Medical and allied assessments
185The Wollongong Hospital notes recorded that the plaintiff had suffered a brief loss of consciousness, and that he was perseverating about wanting a drink of water: Exhibit "V", p 21. The plaintiff was showing signs of neurological irritability, noise sensitivity and photosensitivity: Exhibit "B", p 23.
186At Wollongong Hospital, on the day of the accident, a CT scan of the brain was carried out which identified possible para-falcine subdural [injury] anteriorly, with possible bi-frontal contusions inferiorly. An MRI scan was recommended for a more definitive diagnosis: Exhibit "B", p 158A.
187On the day following the accident, an MRI scan was performed, which was reported as showing ill-defined high signal change involving the inferior portion of the frontal lobes bilaterally, particularly the gyrus rectus and orbito-frontal gyrus bilaterally slightly more marked on the left. The appearance was reported as being suggestive of contrecoup contusions: Exhibit "B", p 160.
188The plaintiff was then transferred to the Sydney Children's Hospital for neurosurgical care. He remained there from 1 February 2007 to 7 February 2007.
189There the plaintiff was complaining of pain in his head. He had a Glasgow Coma Score of 14/15. By that time, in addition to the earlier described injuries, it was observed that the plaintiff had extracranial haematoma and bilateral frontal contusions. At that time he was under the care of Dr Warwick Stenning, a paediatric neurosurgeon. The plaintiff remained in that hospital for neurological observations, and after his condition improved, he was discharged on 7 February 2007. He was assigned a post-traumatic amnesia score of 12/12. Follow-up arrangements were made for him to be seen by a neurosurgical team at Wollongong Hospital.
190The Sydney Children's Hospital draft discharge summary contained a reference to the speed of the defendant's vehicle as being about 20kph at the time the plaintiff fell backwards. That document also refers to the plaintiff having lost consciousness at the scene for about 2 minutes and that he was then able to walk with an ataxic gait: Exhibit "B", p 135. The source of that information is not clear on the evidence.
191The plaintiff's early progress at the Sydney Children's Hospital was hindered by persisting headaches, nausea, vomiting, irritability and disturbed sleep patterns. The diagnosis on discharge was occipital skull fracture with subgaleal haematoma, small bilateral frontal brain contusions, and abrasions to the head: Exhibit "B", p 135. The period of the plaintiff's post-traumatic amnesia was 6 days: Exhibit "B", p 1.
192On discharge from hospital on 7 February 2007, the plaintiff was referred for specialist neurological and paediatric follow-up, and a brain injury rehabilitation program. He then rested and did not resume school for about 2 months post-injury, and he had to refrain from engaging in contact sports.
193The plaintiff was initially admitted into a rehabilitation plan on 14 February 2007. He was assessed on 27 February 2007, at which time a history of fatigue, getting "cranky quicker", intolerance of loud noise, anxiousness about returning to school, and loss of the senses of smell and taste. A gradual return to school was arranged with a view to increasing the plaintiff's tolerance for attendance. During the initial phase of rehabilitation monitoring, it became apparent that the plaintiff was continuing to suffer from fatigue, headaches, and was often confused, and at a loss to know what to do: Exhibit "B", pages 1 - 2. Memory problems and difficulty comprehending instructions were noted in March 2007: Exhibit "B", p 2A.
194On 7 March 2007, at the request of the treating general practitioner, and in conjunction with the involvement of the rehabilitation team, the plaintiff came under the care of Dr Steve Hartman, a consultant paediatrician: Exhibit "B", pages 161 - 173. Dr Hartman noted signs in the plaintiff of mild left-sided hemiplegia, impairment of the senses of smell and taste, change of personality, the plaintiff was easily frustrated, lethargy and problems with concentration. Dr Hartman saw the plaintiff again in 2008 and in 2009.
