive when he did so. If the converse was shown to be the case this would undoubtedly be a matter of considerable discredit. Without further evidence I am not prepared to infer that these cards were obtained with the intent to defraud because they were obtained in the Plaintiff's own names and he was easily traceable by anyone having an interest in doing so. Whilst the deliberate non-payment of debts incurred could be a basis for inferring discredit, without further evidence, in this case I am not prepared to draw such an inference. I have taken this view because there are other issues that arise that require elucidation before such an inference could be fairly drawn.

These issues include the nature and circumstances of the debts, an understanding of the underlying transactions and the parties involved in such debts as well as an awareness on the part of those parties of the Plaintiff's cognitive problems. I consider that the medical evidence concerning the Plaintiff's frontal lobe brain damage and his poor insights have to be taken into account before such an inference could be fairly drawn against the Plaintiff's credit in this case.

In addition to the abovementioned attacks on the Plaintiff's credit the Defendant sought to raise a number of other issues in cross-examination of the Plaintiff which, if sustained, had the potential to reflect poorly on the Plaintiff's credit in these proceedings. Some of these matters related to the period before the Plaintiff's injury and some related to the period after his injury.

In relation to the period before the Plaintiff's injury, the Defendant raised matters that were met with denials from the Plaintiff. Those matters included suggestions that the Plaintiff had : been physically cruel to fellow students at Punchbowl Boys High School; intimidated fellow students; been dealing in drugs whilst at school and that he had in the past used marijuana. The Defendant also raised the assertion from the school records that the Plaintiff had threatened to "trash" teacher's cars. The Plaintiff said of this last matter that he could not recall it.

The post-injury matters raised by the Defendant were that: in mid-1998 the Plaintiff pleaded guilty to a criminal charges relating to the possessions of cocaine and heroin; at one time he held two passports and had surrendered an incorrect or invalid passport to police as part of his bail conditions and was thus in breach of his bail for a short time thus resulting in his temporary overnight arrest on 9 September 2003; he was incorrect in stating the reason for the termination of his employment both with Dale Ford where the issue was his unpunctuality and with Manheim Auto Auctions where it was alleged that he had sexually harassed a staff member; and he submitted a misleading letter dated 2 September 2002 from Mohamed Hawi of Sydney Prestige which incorrectly stated his employment details to the RTA in order to try and avoid the cancellation of his licence.

Ultimately the Defendant did not pursue those matters in detail because either they were matters that were not conceded by the Plaintiff or they were matters that remained unproven. Since these matters were raised by the Defendant, and because they were raised in an endeavour to impugn the Plaintiff's credit, for completeness I will review and consider them.

In relation to the credit issues that concerned the Plaintiff's conduct in the pre-injury period, the school records that were the subject of evidence tendered in the proceedings did not provide much detail of the allegations of physical cruelty to fellow students nor did they substantiate the manner in which the Plaintiff was said to have intimidated fellow students. Neither did those records provide proof of the allegations made concerning the Plaintiff's actual involvement with drugs whilst at school. In the absence of concessions from the Plaintiff on these matters or other evidence proving the factual foundations for such assertions I will pay no regard to these suggestions when assessing the credit of the Plaintiff.

With regard to the assertion that the Plaintiff had threatened to "trash" teacher's cars, this is certainly a matter that was in keeping with his poor pre-injury behaviour whilst at school. It was also in keeping with the Plaintiff's acknowledgment that he had thrown a chair at a school principal. Accepting that such a threat was made and that such conduct reflected poorly on the Plaintiff at the time the conduct occurred, I consider that this is a matter that has to be viewed in terms of the Plaintiff's relative adolescent immaturity at the time, possibly influenced by the condition of ADHD. I consider the alleged incident to be too far back in time to be relevant to the assessment of the Plaintiff's credit. I consider that it is also a matter that has to be viewed in the light of the medical opinions concerning the likely potential for improvement of the Plaintiff's pre-injury bad behaviour in the late teens to early twenties rather than viewing it purely as a credit issue alone.

In my view the credit-based suggestions raised by the Defendant with regard to the post-injury period fall into a different category for analysis. I will now review those matters.

The acknowledgment by the Plaintiff that he had pleaded guilty to charges relating to the possession of cocaine and heroin is of some relevance to an assessment of his credit in these proceedings. The fact that he was involved in such activity reflected poorly on his credit at the time the offence was committed. However, the fact that he freely acknowledged the fact of his plea, the fact that he completed his community service order requirements and the absence of evidence of subsequent similar offences are all counter-balancing factors.

However, the fact that there were past drug charges and the timing of those charges may have some relevance to an assessment of the Plaintiff's claim for loss of earning capacity, but I am not prepared to infer generally from that plea of guilty concerning the drug charges that the Plaintiff should not be believed on critical matters arising within his evidence in these proceedings on account of the fact that he had been involved in a drug offence in 1998.

The remainder of the general matters of credit raised by the Defendant concern events and conduct that occurred after the Plaintiff had incurred his severe head injury with traumatic brain damage and its associated adverse cognitive and behavioural sequelae with frontal lobe involvement. As such, these matters have to be considered in that light.

Although the Plaintiff changed his name a number of times and held more than one passport, his name changes were on the public record and were shown to have been legally effected. There was no evidence that by such events he acted with deception. It appears that only one passport was current at the time of the bail infringement that was raised in cross-examination and there is no evidence that the Plaintiff intended to deceive in relation to these matters. I consider that these suggestions amounted to unsuccessful challenges to the Plaintiff's credit. Further, I consider that there has been insufficient evidence adduced to render the fact of the bail infringement a relevant matter that detracts from the Plaintiff's credit.

I consider that the matter of the discrepancy between the correspondence from Dale Ford and the account given by the Plaintiff in his evidence concerning his unpunctuality whilst in the employ of Dale Ford which based his dismissal from that employment is a function of his memory impairment and I do not see this as a matter that detracts from his credit.

The suggestion that the Plaintiff had sexually harassed a fellow employee of Manheim Auto Auctions, if proven, would be a serious matter that could adversely reflect on the Plaintiff' credit. However, I am not prepared to infer from the letter, comprising Exhibit "10" from that company, stating that the Plaintiff breached that company's equal opportunity and harassment policies constituted proof that the Plaintiff's behaviour that warranted his dismissal was sexual harassment behaviour.

The submission by the Plaintiff of a letter dated 2 September 2002 to the RTA from Mohamed Hawi of Sydney Prestige which incorrectly represented the Plaintiff's employment situation at that time was clearly aimed at securing for him a benefit, namely seeking to avoid the loss of his licence. That is a matter that in my view was orchestrated by the Plaintiff because at the time there would have been no other beneficiary apart from the Plaintiff in respect of such conduct. Although this issue undoubtedly reflects poorly on the Plaintiff's credit, I consider that the scope for such an adverse view to be taken must be tempered by the fact of the Plaintiff's poor insight and judgment that is a function of his post-traumatic frontal lobe brain damage. As such, in my view it does not fairly represent a general indicator for rejecting the credibility of the Plaintiff's testimony on other matters.

The Defendant refers to inconsistencies in the histories given by the Plaintiff to the various examiners who assessed him for the purpose of providing reports in the proceedings and submits those inconsistencies reflect poorly on the Plaintiff's credit. That is a difficult submission to sustain in this case where the reports refer to the Plaintiff being a poor or confused historian or in some places, as an evasive historian. These are all expressions of opinion that are impossible to explore as they are condensations or summations of conversations and as such the detail of those discussions between the Plaintiff and the examiners cannot be fairly evaluated. I therefore make no findings against the Plaintiff's credit arising from such histories and the opinions of the practitioners who recorded those comments.

