Schoupp v Verryt

Table of Contents Nature of case [1] - [2] Factual background - Liability [3] - [8] Issues and summary of findings [9] - [15] Evidence overview [16 - [18] Factual accounts and credibility [19] - [49] Plaintiff's evidence on liability issue [21] - [25] Mr Mitchell Harmison [26] - [32] The defendant, Mr Alphonse Verryt Snr [33] - [42] Mr Alphonse Verryt Jnr [43] - [50] Contributory negligence consideration [51] - [124] Construction of s 138(2)(d) of MAC Act [57] - [65] Plaintiff's actual and imputed knowledge [66] - [84] "Skitching" by plaintiff [85] - [88] Determination of the contributory negligence issue [89] - [124] Apportionment and causation [125] - [181] Helmet - causation not proven [132] - [153] Defendant overwhelmingly culpable [154] - [173] Conclusion on apportionment [174] Alternatively, modest culpability of plaintiff [175] - [181] Facts relevant to damages issues [182] Initial assessments and treatment [183] - [184] Medical and allied assessments [185] - [236] Expert witnesses on damages issues [237] - [245] Resolution of conflicting medical & allied opinions [246] - [264] Plaintiff's evidence [265] - [275] Mrs Schoupp [276] - [287] Mr Schoupp [288] - [304] Ashleigh Schoupp [305] - [313] Russell Pugh [314] Mitigation [315] - [316] Assessment of damages [317] - [468] Plaintiff's probable life span [318] - [320] Non-economic loss [321] - [329] Future economic loss [330] - [391] Principles [338] - [343] Most likely circumstances [344] - [348] Loss of capacity and financial loss [349] - [360] Assessment factors [361] - [391] Future loss of superannuation [392] Past gratuitous domestic assistance [393] Future external domestic assistance [394] - [414] Future gratuitously provided domestic assistance [415] - [423] Case Manager [424] - [439] Future treatment expenses [440] - [448] Past out-of-pocket expenses [449] Funds management charges [450] - [467] Summary of damages assessment [468] Disposition [469] - [470] Costs [471] Orders [472]

Nature of case 1The plaintiff, Liam Schoupp, brings these proceedings in his own right claiming damages against the defendant Alphonse Verryt Snr, for personal injuries sustained as a result of a street accident that occurred in Hillcrest Avenue, Woonona, at about 7:30pm on Tuesday 30 January 2007. 2The proceedings are governed by the liability and damages provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"] generally, as well as the causation and onus of proof provisions of s 5D and s 5E of the Civil Liability Act 2002 ["CL Act"], and the contributory negligence provisions of s 5R and s 5S of that Act.

Factual background - Liability 3On the day of the accident, the plaintiff had just hours before completed his first day at High School. He was then aged 12 years and 10 months. The accident occurred in the street where the plaintiff and the defendant both resided. The plaintiff was a friend of the defendant's son. 4Just before the accident, the plaintiff and a number of other boys were in Hillcrest Avenue with their skateboards when the defendant drove past with his son, Alphonse Verryt Jnr, who was a front seat passenger in his vehicle. The defendant was apparently persuaded by his son and persons other than the plaintiff to stop the vehicle and to allow his friends, including the plaintiff, to "skitch" a ride by holding onto the rear of the vehicle whilst they remained standing on their skateboards. The defendant's son and the other two boys had "skitched" a ride with the defendant on previous occasions, but those occasions had not involved the plaintiff. 5In the events leading up to the accident, with the concurrence of the defendant, the plaintiff had been standing on his skateboard whilst holding onto the rear of the defendant's vehicle. The defendant then commenced to drive the vehicle. After travelling some distance in that fashion, the plaintiff was seen to be no longer holding onto the vehicle. He then fell backwards, thereby striking his head on the bitumen surface of the roadway. He was not wearing a protective helmet at the time. 6At the accident scene, Hillcrest Avenue comprises a slight uphill incline. The defendant's vehicle was travelling up that incline at the time of the accident. According to the summarised accounts of the statements obtained by the police who investigated the accident, the vehicle was being driven at a speed that was described as being equivalent to a slightly higher than normal walking pace or a slow jog. 7In those events the plaintiff suffered an undisplaced midline sagittal occipital hairline fracture of his skull and consequential damaging contrecoup contusions to the frontal lobes of his brain. 8Following the plaintiff's initial recovery and rehabilitation, he went on to complete his schooling to the end of Year 10, following which he commenced an apprenticeship with the aim of becoming a carpenter and joiner. He is presently pursuing TAFE studies in conjunction with that employment, and he is due to complete his apprenticeship in October 2015. The plaintiff nevertheless continues to experience problems consequent upon the brain injury he received in the accident.

Issues and summary of findings 9The defendant's CTP insurer has admitted that the defendant was in breach of the duty of care he owed to the plaintiff. Causation was not in issue. The only liability issues to be determined in these proceedings are whether there was contributory negligence on the part of the plaintiff, and if so, whether that was a relevant cause of the plaintiff's injury, and if so, the just and equitable apportionment of blame between the parties for the plaintiff's injury. 10The remaining issues involve resolution of the differing opinions within the medical and allied expert evidence, and the assessment of the plaintiff's entitlement to compensatory damages for his injuries. 11Foremost amongst those issues are questions concerning how the plaintiff's loss of earning capacity should be quantified, the extent and cost of his need for various aspects of care and supervision, and whether his damages award should include an amount for funds management charges. 12I have found that there was contributory negligence on the part of the plaintiff. My reasons for that conclusion are set out in paragraphs [89] to [124] that follow. 13I have found that the respective apportionment contributions of the parties should be 100 per cent in the case of the defendant, and zero per cent in the case of the plaintiff. My reasons for that conclusion are set out in paragraphs [125] to [174] that follow. 14I have assessed the plaintiff's entitlement to damages in the sum of $1,954.150.47 before the addition of any amount for funds management charges. My reasons for arriving at that sum are set out in paragraphs [317] to [468] that follow. 15I have found that the plaintiff is entitled to an assessment of an additional sum, which is yet to be identified in damages in respect of funds management charges. My reasons for that conclusion are set out in paragraphs [450] to [457] that follow.

Evidence overview 16In the case for the plaintiff, oral evidence was given by the plaintiff, his parents and his older sister, Mr Pugh who is the plaintiff's post-accident employer, and Dr Patricia Jungfer, a consultant neuropsychiatrist whom the plaintiff's solicitor engaged to provide medico-legal opinions. On the contributory negligence issue the plaintiff also relied upon the reports and opinions of Associate Professor Carolyn Quadrio, a consultant child and adolescent psychiatrist. 17In the case for the defendant, on the contributory negligence issue, oral evidence was given by the defendant, as well as by his son, and Mitchell Harmison. The defendant also called evidence from Dr Virginia Pascall, a consultant occupational physician, and from Dr Jeffrey Bogan, a clinical psychologist. The evidence of these two witnesses was the subject of significant challenge. 18Both parties also relied upon medical and allied reports relevant to the various aspects of quantum. Consideration will be given to those reports in the context in which they were relied upon by the respective parties on specific damages issues.

Factual accounts and credibility 19Although the defendant has admitted he had breached the duty of care he owed to the plaintiff, thereby only leaving the need to resolve the issue of contributory negligence, it is still necessary to review the salient features of the liability evidence. 20There was no attack made upon the credibility of any of the factual witnesses who were called to give evidence in the proceedings. Accordingly, the reliability of the testimony of those witnesses stands to be evaluated according to the content of their evidence when assessed from the respective vantage points from which they gave their factual accounts. Those respective factual accounts are summarised in the paragraphs that follow and can be taken to be the facts unless otherwise stated.

Plaintiff's evidence on liability issues 21The plaintiff gave evidence on background matters and post-accident events. He was unable to provide any useful evidence concerning the events surrounding the accident. His evidence as to his understanding of road safety issues will be taken up in connection with the consideration of the issue of contributory negligence. His recollection of matters occurring before and after the accident was affected by amnesia that was marked as having commenced some hours before the accident and continued until some 6 days after the accident. There was no attack on the credibility or the reliability of the testimony of the plaintiff. 22The plaintiff gave his evidence in a laconic unanimated manner that seemed to be consistent with the flat affect which some of the experts identified when reporting on their examinations of him. These are matters to which I will return when dealing with the damages issues. 23In the meantime, it is sufficient to say that there was no suggestion that the plaintiff gave anything other than honest testimony to the best of his understanding and recollection, save for his tendency to exhibit an attitude of denial of his accident-related problems, an attitude which, if taken at face value, in the absence of other explanatory evidence from family members and experts, could give a misleading and incorrect impression that there was little wrong with him in the way of accident-related disabilities. 24The plaintiff said that he had received the skateboard in question as a Christmas present in the weeks before the accident. It was his first skateboard, which his mother said was a longboard for cruising, not for tricks. He said he knew Mitchell Harmison, Patrick Waddington and Alphonse Verryt Jnr, as older boys in the neighbourhood whom he looked up to. He also said he knew the defendant, but not by name. He had been to his house on a handful of occasions, and the defendant's son, Alphonse Verryt Jnr, had also been to the plaintiff's home before the accident. 25The plaintiff recalled being at school until lunch time on the day of the accident, and then being picked up by his mother. He recalls the journey home by car. His next memory is of him being in the Sydney Children's Hospital.

Mr Mitchell Harmison 26Mr Mitchell Harmison had been a friend of the plaintiff since their primary school days, although they have not had much contact with each other since the accident. He was also present at the accident scene and was one of the 3 boys who were "skitching" at that time. He was called to give evidence in the case for the defendant, concerning his recollections of the events leading up to, and following the accident. 27At the hearing Mr Harmison was aged 21 years. He was a year ahead of the plaintiff in their school years and he was also a year older than the plaintiff. He lived a short distance from the plaintiff's home at the time of the accident. 28On the day of he accident, he was in Hillcrest Avenue in company with the plaintiff and another boy, Patrick Waddington, who was also older than the plaintiff. They had been skating on their skateboards in that street for an hour or so before the accident occurred. 29Mr Harmison said the plaintiff had learned how to ride a skateboard by watching these boys and he then copied them and skated around with them. He said the plaintiff had also learned how to "skitch" by copying what they did: T179.22. 30The other person at the scene, Patrick Waddington, was overseas at the time of the hearing, and no adverse inferences arise from the fact that he was not called to give evidence. 31Mr Harmison described the events of the accident and thereafter as follows: (1)When the defendant drove past the boys in the street, someone, it was not clear to him as to who, had asked the defendant if they could hold onto the back of his vehicle for what was known as "skitching". This conversation occurred whilst the vehicle was stationary; (2)Mr Harmison could not recall where the defendant's son Alphonse Verryt Jnr was located at that time, although there is no dispute that he was in the vehicle. Neither could he recall any of the precise details of the conversation that had taken place with the defendant before the "skitching" commenced; (3)Mr Harmison then recalled the three boys, including himself, holding onto the rear of the defendant's vehicle whilst they were on their skateboards, facing to the front from the rear of the vehicle, with himself on the left, Mr Waddington on the right, and the plaintiff in the middle and on his immediate right. The position of the plaintiff was described differently in the evidence of Mr Verryt Jnr, but nothing turns on that difference; (4)Although he and Mr Waddington had been "skitching" on at least one previous occasion, he did not think the plaintiff had done so; (5)He recalled that in the events on the day, the vehicle travelled for what he described as being about half the length of the street, or about 50m in his estimation, with all three boys holding onto the rear of the vehicle when, at the 50m point, he noticed the plaintiff had fallen backwards off his skateboard after it had wobbled and his legs had gone out from under him; (6)After the plaintiff fell, he and Mr Waddington just let go of their respective holds on the vehicle, and they then each slowed down by using a foot on the road to retard the movement of their skateboards; (7)In those events, Mr Harmison had not observed whether or not the plaintiff had beforehand performed the same manoeuvre with his foot; (8)Mr Harmison was ahead of the plaintiff at the time when the plaintiff must have fallen onto the road; (9)The next observation Mr Harmison made of the plaintiff was seeing him sitting in the middle of the roadway, and initially not speaking, following which he then appeared to come to his senses, and went home; (10)When he was asked about why he had not worn a protective helmet at the time, he replied: "Because we were young and stupid": T175.39. 32Mr Harmison's account as outlined above seems plausible, although it would appear from the other testimony that the evidence summarised at paragraph [31(9)] above may have been conflated. In my view, nothing of relevance turns on those post-accident observations. There was no attack on the credibility or the reliability of the testimony of Mr Harmison.

The defendant, Mr Alphonse Verryt Snr 33Mr Alphonse Verryt Snr, the defendant, gave evidence concerning his recollections of the events leading up to and following the accident. The defendant gave the impression of being awkward, contrite and embarrassed when relating the details of the events in question. At times this was to the point of self-deprecation: T119.36. He also appeared to have some difficulties with his memory. However, I am satisfied that he did his best to be candid about the pre-accident events and the events of the accident itself: T121.33. In submissions on liability this was accepted to be so by senior counsel for the plaintiff: T121.35 . 34The defendant stated that when he was driving up the incline of Hillcrest Avenue towards his home he saw the three boys sitting by the side of the road with their skateboards. He stopped his vehicle when he was waved down. His son Alphonse Verryt Jnr was in the front passenger seat of his vehicle. He could not recall who had asked him to give them a lift up the hill whilst holding onto the back of his vehicle, but he doubted it was the plaintiff: T107.10 - T107.50. 35After the plaintiff and the two other boys had taken a handhold at the rear of his vehicle, the defendant then drove off up the hill after first checking to ensure there was no traffic: T198.27. He had obliged a similar request along the same lines once before (T107.30) but did not think the plaintiff was involved on that occasion. His account of the ensuing events was a little disjointed when he related it, as appears at T108.27 - T109.15, as follows: "Q. Well you're driving, did your son stay in the front passenger seat? A. Yes. Q. What did you see Liam do? A. Well, we drove as I said we might have drove a couple of hundred metres up the road, and then my son I was looking in the rear vision but I was watching what was going my son was watching and he said that all of a sudden he said Liam's he let go, and was not he was still upright on his skate and I looked and yeah, yeah, so I Q. When you looked, you looked what, in the rear vision mirror or the side mirror? A. Rear vision no, the rear vision mirror. Q. What did you see Liam's position to be at that time? A. He was standing up on the board, yep. Q. Was he still holding onto your vehicle? A. No, no, he was not supposed to let go, that was the agreement the boys had made, but he let go for whatever reason, he might have felt he was in Q. Let's not guess. You saw him free from holding onto your vehicle? A. Yes. Q. But you saw him on the skateboard? A. Yes. Q. Standing upright? A. Yes. Q. Did you notice what happened to Liam after that point? A. Well Q. Did you see what happened to Liam after that point? A. That's a I'm not 100% certain because my son was kind of like said that's when I looked up when Liam let go, because my son was giving a commentary on what was going on. And then I looked up the road again, and then Alphonse said, "Oh, Liam's fallen" so I looked in the so I'm not 100% but I looked as he was falling not when he fell." 36The defendant considered that he had driven a distance of a few hundred metres with the boys holding onto the vehicle before the accident occurred: T109.21. That distance was considerably longer than the estimate given by Mr Harmison. On this point, as the defendant was a licensed driver, I consider he was likely to be in a better position to more accurately estimate that distance, but the distance is not all that important. 37The defendant stated that when he stopped his vehicle after the plaintiff had fallen, the other two boys were still holding onto his vehicle: T110.3. That account was different to the recollection of Mr Harmison, who said that both he and Mr Waddington had let go of the vehicle when the plaintiff fell. In that regard, I accept the evidence of Mr Harmison, as he was in a better position to give a more reliable account of that particular fact. 38The defendant was uncertain about the speed of his vehicle at the time the plaintiff fell. However, he felt he had been driving his vehicle at between 15kph and 20kph, but he also agreed that he would not dispute a range of speeds of between 10kph and 15kph: T113.24. 39When the defendant was questioned on the extent of his recollection of the position of the plaintiff at the rear of the vehicle before the accident, he said he did not know which of the boys was in the middle position. When pressed on this issue, he said he might have dementia: T115.14. It was left unclear as to whether or not he actually had some dementia, or whether that comment was a light-hearted or self-deprecating remark made under the tension of cross-examination. It was plain that the defendant was under pressure at that point of the cross-examination. 40The defendant agreed with the following propositions put to him in cross-examination: (1)The speed of the vehicle at the relevant time could have been a little faster than walking pace: T113.28; (2)He had complete control over the speed of travel of the vehicle: T113.32; (3)The incline on the road was gradual: T113.44; (4)He initially said that his first awareness that the plaintiff had separated from the vehicle was when his son had told him that had occurred: T113.49. He later said when that fact was drawn to his attention by his son, he looked in the rear view mirror and saw the plaintiff upright on his board, but he was wobbling, giving the impression that he was having balance problems: T115.19 - T115.40; (5)There was a very short interval of time between the defendant having been made aware that the plaintiff had become separated from the vehicle, him seeing the plaintiff wobbling, and of him becoming aware the plaintiff had fallen: T116.20; (6)He agreed that the interpersonal dynamics within the cohort of the boys was that the plaintiff was the youngest, that he was a good and quiet boy, and that he was by nature a follower of others: T117; (7)He agreed that in the past, when he had seen children in the neighbourhood on skateboards, he did not see them riding with helmets, although as parents "we've all tried to get them to wear helmets ...". In that regard, his own son followed the lead of others and apparently never wore a helmet when using his skateboard: T118.46 - T119.19. (8)He was unable to say whether the plaintiff had in fact actively let go of his hold on the vehicle, or had lost his grip at the relevant time: T114.6; (9)The location of the point where the boys were holding onto the vehicle with their 6 hands was a horizontal latch structure on the boot door of the defendant's station wagon, and it was variously described as being about 40cm or about 2 feet wide: T114; (10)The defendant considered there were no surface problems on the road at the relevant time: T119.33. 41The defendant said that after the accident he went to attend to the plaintiff whom he thought was laying in the middle of the road: T110.17. He said he picked up the plaintiff and laid him on the nearby grass. The plaintiff was groaning and grunting at that time: T110. This was a slightly different account to that given by Mr Verryt Jnr, who said it was he who had first picked up the plaintiff out of concern for possible traffic arriving on the scene. In my view, nothing of significance turns on those differences. The defendant said he later assisted the plaintiff into his vehicle and drove him home, where the plaintiff then walked into his house and went to bed: T111.25; T120.30. He said that after he had a short conversation with the plaintiff's mother, she called for an ambulance to attend to the plaintiff: T111. 42There was no attack on the credibility of the testimony of Mr Verryt Snr. The reliability of his evidence on some matters of detail was in doubt because of his admittedly apparent poor memory of some aspects of the events. It is not necessary to determine whether this was due to either the effluxion of time, or his memory capacity generally, or his embarrassment over the incident having occurred in circumstances where he was the responsible adult involved, or whether it was a combination of these factors.