195In the meantime, on 10 May 2007, the plaintiff consulted Dr Anna Mandalis, a clinical neuropsychologist. She noted that the plaintiff's school had modified his workload but he was experiencing perseveration when tired, he stayed up at night worrying. He complained of fatigue and anxiety about his homework and this affected his mood considerably. She noted the plaintiff was self-conscious about being considered to be "different" as a result of the effects of the accident, and it was noted that he was unable to concentrate for lengthy periods, and thus missed out on new learning: Exhibit "B", p 147.
196On 31 May 2007, Dr Mandalis undertook a more detailed clinical evaluation of the plaintiff with the benefit of background information from an earlier medico-legal assessment that had been arranged by the CTP insurer. Dr Mandalis recorded an array of difficulties that the plaintiff was encountering. These included excessive tiredness, difficulty staying awake on weekday mornings, confused, forgetful about bringing home notes from school, liable to episodes of staring, and difficulty concentrating in the presence of external noise: Exhibit "B", pages 147A - 147D. Whilst she noted that the plaintiff was in the early stages of improvement in his deficits, she nevertheless made a series of some 20 recommendations for coping strategies to assist him with his progress for learning and behaviour management: Exhibit "B", pages 147G - 147I.
197By 5 October 2007, the rehabilitation plan for the plaintiff, which involved paediatric and brain injury specialists, was focussed on providing him with assistance with learning difficulties, seeking to improve the function in his left arm, and assessing his further needs: Exhibit "B", pages 3 - 5. On 31 October 2007, it was recommended that the plaintiff be given access to additional learning support and tutoring to address his learning difficulties that were recognised as being due to his traumatic brain injury. In that regard, it was noted that he was having difficulties with spelling, mathematics and English: Exhibit "B", p 5.
198On 20 February 2008, the plaintiff was reassessed by Dr Hartman. He noted a persistent Fogg's sign on the left side, consistent with a mild left hemiparesis: Exhibit "B", p 170.
199On 27 April 2008, a rehabilitation progress report noted that a well co-ordinated rehabilitation programme was required because of timetabling. Tutoring was arranged for mornings to address the plaintiff's problem with fatigue, but it was noted that the plaintiff was struggling to keep up with the class, and that he was having difficulty with organisation and planning skills. It was also recommended that the plaintiff be provided with psychological assistance in dealing with his injury related difficulties and frustrations: Exhibit "B", pages 6 - 7.
200The rehabilitation plan for April to September 2008 continued to provide for the plaintiff to have assistance to address his learning difficulties, his left arm function, and for psychological support: Exhibit "B", pages 8 - 9.
201In that time, on 28 August 2008, the plaintiff was seen again and reassessed by Dr Mandalis. She recorded that the plaintiff's affect at presentation was predominantly flat, that he spoke in a slow monotone voice, was slow to move and appeared to be lacking in drive, and that he had difficulty getting to the point in relating his problems in response to questions: Exhibit "B", pages 149 - 150.
202Dr Mandalis then updated and reiterated her earlier recommendations. She also noted that on her evaluation, the plaintiff was by then functioning within the low average range which was an improvement on the testing that was conducted 4 months post-injury.
203She nevertheless highlighted the plaintiff's problems with quickness to anger, perseverative inflexible behaviours, inability to draw inferences, being often upset by changes in plans or routines, difficulty with working memory and organisational skills, self-monitoring difficulties, reduced literacy and numeracy skills, and trouble learning new and complex material. Her overall impression at that time was that he lacked insight or awareness of his difficulties, consistent with frontal system impairment, and she considered that lack of insight was a barrier to the plaintiff accepting interventions. She also noted the development of the condition of obsessive compulsive disorder ["OCD"] as a rare by-product of traumatic brain injury: Exhibit "B", pages 150 - 155.
204On 7 October 2008, the plaintiff was referred to a Child and Adolescent Psychiatrist in conjunction with a paediatrician, to investigate and manage an emergent problem he had with obsessive-compulsive symptoms relating to cleanliness: Exhibit "B", p 9A.