The report of Dr Roberts dated 19 December 2007 raised for consideration the question of whether the Plaintiff had malingered or exaggerated when she administered psychological tests to him. She raised these matters in the context of her concern over the reliability of the Plaintiff as an historian and in relation to some inconsistencies she perceived in some of his responses to her examination. I do not accept the suggestion that the Plaintiff was in any way malingering in his responses to the tests carried out by Dr Roberts. I have come to this conclusion for a number of reasons.

First, the clinical basis of the suggestion of malingering was flimsy to say the least. As Dr Buckley pointed out, the test results for malingering obtained by Dr Roberts fell within the range usually identified as not malingering. Secondly, this was a view with which Associate Professor Phillips agreed. Thirdly, when expressing her concerns about the inconsistencies she identified in the Plaintiff's test performances, Dr Roberts did not give any consideration to the issue of fluctuating effort which Mr Delaney and Dr Buckley identified and considered to be related to the after-effects of the head injury. This is particularly significant since Dr Smith agreed that the Plaintiff's lack of persistence was in part explained by his cognitive problems. Fourthly, I consider that Dr Roberts paid insufficient regard to the fatiguing effects of the testing the Plaintiff was required to comply with over some hours. In my view Dr Roberts did not have sufficient regard to and make allowance for the impact that such fatigue had on the Plaintiff's performance at her interview. I infer this from her observation that the Plaintiff fell asleep in one of the breaks from testing. Fifthly, when the issue of malingering was explored in the oral evidence of Dr Roberts she acknowledged that she had not come to concluded views on the topic because of what she considered to be the outstanding need for further information.

In the circumstances I do not accept the suggestion that the Plaintiff malingered when tested by Dr Roberts.

Having reviewed the individual matters relied upon by the Defendant to suggest that the Plaintiff was not honest or credible in his conduct, either in his evidence or in his presentation when examined, I find that the Defendant's attack on the Plaintiff's credit has failed to substantiate the matters alleged. I have already set out my reasons for this finding in the preceding paragraphs that deal with the credit issues raised.

Consequent upon my credit finding concerning the Plaintiff, and having reviewed the array of evidence of the Plaintiff's post-injury problems I set out my findings concerning the Plaintiff's ongoing disabilities. I am satisfied that the Plaintiff has with reasonable accuracy described the substance of his disabilities to the various experts who have examined him for the purposes of treatment and assessment. In making my findings of the Plaintiff's disabilities I have therefore drawn upon the Plaintiff's own evidence as well as the histories that he gave concerning his disabilities and which have been recorded in the reports prepared by the various medical and allied examiners who saw him and whose reports have been tendered in the proceedings.

The healed fracture to the Plaintiff's left clavicle has resulted in a lump deformity at the site of healing. The Plaintiff experiences recurrent clicking and popping of the left sternoclavicular joint dislocation caused by certain movements of the left arm and shoulder. The Plaintiff continues to suffer from discomfort in the left shoulder in that he remains restricted in his range and phases of movement of the glenohumeral joint when elevating the left arm and shoulder. This causes the Plaintiff restriction in repeated heavy lifting and excessive movement which makes it ill-advised for him to carry out such movements. This has caused him to limit his weight training activities to a degree. The left shoulder also causes the Plaintiff sleeping difficulties in that he wakes in discomfort after laying on the left side.

The Plaintiff has been left with continuing impairments of pain and discomfort in the lumbar and cervical spines due to the ongoing effects of musculo-ligamentous strains and possible inter-vertebral disc involvement in those areas. He also feels discomfort between the shoulder blades. He experiences a pressure-like pain in his back and this becomes worse when sitting. He experiences the onset of back pain after walking. His tolerance for sitting and walking activities been reduced to about 15 minutes.

The Plaintiff's right ankle fracture has left him with a hyper-pigmented surgical scar over the right medial malleolus at the site of the open reduction and insertion of reduction screws which still remain in situ. The length of that scar is the subject of conflicting medical opinions. Apart from the scarring the residual effects of the ankle fracture have left the Plaintiff with intermittent pain in the ankle with a reduced walking and running tolerance and the need to take care when weight bearing. There is some minor wasting to the right calf muscle when compared with its left counterpart. He walks with an occasional limp and is embarrassed at being told he has an altered gait. I accept Dr Buckley's prognosis for the likelihood of slow development of osteoarthritis in the right ankle joint. I infer from that prognosis that as a result the right ankle will become progressively more uncomfortable and painful and will become subject to restricted movements as the Plaintiff ages.

The physical effects of the head injury have left the Plaintiff with post-concussive headaches and a small palpable depression in the skull at the site of the healed burr hole that was made to relieve intracranial pressure. This depression is situated within the Plaintiff's hairline and causes some discomfort when touched. The Plaintiff now carries an unquantified risk of developing epilepsy due to the nature and severity of his traumatic brain injury. As a neurological consequence of his brain injury the Plaintiff has been found to have a problem of balance in his left ankle.

The Plaintiff takes painkilling medication and is likely to need some form of therapy for his physical problems in the future.

I find that the adverse cognitive, behavioural and emotional effects of the Plaintiff traumatic brain injury have been quite significant for the Plaintiff because of the nature of his pre-injury cognitive and behavioural status and the stage that he had reached in his adolescent development when the injury intervened. This creates a difficulty for assessment because of the absence of an empirical baseline from which to identify changes in the Plaintiff's condition as a consequence of his injuries. Nevertheless, an assessment is required on the information that is available.

As is confirmed by the Plaintiff's school reports, before his injury the Plaintiff was not inclined towards scholastic achievement. His pre-injury cognitive and behavioural status has been variously described as being of congenitally dull intellect or of borderline low average intelligence with an underlying degree of behavioural disturbance and a tendency to explosive behaviour when triggered. I accept the aptness of these descriptions of the Plaintiff's pre-injury state. This summary is supported by the Plaintiff's school reports and the results of psychological testing which the experts have used to estimate the Plaintiff's pre-injury level of intellectual functioning.

The starting point for an analysis of the baseline to establish an insight into the Plaintiff's pre-injury functioning is a consideration of the Plaintiff's school reports. Dr Roberts gave consideration to those reports and the indications of behavioural decline that is evident from those reports. Her considered view was that she doubted that the decline in the Plaintiff's school performance and behaviour reflected an underlying organic problem. I accept that observation by Dr Roberts. In my view that observation provides a useful baseline for the assessment of the Plaintiff's subsequent problems. I infer from this opinion of Dr Roberts that before his injury the Plaintiff did not have organic brain damage.

This view is confirmed by the opinion within the oral evidence of Associate Professor Phillips when he referred to the results of the neuropsychological testing undertaken by Dr Roberts which he said confirmed the Plaintiff had post-traumatic brain damage. I accept that opinion. That view is also supported by the hospital notes, the MRI scan report of Dr Shnier and the opinion of Dr Smith who confirmed the bilateral nature of the Plaintiff's brain damage that followed his injury.

The critical question then is to determine the effect the brain damage has had on the Plaintiff's cognitive functioning. In his oral evidence Dr Smith considered the precursor to this question.

Unlike the medical practitioners who have provided opinions on this issue, I have had the considerable advantage of hearing unchallenged lay evidence from the Plaintiff's mother, brother and former girlfriend as to the changes they observed in the Plaintiff following his injury. I consider that this evidence, along with some guidance afforded by the expert opinions has assisted me to draw conclusions and make findings concerning the Plaintiff's ongoing cognitive problems. Before analysing those problems it is necessary to clarify the matter of the Plaintiff's pre-injury conduct as gleaned from the Plaintiff's school reports.