Mr Alphonse Verryt Jnr 43Mr Alphonse Verryt Jnr, the son of the defendant, gave evidence concerning his recollections of the events leading up to and following the accident. 44He was aged 22 years at the time he gave his evidence. He was aged 14 years and 10 months at the time of the accident. He was a front seat passenger in his father's vehicle at the time. He was unclear of the details of what was said and by whom in the lead-up to his father having ultimately agreed against his better judgment, to allow the other boys to hold onto the back of the defendant's vehicle to "skitch" a ride: T123. 45Mr Verryt Jnr described his observations of the occurrence of the accident as follows: "Q. What did you see happen to Liam? A. I saw him let go, he's sort of wobbling a bit on his - on the wheels because he had a longer board and then I saw him come over the front of the board and he landed on his back I think. HIS HONOUR Q. Let me just understand that correctly. What did you see first, did you see him wobble first and then let go or let go and then wobble? A. He let go, went - rode for maybe five, ten more metres and then started wobbling and fell off in the dirt. RONZANI Q. During the five to 10 metres you saw him riding his longer skateboard were you watching him? A. Yeah. Q. How was he riding his skateboard during that 5 to 10 metre stretch? A. He was just standing on it normally but on the longer boards they've got looser fittings like the trucks and he got the death wobbles and then he was sort of shaking a bit and then came off. Q. From the moment you saw the death wobbles to the moment he came off are you able to say whether that's a particular period of time or length of travel? A. Two, three seconds. Q. That's in addition to the time you saw him travelling normally? A. Yeah, all up it wouldn't have been over 10 seconds. HIS HONOUR Q. You gave a reference to trucks a moment ago, can you just clarify what you were talking about there? A. You get the death wobbles, it's just when it just keeps the skateboard wobbles really fast, it's when you've got really loose trucks on your skateboard and yeah, he came off after that. Q. What are the trucks? A. It's the metal it's got the wooden skateboard and then underneath it's got the metal bars and then on the side of that its got the four wheels and yeah, when they're not tightened fully, which they aren't normally on a long board. It can happy pretty easy." 46Mr Verryt Jnr agreed with the following propositions: (1)He was watching (the boys at the rear of the vehicle from inside) whilst they were holding on to the rear of his father's vehicle whilst it was being driven up the street; T123.42; (2)He was unsure whether the plaintiff was on the right at the back of the vehicle: T123.46; (3)From his position in the front passenger seat he maintained his watch of the boys at the rear of the vehicle for what he described as being between 5 and 10 seconds before he saw the plaintiff fall: T124.9 - T125.2. I did not get the impression that he was seeking to convey accuracy in providing that estimate of time; (4)Mr Verryt Jnr confirmed that at the time he had been given his own skateboard, some time earlier he had also been given a helmet. He said he used to wear it: T126.35; (5)He also claimed that there had been previous occasions when the plaintiff had "skitched" a ride behind other vehicles, but this was the first time he had done so behind his father's vehicle: T126.42; T127.8; (6)He said that after the plaintiff's fall, his father had stopped the vehicle, and went to the plaintiff's assistance, picked him up and brought him to the side of the road: T125.15. He went on to say that after about 10 minutes the plaintiff sat up and he was driven home: T125.40. This was after he said he had taken off his own shirt, wet it under a tap, and with the assistance of his father and others present, had placed it on the plaintiff's head: T125.29 - T125.37. 47In answers to questions put in cross-examination, Mr Verryt Jnr agreed that: (1)Of the group of boys, Patrick Waddington was the oldest and the plaintiff was the youngest: T127.25-T127.31; (2)He and Mr Waddington had seen the practice of "skitching" on television and from participating in a computer game, and they commonly engaged in copying the activity in the neighbourhood for fun in late 2006 and early 2007, with the younger members of the group copying that activity as well: T127.33 -T128.8; (3)He used to wear his helmet in designated skate parks but not on the street: T128.12; (4)When he looked at the road surface a week or two after the accident there were small loose rocks on the road surface and he fell off his skateboard when a wheel on his board was jarred after coming into contact with a rock: T130.5. 48I consider this latter observation should be given very little weight because, in the light of the evidence of the defendant to the effect that there were no problems with the road surface, it would be unsafe to assume the rocks seen by Mr Verryt Jnr a week or two after the accident, were present at the time of the accident. 49On the question of whether there were stones on the road at the time of the accident, it is difficult to undertake a definitive comparison between that evidence and the content of the police report on the subject of the presence of stones on the road as the police report was a summary rather than a statement, and it was dated some significant time after the accident: Exhibit "A", p 22. 50There was no attack made on the credibility of the testimony of Mr Verryt Jnr. The reliability of his evidence is a matter that requires assessment in light of the evidence as a whole.

Consideration of contributory negligence 51During the course of the hearing of the proceedings on circuit in Wollongong, and in the interests of the efficient and expedient use of court time in the context of a long circuit list of 61 matters, the parties agreed to call the liability evidence in this case first, and to then proceed to give their final addresses on the issue of contributory negligence to enable a consideration of that issue to take place before then proceeding to call evidence on the damages issues: s 56 - s 58 of the Civil Procedure Act 2005. 52That was on the understanding that after consideration, an indicative view would be given on the issue of contributory negligence, with the reasons for that view to follow in this judgment: Day 4, T244; Day 5, T273. 53My reasons are now provided, as follows. 54The defendant argued that the facts of this case require that there should be a finding of contributory negligence against the plaintiff to the extent of 30 per cent. In that regard, the defendant relied upon the following particulars of contributory negligence: (a)Riding a skateboard holding onto the defendant's vehicle while it was moving; (b)Voluntarily engaging in an activity that was inherently dangerous; (c)Failure to take adequate precaution for his own safety; (d)Failure to wear a protective helmet; (e)Riding a skateboard at an excessive speed. 55On behalf of the plaintiff, the contributory negligence defence was resisted in favour of an argument for a finding of no causation on the issue of contributory negligence in respect of the failure of the plaintiff to wear a protective helmet, or alternatively, in the event findings of contributory negligence are made, a zero apportionment against the plaintiff. Failing those arguments, the plaintiff argued there should be an apportionment of either 5 or 10 per cent against the plaintiff, depending upon the factual findings concerning the protective helmet issue. 56The statutory framework governing the question of contributory negligence is provided by s 138 of the MAC Act, s 9(1) of the Law Reform (Miscellaneous Provisions) Act 1965, as amended by the Law Reform (Miscellaneous Provisions) Act 2000, and s 5R of the CL Act: Mobbs v Kain [2009] NSWCA 301.

Construction of s 138(2)(d) of the MAC Act 57A key aspect of the statutory framework for considering a defence of contributory negligence in this case is s 138(2) of the MAC Act which provides for a number of circumstances where a finding of contributory negligence becomes mandatory. 58The defendant specifically relied on the provisions of s 138(2)(d) of the MAC Act which provides for a mandatory finding of contributory negligence where the injured person was not wearing a protective helmet when required by law to do so. [Emphasis added] 59It is not disputed that the plaintiff was not wearing a protective helmet at the time he received his injury. 60The preliminary question arises as to whether the mandatory considerations of s 138(2)(d) of the MAC Act applies to the facts of this case. It is therefore convenient to consider that preliminary question first, namely, whether the phrase "required by law" appearing in s 138(2)(d) should be read as being a reference to a requirement of statute law or regulation, or whether it should be considered to be a reference to the common law. 61Significantly, the defendant has been unable to identify any statutory or regulatory legal requirement that a skateboard rider must wear a protective helmet. 62In construing s 138(2)(d), it is relevant to consider the objects of the MAC Act, which impose limitations on the rights of persons injured in motor accidents to claim for damages. In that context, a purposive and beneficial interpretation of s 138(2)(d) requires that statutory provisions restricting the right of an injured person to obtain damages should not to be read to apply more widely than the legislature intended when it enacted the words of the section. In that regard, I consider that caution is therefore required when interpreting the words of s 138(2)(d) "required by law" in their application to this case. 63In my view, the words in question should be construed as referring to specific statutory or regulatory legal requirements, and not to an implied requirement according to the common law. 64Therefore, in this case, absent any specific requirement within a statute or an applicable regulation providing for skateboard riders to wear protective helmets on public streets, I find that on a proper construction of s 138(2)(d) of the MAC Act, there is no scope in this case for a mandatory finding of contributory negligence based on a failure of the plaintiff to wear a protective helmet at the time of the accident. 65Consequent upon the finding that s 138(2)(d) of the MAC Act does not apply to the facts of this case, a common law consideration of the contributory negligence issue is required, and this must proceed in accordance with the provisions of s 5R of the CL Act: s 138(6) of the MAC Act.

Plaintiff's actual and imputed knowledge 66The standard of care by which contributory negligence is to be determined is that of a reasonable person in the position of the person against whom contributory negligence is alleged: s 5R(2)(a) of the CL Act. That matter is to be determined according to what the person the subject of the allegation of contributory negligence knew or ought to have known at the relevant time: s 5R(2)(a) of the CL Act. 67In the present case, the plaintiff was aged 12 years and 10 months when he was injured. Applying s 5R to the plaintiff's situation, this must be a reference to the standard of care that is to be judged objectively according to the standard expected of a child of the same age and experience, also following the decision in McHale v Watson [1966] HCA 13; (1966) 115 CLR 199. 68That evaluation does not proceed in a vacuum. It must also be undertaken according to the circumstances in which the events in question occurred, and according to the dictates of commonsense. 69The onus of proof of an allegation of contributory negligence is borne by the defendant: s 5E of the CL Act. The evaluation of whether allegations of contributory negligence are applicable to the circumstances under present consideration must be undertaken prospectively, unaffected by hindsight considerations: Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 442. 70That evaluation is guided by the provisions of s 5R of the CL Act and the principle identified and re-stated in McHale v Watson, at [7], to which reference has already been made. 71In those circumstances, it is therefore appropriate to examine what the plaintiff knew and what he should be taken to have known at the time of the accident. 72The plaintiff had received some basic road safety instruction from his primary school involving undefined content. He had also received some parental instruction specifically with regard to the wearing of a protective helmet, and he had also been given such a helmet. 73In the present circumstances, I consider that the following propositions are irresistible in the case of a reasonable and unimpaired boy aged 12 years and 10 months in the position of the plaintiff, who in January 2007, must be taken to have known of the following general propositions: (1)use of a skateboard on a hard surface, including on a bitumen road surface carried with it a foreseeable risk of bodily injury; (2)that risk of bodily injury may have been reduced if not avoided by the use of readily available protective devices, such as knee, elbow and wrist guards, as well as protective helmets; (3)the availability of a protective helmet indicated the advisability of using it in the hope of minimising the risk of injury whilst skateboarding; (4)it was customary and advisable to take safety instructions from adults in positions of apparent responsibility or supervision, especially if that adult was known to them and there was no basis for doubting the authority of that adult; (5)road safety considerations required the taking of particular care when around moving motor vehicles travelling at any speed because coming into contact with moving motor vehicles or attempting to avoid a moving motor vehicle could lead to injury; (6)engaging in the activity of "skitching", namely maintaining a handhold at the rear of a moving vehicle travelling at any speed, whilst standing on a skateboard, carried with it the inherent danger of loss of handhold for whatever reason, falling and sustaining possible injury. 74Against those background considerations, it is also necessary to examine further aspects of the plaintiff's knowledge at the time, as well as the evidence of the surrounding circumstances as described by other persons who were also present at the scene. 75The plaintiff said that he had previously "skitched" in the same street without problems, with "the same fellow": T78.11. It is not clear as to whether that evidence was a reference to having "skitched" behind the defendant's vehicle, or whether it was a reference to a skateboarding companion. On that occasion the "skitching" activity was apparently uneventful. 76The plaintiff agreed, in hindsight, that he should have been wearing a helmet: T78.20 - T78.47. It seems to me that hindsight concession is extraneous to a prospective evaluation of the issue of contributory negligence: Vairy. 77The plaintiff described how he had been holding onto the vehicle, near the number plate area of the boot of the vehicle, with both of his hands and with his palms gripping the structure of the vehicle whilst they were facing in the upward position: T79 - T80. 78The plaintiff gave some evidence that indicated he had a brief recollection of the events of the accident when he agreed the "skitching" he had engaged in was a dangerous thing to do. That evidence was: "I didn't really think about it at the time. No because everyone else was doing it": T81.15 - T81.20. 79Whether the preceding concessions were matters he actually recollected as part of the "coming and going" of his memory around the time he was in hospital (T20.40), or whether they were based on what he had been told or had assumed, or whether he simply acquiesced to the terms of the question, remains unclear. I consider that these matters are also hindsight concessions, in view of the medical evidence of the plaintiff's amnesia for the events surrounding the accident. 80The plaintiff agreed he was in possession of a bicycle helmet on the day in question, and that he could have worn it, but that he had not done so T83.15 - T83.33. That is a relevant fact that is available for consideration in this context. 81Mrs Schoupp said she had seen the plaintiff with his helmet when she saw him sitting outside with his friends some time before the accident: T201.41. She also stated that she believed that he knew how to wear it: T199.26. In addition, Mr Schoupp said the plaintiff had always been told to wear a helmet: T313.50. The plaintiff also agreed that whilst at primary school, he had learned about road safety: T75.50. The nature, detail and extent of that road safety tuition was not explored. It cannot be reasonably inferred that it necessarily also covered the activity of "skitching". 82I am satisfied that at the time when the plaintiff decided to hold onto the rear of the defendant's vehicle before it moved off, and whilst he continued to maintain that hold during the forward journey of the vehicle, he should be taken to have known that he was being exposed to a significant possibility of incurring bodily injury. In those circumstances, at the very least, whatever may be thought about the safety of such activity, if he was determined to engage in or persist with that activity, it was both prudent and advisable for him to have worn a protective helmet, which was available to him at the time. 83Having identified what the plaintiff knew and ought to have known at the relevant time, it is also necessary to examine the other evidence of the circumstances. That evidence comes from Mr Verryt Snr, Mr Verryt Jnr, and Mr Harmison. 84Mr Verryt Snr knew that it was advisable for helmets to be worn when skateboarding. There is no evidence to suggest that he had insisted on the plaintiff or any of the other boys wearing one at the time. The indications are to the contrary, as it appears that the defendant had become resigned to the fact that protective helmets were not worn in those circumstances. In my view, that attitude was an abnegation of the defendant's responsibility as the adult who was supposed to be in control of the situation at the time.