205On 18 November and again on 17 December 2008, the plaintiff was assessed by a multi-disciplinary Child and Adolescent Mental Health Team, which noted the plaintiff's predilection for predictability, forewarning of the arrival of visitors, pre-occupation with punctuality, and demonstrated irritability. The assessment concluded that the plaintiff experienced slightly obsessional behaviours around clothing and time keeping, which were compensatory in the context of his traumatic brain injury. At that time, this was not considered to be at the intensity of OCD: Exhibit "B", p 156.
206On 29 January 2009, the plaintiff was reassessed by Dr Hartman in connection with possible symptoms of nystagmus. He referred the plaintiff for an ophthalmic examination.
207On 24 February 2009, at the request of Dr Hartman, the plaintiff underwent an ophthalmic examination by Dr John Lee, for investigation of complaints of dizziness and possible nystagmus. Dr Lee concluded the symptoms appeared to be of vestibular origin.
208On 5 March 2009 Dr Hartman prepared an addendum to his previous correspondence. In that addendum, he stated that the episodes under consideration then were in his opinion of uncertain cause, and he could not say whether or not they were related to the injury. He reiterated the diagnosis of mild hemiplegia. He also suggested that the continued evidence of cognitive deficits associated with the effects of the brain injury should be the subject of communication with Dr Mandalis: Exhibit "B", p 173.
209On 23 March and 27 April 2009, the plaintiff was assessed by Dr Susan Pulman, a consultant clinical and forensic neuropsychologist. Dr Pulman's report of that assessment was dated 28 May 2009: Exhibit "C", pages 98 - 107.
210In her report of that assessment, Dr Pulman's opinion was that the plaintiff's cognitive functioning was generally consistent with an earlier neuropsychological assessment carried out in July 2008. She confirmed that the plaintiff's intellectual functioning was in the low average range. The possibility of a pre-morbid reading and/or literacy disorder was raised. She considered that despite the recovery shown by the plaintiff over the previous two years, she considered the plaintiff's executive deficits were consistent with the effects of a significant traumatic brain injury. She referred to the working memory deficits, forgetfulness, distractibility and difficulty with task completion, and ongoing problems with a lack of drive and initiative. At that time, she thought it was too soon to predict the effect on the plaintiff's capacity to work in the future.
211On 29 May 2009, at the request of the defendant's CTP insurer, the plaintiff was assessed by Dr Paula Olymbios, a consultant clinical psychologist. Her report dated 30 May 2009, which occurred relatively early in the plaintiff's recovery from his brain injury, sought to draw conclusions from the plaintiff's test results and the results of the tests administered to the plaintiff's father: Exhibit "D", Tab 1.
212On 20 July 2009, at the request of the plaintiff's treating general practitioner, he was referred to Mr Steven Dragutinovich, a clinical psychologist, for treatment of his cognitive behavioural deficits including frontal lobe or executive functioning and OCD. Mr Dragutinovich reviewed previous neuropsychological material. He identified the focus of his treatment of the plaintiff for frustration, irritability and anger thresholds, and to also provide the plaintiff and his mother with assistive strategies, including with regard to memory issues and learning ability: Exhibit "B", pages 143 - 144.
213Mr Dragutinovich continued to see the plaintiff for consultations between August 2009 and 21 April 2010. He noted that the plaintiff had not yet fully absorbed the psycho-educational assistance he had been provided. In his report upon those consultations, Mr Dragutinovich noted that the plaintiff tended to regress to irritability and frustration intolerance secondary to relatively minor psycho-social stressors. Mr Dragutinovich noted the plaintiff fatigued easily, became destabilised by changes to his routine, had elements of persisting dis-inhibition in his behaviour despite behaviour modification counselling, was easily distracted, had difficulty with organisation and planning, and keeping track of things, was difficult to engage, and had a shallow affect: Exhibit "B", pages 145 - 146.