There was some controversy within the expert opinions as to whether the Plaintiff suffered from the condition of ADHD before his injury or whether he suffered from what was described as a serious Conduct Disorder. Without reciting the detail of all of the competing expert opinions on this controversy, I consider it is sufficient to identify the differing representative bodies of opinions. Associate Professor Phillips favoured the pre-injury diagnosis of ADHD. Dr Smith thought that the Plaintiff fulfilled the criteria for pre-injury diagnosis of Antisocial Personality Disorder. Dr Roberts favoured the pre-injury diagnosis of Conduct Disorder. The differences in these conditions have some significance in the assessment of damages in that the Defendant has submitted that the Plaintiff's head injury has made little practical difference to his life and to his functioning whereas the Plaintiff submits that the head injury has resulted in a significant difference to his functioning and future prognosis that should sound in substantial damages.

If the Defendant's approach is accepted, the compelling conclusion would be that absent the post-traumatic brain damage, in the ordinary course, the Anti-Social Personality Disorder or Conduct Disorder would have become entrenched and would have been productive of continuing poor and worsening behaviour on the Plaintiff's part with negative flow-on effects for work and other areas of the Plaintiff's activities and life.

If the Plaintiff's approach is accepted, absent the post-traumatic brain damage, the analysis is that the Plaintiff would have matured and he would have grown out of the negative influences of his ADHD and poor behaviour as that condition would burn out by his late teens or early twenties and would thereafter have gone on to lead a productive life.

The impact of the resolution of these issues on the assessment of damages is therefore quite significant.

Having considered and reviewed all of the expert opinions on the issue I have concluded that I prefer and accept the opinions and formulations of Associate Professor Phillips and Dr Buckley concerning the effect of the Plaintiff's injury on the Plaintiff's pre-injury cognitive status to the opinions of the other experts who have reported and who have given evidence in the proceedings.

In my assessment the competing views of Dr Smith, Dr Roberts, Dr Watson and Dr Zeman are based on incomplete assessments of the Plaintiff. To varying degrees these examiners took the view that the Plaintiff's presentation at the consultations with them was an insufficient basis upon which to form their final views. In a sense they were partly correct in forming such views because, by reason of his level of intellectual functioning, the Plaintiff's presentation to these examiners posed challenges to those attempting to make an assessment of him.

Dr Smith's views were based principally upon his assessment of reports and records provided to him because he took an early adverse view of the Plaintiff's credit. I do not accept the validity of Dr Smith's approach nor do I accept his conclusions for the reason that I consider it to be an unduly limited approach. As a result I do not accept Dr Smith's views where they conflict with those of Associate Professor Phillips, especially on the issue of the likely timing of the influences of the pre-existing ADHD burning out.

In my view, the opinions of Dr Roberts were based on a negative impression she held concerning the Plaintiff's credibility which was in part based on a mistaken apprehension of the degree and extent of the Plaintiff's pre-morbid behaviour. I consider that negative impression to have infected her approach to the formulation of her views on his presentation generally and also on the formation of her albeit incomplete opinions. In my view this approach has caused Dr Roberts to remain focussed on her concerns over the Plaintiff's presentation and credibility issues rather than to undertake a fuller analysis including an analysis of the issue of whether the Plaintiff's presentation and performance in her testing was affected by the phenomenon of fluctuating effort which I find was a consequence of the Plaintiff's traumatic brain injury. In this regard I accept the opinions of Mr Delaney and Dr Buckley in preference to the views of Dr Roberts. I prefer and accept the analysis and conclusions of Associate Professor Phillips to those of Dr Roberts on this issue.

In my view the probative value of the opinions of Dr Zeman on the effects of the Plaintiff's brain damage are limited by the extent of his opportunity to have made a qualitative assessment of the Plaintiff's pre-injury situation which, in my view, has affected his overall assessment of the Plaintiff. When his views were explored in oral evidence Dr Zeman conceded that in the case of someone who was functioning marginally before injury, that person could be "tipped over into the non-functioning region" to render "life more difficult" for that person. I consider those concessions are applicable with full force to the Plaintiff's pre and post-injury situation and I read Dr Zeman's evidence in the light of those concessions.

I find that the behavioural and emotional effects of the Plaintiff's head injury have had the consequence that his pre-injury tendency to violent behaviour has been made worse to the extent that he has become more easily short-tempered, frustrated and he has acquired an angry personality. I find that this has arisen because the effect of the brain injury has been, as was suggested by Associate Professor Phillips, to extend and exacerbate the underlying ADHD condition. The effect of this is that in social situations he needs to be distracted from expressing his reactions to others. The Plaintiff has become socially withdrawn and harbours feelings that others are against him. He occasionally resorts to screaming out of frustration and occasionally resorts to punching walls and doors. He experiences episodes of nervousness and sadness. In this regard I accept the evidence of the Plaintiff's mother which describes these things.

I accept that the Plaintiff's behaviour and emotional state has been adversely affected in that he has become more impatient and irritable with increased volatility , tactlessness and increased shortness of temper since his brain injury. I accept the evidence of the Plaintiff, his mother, brother and former girlfriend in this regard.

I also accept that the Plaintiff's memory and other executive functions have been significantly and adversely affected by his traumatic brain injury. He has difficulty with word selection when he speaks and his memory problems cause him to be forgetful of names, numbers, transient events and conversations. His attempts to jog his memory with lists, reminders, diary entries in his mobile phone or other aids have not been entirely successful in ameliorating these problems. He has poor concentration, he does not remember what he reads, he tends to repeat himself and he gets confused when he writes which is not very frequent. He also is prove to aggression.

I accept the opinion of the initial treating psychiatrist Dr Benjamin whose initial clinical diagnosis in 2003 was that the Plaintiff had a Mild Adjustment Disorder with Depressed Mood. When Associate Professor Phillips saw the Plaintiff in 2006 he did not consider the Plaintiff to have a current diagnosable DVM IV disorder requiring treatment at that time. Nevertheless, the Plaintiff still has a low mood.

I consider the Plaintiff's frontal lobe injury with its adverse effect on the Plaintiff's executive functioning, has had an adverse effect on his maturation in the sense that it has adversely impeded the natural process by which his pre-existing condition of ADHD would have receded and dissipated as he grew into his late teens and early twenties. The superimposition of the traumatic brain injury on the Plaintiff's underlying low level of intellectual functioning has resulted in a permanent cognitive decline in the Plaintiff's abilities to effectively cope with every day human interactions.

These problems have had and will continue to have cascading impacts on his ability to work and carry out every day tasks independently of others.

I consider that all of the Plaintiff's post-injury disabilities which I have reviewed are permanent and as such they will continue to adversely affect him throughout the remainder of his life.

I have reviewed and considered the submissions the parties have addressed to each of the claimed heads of damage. In the following paragraphs I review the evidence and the arguments relating to those heads of damage and I set out my findings to such heads. Before assessing the various heads of damage that involve future losses it is first necessary to identify the assumption to be adopted in respect of the Plaintiff's probable future life span.

Apart from the opinion of Dr Zeman, who expressed the view that the Plaintiff's smoking was a negative factor for his longevity, the remainder of the medical evidence does not suggest that the Plaintiff has suffered a reduction in the years that would normally remain for him as a result of his injuries and their effects. I do not propose to allow for a longevity decrement on account of the Plaintiff's smoking. I take this view because this potentially decremental factor is already incorporated in the life tables. Accordingly, having regard to the current prospective life tables, at age 26, this being the Plaintiff's age at trial, I assess the Plaintiff's life expectancy, which is by definition a statistical estimate or average, to be in a rounded down figure of a remaining 59 years. Golden Eagle International Trading Pty Ltd & Anor v Zhang & Anor : [2007] HCA 15; (2007) 229 CLR 498.

With regard to the Plaintiff's claim for damages for non-economic loss, on behalf of the Defendant, Mr Watson SC has submitted, robustly, that when viewed objectively, effects of the Plaintiff's injuries have not materially altered or diminished the Plaintiff's level of intellectual functioning. The Defendant submitted that the residual effects of the Plaintiff's physical injuries are modest and the effects of the brain injury on the Plaintiff are not substantial. Whilst Mr Watson SC did not explicitly say so, such a submission implies that the assessment of the Plaintiff's damages for non-economic loss ought not be in a significant amount. That submission was based on an analysis of the Plaintiff's pre-accident school history and the analysis of the school history undertaken by Dr Roberts and Dr Smith.