"Skitching" by plaintiff 85Mr Verryt Snr knew that the plaintiff was likely to be a follower of others rather than being an instigator of the activity of "skitching". He also must have known that the other boys were older than the plaintiff. There is no evidence of the precise details of the interchanges as to what was said and by whom, in the course of the negotiations with Mr Verryt Snr, before he agreed to the "skitching", and before the vehicle moved off with the three boys in tow. 86There was some suggestion by Mr Verryt Snr that there had been an agreement with the plaintiff before the "skitching" had commenced: T108.45. The defendant suggested there was some prior agreement with the boys that they would not let go of the vehicle. An agreement to that effect would be difficult to understand, and in any event flawed, as it did not provide for the possibility that one or more of the boys wanted to cease "skitching". The suggested agreement was not the subject of other evidence, and its purported terms were not further explored. I do not accept the defendant's evidence at T108.45 where he suggests there was an agreement on the part of the plaintiff not to let go of the vehicle. I consider that the defendant is mistaken in his evidence on this point as his view was not reflected in the evidence of the others present, as would be expected in the circumstances. 87The precise position of the plaintiff in amongst the three boys at the back of the vehicle when it started to move is immaterial. 88It is not known as to what actually caused the plaintiff to cease his grip on the vehicle just before he fell, and it is not clear as to what caused him to fall from his skateboard. However, it is clear that when the plaintiff fell, he injured the back of his head.

Determination of contributory negligence issue 89In the paragraphs that follow, I set out my findings on the defendant's allegations of contributory negligence. Failure to wear protective helmet - particular (d) 90Having considered the above factual circumstances, in accordance with the evaluative exercise required, I conclude that as a reasonable male child aged 12 years and 10 months, the plaintiff must be taken to have failed to take care for his own safety by his failure to wear an available protective helmet. 91It is no answer to that proposition to argue that the plaintiff was emulating his friends in that regard because they were not wearing protective helmets either. He had his own helmet nearby, and in my view, he was old enough and sufficiently instructed and experienced in its use to realise that he should have been wearing it when skateboarding in any manner. 92It therefore follows that the defendant has established contributory negligence on the part of the plaintiff with respect to wearing a protective helmet: contributory negligence particular (d). 93My consideration of the consequences of that finding in relation to a causation and apportionment analysis appears later in the reasons. 94In my view, the consideration of the remaining contributory negligence particulars (a), (b), (c) and (e) can be conveniently grouped together as they each relate to the point in time when the plaintiff had already joined his friends in the enterprise at the back of the defendant's vehicle. 95Before evaluating those individual particulars, as a relevant background, it is convenient to first consider the guidance value of the expert opinions of Associate Professor Quadrio on the issue of the manner in which the plaintiff's behaviour should be seen, in terms of what would have been expected of a normal or average boy in the position of the plaintiff aged 12 years and 10 months at the time: s 5R of the CL Act; McHale v Watson. Opinions of Associate Professor Quadrio 96Associate Professor Quadrio, a consultant child and adolescent psychiatrist of unquestioned qualification, was asked by the solicitor for the plaintiff to provide two reports. The first report was dated 21 December 2012: Exhibit "C", pages 72 - 81. The second report, which was dated 10 October 2013 will not be analysed here as it goes only to a damages analysis: Exhibit "C", pages 83 - 88. 97In her first report, Associate Professor Quadrio was asked to consider the general factual circumstances of the accident, as well as the plaintiff's school reports, some factual material in the form of statements from the plaintiff's family, which she summarised in her report. She then addressed a number of questions posed by the solicitor for the plaintiff for her to consider and to express her comments and opinions upon. She did so as follows: (1)She stated that her commentary was based upon the assumed facts provided, without an examination of, or consultations with, the plaintiff, and it was informed by her considerable experience in the clinical assessment of children and adolescents, in assessing the psychiatric sequelae of trauma, and a familiarity with the relevant body of knowledge and research; (2)In her view, it was an entirely normal activity and common past time for boys aged 12 to 13 years in Australia to engage in skateboard riding; (3)She considered that a boy of the age of the plaintiff at the time of the accident would be likely to trust the judgment of an adult who was familiar to him and in that position, the plaintiff would be highly likely to go along with what others were doing, especially since they were known to him and older than him; (4)In her view, there was nothing that suggested that the plaintiff was anything other than a reasonably normal 13 year old boy. Her review of salient features of his background revealed he was well behaved and did not display any disruptive or reckless behaviour either at home or at school. She considered the plaintiff should not be considered particularly reckless as a child. In her opinion the plaintiff did not understand that in undertaking the activity in question, he was undertaking something highly dangerous or reckless. She further stated that it was likely the plaintiff would have felt some confidence in what he was doing since the driver of the vehicle was agreeable to being involved in the activity, and the older boys in whose company he was, were also prepared to engage in the activity in question. 98Those views must be analysed in conjunction with the entirety of the liability evidence and through the perspective of a commonsense analysis. 99The defendant gave critical attention to the opinions of Associate Professor Quadrio to the effect that the propensity of a boy aged 12 years and 10 months in the position of the plaintiff, would likely to be trusting of the judgment of the adult present and who was familiar to him, and her further view that a boy of the plaintiff's age would also be likely to go along with what the other boys with him were doing, in circumstances where those boys were older than him, and where they were known to him. 100The defendant's criticisms were that those opinions involved only general considerations because she had not interviewed the plaintiff, nor had she had a consultation with him, and that her opinions asserting the plaintiff's lack of understanding of the dangerous nature of the undertaking that led to his injury because of his confidence in the adult decision of the defendant and the participation of the older boys, should be rejected as speculation. 101I do not accept those criticisms or submissions for the following reasons. 102First, it was not necessary for Associate Professor Quadrio to have interviewed the plaintiff in order to prepare her opinions. This is because her opinions were directed at providing some evidence, based on her expertise, of the objective standard of the likely behaviour of someone in the position of the plaintiff, and the factors that would have been likely to have influenced that behaviour: s 5R of the CL Act; McHale v Watson. Her opinions on that ultimate issue are admissible, subject to questions of analysis and weight: s 80 of the Evidence Act 1995. 103Secondly, as was stated in Associate Professor Quadrio's first report, her opinions were informed by her unchallenged and extensive experience in the assessment of children and adolescents: Exhibit "B", p 78. 104Thirdly, Associate Professor Quadrio's views on what the plaintiff was likely to have understood at the relevant time, are not received so much as fact, but they are received as useful material for background that serves to guide the evaluation of the evidence of the circumstances that surrounded the accident. To the extent that her stated views accord with a commonsense analysis, they provide relevant guidance for the court for the fact-finding process. In that context, to the extent that those views may be thought not to accord with commonsense, they may be rejected. 105In my view, Associate Professor Quadrio has been shown on the evidence to be sufficiently well qualified to express the views that are criticised by the defendant. The question of the weight to be given to aspects of her opinions is a matter to be determined in the usual way, by recognising the absence of challenge to those opinions through cross-examination, the absence of contradictory opinions from someone of like expertise, assessing the content of her opinions for relevance, cogency and applicability, and the application of commonsense. 106In undertaking that consideration, I see no sound reason to reject the opinions of Associate Professor Quadrio as to her views on the propensity of a boy aged 12 years and 10 months in the described circumstances. Nor do I see any sound reason to assign diminished weight to those views. She is indisputably qualified to express views on the likely behaviour of a normal reasonable child in the given circumstances. That aspect of her opinion is relevant to an essential issue in the case, namely the manner in which the alleged contributory negligence of the plaintiff should be viewed, as is required by statute, and by applicable authority: s 5R(2)(a) and (b) of the CL Act; McHale v Watson. In my view, Associate Professor Quadrio's views are entirely relevant to these considerations. 107Of particular relevance is the opinion that the propensity of a boy of 12 years 10 months in the position of the plaintiff would likely to have been trusting of the judgment of Mr Verryt Snr, in the circumstances of his acquiescence for "skitching" to occur behind his vehicle, because Mr Verryt Snr was familiar to him, and because he was also the father of one of his longstanding neighbourhood friends. This suggests a position of authority and mature judgment that would implicitly exercise reasonable care. 108Also of relevance is the opinion of Associate Professor Quadrio that it was highly likely the plaintiff, being the youngest of the participants, would have most likely gone along with what the two older boys were doing. 109I accept that view as accurately describing the probable circumstance that prevailed at the time the events in question occurred. 110This is also relevant to the issue of apportionment, to which I shall shortly refer. 111It is relevant to note that the portion of the opinion of Associate Professor Quadrio which the defendant criticises as speculative, namely, the plaintiff's assumed lack of understanding of the danger of the activity he was undertaking, was not a matter that was put to the plaintiff in cross-examination as to how he related to the defendant and to the other two boys. 112In my view that was a general matter that was unaffected by the plaintiff's amnesia. It could therefore have been the subject of legitimate questions on the plaintiff's state of knowledge at the relevant time. It also relates to a possible inference that is available on the evidence, namely that the plaintiff was obviously comfortable with what the defendant had agreed to when the "skitching" was negotiated. Otherwise, it would have been unlikely that he would have "skitched" at that time. 113In the circumstances described, I draw that inference. 114I accept the cited opinions of Associate Professor Quadrio as providing objective and rational explanatory expert evidence of the likely behaviour of the plaintiff in comparison to an average boy aged 12 years 10 months in the circumstances in question. I consider that such evidence provides a reasonable perspective for viewing the actions of the plaintiff in a contributory negligence analysis, to which I now return, in order to consider the remaining allegations of contributory negligence, namely particulars (a), (b), (c) and (e). Remaining contributory negligence allegations: (a), (b), (c) and (e) 115I consider that in the circumstances, it was plainly unwise of the plaintiff and the other boys to together ride their skateboards whilst holding onto the rear of the defendant's moving vehicle. When viewed prospectively, this must be seen as being a dangerous thing to do, and this supports a finding of contributory negligence founded upon contributory negligence particulars (a) and (b). I therefore make findings to that effect. 116The activity of "skitching" behind a motor vehicle whilst it was being driven at any speed should be objectively recognised as a source of danger to the person "skitching". This is because, at the very least, the person doing the "skitching" retains no control of the speed of travel, and therefore courts danger when the only means of stopping whilst on a skateboard is to let go and change the dynamics of balance on the skateboard, therefore giving up the steadying handhold on the vehicle, making it no longer available at that point. It is that potential loss of balance that was observed in this case when the plaintiff was seen to "wobble" on his board just before his injury. 117The only way the plaintiff would have been able to stop with relative safety in those circumstances, would have been to use his foot as a braking force on the road surface as Messrs Harmison and Verryt Jnr did. There is no evidence that the plaintiff was sufficiently skilled or practised to achieve this. In any event, there is no allegation made against him concerning a lack of skill in the use of his skateboard. 118In light of the foregoing reasons, I consider that the allegations of contributory negligence (a), (b) and (c) have been made out. 119On the question of alleged excessive speed of riding the skateboard, the analysis gives rise to a difficulty for the defendant. The speed of the vehicle was something over which the plaintiff had no control. Therefore, unless he was able to safely let go of his hold on the vehicle and either stop or slow down by allowing the momentum of the uphill travel to take its course, or at least let the process of ordinary skating take over from "skitching", he was not in control of his speed in the same sense as was the defendant. 120This was a matter that was left unclear on the evidence because it is not known as to how the plaintiff was handling the ride up to the point where he was seen to cease his hold on the vehicle. It may have been the case that he let go of his handhold because he may have felt the vehicle was travelling too fast for his liking in the circumstances. Therefore, as the evidence on this point is unclear, I do not consider that contributory negligence particular (e) can be sustained. 121In my view, nothing of significance turns on the general allegation made by contributory negligence particular (c) because the allegation of failing to take care for one's own safety is non-specific, and in effect, it is just a ritual recitation of what is already covered by the other particulars, and matters, inherent in a general consideration of whether there was adherence to or departure from the expected standard of care and conduct. 122I find that it was inherently negligent of the plaintiff to make a conscious decision to ride a skateboard whilst holding onto the defendant's vehicle that was moving at any speed, particularly where he had no control over the speed, direction of travel, or the terrain over which the vehicle would be driven, and whilst he was not wearing an available protective helmet: Particulars (a), (b), (c) and (d). 123I am therefore satisfied that there was contributory negligence on the part of the plaintiff in the events in which he was injured in the subject accident. 124Those findings therefore require an evaluation be undertaken of the extent of the causative potency of the plaintiff's contributory negligence insofar as the non-wearing of a protective helmet is concerned, and the other relevant factors, when weighed against the primary negligence of the defendant.

Apportionment and causation findings 125Consequent upon the finding of contributory negligence on the plaintiff's part, it becomes necessary to weigh, balance and apportion the respective culpabilities of the parties for the plaintiff's damages according to what is just and equitable in the circumstances. 126The discretionary exercise of arriving at a just and equitable apportionment between the parties involves a comparative evaluation that weighs the proportion, balance and relative emphasis of the different operative considerations that led to the plaintiff's injury: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492; (1985) 59 ALR 529, at [8]; [10]. 127The defendant submitted that the plaintiff's culpability should be apportioned against him at 30 per cent. In contrast, the primary submission on behalf of the plaintiff was that there should be a zero apportionment against the plaintiff. The plaintiff's zero apportionment submission was founded on two alternative propositions. 128The first proposition was that according to the requirements of establishing legal causation, the defendant has not shown that the brain injury suffered by the plaintiff was relevantly caused by his own contributory negligence, having regard to the requirements of s 5D and s 5E of the CL Act. 129The second proposition was that the negligence of the defendant was so overwhelming in this case that he should be required to bear 100 per cent of the responsibility for the plaintiff's injuries. 130In the alternative to the plaintiff's primary submissions, it was further submitted that in the event that either of those primary submissions failed, then any culpability of the plaintiff should be measured in a modest degree, at either 5 per cent, or no greater than 10 per cent, the latter percentage being contingent on a finding that there was a causative contributory negligence comprising a failure of the plaintiff to have worn a protective helmet. 131In the paragraphs that follow, I set out the required evaluation of those submissions.