214On 18 September 2009, at the request of his solicitors, the plaintiff was examined by Dr Patricia Jungfer, a consultant psychiatrist. Her report of that examination was dated 24 September 2009: Exhibit "C", pages 1 - 25.
215In that report, Dr Jungfer diagnosed the plaintiff as having a cognitive disorder following an acquired brain injury. She also diagnosed the plaintiff to have an obsessive compulsive disorder secondary to his acquired brain injury. She stated that the plaintiff's cognitive impairment was consistent with that of executive impairment predominantly affecting the frontal regions of the brain. She stated that the plaintiff has no insight into his obsessive compulsive disorder. She considered that the plaintiff's cognitive inflexibility, his rigidity, his bluntness and his obsessive compulsive disorder, are going to have an impact on the plaintiff in the workplace, the issue being job stability and the impact of the obsessive compulsive disorder with regards to his employability.
216On 6 October 2009, Dr Jungfer issued a supplementary report which is not necessary to review as it was concerned with the issue of whole person impairment: Exhibit "C", p 26.
217On 17 May 2011, at the referral of the treating general practitioner, the plaintiff was seen for assessment by Dr Adrienne Epps, a paediatric rehabilitation specialist. She focussed on the plaintiff's ongoing executive deficits, flexibility, and secondary OCD problems, following a diagnosis of that condition. She also noted the plaintiff had been experiencing an intermittent back pain problem. Dr Epps suggested a vocationally based neuropsychological assessment to assist the plaintiff to move into the workforce as had been planned with the assistance of his school careers advisor: Exhibit "B", pages 10 - 12.
218On 12 April 2012, Dr Jungfer re-examined the plaintiff and prepared a further report dated 24 April 2012: Exhibit "C", pages 28 - 37.
219In that report, she reviewed the developments in the plaintiff's situation since she last examined him and noted he had commenced working as an apprentice carpenter. She reiterated her diagnosis of cognitive disorder following head injury, and downgraded her previous opinion concerning obsessive compulsive disorder to a query of obsessional traits. She revised her earlier views on the plaintiff's employability, stating that she believed the plaintiff will be able to maintain employment in the future, but not in a supervisory or leadership capacity, including not being able to organise and manage his own business.
220On 19 April 2012, Dr Jungfer prepared a supplementary report in which she identified her view that the plaintiff had a whole person impairment of 14 per cent according to the regulatory assessment criteria: Exhibit "C", p 27.
221On 26 June 2012, at the request of the solicitor for the plaintiff, Dr Peter Rawling a consultant neuropsychologist, assessed the plaintiff. Dr Rawling's report that followed that assessment was dated 29 June 2012: Exhibit "C", pages 57 - 67.
222In that report, Dr Rawling reviewed the previous neuropsychological data. He had observed that his attempt at conversation with the plaintiff was a singularly unrewarding experience, with conversation in a monotone, minimal emotional responsiveness and minimal apparent interest, characterised by extremely taciturn answers.
223Dr Rawling concluded that the behavioural symptoms of frontal lobe damage have persisted in the plaintiff, with irritability, difficulty processing things said to him, a lack of organisation, a lack of social judgment and some obsessive compulsive behaviours. He cautioned that in assessing the plaintiff's abilities, it must be borne in mind that the plaintiff was functioning in a fairly protected environment. He expressed concern over the ability of the plaintiff's capacity to manage his affairs.
224On 31 July 2012, Dr Jungfer prepared a supplementary report commenting upon the results of psychometric testing which she had earlier recommended: Exhibit "C", pages 52 - 56.
225In view of the abnormalities shown on testing, which reflected frontal lobe abnormalities, and noting the areas of difficulty and struggle for the plaintiff, and his failure to recognise errors, difficulties and problems, she expressed concern with respect to how he would be able to manage large sums of money, and to process the complex information required to make financial management decisions. She agreed with the suggestion of Dr Rawling to the effect that it would be prudent to have the plaintiff's financial affairs placed under the [equivalent of the] Protected Estates Act 1983, and that decision revised after approximately 5 years.