In contrast, on behalf of the Plaintiff, Mr Cranitch SC has submitted that the Plaintiff's injuries have left him with severe and debilitating problems that will be ongoing for the rest of his life.

I do not accept the Defendant's non-economic loss submissions. In my view those submissions take an overly simplistic view of the nature and extent of the Plaintiff's problems. I consider that the Plaintiff's ongoing residual disabilities of a physical, cognitive and behavioural nature call for a substantial award of damages for non-economic loss to compensate the Plaintiff for the considerable loss of the amenity of his life. Although the evidence shows that the Plaintiff's pre-injury level of intellectual functioning was in the low average range, the superimposed consequences of his traumatic brain injury which included damage to the frontal lobes has caused a significant decrease in the Plaintiff's intellectual functioning.

The effect of the traumatic brain damage on the Plaintiff has been to leave him in a significantly different state compared to how he functioned before his injuries. He is now significantly and adversely affected by the memory and concentration impairments that I have already outlined. He suffers from depression, he is aggressive and has a mood disorder. He continues to have headaches. He has ongoing problems with his neck, back, left shoulder, left clavicle and left ankle. He is unable to hold down regular employment and he is now less able to control his temper when he is frustrated or irritated. I consider that in the future his problems with frustration will be aggravated by the inconvenience he will inevitably encounter when he is prevented from driving a motor vehicle, as Dr Buckley has predicted.

His head injury has been super-imposed on his pre-injury behavioural problems which stemmed from his pre-existing ADHD. The normal maturation process by which ADHD is predicted to recede in late adolescence or early adulthood has in his case been affected and impeded. This has occurred in conjunction with a frontal lobe disorder which has impaired his executive functions. In my view the Plaintiff could ill-afford the additional cognitive loss which has placed him at a lower level of cognitive functioning compared to how he was before his injury.

The Plaintiff still exhibits aspects of anti-social behaviour that he exhibited around the time he left school but now at a time when, but for his injury, the maturation process would have otherwise been expected to have resolved such conduct. I consider that his frontal lobe impairment has materially contributed to those events as is evident from the way in which he has obtained credit cards and has incurred substantial debts on those cards without making repayments.

In my view in combination these matters call for a substantial award of damages for non-economic loss. I include in my award of damages for non-economic loss a modest allowance for the frustration and inconvenience the Plaintiff is likely to encounter when he is ultimately prevented from driving a motor vehicle by reason of his concentration problems and the behavioural issues initiated by frustration and impulsivity.

In view of my findings as to the nature and extent of the Plaintiff's ongoing disabilities, permanent impairments and limitations caused by his injuries I consider that an appropriate award for damages for non-economic loss should be assessed in the sum of $250,000.

Having regard to the Plaintiff's limited education and to his relatively low level of pre-injury intellectual functioning I find that if he had not been injured his employment opportunities would most probably have been restricted to menial, semi-skilled or unskilled occupations along the lines expressed by Associate Professor Phillips. In my view the Plaintiff's limited education, his history of social dysfunction in his teenage years, including a conviction for a drug related offence, together with his limited pre-injury employment history would have created obstacles for him in finding and retaining secure long term employment. In my view this would have been the case especially since the Plaintiff had a form of ADHD and it would have taken several years for him to mature and to grow out of the employment limiting effects of that condition.

There was a disparate range of expert opinions as to the likely extent of the period over which the process of maturation would, in the ordinary course, operate to ameliorate the negative effects of any pre-existing ADHD-related behavioural difficulties.

The evidence discloses that at the time of his injury the Plaintiff was in steady employment and was coping with his work. Before his injury he had a girlfriend who gave unchallenged evidence in these proceedings. I infer from her evidence that had the injury not occurred and had they stayed together in that relationship or if the Plaintiff had a similar relationship, this would have had a steadying social influence on him. I infer from his subsequent engagement to Miss Steinhagen-Punti and their plan to start a family that this would have been the case.

The Plaintiff had left the school environment which he clearly did not like. In my view this would have lessened the difficulties he was likely to encounter with discipline and authority because he was no longer having to attend to activities in an environment in which he had no interest and which had caused him to react and behave poorly towards others, including to those in authority. In my view these circumstances would have enhanced the maturation process by reducing sources for conflict.

In those circumstances I find that it was more likely than not that but for his traumatic brain injury the Plaintiff would have gained significant benefits and stabilising insights from the process of maturation that comes with the passing of years. In my view these matters would have enhanced his ability to hold down steady employment. The process of maturation would necessarily have been gradual for the Plaintiff. Uninjured, I find that in the early years of his adult life the continuity of the Plaintiff's earning capacity would probably have been interrupted to some degree by limitations he carried over from his prior educational and social history, as well as from his previous level of social functioning and behaviour, including the effect of his underlying ADHD and the difficulty he experienced in dealing with authority.

It is necessary to determine the extent of any pre-injury potential for possible interruption to the continuity of the Plaintiff's employability due to the potential negative operation of any previous behavioural issues that might have impacted on his earning capacity. Necessarily, this is an imponderable factor but nonetheless it is one that warrants assessment.

Difficult though the task may be, in my assessment a discount of 15% on the Plaintiff's uninjured earning capacity is justified on account of these factors. In fixing this percentage by which to discount the Plaintiff's claim for past loss of earning capacity I have had regard to the fact that in the very early post-school years, i.e. around the time of the accident and shortly afterwards, the scope for any adverse impact from such factors may have been greater whereas in the later years closer to the time of the trial, uninjured the maturation process would have been more likely to have considerably lessened any negative impact of pre-existing behavioural issues on the Plaintiff's earning capacity. In this regard I prefer and accept the analysis of Associate Professor Phillips to the analyses put forward by Dr Smith and Dr Roberts.

Broadly, the competing arguments relating to such a discount are first, an acknowledgement of the force of the Defendant's submission that the Plaintiff's pre-injury behavioural issues would have had a negative impact on the Plaintiff's earning capacity as opposed to, secondly, the counterbalancing factor contended for by the Plaintiff, namely that at the time of the accident he had held down employment with Sydney Prestige for a significant period together with the stabilising effect of a relationship which are matters to be considered in the Plaintiff's favour. In my view, a discount of 15% strikes a reasonable balance between the competing arguments and I consider this approach to be fair to both parties.

Some evidence of an appropriate yardstick by which to measure the Plaintiff's potential pre-accident earnings emerged from the tender of two reports of Dolman Bateman & Co Pty Ltd that were marked as Exhibits "M" and "N". These reports are respectively dated July 2004 and November 2007. These reports suggest that the net value of a combination of the two industrial awards cited by the author as being applicable to the motor vehicle industry over the 418 weeks in the period from the date of the Plaintiff's injury on 6 June 2000 until the commencement of the trial on 19 May 2008 is $189,835. That figure was arrived at by extrapolating the calculations set out in Annexure A of Exhibit "N" to allow for the additional 26 weeks between 20 November 2007 and 19 May 2008 at the rate of $671.85 per week net to upgrade the calculations to make them current to the time of the trial.