Helmet - Causation not proven 132The plaintiff has raised a causation argument in relation to the non-wearing of the helmet and contributory negligence based on that failure. 133Notwithstanding the finding of contributory negligence on the part of the plaintiff, it still remains necessary for the defendant to satisfy the legal requirements for proof of both factual and legal causation of the plaintiff's injuries and disabilities: s 5D and s 5E of the CL Act. 134There is no issue concerning factual causation. It is clear that but for the negligence of the plaintiff in maintaining his handhold on the defendant's vehicle when it moved off, and the plaintiff continuing to maintain that handhold until just before he fell, the plaintiff's head would not have been injured when it struck the roadway: s 5D(1)(a) of the CL Act. 135However, factual causation of the plaintiff's injury, of itself, and without proof of legal causation, is an insufficient basis for determining that there should be a reduction of the plaintiff's damages on account of contributory negligence: s 5D(1)(b) of the CL Act. 136To establish legal causation the defendant bears the onus of showing that it is appropriate for the scope of the plaintiff's liability for his own negligence to extend to the harm suffered by the plaintiff: s 5D(1)(b) and s 5E of the CL Act. 137The harm referred to, in this case, must be taken to mean the consequences of the plaintiff's frontal lobe injuries, and their behavioural and cognitive consequences. 138The required state of satisfaction concerning the legal justification for extending the scope of the plaintiff's liability for that harm, within the terms of s 5D(1)(b), is to be determined on the balance of probabilities through reasoned analysis of the evidence, including reasoned inferences capable of being reasonably derived from the evidence. 139That analysis should not proceed upon the basis of unwarranted speculation: Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 at [8], citing the decision of the High Court in Bradshaw v McEwans Pty Ltd, now reported at (1951) 217 ALR 1, where, omitting other internal references and citations, the following statement appears: "... as far as logical consistency goes many hypotheses may be put which the evidence does not exclude positively. But this is a civil and not a criminal case. We are concerned with probabilities, not with possibilities. The difference between the criminal standard of proof in its application to circumstantial evidence and the civil is that in the former the facts must be such as to exclude reasonable hypotheses consistent with innocence, while in the latter you need only circumstances raising a more probable inference in favour of what is alleged. In questions of this sort, where direct proof is not available, it is enough if the circumstances appearing in evidence give rise to a reasonable and definite inference: they must do more than give rise to conflicting inferences of equal degrees of probability so that the choice between them is mere matter of conjecture ... But if circumstances are proved in which it is reasonable to find a balance of probabilities in favour of the conclusion sought then, though the conclusion may fall short of certainty, it is not to be regarded as a mere conjecture or surmise ..." [Emphasis added] 140In this case, on my assessment of the evidence, the defendant cannot point to any "reasonable and definite inference" (emphasis added) along the lines cited above, so as to properly enable a conclusion that the damage to the frontal lobes of the plaintiff's brain from contusions due to contrecoup forces were, on the balance of probabilities, caused by the plaintiff's failure to wear a protective helmet. In contested litigation, such an issue cannot be decided by impermissible conjecture and surmise. 141To reach a state of satisfaction, on the balance of probabilities, as to the appropriateness of extending the scope of liability of the plaintiff as contemplated by s 5D(1)(b), such a finding must be established by evidence or soundly reasoned inferences derived from the evidence. This is an issue which would appear to require expert evidence and it cannot be established by unsupported speculation or unwarranted assumption. This is a matter upon which the defendant carries the onus of proof: s 5E of the CL Act. 142The defendant did not call any expert evidence on this aspect of legal causation and cannot point to any other expert evidence tendered by the plaintiff, which is available to be called upon to discharge that onus. 143The crucial point at issue in this analysis is the cause of the damage sustained by the plaintiff to the frontal lobes of his brain with the requirements of s 5D(1)(b) of the CL Act, in mind. 144The unanswered question that remains hanging in the air, put neutrally, is whether or not the plaintiff's brain damage would have been sustained irrespective of whether the plaintiff had worn a protective helmet. 145Unless a satisfactory answer is given to that question by acceptable evidence or reasonable inference, it cannot be reasonably assumed, without expert evidence, that had the plaintiff been wearing a protective helmet, this would have prevented the brain damage that he has incurred. 146In this case, an answer to that question is pivotal because it is the injuries to the plaintiff's frontal lobes that have given rise to the claims for extensive damages, founded upon his cognitive and behavioural problems, and the accident-related needs that have arisen as a consequence. 147On the evidence, and having due regard to the MAS process, the cut that the plaintiff had received to the back of his head, and the undisplaced fracture the plaintiff sustained to the occipital region of his skull, have not of themselves caused any significant or lasting problems that would ordinarily sound in damages in this case: s 131 of the MAC Act. 148It appears from the evidence that when the plaintiff's head struck the road, the resulting contrecoup forces caused contusions to the frontal lobes of his brain. 149It appears uncontroversial that the contrecoup injury is commonly understood to be due to the operation of transmitted forces within the skull, where the inertia of the brain located in a balanced position in cerebrospinal fluid, is disrupted and pushed away from the area when the striking force was applied to the head, in this case, to the occipital region, and towards the opposite side of the cranial cavity, in this case the frontal region, hence the occurrence of contusions to the frontal lobes in the positions described in the medical evidence tendered in this case. 150The medical evidence only suggested a mechanism of contrecoup injury. 151The defendant cannot point to any matters from within the evidence other than matters of impermissible conjecture and surmise, to warrant a conclusion, on the balance of probabilities, that the plaintiff's brain damage from the contrecoup mechanism was relevantly caused by his failure to wear a protective helmet: s 5D(1)(b) of the CL Act. 152Accordingly, I find that the defendant has failed to establish the necessary nexus of legal causation that is essential for securing the argued reduction in the plaintiff's damages on account of the plaintiff's contributory negligence in failing to wear a protective helmet. 153Notwithstanding that finding, and to allow for the possibility that finding may be found to be wrong on an appeal, in the paragraphs that follow, I will proceed to address the remaining contributory negligence arguments made by the parties.

Defendant overwhelmingly culpable 154In my view, for the reasons that follow, the weighing exercise required by the authority of Podrebersek compels the conclusion that in this case the defendant must overwhelmingly bear responsibility for the plaintiff's injuries. 155It was the defendant who, as a mature adult, and himself a parent of a teenage son, had the ultimate say on whether or not to move his vehicle forward knowing that at the time, the plaintiff and the other boys would be holding onto the back of his vehicle. If the defendant had acted with reasonable and prudent care at that moment, by simply refusing to drive in those circumstances, the accident would not have occurred as it did. 156The defendant was the responsible adult who was known to the plaintiff for some time, the plaintiff having been to his home on a number of prior occasions. The defendant should have realised, being the adult person in authority at the scene, in a sense in loco parentis, that the boys present at the scene would look to him to determine whether the proposed activity of "skitching" should be permitted to proceed using the vehicle that was under his control. In the circumstances, those boys, including the plaintiff, were entitled to assume that the defendant would control his vehicle in a safe manner and not allow it to be used for a dangerous pursuit. 157In the circumstances that prevailed at the time, the defendant knew that the plaintiff was the youngest in the group, and that he was a follower and not the instigator of the activity. In that position, the defendant should have known it was likely the plaintiff, as a follower, would be influenced to join in the activity instigated by others, and to follow the others in that pursuit. This required that the defendant consider the potential for the plaintiff to come to harm from the activity of "skitching", before the opportunity arose for such harm to occur, and to take the appropriate avoiding precautions, namely to desist from the suggested course of conduct. 158In that regard, the defendant did not even insist that the boys should wear protective helmets. In my view, this also indicates a very high level of disregard for the responsibility that rested on the defendant as the responsible adult present, and in control in the circumstances. 159In taking all of the above considerations into account, I find that all of the boys involved in the "skitching" activity, especially the plaintiff because he was the youngest, were entitled to think that the defendant, as the responsible adult in control of the motor vehicle, would not engage in an unsafe driving activity thereby exposing them to an avoidable risk of injury. 160The boys whom the plaintiff had followed into that activity, including the plaintiff, were entitled to assume that as the defendant had previously and uneventfully allowed his vehicle to be used for "skitching", that he would also do so safely on this particular occasion, although an accident occurred on this occasion. 161In my view, the plaintiff's conduct in the events leading to the accident were likely to have been in accordance with the characterisation described in the guiding opinions of Associate Professor Quadrio, as previously outlined. 162In weighing those matters, in my assessment, the contributory negligence of the plaintiff was totally eclipsed and overshadowed by the overwhelming negligence of the defendant. The plaintiff joined in the group activity as an incident of youthful behaviour influenced by the group dynamic, and he followed the lead of the other youths who were older. 163The exculpatory concept of the actions of youth, as opposed to the concept of accountable carelessness, were considered by Adamson J, in Axiak v Ingram [2011] NSWSC 1447, where at [65], it was found that the actions of a 14 year old girl running across the road in the circumstances described in that case was an act of carelessness, and not youth. 164In the present case, the defendant pointed to the decision in Axiak to argue for a similar finding to be applied in this case, namely that the plaintiff's injury did not occur as a result of a mistake due to his youth, but instead occurred due to a mistake of avoidable carelessness that is sufficient to invoke the justification for an apportionment against the plaintiff. 165The defendant's submission in that regard must be considered in light of the well settled principle that all cases of liability for negligence are to be considered from the vantage point of their own intrinsic facts and circumstances: Podrebersek, at [10], p 494, and like authorities. 166In my view, in the present case, unlike the position considered by Adamson J in Axiak, this was not an instance of a child having a disregard for the road safety considerations associated in crossing a road with due care. 167In the present case, I consider that the activity in which the plaintiff chose to join was an act of youth and immaturity, as explained by the evidence of Associate Professor Quadrio, and where the activity in question was under the control of a seemingly and ostensibly responsible adult who was known to the plaintiff, but was also known to be a parent of a teenage boy. 168Also relevant to the conclusion that the defendant's negligence was overwhelming in the circumstances was the fact that he had been the driver for the "skitching" activity on a previous occasion, and he had not seen fit to desist on this subsequent occasion, but instead agreed to participate on this occasion, under pressure that reasonable care should have required him to resist. That of itself was an overwhelming and negligent misjudgement, where he abandoned his own judgment in favour of meeting a requirement based on the immature urgings of teenage boys. 169In those circumstances, the failure of the responsible adult to observe the requirements of reasonable care in that way, should be seen to be completely overwhelming of a fleeting lapse of concentration and focus by a boy of 12 years and 10 months, acting in the enthusiasm of the moment contrary to the best interests of his personal safety, and where the events in question were under the control and supervision of the familiar adult in charge of the enterprise. 170In my view, the criticisms directed at the plaintiff in those circumstances, where he emulated and followed the older boys into the activity, should be seen to have been completely overwhelmed by the negligence of the defendant, as is suggested by the already identified views of Associate Professor Quadrio. 171In the circumstances outlined, I find that the negligence of the defendant was completely overwhelming of any lapse of judgment on the part of the plaintiff concerning care for his own safety. 172I find that the lapse of judgment evident in the plaintiff's conduct was a fleeting and momentary one, influenced by a desire to conform with and emulate his older companions. The significance of that lapse is reduced by the fact that an adult, the defendant, was in control of the situation. The defendant's lapse of judgment was far greater, more sustained, based on a repeated lack of insight into safety considerations required by the circumstances. In acquiescing to an immature request for "skitching" he totally abnegated his responsibility to the plaintiff by not desisting from "skitching". 173In those circumstances I consider it just and equitable that the defendant bear 100 per cent of the culpability for the occurrence of the accident, and there should be a zero apportionment against the plaintiff for his own contributory negligence.

Conclusion on apportionment 174I therefore apportion the responsibility for the plaintiff's damages as being 100 per cent on the part of the defendant, and zero per cent on the part of the plaintiff. As a consequence, there will be no reduction in the plaintiff's damages on account of the finding of contributory negligence on the part of the plaintiff.

Alternatively, modest culpability of plaintiff 175It is still necessary to deal with the remaining alternative arguments put forward by the plaintiff, recognising that reasonable minds may differ in respect of my causation and other findings, and that in the event of an appeal from my decision, different conclusions on the apportionment question may be found to apply in this case. 176To allow for those circumstances, having found there was contributory negligence on the part of the plaintiff, including in respect of his failure to use a helmet, but that such contributory negligence has been overwhelmed by the defendant's negligence, it becomes necessary to deal with that alternative argument. 177In that regard, the defendant maintained the case for culpability in the plaintiff requiring that there be an apportionment of 30 per cent against the plaintiff. 178In contrast, on behalf of the plaintiff, it was submitted that the plaintiff's responsibility was very small in comparison to that of the defendant, and that any apportionment against the plaintiff should be of the order of 5 per cent, or 10 per cent at best, if the issue of failure to wear a protective helmet was considered to be appropriately causative of the injury to the plaintiff, contrary to my findings concerning the application of s 5D(1)(b) of the CL Act. 179I consider that on those alternative assumptions, that are contrary to my findings, the submissions made on behalf of the plaintiff would otherwise have had persuasive force, and would have prevailed in the event of the assumed different findings. 180If I were required to make findings on the alternative basis identified, I would have made the just and equitable apportionment of 5 per cent against the plaintiff for contributory negligence, if found on the general basis of the particulars of contributory negligence other than the protective helmet issue. 181Alternatively, if the failure to wear a protective helmet issue had been found to be causative of the plaintiff's harm, the apportionment against the plaintiff in those circumstances would have been more in line with the plaintiff's alternative submission, namely an increase in the apportionment to 10 per cent culpability on the part of the plaintiff.

Facts relevant to damages issues 182Unless otherwise qualified, my findings of fact on the initial effects of the accident upon the plaintiff, matters of treatment, medical and allied reviews, the plaintiff's residual disabilities, and the issue of mitigation, are set out as follows, as appears in the accounts of the factual witnesses, whose evidence I have accepted unless where otherwise stated.

Initial assessments and treatment 183The initial observations of the plaintiff made by the ambulance officers who first attended the plaintiff were that he was laying on a bed, sweating, with his eyes closed, confused, amnesic of the events of the day, but obeying commands. It was also noted that the plaintiff had vomited. An area of 100cms (sic) of soft tissue mass/haematoma was noted at the occipital region. The ambulance transported the plaintiff to Wollongong Hospital. The hospital diagram of that area of injury shows the area of bruising was extensive: Exhibit "B", p 22. 184Following his arrival at Wollongong Hospital, the plaintiff was initially diagnosed as having a closed head injury and a linear fracture to the occipital region of his skull. The following day an MRI study of the plaintiff's brain together with a specialist clinical examination interpreted the plaintiff's injury to have involved a closed head injury with an undisplaced occipital fracture and an inferior frontal contrecoup contusion of the brain.

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.

Expert witnesses on damages issues 237Having reviewed the entire medical and allied evidence, in the paragraphs below, I summarise the conclusions I have reached concerning the expert evidence tendered in the proceedings. 238There was no attack made by the defendant upon the credibility and reliability of the evidence of Dr Jungfer, although the defendant sought to explore aspects of her opinions by cross-examination. The scope for any attack by the defendant upon the opinions of Dr Jungfer was somewhat circumscribed in that the defendant has twice had the plaintiff examined for medico-legal purposes by Dr Paul Friend, a consultant psychiatrist of apparently like specialty to that of Dr Jungfer. 239It was acknowledged that Dr Friend had provided the solicitor for the defendant with reports following those consultations. Those reports have remained unserved and were not tendered in the proceedings. 240For the reasons identified at paragraphs [354] to [359]; [402] to [411] and [451] to [461] that follow, I find that Dr Jungfer gave impressive, focussed, and cogently explained expert evidence. I have accepted in its entirety, the aptness and reliability of the content of her evidence for the purposes of making judgments on the plaintiff's accident-related conditions and the likely future effects those conditions will have on the plaintiff's living circumstances, his accident-related needs, and upon his future earning capacity. 241For the reasons identified at paragraphs [403] and [457] to [461] that follow, I do not accept the prognostic conclusions of the defendant's medico-legal neurological expert Dr Paul Spira, concerning his conclusions on the plaintiff's claimed future needs and with regard to the effect the accident has had upon the plaintiff's earning capacity. 242On behalf of the plaintiff, attacks were made upon the credibility and reliability of the opinion evidence given by Dr Pascall and Dr Bogan. 243For the reasons identified at paragraphs [246] to [256] that follow, I find myself unable to accept any of the key opinions relied upon by the defendant from within the evidence of Dr Pascall. 244For the reasons identified at paragraphs [257] to [263] that follow, I find myself unable to accept the evidence of Dr Bogan concerning his opinions on the extent to which the plaintiff's claimed accident-related neuropsychological deficits were present beforehand and were likely to have an adverse impact upon the plaintiff's future level of functioning and upon the plaintiff's ability to navigate his future life, and to exercise an earning capacity. 245The opinions of the respective occupational therapists, Ms Heathcote who was retained on behalf of the plaintiff, and Ms Varella who was retained by the defendant, and whose reports were tendered by the parties, stand to be examined according to the factual reasoning that was identified within the content of their respective reports, and in conjunction with the other evidence. Neither of these witnesses was required for cross-examination.