226On 11 December 2012, at the request of the solicitor for the defendant, the plaintiff was examined by Dr Paul Spira, a consultant neurologist. His report of that assessment was dated 21 December 2012: Exhibit "D", Tab 3.
227Dr Spira noted that the plaintiff tended to deny and minimise the consequences of the accident. Dr Spira nevertheless determined that the plaintiff was carrying the cognitive and behavioural sequelae of the accident, although he considered these to be subtle cognitive sequelae, which would not impair his capacity to work. Those opinions require evaluation along with the competing opinions on those issues.
228On 21 December 2012, at the request of the solicitor for the plaintiff, a commentary report on assumed matters and documents was obtained from Associate Professor Quadrio on the plaintiff's pre-accident history. She also addressed a number of questions posed to her by the plaintiff's solicitor relating to the issue of the plaintiff's alleged contributory negligence: Exhibit "B", pages 72 - 82. A further commentary on those matters was obtained from Associate Professor Quadrio on 10 October 2013: Exhibit "B", pages 83 - 88. Those opinions have been evaluated in my consideration of the issue of contributory negligence on the part of the plaintiff.
229On 6 February 2013, at the request of the solicitor for the defendant, the plaintiff was examined unaccompanied by Dr Virginia Pascall, an occupational physician: Exhibit "D", Tab 5. Dr Pascall provided opinions on questions asked of her in relation to specific heads of damage. Those opinions stand to be evaluated in connection to the particular heads of damage to which they relate.
230On 4 July 2013, at the request of the solicitor for the defendant, Dr Jeffrey Bogan reviewed and analysed a number of reports in relation to the plaintiff. In that endeavour, he had not been given the opportunity to examine the plaintiff: Exhibit "D", Tab 7. The opinions he arrived at in that report stand to be evaluated in conjunction with the other opinions on the medical and allied issues that call for determination in the case.
231On 1 August 2013, the plaintiff was examined by Ms Yvonne Varella. Her report of that examination was dated 11 November 2013: Exhibit "D", Tab 8. Her report addressed elements of the plaintiff's claim for future damages, and it will be addressed in that context in the course of my reasons.
232On 12 September 2013, the plaintiff underwent a MAS assessment by Dr Ivan Lorentz, a consultant neurologist. His certificate and report following that assessment was dated 18 September 2013: Exhibit "B", pages 89 - 97.
233In his report of that assessment, Dr Lorentz concluded that the plaintiff's initial mild left-sided hemiparesis has undergone an almost complete recovery. He considered there had been a good recovery from the loss of the sense of smell. He was of the opinion that the plaintiff may have difficulties in his chosen field of work unless he has a sympathetic employer. He confirmed that the plaintiff had severe traumatic brain injury and what he described as very mild left-sided hemiplegia, caused by the accident.
234On 16 September 2013, in response to an enquiry from the solicitor for the plaintiff, Dr Rawling commented on the opinions of Dr Bogan, the psychologist retained on behalf of the defendant: Exhibit "C", pages 58 - 71. I will return to that commentary in the course of my consideration of the conflicting opinions of the respective psychologists.
235On 15 October 2013, Dr Jungfer provided a supplementary report commenting upon aspects of various expert reports obtained on behalf of the defendant. Dr Jungfer pointed to the difficulty of relying only on the plaintiff's own reported history regarding his functional capacity: Exhibit "C", pages 55 - 56. Those comments will be taken up in my consideration of the resolution of which of the competing expert opinions should be accepted.
236On 28 February 2014, at the request of the solicitor for the defendant, Dr Virginia Pascal provided a supplementary report based upon a number of reports, documents and assumptions she was asked to address. Her supplementary report was not based upon any updated examination of the plaintiff: Exhibit "D", Tab 6. Her report questioned the degree to which the plaintiff would be affected by such matters if he had not been injured in the accident. Those opinions stand to be evaluated in conjunction with the opinions that reach different conclusions.