Given the Plaintiff's very limited educational achievements and his lack of any previous experience in skilled employment I believe that the full measure of the figure emerging from Exhibit "N", which is based on a calculation of the net value of industrial awards applicable to the motor vehicle industry, represents far too high a yardstick by which to measure the Plaintiff's past loss of earning capacity. Although it may appear to be arbitrary, I consider it is necessary to reduce the level of the figure extrapolated from Exhibit "N" to reflect the Plaintiff's likely relatively low level of earning capacity as an unskilled worker before his injury. Given the absence of any direct evidence as to rates for unskilled adult earnings more in keeping with the Plaintiff's pre-injury situation, I propose to make a reduction from the higher rate relied upon by the Plaintiff. First, the number of weeks in respect of the period claimed must be reduced from 418 weeks to 417 weeks : s 24 of the Motor Accidents Compensation Act 1999. Secondly, I consider the appropriate average weekly wage figure for this period to be $400 per week net after making the reduction to which I have referred. This is a little higher than the Plaintiff's pre-injury earnings of $350 per week net. The calculation of $400 per week net over 417 weeks yields the amount of $166,800.

Having assessed that sum it is necessary for me to give effect to my earlier finding that uninjured, and as a consequence of the impact of his pre-existing behavioural issues and his pre-existing level of maturity, uninjured the Plaintiff's earning capacity would have been reduced by 15% in any event. I therefore apply a 15% discount to the assessed sum of $166,800 to reflect my finding that the Plaintiff's pre-injury earning capacity would have been affected to some degree by his pre-injury situation. The application of that discount yields the sum of $141,780. In applying that measure of discount I am conscious of the possibility that it may be thought that I have applied an excessive discount, although I do not believe this to be the case. To allow for that possibility I round up and adjust my assessment from $141,780 to the sum of $145,000.

My earlier review of the chronology of the Plaintiff's post-injury net earnings reveals that insofar as the extent of such earnings can be ascertained, they amount to $27,109.53. Allowing for the possibility that not all of the Plaintiff's post-injury earning have been identified in the evidence, I round the net figure of $27,109.53 up to a net figure of $30,000.

When the Plaintiff's estimated net post-injury earnings are offset from the assessed potential past net earnings but for the injury, the difference is revealed to be $115,000. I assess the Plaintiff's claim for past loss of earning capacity in the net sum of $115,000.

The Plaintiff is presently aged 26 years and as such his claim for future loss of earning capacity requires assessment over the remaining period of a further 39 years to when the Plaintiff reaches the age of 65 years.

In my view the yardstick by which the Plaintiff's claim for future loss of earning capacity should be measured is in the amount of $550 per week net before any discount for the impact of adverse vicissitudes. This amount is different to the sum assessed for past economic loss at $400 per week because the latter sum is an average taken over 417 weeks or 8 years whereas the former sum is higher as it is more relevant to the time of the assessment date.

I have selected the sum of $550 per week net from that portion of Exhibit "W" which identifies the annual salary for employment with Go Electrical Pty Ltd at $33,000 per annum gross or $634 per week gross. After considering the applicable published tax scales it appears that in round figures, the gross weekly sum of $634 is the equivalent of about $550 per week net. I have approached the assessment in this way because I am of the view that the published rates for average weekly earnings represent too high a yardstick for the Plaintiff's particular pre-injury situation and his future prospects uninjured. I also consider that the rates set out in the report from Dolman Bateman & Co Pty Ltd which is Exhibit "N" are based on motor vehicle industry awards that have not been shown to be representative of the Plaintiff's pre-injury earning capacity.

Adjustments are required to be made against any projection of the Plaintiff's future loss of earning capacity to allow for a number of discounting factors. Without attempting to undertake an exhaustive analysis of such discounting factors, these include what I infer to be limited labour market opportunities for unskilled menial and manual workers with limited education, the Plaintiff's low average level of pre-injury intellectual functioning as well as the potential for unskilled and semi-skilled menial workers to have a limited ability to maintain longterm employment in carrying out menial work as they grow older because of the physical demands of such work. In my view such matters would ordinarily call for a higher than usual discount for adverse vicissitudes. I consider that vicissitudes of this kind would probably have operated against the Plaintiff even if he had not been injured. I assess those adverse vicissitudes at 20%.

The projection of $550 per week net over 39 years between age 26 and age 65 at 5% (x 902) yields the sum of $496,100. After applying a discount of 20% to reflect the likely impact of adverse vicissitudes that I consider would probably have operated against the Plaintiff over the remainder of his potential working life to age 65, this yields the sum of $396,880.

The assessed sum of $396,880 does not include any allowance for the Plaintiff to retain a potential residual earning capacity. Any assessment of the Plaintiff's future loss of earning capacity must include an offset to allow for the possibility and likelihood of any retained residual earning capacity despite the impact of his injury-related disabilities. In this regard I consider that the Plaintiff retains only a very limited residual capacity. I find this to be the case because of the combined effect of his ongoing physical and cognitive disabilities. His physical problems include a restriction on excessive lifting movements of his left shoulder and restrictions concerning his right ankle. His cognitive deficits of memory concentration and behavioural restraint are significant factors that detract from a residual earning capacity. As difficult as the exercise might be to place a monetary value on any residual capacity I must do the best I can on the material available.

I consider that over his lifetime, especially in the short term in view of his present expressed keenness to find work, the Plaintiff will probably obtain broken periods of low paid employment of short- term duration. I consider that in the medium to long term, entrenched unemployability will more probably than not set in for the Plaintiff. In arriving at this view I have been guided by the opinion of Associate Professor Phillips concerning the Plaintiff's economic future. I consider that the Plaintiff's employability will also be restricted by his inability to provide references of satisfactory employment over time. I also consider that over time his physical capacity for the exercise of a residual earning capacity will progressively lessen. He is presently significantly limited in his ability to perform repeated or heavy work with his right shoulder. His sitting, standing and walking capacity is reduced. I reject the suggestion that the Plaintiff is suited to do the work of a security guard. I come to this view because of his volatility and impaired behavioural restraint due to his head injury. Overshadowing all of these matters are his cognitive impairments, particularly his problem with memory, concentration and impulsivity.

Difficult as it is to strike a balance on the issues, I assess the Plaintiff's residual earning capacity, expressed as an average over the remainder of his theoretical working life to age 65 years to be in the amount of $50 per week net. I find that the probability is that the Plaintiff will have significant periods of unemployment over his working life and will probably only be able to find intermittent work of very short duration that is poorly paid. I find that this residual earning capacity is likely to be restricted in large part to the short to medium term. Understanding employers like Mr Dunlop are rare but they too will have limits on their tolerance for an inability of an employee such as the Plaintiff to be productive, stay focussed and behave appropriately.

The projection of a $50 per week residual earning capacity over 39 years at 5% (x 902) yields $45,100.

I observe that adverse vicissitudes will not always operate adversely only against the plaintiff. Vicissitudes sometimes operate against Defendants : Wynn v NSW Ministerial Corporation [1995] HCA 40; (1995) 184 CLR 485 at 497 citing Bresatz v Przibilla [1962] HCA 54; (1962) 108 clr 541 at 544 per Windeyer J. Having regard to the Plaintiff's limited pre-accident education and level of functioning I find that the prospects of the Plaintiff obtaining mitigatory residual earnings of the order of $50 per week net over the remainder of his theoretical working life to be quite modest. I therefore believe that the assessed residual earning capacity of $50 per week should be discounted to reflect the vicissitudes operating adverse to the interest of the Defendant in this case. I assess that discount for such vicissitudes to be 25%. The resultant estimation of the Plaintiff's projected residual earning capacity is therefore 75% of $45,100, namely $33,825.

In applying the offset of $33,825 from the projected loss of earning capacity of $396,880 to reflect my finding concerning the Plaintiff's residual earning capacity, the resultant assessment of the Plaintiff's future loss of earning capacity is in the sum of $363,055.

In conformity with my assessment of damages for past loss of earning capacity it is necessary to assess damages for the value of past loss of employer funded superannuation contributions. In the absence of precise expert actuarial evidence calculating superannuation losses on the basis of the amount assessed for past loss of earnings, I will use a rule of thumb calculation to identify this loss by applying a factor of 11% to past loss of earnings to reflect the value of past superannuation losses : Ghunaim v Bart [2004] NSWCA 28. Accordingly, applying my finding that the assessed value of the Plaintiff's claim for past net loss of earnings is in the amount of $115,000 and applying a factor of 11% to represent superannuation contributions, I find the value of the Plaintiff's past employer funded superannuation losses to be $12,650.