Resolution of conflicting medical and allied opinions

246The submissions made on behalf of the plaintiff concerning the evidence of Dr Pascall were highly critical, and were in the following terms: "Dr Pascall is an Occupational Physician but has no patient base. She provides reports for and gives advice exclusively to employers, insurers and their Solicitors. She has no relevant expertise in evaluating traumatic brain injuries. She conceded she was not a neuropsychologist. Dr Pascall examined Liam on one occasion, on 6 February 2013, and thereafter generated a report dated 26 February 2013. Her notes relating to the examination were not produced at Court. She did not interview any third party source in an effort to validate or contradict any information elicited from Liam. Regrettably, Dr Pascall presented as an unsatisfactory witness. Many of her answers were non-responsive and prolix and evinced an intent to make no concessions that could possibly be interpreted as being contrary to the interest of the Defendant. A good illustration of this was her approach to the reports of Peter Rawling. Her opinions ought not be acted upon unless they accord with other accepted opinions. A further complication regarding the evidence of Dr Pascall arises from the form of her later report of 28 February 2014. Much of that report had statements of Alannah and Paul as the foundation of her opinions. Objection was taken (and accepted as being appropriate) to opinions of hers not based on established factual matter. The 'statements' referred to are not in evidence. The authors were not cross-examined s to their content. Opinions assertedly founded on them ought not be considered. Dr Pascall has sought to be critical of Mr Peter Rawling. Mr Rawling was engaged as a joint neuropsychologist. He was not cross-examined. His opinions are on their face soundly based, appropriate testing having been administered by him. Dr Pascall's criticisms of Mr Rawling should be rejected out of hand. Should it be necessary, specific reference to particular parts of Dr Pascall's evidence shall be made in the course of oral submissions." 247I consider that there is persuasive force in those submissions. 248In her oral evidence Dr Pascall was plainly reluctant to make concessions in cross-examination where it was appropriate to do so, and she undertook an argumentative stance beyond what would be considered reasonable for an expert witness when defending her views that were being placed under the scrutiny of questioning. 249Dr Pascall's evidence was based on her interview with the plaintiff without making due allowance for his limited facility for communication, and without due allowance for the unchallenged observation made by Dr Rawling, the joint neuropsychologist retained by the parties, to the effect that attempts to communicate with the plaintiff were singularly unrewarding in monotone, with minimal emotional responses and apathy. Dr Pascall did not seek to reconcile those observations with the products of her own interview of the plaintiff. 250It was remarkable, in a case such as this, that Dr Pascall would form her assessment of the plaintiff based on an interview of the plaintiff alone, and on reviewing documents, without also seeking relevant comments on particular issues from the plaintiff's mother. It appears that this was because she had another interview to conduct. Instead, Dr Pascall left it to Mrs Schoupp to contact her if she wanted to make any comments: T386.32. 251This shows a misunderstanding by Dr Pascall of her role as an expert witness. An expert has an obligation to identify limiting factors in the opinions expressed and to take active steps to communicate this to the retaining party as part of the overriding duty to assist the court: UCPR, Sch 7 cl (3). 252In the circumstances, the invitation for Mrs Schoupp to make contact with Dr Pascall if she had concerns she wished to express was a meaningless one. It was the plaintiff being examined by Dr Pascall, not Mrs Schoupp, who, absent a relevant communication from Dr Pascall, would have had no way of knowing what it was Dr Pascall might have wanted to pursue with her by way of clarification of any details or further discussion. 253If Dr Pascall had issues or facts she wanted clarified for the purposes of expressing her opinion, she should have made that known to either Mrs Schoupp or to the solicitor who retained her, and she should have taken steps to have such matters appropriately addressed before expressing her opinions in final form for use in litigation such as this. In my view, the fact that she did not do so renders her opinions that are relied upon by the defendant in this case, significantly flawed. 254Furthermore, I consider Dr Pascall's analysis of whether or not the plaintiff's head injury should be properly characterised as severe, was shown to be incorrect, having regard to the content of the evidence and opinions of Dr Jungfer, Dr Rawling, Dr Lorentz and Associate Professor Quadrio. 255Dr Jungfer's explanation justifying the use of the descriptor severe to classify the plaintiff's head injury was cogent, based on current and accepted standards of classification, and upon a proper understanding of the nature and extent of the plaintiff's amnesia for the events before and after the accident. In contrast, Dr Pascall expressed her views from a base of limited experience and expertise on such matters, and her views were based on her selective analysis of the history and the medical material. 256I consider that Dr Pascall's evidence should not be accepted where there is conflict between her views and the opinions of Dr Jungfer, Dr Rawling, Dr Lorentz and Associate Professor Quadrio. I therefore reject her evidence on those matters. 257The submissions made on behalf of the plaintiff were also highly critical of the evidence of Dr Bogan, and were in the following terms: "Dr Bogan is a psychologist. He prepared a report dated 4 July 2013. In it he said 'I have read the documents you forwarded and have incorporated these into the body of this report.' In evidence he confirmed that there were no other documents received by him beyond those referred to in the body of his report. The position was otherwise - Dr Bogan had numerous statements of Alannah and Paul. There was other critical information he did not have. Dr Bogan has never spoken to Liam, or any other person connected to the matter. He has not read the transcript. The approach taken by Dr Bogan is extraordinary. His 'brief' was to provide comment upon the propensity of a 12 year old to engage in conduct of the type that was productive of Liam's injury. He failed to generate any written opinion relating to that matter. He was not asked to opine as to Liam's disability, capacity, or pre-morbid functioning. He took it upon himself to do so, and did so on the basis of inadequate material, selectively considered by him. For these reasons alone, his opinions ought be rejected out of hand." 258I consider that there is also persuasive force in those submissions. 259It was extraordinary that Dr Bogan's analysis relied upon by the defendant did not even attempt to address the very question that the solicitor for the defendant had briefed him to consider. 260It was even more extraordinary that the representatives of the defendant sought to rely upon the reports and opinions of Dr Bogan in this case, given the dissonance between the task he was asked to undertake, namely to address Associate Professor Quadrio's reports on the likely behaviour of a boy aged 12 years and 10 months relevant to the issue of contributory negligence, and the task he instead set himself, namely to undertake a commentary on the opinions of other experts on matters of post-accident diagnosis and disability. 261That dissonance emerged during cross-examination. There was no satisfactory explanation for the patent mismatch between the expectation within the defendant's brief to Dr Bogan and the outcome in the form of the opinions he expressed in his report, and which he maintained in his evidence. 262It appears that dissonance arose following an un-minuted telephone conversation between the solicitor for the defendant and Dr Bogan: T476.40. Following that conversation, the details of which are unavailable for consideration, Dr Bogan pursued the analytical course evident in his report and in his evidence. In that regard, he expressed opinions that were critical of the interpretation test results put forward by the neuropsychologist, Dr Rawling, who was a joint expert whose evidence was not the subject of any challenge. 263Dr Bogan is a psychologist. Given that Dr Rawling's neuropsychological reports and opinions were not the subject of challenge, I do not accept Dr Bogan's criticisms of the neuropsychological interpretations made by Dr Rawling where Dr Rawling was plainly qualified to interpret those tests. It was not within the remit of Dr Bogan's brief to analyse Dr Rawling's test results, and on the evidence I am not satisfied that Dr Bogan's comments are valid. Instead, I prefer the evidence of Dr Rawling and Dr Jungfer on those matters. 264Furthermore, I do not regard the attempt by Dr Bogan to quibble with the qualifications of Dr Rawling, in the absence of challenge to Dr Rawling's training, experience or expertise, as having any substance: T430.40.

Plaintiff's evidence - Damages issues 265At paragraphs [21] to [25] I have already outlined some aspects of the plaintiff's evidence in the context of findings concerning the credibility of his testimony and the liability evidence. I now add some additional findings concerning the plaintiff's evidence on damages issues. 266The plaintiff gave his evidence with relatively short answers of limited content and with relatively few expansive answers. I gained the impression that his affect was generally flat and largely devoid of expression, as appeared in the medical commentaries and from the evidence of Mr Paul Schoupp. 267In view of the plaintiff's difficulties with insight into his limitations, and his attitude of denial in relation to some aspects of his situation, his evidence required careful consideration in conjunction with other evidence from his mother, his father, his sister, and from his employer. A general summary of he plaintiff's evidence on the damages issues is as follows. 268After the plaintiff was discharged from hospital, the cut to his head recovered in time. He went through a phase of displaying aggressive, agitated and angry behaviour. He found he needed to avoid light and loud noises. For a time he lost his sense of smell and his sense of taste and this disturbed him. He had to remain out of school for a significant period at the very commencement of his high school education and he was later re-introduced to school gradually. 269In the process, he missed out on some of his schooling and he needed help in order to try to make up for lost time. He also found he needed remedial tutoring both in and out of the school setting. This caused him some particular embarrassment at being seen to be different, and it also caused him to fall behind in his lessons because he had been conspicuously taken out of his normal classes for those remedial lessons. This made him feel angry. He found he was having difficulty understanding mathematics and English. He felt awkward when people would enquire of him as to what was wrong with him. He disliked being thought of as being different. 270The plaintiff's memory was shown to be impaired for many historical events such as medical consultations, assessments, treatment and discussions about his wellbeing. He is aware of his mild left-sided hemiplegia and this prevents him from engaging in some social and sporting pursuits. 271The plaintiff finds that he gets very tired from concentrating and he is forgetful in a number of areas. This includes forgetting what his employer tells him to do, and forgetting to work according to work plans put before him. His tiredness causes him to slow down in his afternoon work. His afternoon tiredness is at least in part caused by difficulty trying to figure out his work plans: T70.20. He has no idea what work he would pursue if his present job was no longer open to him. He experiences trouble learning the skills of his trade and he frequently forgets such things: T68 - T69. 272The plaintiff has some social life but securing friendships with girls has proven to be problematic for him, and he has been rejected in that regard after disclosing that he had an accident. This is a cause of some considerable upset and embarrassment for him, and he has become apprehensive of being similarly rejected again. 273The plaintiff's work is in the niche area of manufacturing timber windows frames and doors. His plans for self-employment in the industry in which he is presently serving his apprenticeship, are plainly unrealistic and this shows he has very poor insight into what is involved in self-employment in his own business: T50.40 - T52.25; T73.16 - T73.32. 274The plaintiff's attention to domestic tasks, as described by him, clearly indicates that he would need assistance in those areas on a variety of levels, both whilst he continues to live at home, and afterwards: T53-T57. He clearly lacks insight into the need for such assistance despite the medical recommendations that he have it: T95.45. This is consistent with the factual observations by his parents. 275The plaintiff's experience of handling money and managing his accounts and bills is limited. His parents provide more insight into those issues than does the plaintiff's own evidence. His evidence provides some confirmation of the need for financial assistance and funds management because, apart from the medical and allied opinions on his deficits, his attitude to how his money should be managed seems to be quite naïve and this would leave him open to unfortunate exploitation: T61 - T62.

Mrs Schoupp's evidence - Damages issues 276Mrs Schoupp provided relevant background evidence. She has had a stable work history and has worked in a position of financial responsibility in a credit union for many years. 277Mrs Schoupp described the plaintiff's pre-accident disposition as being quieter than his two siblings, but his personality was outgoing, he was a happy, loving and polite child who was involved in school, social and sporting pursuits. He had passed his normal developmental milestones. Mrs Schoupp had decided to give him some extra assistance with his reading because that was an identified weakness for him. The school reports and test results indicated the plaintiff had a weakness in that area. That said, I consider that the plaintiff's school reports should be read with considerable caution. I prefer Mrs Schoupp's insights as to the plaintiff's pre-accident functioning. She also described him as being an average student, and that he was good at science. 278Mrs Schoupp described the difficult time the plaintiff had in hospital after the accident. She stayed there with him. His behaviour was agitated. He was swearing a lot, and he needed a lot of sleep. That continued on his return home. 279Soon after the plaintiff's return home from hospital, Mrs Schoupp noticed the plaintiff had problems with concentration, focus, and he appeared to have difficulty understanding things said to him. Also, she noticed his behaviour had changed in that he was getting cranky, having outbursts, yelling a lot, slamming doors and throwing things around in his room. This was observed to be in response to trivial commonplace events. She described how he took to yelling at his sister when she tried to console him. 280Mrs Schoupp also noticed he was not communicating very well, and he would back away from things and disengage or withdraw. She stated the plaintiff's described post-accident behaviours were quite unlike other teenagers, and they seemed to be related to his frustrations with people, questions, decisions, and the way the world is. 281Mrs Schoupp obtained referral for medical assistance for the plaintiff in consultation with a local paediatrician. Following his return to school she noticed that after school he would not do much, he did not do his homework, and he principally just watched television or lay down. Unlike before the accident, he needed prompting to carry out his chores which involved managing the things for household recycling and mowing the lawns. 282Mrs Schoupp described the difficulty and frustration the plaintiff experienced in the management of his telephone account and his indecisiveness and delays in paying his bills, resulting in default notices if he was not prompted to pay them. She described his obsessive purchases of similar items of clothing in needless quantity, his obsessive attitude to laundering his clothes, compulsive behaviours such as checking to see if his window and the front door was locked, and his constant vacuuming of his room and regular culling of personal items. 283Mrs Schoupp described how the plaintiff was resistant to consulting a recommended psychologist and she eventually gave up trying to get him to attend a psychologist, in part due to the psychologist deciding she could be of no help because of the plaintiff's unwillingness to be involved in the sessions. 284Mrs Schoupp described the plaintiff's forgetfulness, his ineptitude for preparing reasonable meals, and she stated her views on the plaintiff's need to have a routine and a structured environment around him. She considers the plaintiff would be unable to manage his own household without external assistance because of his issues with disorganisation. 285Mrs Schoupp described the plaintiff's problems with irritability, frustration, inflexibility, outbursts, difficulty concentrating, planning healthy meals, obsessiveness with cleanliness and with his clothes, and difficulty with problem-solving, as being ongoing concerns. She is also very concerned about the plaintiff's vulnerability over money management matters. She said that unlike the situation before the accident, he has become forgetful, unreliable, and argumentative. He is also prone to withdraw from the family and others, and his behaviour is characterised by an absence of pleasant conversation. 286Mrs Schoupp identified the fact that the plaintiff had an uncle who was for a time in self-employment operating his own business. She also identified the fact that a friend of the family has his own business as an electrician and as a farmer, and stated that the plaintiff had displayed an interest in relation to the activities of those businesses. 287There was no attack on the credibility or the reliability of the evidence of Mrs Schoupp.