Consistent with my assessment of the value of lost past employer funded superannuation benefits I find the Plaintiff has lost the value of future employer funded superannuation benefits which calls for a monetary assessment of that loss. Given that I have assessed the Plaintiff's future loss of earning capacity at $363,055, applying the same method of calculation employed to assess the loss of past superannuation, namely a factor of 11%, I find the value of the Plaintiff's future employer funded superannuation losses to be $39,936.

The Plaintiff contends that there should be an award of $25,200 for the value of past domestic care services that were provided to him gratuitously by his mother after he was discharged from hospital. The method by which the Plaintiff calculates that submission is based on an average rate of $20 per hour for 6 hours per day for the first 7 months post-injury, equating to 30 weeks.

Section 128(2) of the Motor Accidents Compensation Act, 1999 provides that no compensation is to be awarded for domestic care services if those services are provided for less than 6 hours per week and for less than 6 months. Section 128(4) requires that the amount of such compensation must not exceed the statutory rate. The maximum amount per week that can be claimed is 40 hours.

The Defendant submits that any past care provided to the Plaintiff would have been for less than 6 months. The Defendant therefore submits that this aspect of the Plaintiff's claim must fail. In the alternative the Defendant submits, incorrectly, that the statutory rate in the second half of 2000 was $17.25 per hour which is the equivalent of $690 for 40 hours.

I am required to assess such damages at an amount not in excess of the statutory rate rather than at the rates submitted by the parties where there is a difference between those rates and the statutory rate. The annexed Table 1 to these reasons sets out the applicable statutory rates and the calculated value of 40 hours per week over the 7 month period claimed. Having identified the rate at which such compensation is to be assessed it is necessary to review the justification for assessing damages for past attendant care services provided to the Plaintiff on a gratuitous basis.

The Plaintiff's mother, Mrs Siham Saleh gave evidence of two identifiable post-injury periods during which she performed domestic or attendant care services for the Plaintiff.

In respect of the first period she said that when the Plaintiff returned home from hospital, which is identified from the hospital notes identify as being on 3 July 2000, she did everything for him for a period of about four months. Her description of "everything" was left undefined as to the amount of time spent by Mrs Saleh on specific tasks that she was required to carry out in order to care for the Plaintiff.

In the second period beyond that initial period of four months and for a further period of 3 months Mrs Saleh said she had to teach the Plaintiff how to hold things and how to move objects. In respect of this second period Mrs Saleh stated that she used to give the Plaintiff a bath, change his clothing and try to teach him how to carry out tasks that he had forgotten. Mrs Saleh described how since she did not work and was always at home she remained next to the Plaintiff in case she was needed. She further stated that she could not leave him alone or let him go outside during that second period. She described how the Plaintiff would quickly become very angry, cry and get frustrated and become very nervous. I infer that she, or someone in the family would also have taken the Plaintiff to the various appointments that were made for him from time to time.

Mrs Saleh's evidence was not specific as to how many hours she expended in the course of caring for the Plaintiff in those seven months. She gave her evidence through an interpreter so I was not able to make a direct assessment of the content of her evidence before it was interpreted. The question then is whether I should infer from her translated description of what she did in the care of her son in those seven months that such care amounted to care for at least 6 hours per day for at least 6 months and arising from an injury related need.

I accept Mrs Saleh's evidence as being a truthful account of what she did by way of assisting her son during the seven months following his discharge from hospital. The tasks she described seemed to me to be in conformity with what one would expect to have been required when looking after someone who had suffered a fractured ankle as well as having brain damage. I observe that the Prince of Wales Hospital notes Exhibit "B(5)" in respect of the period just before the Plaintiff was discharged home refer to balance problems, ambulatory problems and memory problems. These matters, together with the need to assist with management of the Plaintiff's anger and frustration, re-teaching him basic things like holding and moving objects, bathing him and prompting him about things he had forgotten in my view all bespeak many hours of care and assistance and justify the description "everything". I infer that if the Plaintiff had been an in-patient at the Brain Injury Unit at that time the care he would probably have received there would have involved at least the equivalent hours.

Given the Plaintiff's situation at that time and given the services that Mrs Saleh described in her evidence I find that following the Plaintiff's discharge from hospital the care she provided to him exceeded the 6 hours per week for 6 months threshold required by s128(3)(a) of the Act. I find that such care was in fact provided for 6 hours per day, on each day over a period of the first 7 months following discharge from hospital. No claim has been made beyond that date. This amounts to 42 hours per week however only 40 hours per week are claimable.

Having accepted that the Plaintiff required 6 hours of attendant services per day for seven months following his discharge from hospital, I assess the Plaintiff's claim for past domestic services that were provided to him gratuitously by his mother to be as set out in Table 1 in the amount of $20,846.

The Plaintiff makes a future claim for the value of the assistance of a person "to organise his life on a daily basis providing lists and checking up on tasks that the Plaintiff was required to carry out" for an estimated 1 hour per day. The Plaintiff claims the commercial cost of such services at $35 per hour for the remainder of his life. I consider that hourly rate to be reasonable.

The Defendant submits that the medical evidence suggests that the Plaintiff does not need any care of this kind at all. The Defendant further submits that there is nothing in the evidence which could support a suggestion that care was necessary for more than 6 hours per week in which event the threshold provided by s.128(3) of the Act would be met.

The Defendant relies upon the opinion of Dr Zeman which is to the effect that the Plaintiff does not require any domestic assistance. I do not accept Dr Zeman's opinion in this regard because I consider that in arriving at that opinion he has had insufficient regard to the Plaintiff's ongoing cognitive impairments that result from his traumatic brain injury.

On behalf of the Defendant it has been submitted that in respect of future care generally, there is no evidence that the Plaintiff has received assistance of any kind since about the end of 2000 and therefore no allowance should be made for this head of damage. I do not accept that submission since there is evidence from the Plaintiff's fiancée, Miss Steinhagen-Punti, to the effect that the Plaintiff is forgetful to the extent that she has to remind him of events that have recently occurred, for example, even movies he has seen with her. She described how he needed reminders to pick up the mail. She described how she had to intervene to defuse his reaction to people because he readily took offence and could not see the humour of situations. She described how she had helped him to build new social relationships which is consistent with the accounts recorded by Dr Wan to the effect that the Plaintiff had lost some of his social connections. She also described how she had to assist him with daily organization of things such as his clothing, his licence, his car keys, his money for the day, because he was forgetful. She also assisted him with directions whilst driving.

I accept Miss Steinhagen-Punti's evidence as to the nature and extent of the assistance she provides the Plaintiff as it appears to me to be reasonably framed around the Plaintiff's cognitive impairments and it appears consistent with what someone with the Plaintiff's earlier described post-accident sequelae would need to have provided to him in order to assist him to achieve a modicum of function day to day where the impact of his frontal lobe injury has impaired his ability to achieve this for himself independently.

I therefore allow the sum of $35 per day, 7 hours per week for future domestic care services which equates to $245 per week. I find the plaintiff will require this assistance for the remainder of his life particularly since there is no evidence that the effects of his brain injury will be the subject of further improvement. I consider that this sum is reasonable particularly since no claim has been made for a case manager either of the regular supervisory type or the drop-in type which if claimed would have called for a much higher level of damages for those services. The projection of $245 per week over 59 years at 5% (x 1009.3) yields $247,278. I assess the Plaintiffs damages for future domestic care services in the sum of $247,278.

The report of Dr Buckley, Exhibit "B(2)" at page 9 includes the opinion that the Plaintiff's right ankle is likely to slowly develop osteoarthritic changes as a result of the fracture the Plaintiff sustained. Whilst Dr Buckley does not identify any specific medical treatment for this prognosis I believe it would be reasonable to allow the Plaintiff a reasonable sum to reflect the likely cost of periodic general medical and specialist consultations for management of likely future ankle problems.

The evidence to the contrary is found in the orthopaedic report dated 20 June 2006 from Dr John Cummine, Exhibit "16(4)" at page 4 where Dr Cummine comments that it is not possible to comment on the likelihood of the Plaintiff's fracture being complicated by premature post-traumatic osteoarthritis. I find that statement to be based on an illogical consideration concerning prematurity of osteo-arthritis as there would be no likelihood of post-traumatic osteoarthritis developing without the antecedent injury. Accordingly, I do not accept Dr Cummine's view.

I find the report dated 25 July 2006 from Dr Zeman, Exhibit "15(6)" to be non-contributory to this issue.

I also take into account the Plaintiff's need for painkilling medication for his headaches. It is foreseeable that the time will come when he can no longer take the tablets that have been prescribed for his mother and it is unsatisfactory that he does so in any event. I consider that he will need to regularly attend a doctor for the purpose of obtaining prescription for such medication.

Despite the absence of evidence concerning the cost of such treatment, I am nevertheless required to attempt an assessment of damages to allow for the prospect of medical treatment being required to manage the Plaintiff's likely osteoarthritis of the right ankle.

Notwithstanding the absence of direct evidence as to the cost of possible treatment to the right ankle, doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant, I allow the Plaintiff the sum of $10,000 towards the cost of possible future medical consultations and treatment of his right ankle. This is the equivalent of approximately $10 per week. I assess the Plaintiff's damages for future medical treatment in the sum of $10,000.

The Plaintiff suffers from the ongoing effects of headaches, impaired concentration, depression, aggressiveness and behavioural mood disturbance. These are matters that should not be permitted to remain without some form of regular review and therapeutic intervention. The report dated 14 October 2006 from Dr Watson, Exhibit "17(7)" at page 4 identifies the fact that there are non-pharmacological therapies, that can be directed at those issues. I infer from this that he was referring to paramedical treatments. I consider that these problems justify an allowance for the possibility that the Plaintiff will need future psychological consultations to assist him to manage his post-traumatic brain injury problems that I have outlined above. I accept the appropriateness of Dr Delaney's suggestion in this regard.

The Plaintiff's problems with his memory and his frustrations which flow from his head injury are unlikely to recede and will most probably require management strategies that could be beneficially provided by intermittent contact with a skilled psychologist. Also, I do not ignore the prospect that the Plaintiff may eventually require some physiotherapy treatment for osteoarthritis in his right ankle. Notwithstanding the absence of evidence as to the incidence, likely timing and cost of such possible paramedical treatments, doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant I allow the Plaintiff the sum of $12,500 towards the cost of possible future paramedical treatments. This is the equivalent of $650 per annum. I assess the Plaintiff's damages for future paramedical treatment in the sum of $12,500.

The evidence discloses that in order to treat his recurring headaches the Plaintiff has been taking painkilling tablets such as Panadol and Panadeine Forte which had been prescribed for his mother. As such these medications are available to him in his mother's home where he presently resides. As a consequence, the Defendant argues that as the Plaintiff has not previously incurred expense in this regard, it is therefore unlikely he will do so in the future. On the other hand, the evidence discloses that the Plaintiff and Miss Steinhagen-Punti are engaged and are planning a family. From this I infer they will eventually have their own household and the painkillers ordinarily kept in the home of the Plaintiff's mother, who appeared to me to be in her sixth decade, will no longer be available to him without cost. In any event, it is inappropriate that the Plaintiff relies on his mother's supply of painkilling medication.

In the absence of evidence as to the specific costs of such medication I propose to allow a lump sum to defray the cost of the Plaintiff's future need for pain killing medication in the rounded sum of $7,500. I test the reasonableness of this sum by noting that over the ordinary course of the Plaintiff's life expectancy of 59 years this sum is the equivalent a little less than $7.50 per week. I therefore assess the Plaintiff's reasonable injury-related need for future medications in the amount of $7,500.

There is evidence that the Plaintiff should not be driving a motor vehicle on account of the effects of his traumatic brain injury.

The issue was first raised by the Plaintiff's treating neurologist Dr Presgrave. More recently, this issue has arisen in Exhibit "B(2)" which comprised a report dated 28 February 2006 from Dr Stephen Buckley, a rehabilitation specialist. At page 10 of his report Dr Buckley stated: " Driving

Given the level of cognitive impairment identified on the clinical neuropsychological assessment, and in particular, the impaired concentration, I remain concerned that Mr Mahony continues to drive. I think it unlikely that he will be permitted to continue driving for the indefinite future as it is likely that his reduced concentration will result in accident, and/or infringement and it is likely that ultimately he will lose his licence."

On the third day of the trial the issue of the Plaintiff's driving licence which emerged from Dr Buckley's report was drawn to the attention of counsel, noting that no claim relating to that matter had been raised in the particulars of claim. No further evidence was called in relation to this issue, nor was Dr Buckley's opinion on the driving issue challenged. Notwithstanding this evidence no claim was made in this regard. In my view it is not a sufficient answer to the issue to say that the Plaintiff has been driving a vehicle in any event. This state of the evidence raises a potential for injustice to the Plaintiff because on one view there is uncontroverted evidence that there is a medical concern over the Plaintiff continuing to drive. Dr Buckley's opinion is that ultimately, for the reasons he has described in his report, it is unlikely the Plaintiff will be able to drive indefinitely and that ultimately he will lose his licence. I accept Dr Buckley's view for the reasons he states. I find that the Plaintiff will probably lose his licence in the not too distant future by reasons of his behavioural and concentration problems that result from his traumatic brain injury.

This state of the evidence and this finding creates a dilemma for the assessment of damages. Having come to the conclusion that the Plaintiff will probably lose his licence, in my view this gives rise to an injury based need for transportation costs on the basis that the Plaintiff will in the not too distant future, be no longer permitted to drive a motor vehicle. The likely consequential costs that would arise from such a circumstance could be estimated on a number of potential bases within a spectrum ranging from the regular cost of taxis to the possibility that at the age of 26 the Plaintiff may need to be provided with driving services either at a commercial hourly rate or gratuitously. Either way, in my view such services could arise to be costed over a significant period of the Plaintiff's remaining years. On the other hand, if I were to undertake a monetary assessment of the issue in the absence of a particularised claim supported by submissions, this would cause prejudice to the Defendant.

Doing the best I can to do justice between the parties, having accepted the opinion of a medical specialist whose role it is to assess such issues, to the effect that the Plaintiff is impaired in his capacity to drive on account of his reduced concentration and will ultimately lose his licence, I have decided to take this issue into account in my assessment of the Plaintiff's entitlement to damages for non-economic loss.

I therefore make no specific allowance for future transportation costs but I have made a modest allowance within my assessment for non-economic loss to reflect a measure of inconvenience that the Plaintiff will encounter in this regard, and which is likely to continue to adversely affect the amenity of his life.

Past out-of-pocket expenses 600. The total of the Plaintiff's past out-of-pocket expenses have been mathematically agreed by the parties to be in the sum of $4,633.25. I find this sum to be reasonable and I assess The Plaintiff's out-of-pocket expenses in the sum of $4,633.

601. The Plaintiff has made a claim for funds management charges claiming that his traumatic brain injury has damaged his capacity to invest and manage his funds. The Defendant contests the Plaintiff's entitlement to such damages.

602. It is necessary to survey the evidence on the issue of the Plaintiff's financial competence and his need for assistance with funds management.