288Mr Schoupp is presently aged 56 years. He finished his schooling when he was aged 16 years. He went into similar employment to that of his own father as a ganger or labourer, carrying out physical work for the then Department of Main Roads. He has continued working for the various successors in title of that department, and he has risen through the ranks of promotion to a present position of responsibility as a supervisor of a gang of 6 men, with responsibility for up to a dozen machines and other equipment, as well as the materials used for roadworks. 289Mr Schoupp described the plaintiff before the accident as having been a happy, courteous, respectful and likeable child, and a good boy. He was awarded the prize for the best and fairest in his football team where he played in the front row. He enjoyed being in a team and he carried out his share of household chores and did them well. He was also close to his sister, respectful to his mother and did not swear. He considered the plaintiff produced reasonable grades in his schooling, although reading was not his strongest suit. 290Mr Schoupp described an occasion where, before the accident the plaintiff had displayed initiative by writing a welcoming note to a new neighbour: T314.50 - T315.5, an attitude and behaviour he no longer displays since his accident. He no longer describes the plaintiff as being a friendly person: T317.17. 291Mr Schoupp described the plaintiff's early post-accident aggressiveness, his abusiveness and his swearing. He recounted the plaintiff's annoyance and frustration at his memory impairment. 292Mr Schoupp observed that after the plaintiff had completed his rehabilitation, at home he displayed tiredness, frustration, swearing, intolerance of his sister and aggressiveness towards her, and irritability. Despite him firmly talking about this to the plaintiff, these behaviours continue until the present time, which has required family members to get used to him behaving that way, a matter which is obviously displeasing to the family: T302.36; T340.27. 293Mr Schoupp described how after the accident "there was something missing" in the plaintiff, he was not the same happy person he was before, he developed a stony-faced countenance, he related differently, he has a "shadow", and became disinterested in his things and in discussion, he became very insecure, was obsessed with locking doors and windows, and developed what was reminiscent of a stroke-like left-sided droop with his arm and leg that was more noticeable when he was tired: T303.39-T304.35. This has persisted, and it was influential in the plaintiff withdrawing from his previous sports. 294Mr Schoupp described how the plaintiff does not display emotion anymore, other than crankiness "around the women" of the house: T305.34. He described the plaintiff has having become fastidious about the cleanliness of his clothes, which continues to be the case:T307 - T308. 295Mr Schoupp described how it takes the plaintiff longer than a normal timeframe to do things. He described much the same picture as Mrs Schoupp painted with regard to the plaintiff's obsessiveness with clothing and culling, and his limited culinary abilities. 296 Mr Schoupp described how the plaintiff had displayed initiative in seeking out his own work experience opportunity in a joinery, and how this had eventually led to him securing his apprenticeship: T310. Mr Schoupp also described how, during the apprenticeship, he had an occasion to inform the plaintiff's employer of the background circumstances of his injury and the effect it has had on the plaintiff, especially on his memory, information of which the employer was beforehand unaware: T311. The plaintiff's memory problems continue to be seen by Mr Schoupp as being problematic for him: T343.25. 297Mr Schoupp identified circumstances where the plaintiff was charged with a drink driving offence because he had been pressured into driving a distance of about 500m whilst he was affected by alcohol, and against his earlier decision not to do so. The plaintiff had only relented under pressure from others in order to be helpful in that situation: T313. This is a good example why the plaintiff is in need of some external supports as are claimed as elements in his claim for damages. 298Mr Schoupp described the absence of any display of emotion from the plaintiff when his grandmother died. He described his son's present situation as being: "A very serious young man that obviously has a few problems": T314.28. I consider that to be a considerable understatement that was delivered with some lament. 299From his vantage point of being a supervisor of men in the workplace, Mr Schoupp considered that in his future working life, the plaintiff would have to be lucky [to find or keep work] as he would expect him to find it very hard, and he cited the plaintiff's present employer as someone who "at the moment looks after him": T316.45. 300The impression I obtained from Mr Schoupp's evidence is that he did not have confidence in the plaintiff pursuing his wish to become self-employed in his own business. He does not trust his proficiency with controlling the flames on the gas barbeque: T320.11 - T321.14. This is despite Mr Schoupp's efforts, including trying to teach the plaintiff how to use the stove, without making a material difference to the plaintiff's lack of ability in that regard: T341.17. 301Mr Schoupp described his understanding of the plaintiff's work as involving tasks of regimentation and routine, and he noted that the plaintiff is not comfortable with non-routine tasks, and he stays back at work to complete the production of those items: T321.35. There is no suggestion that he is paid overtime for that extra time allocated to complete his allotted work. 302Mr Schoupp stated that he thought the plaintiff's choice of trade may have been influenced by an uncle who was self-employed for a while but who now works as a council inspector: T333 - T334. He also referred to the plaintiff's older brother who served an apprenticeship when training as a chef before later venturing out into his own business: T336 - T337. 303Mr Schoupp referred to the plaintiff's social anxiety about punctuality to the point of agitation, and the untimely manner in which he deals with his obligation to pay his bills and his need to be continuously reminded about such matters: T321 - T323; T325.15. The plaintiff's cooking skills do not inspire Mr Schoupp with confidence: T326. As the plaintiff's father, he would like to see the plaintiff's behaviours change for the better in the future but he sees nothing that encourages confidence in the prospect that this is likely to occur: T325.8. He remains concerned about the plaintiff's ability to manage his compensation funds in the future: T327.40. 304There was no attack on the credibility or the reliability of the evidence of Mr Schoupp.

Ms Ashleigh Schoupp 305Ms Ashleigh Schoupp, the sister of the plaintiff gave evidence. There was no attack on the credibility or the reliability of her testimony. 306Ms Schoupp is three years older than the plaintiff. She still resides in the family home with the plaintiff. She has completed her High School education to Year 12. She has completed a TAFE course in graphic design. She presently works in Wollongong as a receptionist for a firm of solicitors. She was in Year 12 at High School when the accident occurred and in those circumstances I consider she was in a reasonable position to relevantly and reliably observe the effects of the accident upon the plaintiff. 307Ms Schoupp's observations of the plaintiff before his injury was that he was a happy, normal, outgoing, talkative, caring little brother who was amenable to jokes and playing games: T275. She added that he never used to swear before the accident: T276.18. 308Ms Schoupp described dramatic changes in the plaintiff in the months and years after the accident. These changes were characterised by the plaintiff becoming very aggressive, yelling at her and at their mother. She said he would also swear and yell when he perceived things were not being done to his requirements. Small or previously inconsequential matters seemed to have the effect of upsetting the plaintiff. These behaviours used to scare her, and as a result she took to avoiding the plaintiff by hiding in her room: T276. 309Ms Schoupp also observed that the plaintiff seemed to have lost confidence and did not talk as much as he used to. He spends his leisure time watching television and playing on his phone. He continues to yell and swear at her and at their mother for no apparent reason: T277. He becomes angry with no apparent trigger, and becomes very anxious about meeting time schedules for outings. He has become very fastidious about his room and his clothes. He becomes moody. His behaviours still frighten her: T278-T279. 310Ms Schoupp described the plaintiff as being impatient, intolerant and blunt in his comments when watching television, including making inappropriate comments. She also described him as not displaying any apparent emotion, and cited the example of the death of his maternal grandmother, to whom he was quite close. She said that on the occasion of his grandmother's death he did not say anything and he displayed no emotion, such as crying, unlike others in the family at that time: T280. 311Ms Schoupp recounted how, during the time when the plaintiff was at school and needed extra tutoring after the accident, he disliked that because he did not want people thinking he was stupid: T281.26. 312Ms Schoupp acknowledged that over recent years the plaintiff's yelling and swearing has lessened as he gets older: T283. She now sometimes socialises with him and with friends but she still observes him to be quiet and lacking in a degree of confidence. She also stated that he displays nervousness when going to the local shops: T284 - T285. 313Ms Schoupp observed that the plaintiff enjoys his work and that to her observation he does good work: T283 - T284.

Mr Russell Pugh 314Mr Russell Pugh, the plaintiff's post-accident employer, gave evidence of the plaintiff's performance in carrying out his work duties in the course of his carpentry and joinery apprenticeship. There was no attack on the credibility or the reliability of his testimony. The relevant detail of his evidence will be analysed in the course of my reasons for assessment of the plaintiff's claim for future economic loss. In the meantime, it is sufficient for me to record my view that Mr Pugh seemed to me to be a careful, principled and impressive witness who gave considered and measured evidence which I should accept in its entirety.

Mitigation 315The plaintiff has a duty to mitigate his damages: s 136 of the MAC Act. Whilst it is apparent that the plaintiff declined to co-operate with some of the recommendations for him to pursue consultations with a psychologist in order to assist with the management of the effect of his injuries, I do not regard that evidence as constituting a failure on his part to take reasonable steps to mitigate his damages. 316This is because at all relevant times the plaintiff had limited insight into the need for those recommendations because of his brain injury and he did not recognise the need for the consultations suggested to him. This was also a function of his state of denial over his problems and his desire not to be perceived as being different or having problems. Those circumstances cannot constitute the requisite degree of unreasonableness in order to properly ground a submission of a failure to mitigate. The defendant's representatives made no arguments to the contrary and did not assert a failure on the part of the plaintiff to comply with his obligation under s 136 of the MAC Act.

Assessment of damages 317In the paragraphs that follow, after identifying the plaintiff's probable statistical life span, I set out my assessment of the plaintiff's entitlement to damages on the heads of damage claimed on his behalf.

Probable life span and actuarial factors 318There is nothing that reasonably arises from the evidence to suggest that the usual statistical median life span would not apply to the plaintiff's circumstances. At his present age of 20 years, the plaintiff has a rounded down probable median statistical life span of a remaining 65 years. The parties agree that the 5 per cent actuarial multiplier for 65 years is 1024.6. 319The parties have agreed that for the purposes of assessing damages, the plaintiff's probable working life should be limited to the age 67 years, which is a further 47 years. Although the plaintiff's employer has expressed some concerns about the continued viability of the plaintiff's employment, given the advanced stage of his apprenticeship, it seems unlikely that the plaintiff will incur a financial loss during the currency of his apprenticeship, which is due for completion in October 2015, in about 18 months. 320In those circumstances, when assessing damages for future loss of earning capacity, that claim should be assessed over a remaining period of about 46 years, with the application of a 5 per cent actuarial deferral multiplier for about 1.5 years (x 0.925).

Non-economic loss 321On behalf of the plaintiff, a claim was made for non-economic loss in an amount suggested to be of the order of $300,000, if not more. On behalf of the defendant it was submitted that damages for non-economic loss should be assessed in the sum of $275,000. 322In assessing the entitlement of the plaintiff to damages for non-economic loss which includes allowances for the range of considerations that encompass matters of pain, suffering and loss of the amenity of life, I am guided not only by the evidence of the plaintiff, his parents, his sister, and his employer as to his level of day-to-day functioning and problems the plaintiff encounters in his functioning, but also by the medical evidence which I have accepted, and which provides a relevant context for that other testimony. 323The medical evidence is the most convenient starting point for the consideration of damages for non-economic loss because the evidence of the plaintiff as to his level of functioning across the range of activities of his daily life does not provide an adequate picture of his accident-related deficits. This is because he lacks a full insight into his problems and he tends to either deny the existence of problems or he understates them because he does not want to be perceived as being different to others. 324The medical evidence I have accepted indicates that in the subject accident the plaintiff has incurred what is properly described as severe traumatic brain injury, involving an undisplaced occipital fracture of the skull and bilateral contrecoup contusions to the frontal lobes of his brain. 325Those injuries have resulted in the plaintiff sustaining permanent frontal lobe brain damage with associated interference with his executive functioning in the areas of insight, planning, organisation, control of his emotions and cognitive functioning. The plaintiff also has a mild form of residual left-sided hemiplegia, which has resulted in a slight weakness of co-ordination of his left arm, along with what has been diagnosed as being an intention tremor of the left arm. He appears to have eventually recovered his senses of smell and taste, which were either lost or impaired for a time. 326The practical effect of these matters is that the plaintiff has been permanently and adversely affected in his day-to-day functioning. This has occurred in the areas of planning, organisation, his judgment as to some of the detail of what is required of him insofar as some aspects of his work tasks are concerned, and he has a tendency to perseverate obsessively on some tasks. His behavioural restraints are affected, as are some aspects of his socialisation, which has limited his social opportunities. 327The plaintiff has also been rendered vulnerable to exploitation, not just in the financial sense, as is apparent from an occasion when he was opportunistically persuaded by others to drive whilst he was affected by alcohol in order to provide them with convenient transport, despite his earlier determination that he would not drive on that occasion. In those circumstances he was not able to exercise appropriate judgment in his best interests. 328Having regard to the findings concerning the plaintiff's disabilities as outlined in the evidence of his parents and sister, as set out in the medical evidence I have reviewed and as summarised above, and also having regard to the unchallenged evidence of Dr Jungfer which surveyed the array of likely problems the plaintiff may anticipate, I consider that the sum of $300,000 represents a reasonable, fair and proper amount to compensate the plaintiff for his non-economic loss. 329I therefore assess the plaintiff's damages for non-economic loss in the amount of $300,000.