603. On 14 July 2003 the Plaintiff was assessed by Dr Patrick Chew at the request of Centrelink. The product of that assessment was tendered as Exhibit "D" in the proceedings. Following his assessment of the Plaintiff Dr Chew concluded that the Plaintiff had no problems with simple calculations and banking.

604. The Plaintiff gave brief evidence that he had some problems managing his finances and as a result has incurred debts. His evidence in this regard was as follows: "Q. You have told us that you have difficulties with memory and so forth. Have you also had some problems in terms of managing your finances and things like that? A. Yeah.

Q. How has that played out? What's happened? A. Just - just not having a job all the time and I can't - I can't like save money and if I--

Q. Have you got yourself into some pretty solid debt? A. Yeah, that's what I mean, yeah.

Q. That has been since you've had this accident, has it? A. Yes.

HIS HONOUR: Do I need to know more about this, Mr Cranitch?

CRANITCH: No, your Honour, I suspect not. The plaintiff sues by a tutor as your Honour might have observed. It's a borderline case in my view and I was hoping I would be able to adduce some evidence about that. He certainly has some problems."

605. It is common ground that the Plaintiff has incurred substantial debt by not paying off his credit card debts.

606. The evidence of the Plaintiff's mother on the issue of the Plaintiff's financial competence was limited to a reference to the Plaintiff's forgetfulness when asked to pay the rent for her on one occasion. The Plaintiff's brother did not give any evidence concerning the Plaintiff's financial competence. The evidence of the Plaintiff's fiancée was focussed upon the Plaintiff's forgetfulness which led her to have to organise his belongings for him, including his money for the day. This evidence did not deal with the Plaintiff's competence.

607. A survey of the medical opinions in the case on the subject of the claim for funds management is informative.

608. Dr Buckley did not express an opinion on the issue of funds management. The treating psychiatrist, Dr Benjamin and the treating neurologist, Dr Presgrave, expressed no opinions on the issue either. Dr Kaplan's report did not deal with the issue. The Brain Injury Unit clinical psychologist, Mr Delaney, did not mention the issue in his assessment report.

609. Dr Zeman's opinion on the issue of financial management was: "On his general presentation during the assessment, I would not consider that he requires financial management as a result of the accident. He did not do well at school before the accident and on the basis of that alone would be likely to obtain some benefit from financial management. However, this does not mean the accident caused a need for this."

610. Associate Professor Phillips addressed the issue in the following terms: "On the basis of my assessment of Mr Mahoney, and taking into consideration all other information now available to me, I advise that the Plaintiff is so impaired as to require a Tutor to be appointed to provide instruction. Further the plaintiff will be at risk of dissipating any moneys awarded to him. In keeping with this, control will need to be exercised in the longer term over his financial affairs."

611. In his oral evidence Associate Professor Phillips expressed his concern over the Plaintiff's lack of response to his credit card debt obligations in the context of the problems associated with the Plaintiff's frontal lobe disorder.

612. In oral evidence Dr Smith agreed that the Plaintiff would need help managing his finances because of his impulsivity and his cognitive problems. Dr Smith agreed that the Plaintiff's problem was one of management. Dr Roberts noted the views of Associate Professor Phillips concerning the risk of funds dissipation and a need for control over the Plaintiff's financial affairs but offered no views of her own on the subject.

613. The Defendant submits that the Plaintiff has not made out a case for an award of damages for funds management charges. That submission is based upon several bases, namely; (a) There is a question raised as to whether the injury or " congenital and cultural issues " caused the need for funds management;

(b) There is no difference in the Plaintiff's intellectual function due to the injury;

(c) Although the Plaintiff would benefit from some financial advice, his long history of irresponsibility would have necessitated assistance with funds management in any event.

614. In contrast, the Plaintiff's submissions rely on the cited opinion of Associate Professor Phillips. On behalf of the Plaintiff it is submitted that a decrease in the Plaintiff's intellectual functioning and associated frontal lobe problems caused by the injury would justify an award of damages for funds management.

615. I have concluded that superimposed upon the Plaintiff's pre-existing low average borderline intelligence the collision has caused the Plaintiff to suffer a traumatic brain injury that has exacerbated and extended the Plaintiff's pre-existing behavioural issues by affecting the frontal lobes. The Plaintiff now suffers from problems with memory, concentration and behavioural impulsivity. His cognitive functioning has declined as a result of his brain injury. He has already demonstrated financial incompetence by incurring substantial debts on his credit cards. In these circumstances I do not accept the Defendant's submissions to the effect that pre-existing "congenital and cultural issues" and the Plaintiff's long history of irresponsibility have necessitated the need for funds management assistance. Nor do I accept the Defendant's submission that there has been no difference in the Plaintiff's intellectual functioning due to his injury. The Plaintiff's pre-existing behavioural irresponsibility relied upon by the Defendant did not extend to financial matters. Irresponsibility of that kind only emerged after the Plaintiff had incurred brain damage.

616. In these circumstances I consider the recommendation of Associate Professor Phillips for there to be control on the Plaintiff's financial affairs to address and avoid the risk of the Plaintiff dissipating his funds to be an appropriate recommendation in the Plaintiff's circumstances. I prefer the opinion of Associate Professor Phillips on the issue of funds management to that of Dr Zeman whose opinion was based on the Plaintiff's general presentation rather than on a full appreciation of the effects of the Plaintiff's brain damage on his intellectual functioning.

617. Accordingly, I find that the Plaintiff's brain damage has rendered him unable to manage his financial affairs so as to require that his compensation funds to be managed on his behalf. I find that this will incur expense for the Plaintiff for which he should be compensated.

618. Accordingly, I propose to follow the approach taken by Bell J in Russell v Rail Infrastructure Corporation [2007] NSWSC 447 following Nominal Defendant v Gardikiotis [1996] HCA 56; (1996) 186 CLR 49. It follows that the Plaintiff is entitled to an assessment of damages for the cost of funds management over his lifetime in accordance with the principles stated in Willetts v Futcher [2005] HCA 47; (2005) 221 CLR 627.

Summary of assessment 619. My assessment of the Plaintiff's damages claim is summarised as follows:

(a) Non-economic loss $250,000 (b) Past loss of earning capacity $115,000 (c) Future loss of earning capacity $363,055 (d) Past loss of superannuation $12,650 (e) Future loss of superannuation $39,936 (f) Past domestic care services $20,846 (g) Future domestic care services $247,278 (h) Future medical treatment $10,000 (i) Future paramedical treatment $12,500 (j) Future pharmaceutical costs $7,500 (k) Future transportation costs Nil (l) Past out-of-pocket expenses $4,633 (m) Funds management charges (To be assessed) Total interim assessment $1,083,398

620. I have concluded that: (a) The Plaintiff was injured as a consequence of the negligence of the driver of an unidentified motor vehicle;

(b) There was no contributory negligence on the part of the Plaintiff;

(c) Due search and inquiry has failed to identify the owner and driver of the unidentified motor vehicle;

(d) The Plaintiff is entitled to an award of damages for his injuries including a component of damages for funds management charges;

(e) Damages should be assessed on an interim basis in the sum of $1,083,398 excluding any allowance for funds management charges.

621. I make the following interim orders: (a) I direct the entry of a verdict in favour of the Plaintiff in the sum of $1,083,398;

(b) I defer the entry of final judgment and I defer making any orders for costs pending the assessment of damages for funds management charges;

(c) I direct the proceedings be listed before me on 22 May 2009 for the purpose of making consequential orders by consent or, in the absence of consent, to enable a date to be fixed for further evidence and argument on the issues of funds management charges and costs.

WEEKLY PERIOD WEEKS s.128(4) AMOUNT RATE 1. 03.07.2000 to 18.08.2000 06.57 $673.00 $4,421.61 2. 19.08.2000 to 17.11.2000 12.85 $689.90 $8,865.21 3. 18.11.2000 to 03.02.2001 11.00 $687.20 $7,559.20 30.42 $20,846.02

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