Future economic loss 330On behalf of the plaintiff, a claim was made for future economic loss in the form of a buffer amount assessed to be in the order of about $765,000. 331The manner in which the plaintiff's submitted buffer was calculated involved two components, the first being a discounted amount of the order of $415,000 for loss of earning capacity generally over the plaintiff's working life as a tradesman carpenter and joiner, based on a projected loss of earning capacity of $550 per week net, and secondly a further buffer amount of the order of $250,000 to represent loss of earning capacity due to the plaintiff being denied the capacity to pursue possible future self-employment in a small business in the building trade, grounded upon his trade qualifications as a carpenter and joiner. 332In contrast, on behalf of the defendant, it was submitted that damages for future economic loss in the circumstances of the plaintiff should be assessed in the more limited global buffer amount of $250,000. 333That latter submission on behalf of the defendant proceeded on the basis that a generally assessed global discretionary buffer sum of $250,000 represented fair and proper compensation for all aspects of the plaintiff's future loss of earning capacity. 334That submission entailed the assumption that the plaintiff would be likely to maintain regular employment throughout his future working life, and it also assumed that the assessed buffer ought not include a significant component to allow for any losses arising from the loss of opportunity for the plaintiff to earn higher levels of income from self-employment, but for his injury. 335For the reasons I shall shortly identify, I do not accept the defendant's submissions in that regard. 336In surveying those two differing approaches to this component of the assessment of the plaintiff's damages, I consider that the approach taken on behalf of the defendant is overly simplistic in the case a young man at the threshold of his working life, where, by reference to the employment circumstances of family members, it would be reasonable to infer that uninjured, the plaintiff had some prospects of advancing beyond the basic role of employee tradesman carpenter and joiner: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. In my view, some significant additional allowance should be made on account of that factor and the prospect that the plaintiff is no longer able to pursue self-employment and the higher economic rewards that would be expected to accompany that status. 337I therefore accept as reasonable in the circumstances the general approach contended for on behalf of the plaintiff. Principles governing assessment of future economic loss 338Before undertaking the required assessment, in the paragraphs that immediately follow, I remind myself of the applicable legal principles governing the process of assessment of damages for future economic loss. 339The starting point for any analysis concerning this head of damage is to identify the most likely circumstances of the plaintiff, had he not been injured in the subject accident: s 126 of the MAC Act. 340The next stage of assessment requires a consideration of whether the plaintiff has in fact suffered a loss of earning capacity that is likely to cause him to suffer a financial loss: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, at [7] following Graham v Baker [1961] HCA 48; (1961) 106 CLR 340, at [10], p 347; Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, at [2]. The respective submissions of the parties proceeded upon the basis of an acceptance of the proposition that these requirements have been met in this case. 341Since both parties in this case contend for a buffer sum of compensation for this head of damage, the final stage of assessment requires the quantification of the assessed loss of capacity in accordance with the applicable authorities: Penrith City Council v Parks [2004] NSWCA 201, at [58]; State of NSW v Moss [2000] NSWCA 133, at [71], (2000) 54 NSWLR 536, at [7]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, at [7] - [9]. 342The latter authorities allow for circumstances where the basis for assessing the extent of the loss of earning capacity can at times involve meagre evidence. 343Implicit in the process of assessment is the need to consider the potential for mitigatory earnings, and a residual earning capacity. Most likely circumstances of plaintiff but for injury: s 126 of the MAC Act 344In the series of sub-paragraphs that immediately follow, I set out my assessment of the likely circumstances of the plaintiff but for his injury: s 126 of the MAC Act: (1)As the plaintiff was not academically inclined, and language skills were not his strong suit, it is likely that by the end of Year 10 of his schooling, consistent with the initiative he took regarding obtaining his apprenticeship after the accident, it is likely that he would have entered into an apprenticeship, probably in the field of carpentry and joinery, or some similar field. There is nothing within the plaintiff's pre-injury school reports or pre-accident history, which would suggest otherwise. Similarly, there is nothing in those materials to suggest the plaintiff lacked the capacity to qualify for such a trade; (2)Given the progress the plaintiff has made towards the completion of his present apprenticeship (albeit with some concessions being made for slowness due to his injury affected state) it is very likely that uninjured, he would have proceeded to complete such an apprenticeship in a little over a year from now, which is when he is presently due to qualify as a tradesman carpenter and joiner; (3)Recognising the plaintiff's pre-accident personal qualities as described by his family members, including initiative, friendliness, politeness, and being one who did what was required of him without problems, and inferring that the traits which have been observed in him subsequently, namely obsessive attention to detail and accuracy in his work (which may have been present in any event but without the perseverative tendencies he now exhibits) it seems very likely that he would have progressed well with his apprenticeship and become a well qualified tradesman; (4)In the circumstances outlined in sub-paragraphs (1), (2) and (3) above, the plaintiff has not suffered any direct loss of earnings up until the time of the hearing, and he makes no claim for economic damages in respect of that period; (5)In the ordinary course of events, the plaintiff would have proceeded to complete his apprenticeship and he would have progressed in the learning of his trade without being affected by the post-injury burdens associated with: (a)slowness of progress in acquiring knowledge and experience in the theoretical and practical areas of learning for his trade; (b)slowness in his work; (c)not yet being at a stage where he could be reliably required to interpret technical and workshop drawings as is expected of other uninjured apprentices at his stage of apprenticeship; (d)obsessively perseverating with ordinary work tasks in a perfectionistic manner using his employer's time and materials in a wasteful and uneconomic way; (e)vulnerability to possible disciplinary action from his employer, or from the labour hire company or the apprenticeship authority to which he is accountable, because he seems to be regularly unable to: (i)punctually attend to his work without difficulty; (ii)attend to the timesheet record keeping requirements of his employer for proper costing of the jobs he is required to carry out; (iii)keep a proper account of his use of materials in his work; (iv)keep proper and readily locatable notes of his progress on the learning issues that he is required to attend to for audit purposes, in connection with the supervision of his apprenticeship; (v)perform simultaneous multi-tasking in basic areas or work as is expected of him, thereby taking time away from his productivity as an employee; (6)The issues and concerns outlined in (5) above all involve the plaintiff being in a position of disadvantage on the open labour market especially if, as would be expected, his present employer were to provide frank answers to the standard question asked by a prospective employer of a former employer before engaging the plaintiff; (7)A review of the work history of the plaintiff's immediate family indicates a pattern of stability in responsible employment. In those circumstances it is reasonable to infer that the plaintiff would also have maintained stable employment throughout his working life, consistent with the role models provided to him by other members of his immediate family; (8)The work history of the plaintiff's father, who without education beyond that obtained by the plaintiff, and without trade qualifications, indicates that Mr Schoupp Snr had progressed from initial menial work up to an overseer's supervisory position of significant responsibility in terms of manpower, machinery and sizeable projects involving public works. Given that the plaintiff and his father have performed in similar ways on the aspects of psychometric testing identified by the defendant's psychologist Dr Olymbios, and given the plaintiff's pre-injury attitudes and disposition, and his parental role models concerning the work ethic, insofar as it is reasonably possible to draw inferences from those circumstances, it seems very likely that the plaintiff would also have worked towards a significant position of responsibility in his future working life, and he would have enjoyed the commensurate economic rewards that come with the status; (9)With the personal qualities of initiative, good motivation and quality of his finished work, the plaintiff would have been well placed to advance in his standing in his trade amongst his peers. This is a circumstance that would be likely to be appropriately recognised and rewarded by an employer attuned to the need to reward such qualities and to keep good employees on the payroll in a competitive labour market for skilled tradesmen; (10)Given the work history of the plaintiff's brother who ventured into successful self-employment as a chef, it is possible that when the plaintiff became suitably qualified and experienced in his trade, he would at some stage have been motivated to pursue a similar endeavour in his own small business venture within the skills set of his trade; (11)The plaintiff would have advanced his career opportunities without restriction as to how he could deploy his labour on the open labour market to age 67 years, subject to the usual vicissitudes, both positive and negative, that would apply to any other person at an early stage in his working career: Wynn v NSW Ministerial Corporation [1995] HCA 53; (1995) 184 CLR 485. 345There is no sound reason for concluding that the extent of the plaintiff's pre-injury weakness in language skills as suggested in his school reports, necessarily represented an impediment to him progressing in his chosen career, including possible self-employment. 346Having regard to the above considerations, I am satisfied that the plaintiff's damages for future loss of earning capacity should include allowances for both of the two components of damages that are contended for on his behalf. 347The first component is for likely loss of earning capacity in an employed position over his remaining working life in his trade as a carpenter and joiner. The second component relates to possible self-employment in a small business associated with the array of skills within his trade as a carpenter and joiner. 348The likely timing and extent of that loss is within the category of imponderables that frequently fall for assessment in this type of case: Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638. Loss of earning capacity productive of financial loss 349Although the plaintiff has not suffered any measurable loss of earnings to date, on the basis of the findings I have set out in the sub-paragraphs of paragraph [344] above, I am satisfied that the position with regard to his future earning capacity will be very different in the sense that his post-accident disabilities will have a significant adverse impact on his ability to obtain and maintain employment. 350In that regard, for the reasons that immediately follow, I am satisfied that the plaintiff will suffer a significant loss of earning capacity into the future, and that such loss of earning capacity will cause him to suffer financial loss: Husher v Husher; Graham v Baker; Medlin v State Government Insurance Commission. 351First, it is of concern that the plaintiff's present employer, knowing the plaintiff's situation, was not prepared to say that the plaintiff's immediate employment was secure from retrenchment until the conclusion of his apprenticeship: T369.44; T370.21. This was so, notwithstanding the fact that the employer does not have the full burden of responsibility for the plaintiff's wages as an apprentice: T350.27; T368.20. 352Secondly, the plaintiff will in the short term face the likely economic disadvantage whereby, without any mal-intent on the part of his present employer, that employer would understandably feel obliged to truthfully answer questions from a prospective employer about the plaintiff and his productiveness as an employee: T363.26 - T363.40. The plaintiff's present employer has had the opportunity of observing the plaintiff on the factory floor over the last 2.5 years: T358.32. Amongst the matters that would very likely be the subject of candid disclosure to future employers concerning the plaintiff's work, would be: (1)The plaintiff's perfectionistic tendency, almost to the point of obsession, to do a perfect job beyond the requirements of the task or the expectations of him, to the point of lacking focus on the business factor of accountability of time spent on a project: T358.45; (2)The plaintiff's observed inability to work and to engage in basic talk at the same time, leading to a backlog in him completing his workload: T359.6; (3)The need for other employees to make-up for lost time when the plaintiff falls behind in his work: T359.31; (4)The fact that the plaintiff's present employment has continued because of an understanding attitude on the part of his employer who has made allowances for his slow speed of work: T359.44 - T360.1; (5)The propensity of the plaintiff to forget to fill out or correctly fill out his timesheets and to account for his use of materials, and the difficulty in getting him to attend to those matters: T360.9; T360.31; T361.40; (6)A reason why the plaintiff's employment is likely to be terminated for slowness and his inability to "pick up the ball and get some of his important paperwork done he really hasn't got a job" with his current employer: T363.18 - T363.24. The plaintiff's forgetfulness in that regard is a recurring problem due to his brain damage. The reasoning involving non-completion of paperwork is very likely to be disclosed in a candid discussion by the present employer when answering questions from a prospective employer: T363.40; (7)The work observation that the plaintiff is crisper in the morning and fatigues and deteriorates as the day goes on: T365.37; (8)The plaintiff's problem with sufficiently sustained focus on work tasks: T365.36; (9)The fact that the plaintiff lacks concentration and is too slow in his performance on his allotted work tasks: T367.8 - 367.14; (10)The plaintiff takes a lot longer to do things, and he should be more advanced in his acquisition of skills than he is at his present stage of apprenticeship: T369.14 - T369.22; T370.8; (11)The plaintiff has not yet reached the stage of being able to interpret drawings although this would be expected of him at his current stage of apprenticeship: T371.26; (12)There are others in comparison to the plaintiff who would be more capable of fulfilling the role of serving the profitability needs of the business: T369.49; (13)The plaintiff is unpunctual on a daily basis and takes longer tea and lunch breaks because he is not careful with his time: T370.30 - T370.44. 353Thirdly, if the plaintiff found himself in circumstances where he had to change his employment for whatever reason, the above disclosures by his present or successive employers would most probably have a deleterious impact on his employability, especially if this cycle of events were to be repeated through successive applications. Those matters must be seen to be significant restrictions in the plaintiff's earning capacity, and the portability of his employment, which would otherwise have been unfettered. 354In that regard, Dr Jungfer's experience of persons with problems such as those experienced by the plaintiff provides a reasonable basis for pessimism over the continuity of the plaintiff's future working life in progressing beyond successive probationary periods of employment: T496.20 - T496.41; T507.45; T508.17. 355A cycle of such adverse events and repeated failures could cause the plaintiff to become depressed, in conjunction with his lack of insight, could in turn also have an adverse impact on his employability: T522.30. 356Fourthly, the detrimental matters presently affecting the plaintiff as referred to in sub-paragraph (5) of paragraph [344] and paragraph [352] above are unlikely to resolve over the plaintiff's remaining working life, as the plaintiff's problems are organic and incurable: T496.46. 357Fifthly, the plaintiff is at real risk of encountering discontinuity of employment throughout his working life or permanent unemployment as outlined in the examples referred to in the oral evidence of Dr Jungfer: T497.34 - T497.50. 358Sixthly, those potential factors referred to by Dr Jungfer have the resultant capacity to cause the plaintiff to suffer depression, which could in turn adversely affect his earning capacity: T522.30. 359Seventhly, Dr Jungfer identified the problem affecting the flexibility of the plaintiff's employment because of limitations on the transferability of his learned skills from window building to other types of work in his trade. She identified this as often representing a major stumbling block in similar cases: T512.42. In my assessment, those comments are very apt to the plaintiff's circumstances given the evidence of Mr Pugh as cited in paragraph [352(1) - 352(13)] above. 360In my view, the foregoing analysis plainly justifies moving to the next step in the consideration, namely estimation of the quantum of the plaintiff's loss of earning capacity having regard to those considerations. Assessment factors 361The evidence from which to quantify the plaintiff's claim for loss of future earning capacity may be derived from a number of different sources in this case. 362One such source is Exhibit "H" which identifies the earnings of a senior tradesman carpenter joiner in the employ of the plaintiff's present employer, namely the amount of $1109.25 per week net. 363Another source of such earnings is the present value of average weekly earnings ["AWE"] published from time to time by the Australian Bureau of Statistics: Furzer Crestani Assessment Handbook, October 2013 Ed. In appropriate cases where there is only limited evidence of the extent to which an injured person has been able to exercise an earning capacity, courts may have regard to such statistical rates. 364In some cases where there is uncertainty over the level of a plaintiff's pre-injury earnings, or an absence of a relevant earnings history, courts have found it appropriate to have regard to published data for average weekly earnings when assessing claims for loss of earning capacity where precision was not possible: State of NSW v Gee (aka Michaels) [2002] NSWCA 326, at [35]; Rosniak v GIO [1997] 41 NSWLR 608, at p 621F, p 622B-E, p 628E 365In the publication cited above, current AWE Total Earnings for All Employees (NSW) can be identified as being of the order of $1107.80 per week gross (at p 11), which is the equivalent of about $885 per week net. Current Total AWE for full time males engaged in the construction industry can be identified as being of the order of $1702.80 per week gross, or about $1276.49 per week net: Furzer Crestani Assessment Handbook, October 2013 Ed, p 13 and p 26. 366Furthermore, the plaintiff's present employer identified the general proposition that persons in self-employment in the building industry tend to earn high levels of annual income of the order of $80,000 to $100,000, or even of the order of $200,000, if not more, profit before tax: T355.3 - T355.9; T372.32. 367In that regard the plaintiff's employer noted that in his business, as manager and supervisor, he has seen a lot of apprentices go through to becoming very successful qualified builders: T352.35. This was known to occur by them branching out into opportunities in a number of avenues of building work: T353.20 - T353.40; T354.50. 368In surveying that array of figures of potential earning, I consider that the amount submitted on behalf of the plaintiff as a working life average rate of net earnings of $1100 per week for wages as a tradesman carpenter and joiner, seems to be an unremarkable and reasonable general measure of the plaintiff's potential net earning capacity if he were uninjured. Whilst the defendant submitted that sum was too high, I consider that it is nevertheless appropriate in the case of an employee with initiative who is inclined to produce quality detailed work. 369That analysis leads to the need to identify the appropriate measure of the plaintiff's net loss of earning capacity. 370In that consideration, there is a need to identify the plaintiff's residual earning capacity: Arnott v Choy [2010] NSWCA 259. That issue is one that must generally be proven by the defendant: Kallouf v Middis [2008] NSWCA 61 at [50], cited with approval in Mead v Kerney [2012] NSWCA 215, at [26]. 371In this case the defendant called no evidence on that issue. However, on behalf of the plaintiff it was conceded that the plaintiff's future earning capacity should be assessed at 50 per cent of the earnings that would be achievable by an employed tradesperson in the carpentry and joinery industry. That concession allows for a residual earning capacity of about $550 per week net over the plaintiff's remaining working life. On behalf of the plaintiff that figure was described as conservative, fair to the defendant, and therefore reasonable. 372On the evidence I have reviewed in the preceding paragraphs numbered [344] and [352] above, I consider that concession made on behalf of the plaintiff to be more than fair to the defendant. 373I therefore conclude that when all the relevant factors of the plaintiff's disabilities, his work impairments and his residual earning capacity are taken into account, the plaintiff's loss of earning capacity should be reasonably measured in the weekly loss of $550 per week net. 374I consider that sum adequately pays due regard to the difficult to exhaustively define, positive and negative imponderables, that must be taken into account in seeking to estimate a working lifetime average net weekly loss to represent the plaintiff's loss of future earning capacity. 375When the general submission on loss of earning capacity made on behalf of the plaintiff is followed through, projecting the amount of $550 per week net over the remaining 46 years of the plaintiff's working life (x 956.1) less 15 per cent for potentially adverse vicissitudes, this is seen to be the equivalent of $446,976. This sum should be discounted for deferral by about a year (x 0.925), which yields the amount of $413,453, thus identifying the first limb of assessment of the plaintiff's future loss of earning capacity. 376This then leaves for consideration the additional element of the plaintiff's claim for loss of earning capacity in the form of potential earnings in self-employment in his own business utilising his trade qualifications within an array of potential avenues in the building industry. 377The plaintiff submitted that this additional element of the assessment should be in the sum of $250,000. That sum was submitted as a separate component assessed as a buffer for the loss of the chance to derive profits from self-employment, along the lines explained in State of NSW v Moss, at [84] - [87]. 378The defendant submitted that the evidence does not justify the inclusion of a separately calculated additional component of damages based on the assumption of self-employment in his own business, either in that sum, or at all. 379Whilst I accept the submission that the component submitted on behalf of the plaintiff is at a level too high for the circumstances, I nevertheless consider that a significant additional component along those lines representing a loss of earning capacity from potential self-employment should be added, but assessed in a lower amount that reflects the imponderables inherent in those potential circumstances. 380The discounting factors are difficult to exhaustively define. In addition to the conventional discount for potentially adverse vicissitudes, it must be recognised that whilst many small businesses are successful in profitably fulfilling a niche market, there are many downsides, including the burdens of overheads, bad debts, slow cash flow, high material and labour costs and vulnerability to a variety of market conditions, to name a few. 381The evidence on the potential profitable earnings of self-employed persons in the carpentry, joinery and building industry was necessarily imprecise. Taking the range of profits identified in the evidence as a rough guide, and taking the average of the range of between $80,000 per annum and $200,000 per annum, namely about $140,000 per annum, before tax, after allowing for tax, this is the equivalent of approximately $80,000 per annum. 382The above illustration demonstrates the inherent uncertainty of the exercise because of the imponderables involved. Apart from the threshold question of whether the plaintiff would be successful in a small business endeavour, the principal imponderables would be the size of the undertaking, the size of the market, the number of employees generating profitable income, the business acumen of the principal, the timing of commencement of the business and the duration of the trading period. 383All of those factors indicate that the requirements of this component of the assessment be met with a pseudomathematical analysis involving projected and discounted figures. Instead, a global discretionary buffer is required. 384Recognising that the plaintiff's potential capacity to pursue such employment is effectively closed to him, as is evident from the opinions of his present employer (T365.40) and that of Dr Jungfer, as well as from the plaintiff's own lack of insight into the issue, I consider this represents a real loss of capacity that requires assessment. 385In doing the best I can to achieve a fair balance between the competing interests of the respective parties, and allowing an adjustment to avoid overlap or over-compensation with the first limb of the exercise, I consider that the proper amount for a buffer to compensate for this head of loss is the sum of $200,000. 386On that basis, I assess the additional component for the loss of opportunity to pursue profitable self-employment to be in the buffer sum of $200,000. 387In coming to that view I am mindful of the caution against the indiscriminate awarding of a buffer for future loss of earning capacity: Allianz v Kerr, at [9]. However, in the case of a minor who had not yet commenced work, and whose earning capacity in all its facets, was necessarily difficult to prove, the task has to be undertaken on the best evidence available: State of NSW v Moss, at [84] - [87]. 388In this case, having regard to the evidence of the plaintiff's father's position of responsibility in his work, his elder brother's entry into his own business, and the incentive of the range of profits potentially available from self-employment in the building industry the plaintiff is working in, it is reasonable to assume that uninjured, there was more than a real possibility of the plaintiff pursuing his own business using his trade skills. That opportunity is now closed to him as a result of his injury. It is a chance that must be valued, as I have attempted to do, as explained in the preceding paragraphs: State of NSW v Moss, at [87]. 389Accordingly, when the two assessed components are amalgamated, they produce a total amount of $613,453, which I round down to $610,000. 390In undertaking the required assessment, recognising the competing interests of the parties and the need to achieve a just balance between their respective interests, I consider that the appropriate net lump sum that takes into account both the positive and the negative factors, imponderables, vicissitudes and possible mitigatory earnings that I have referred to from a residual earning capacity, is the amount of $610,000. 391I therefore assess the plaintiff's damages for future economic loss in the amount of $610,000.

Future loss of superannuation 392There is no dispute that the appropriate assessment percentage for identifying the amount of future loss of superannuation is 14.47 per cent of $610,000. I therefore assess the plaintiff's damages for future loss of superannuation in the amount of $88,267.

Past gratuitous domestic care 393The parties have agreed that the plaintiff has received past gratuitously provided domestic case and assistance from family members to be valued at $45,000 to the date of the hearing: s 141B of the MAC Act. I therefore assess the plaintiff damages for past domestic assistance in the amount of $45,000.

Future external domestic assistance 394On behalf of the plaintiff a claim was made for the future cost of externally provided domestic assistance in the amount of $717,220. 395That sum was calculated on the basis of an allowance of 2 hours per day of domestic assistance at the agreed rate of $50 per hour, or $700 per week, projected at 5 per cent over the plaintiff's life span of 65 remaining years (x 1024.6) without further discount or deferral, to yield the sum of $717,220. That sum requires adjustment to reflect the timing of when the plaintiff will leave home to live independently of his parents. 396In contrast, on behalf of the defendant, it was submitted that this component of damages should be in the sum of $256,150. That sum was derived by the projection of the cost 5 hours of external care per week at the agreed rate of $50 per hour, or $250 per week, projected at 5 per cent over the plaintiff's life span of 65 remaining years (x 1024.6) without further discount or deferral, to yield the sum of $256,150. 397The essential difference between the respective submissions centred around what should be considered as being the appropriate number of hours per week for the provision of such assistance. 398In that regard, the defendant submitted that an allowance of 5 hours per week for such assistance would fully compensate the plaintiff for this element of his claim in order to meet his accident-related needs. In my view, the submission for 5 hours per week seemed to be an arbitrarily selected sum that was not founded upon any specific recommendation within the evidence. 399The occupational therapist engaged by the defendant, Ms Varella, suggested it was likely that the plaintiff would need an allowance of 3 hours per week to provide for organisation, structure and planning issues, including to support the plaintiff's maintenance at his work, and for the completion of his home and community based requirements, including his home environment: Exhibit "1", Tab 8, p 18 and p 19. Ms Varella's opinion was in the following terms: "Into the future, it is my opinion that Mr Schoupp will be able to live independently and complete tasks as required, with external supervision to plan his week and month in order to organise his household and well being." [Exhibit "1", Tab 8, p 17] 400The defendant's concession of 5 hours per week for external domestic assistance goes beyond the initial 3 hours per week that was recommended by Ms Varella. The defendant's concession also ignores the opinion of Dr Spira, who on this issue stated: "I do not believe that Mr Schoupp requires care or domestic assistance as a result of the injuries he sustained in the motor vehicle accident": Exhibit "1", Tab 3, p 6. 401In assessing the cited opinion of Ms Varella I consider that it should carry little if any weight on this issue. This is because her opinion does not adequately explain the practicality of how a suggested regime of 3 hours per week would work in the plaintiff's circumstances, especially given the problem the plaintiff has with executive dysfunction, which will arise to be dealt with by him or managed on his behalf on a daily basis. It is difficult to imagine how someone with the described problems that afflict the plaintiff could adequately and successfully manage with such an arbitrarily applied regime of assistance for his specific needs. 402In my view, something more regular and predictable is required for the plaintiff to be maintained in independent living outside of the parental home, as was postulated by Dr Jungfer, and for the reasons she has given. 403In considering the probative value of the cited opinion of Dr Spira on this issue, I conclude that I should not accept that opinion because it is unsupported by cogent reasons, and it is not compliant with the requirements of the Expert Witness Code and the well settled requirements for expert opinions: UCPR Sch 7 cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21. 404The plaintiff's submission for the provision of 14 hours per week of externally provided domestic supervision and assistance was based upon the reasoned and practical recommendation of Dr Jungfer that the plaintiff be provided with a measure of daily assistance and supervision for planning, problem-solving, household maintenance, meal preparation and the daily organisation of his life: Exhibit "C", p 13, p 29 and p 37. 405In her oral evidence Dr Jungfer explained the recommended regime of 14 hours per week of such assistance was the minimum that was necessary for the plaintiff's circumstances, and should be split into 1 hour of assistance in the morning and 1 hour of assistance in the evening: T501-T502. 406In my view, that recommendation is not to be seen as being in the nature of an ambit estimate, but instead represents a reasonable and modest attempt to meet a difficult to satisfy accident-related need of the plaintiff for domestic assistance in his unique circumstances. 407Dr Jungfer further explained that this regime was needed as a minimum because the plaintiff's frontal lobes do not work effectively in the way that they should, particularly in keeping him on task, keeping him punctual, such as for work, and providing him with the necessary prompts for organising himself, ensuring proper meal preparation, and ensuring he maintains an adequate diet: T502.32 - T502.45. 408Dr Jungfer also highlighted other aspects of the plaintiff's needs and the benefit he would receive from such a regime, noting that hitherto, these functions had been supplied by the plaintiff's parents (T502.50) and because the ensuring of meaningful structured activities, including vocational activities, was not just nice if it was possible, but it was necessary and important for maintaining the plaintiff's mental health: T502.24. She also identified this need as extending to weekends, where support would be needed for shopping cooking and cleaning, planning and organisation of the usual household things a person (without the plaintiff's disabilities) would normally do: T503.1 - T503.21. 409Dr Jungfer's recommendations were given in the context of the plaintiff having suffered permanent organic structural brain injury that was not curable: T496.46. That opinion was not contradicted by anyone of like expertise to Dr Jungfer. 410In those circumstances there is no reasonable room for assuming that the impairments in the plaintiff's executive functions, normally responsible for planning and fulfilling self-care in those areas of activity under present consideration, would be likely to improve in any material respect so as to obviate or lessen the plaintiff's needs which are the subject of this element of his claim. 411For the reasons within the cited evidence of Dr Jungfer, I prefer and accept her reasoned recommendation that the plaintiff be provided with a split externally provided domestic care and supervision regime of 14 hours per week, divided into 1 hour segments both morning and night, on a daily basis. There may well be some scope for variations, but I consider Dr Jungfer's recommendations represent a fair and reasonable minimum average solution to this need. 412In my assessment, the regime recommended by Dr Jungfer should be costed to commence from when the plaintiff is aged 23 years. That deferred timing was submitted on behalf of the plaintiff to be a reasonable basis upon which to assume that on reaching the age of 23 years he would typically move into independent living, which would then give rise to a need for those externally provided services, which are presently being fulfilled to a degree by his family whilst he continues to live in the family home. 413On those assumptions, which I make, the submitted regime requires costing over 62 years from the age of 23 years, but deferred for 3 years. Applying the standard actuarial factors to that assumption, the projection of 14 hours of domestic assistance per week at $50 per hour, or $700 per week, over 62 years at 5 per cent (x 1017.5) yields the amount of $712,250. That sum does not require discounting in this case. 414I therefore assess the plaintiff's damages for future externally provided domestic assistance in the amount of $712,250.

Future gratuitously provided domestic assistance 415The plaintiff makes a claim for gratuitously provided future domestic assistance of the kind presently provided by his family whilst he continues to live in the family home until the submitted age of 23 years. 416This component of the plaintiff's claim is in respect of the interval of time between the trial and when the plaintiff will be likely to move into independent living, as has been foreshadowed in respect of the preceding head of damage in paragraphs [394] to [414] above. 417The claim is for 10.5 hours per week for personal care and assistance, as identified by the plaintiff's expert Ms Heathcote: Exhibit "D", p 15, costed at the not to be exceeded statutory hourly rate of $27.69 per hour. It is mandatory that rate not be exceeded: s 141B of the MAC Act. This is the equivalent of $290.74 per week. 418The projection of $290.74 per week at 5 per cent over 3 years (x 145.6) yields the sum of $42,331. 419The opposing submissions made by the defendant on this issue were to the effect that this component of the claim was not necessary as the conceded allowance of 5 hours per week was adequate to fully compensate the plaintiff in respect of this need. The defendant's submissions also pointed out that the recommendation for this head of damage was dated October 2012, and since that time, the plaintiff has continued to live at the home of his parents, and he has been working full-time. 420In my view, those matters raised by the defendant provide no answer to the case made by the plaintiff for the claimed allowance for this head of damage. The services in question are presently being provided by the plaintiff's family, primarily his mother, and it is likely that this will continue to be the case until the plaintiff leaves home, which on the previous findings made for the purposes of reasonable assessment, is estimated to be likely at the plaintiff's age of 23 years. 421In those circumstances, in the interim period between the trial and the time the plaintiff is likely to leave home, this must be the subject of some provision for the value of domestic services, both along the lines of those assessed in the previous head of damage, and as a continuum of the past domestic assistance that has already been provided to the plaintiff before the trial by his family, the value of which has already been agreed at $45,000. 422In oral submissions the defendant submitted that an allowance of 7 hours per week of such assistance would be reasonable until the plaintiff left home: T562.32. In my view, that arbitrary submission is not a sufficiently reasoned basis upon which to trump the considered view of the plaintiff's expert occupational therapist Ms Heathcote, especially where her view was not challenged by cross-examination. 423I therefore assess the plaintiff's damages for gratuitously provided future domestic assistance in the claimed amount of $42,331.

Case Manager 424On behalf of the plaintiff a claim was made for the cost of a case manager in the amount of $182,891. 425That sum was derived by the projection of an amount of $178.50 per week over the plaintiff's remaining life span (x 1024.6). That weekly figure of $178.50 is extracted from the costing evidence provided by the occupational therapist retained by the plaintiff, Ms Heathcote: Exhibit "E", p14; p19. 426Ms Heathcote was not required for cross-examination on her recommendation that the plaintiff be provided with case management services at the level she has recommended. 427The defendant's submissions only touched lightly upon this aspect of the plaintiff's claim at paragraphs [70] - [71] of MFI "3", referring to the uncertainty of this head of damage: T521.26 and T521.24. 428The defendant's expert neurologist, Dr Spira's report did not address the issue of the need for the provision of a case manager. Similarly, the defendant's expert occupational therapist, Ms Varella, did not address this specific issue either. Her consideration was focussed upon a more generalised concept of external assistance being provided to the plaintiff for organisation: Exhibit "3", Tab 3, p17; p18; p19. 429Those matters have already been analysed at paragraphs [394] to [414] above in connection with the claim for externally provided domestic assistance. 430This is a case where the specific evidence tendered in the case for the plaintiff on the issue of the need for case management was explained by Ms Heathcote: in Exhibit "D", p 14 and p 19. 431That specific evidence has not been the subject of challenge through cross-examination or contradiction through other affirmative evidence that engages with the substance of that issue. Ms Heathcote's recommendation for the 13 items covered by her case management for the plaintiff is for the provision of 4 hours per month in respect of the following matters:

• Guidance in decision making
• Prompting to pay bills
• Prompting to complete weekly household tasks
• Assistance with organising and completing necessary maintenance tasks on property and garden.
• Provide support and encouragement
• Financial guidance
• Assistance for later travel plans
• Education regarding the impact of brain injuries and provision of support for his [future] partner
• Assistance to manage [future] childcare
• Monitoring of health status, communication with general practitioner as needed, encouragement to attend relevant services such as psychological or occupational therapy treatment
• Co-ordinate and monitor attendant care services
• Provide carer education if required
• Facilitation of access to occupational therapy, psychological counselling and family counselling when required. 432Ms Varella has identified the cost of case management as provided by an occupational therapist at $150 per hour for 4 hours per month. Dr Jungfer supported the notion of case management by a person with those qualifications by saying it was a mandatory consideration in this case: T504.20. 433A recommendation of 4 hours per calendar month at $150 per hour equates to a cost of $138.46 per week, excluding any element for professional occupational therapy services of 0.19 hours per week (appearing at p 19 of Exhibit "D") and which I consider is more properly addressed by incorporating that element into the claim for future treatment expenses. 434At present, as Dr Jungfer has aptly observed, the plaintiff's parents are his pseudo-case managers: T503.45. That will not continue to be the position when he leaves the family home. 435In my assessment, consistent with my findings concerning the provision of externally provided domestic assistance, the claim for a case manager should be costed to commence from when the plaintiff will be aged 23 years, which for assessment purposes, will coincide with when he moves into independent living and when he will no longer be able to rely upon the presence or availability of his family for the exercise of those functions. 436On that assumption, the regime for case management requires costing over 62 years after allowing for a deferral of this avenue of expense for 3 years. Applying the actuarial factors to those assumptions, the projection of 4 hours of case management services per calendar month at $150 per hour excluding travelling time is the equivalent of an average cost of $138.46 per week, which, when projected at 5 per cent over 62 years (x 1017.5) yields the amount of $140,883. 437That amount requires deferral for 3 years (x 0.864) to yield the sum of $121,722. 438I do not consider there to be a relevant impermissible overlap of functions between a professional case manager for 4 hours per month and broken shifts of the already allowed domestic assistance for one hour, twice per day, as the functions are distinctly separate and provided by differently skilled persons. The focus and the detail of the elements of those services are different. 439I therefore assess the plaintiff's damages for case management in the amount of $121,722.

Future treatment expenses 440On behalf of the plaintiff a claim was made for future treatment expenses in the form of a buffer in the ranges $40,000 to $50,000. This was later reduced to a buffer amount of $35,000. On behalf of the defendant it was submitted that damages for future treatment expenses should be in the sum of $15,000. 441The proposed future treatment regime as submitted on behalf of the plaintiff was premised upon the cost of a pattern of consultations with a psychologist, a psychiatrist, possible psychopharmacology, an exercise regime, and occupational therapy consultations. Some of those items were costed over the plaintiff's remaining life span, and others were categorised as being short term expenses. 442At present the plaintiff is not receiving any regular medical treatment or review. He takes no medications at present. He is in good physical health and this is likely to continue to be the case. However, the functional and behavioural effects of his frontal lobe brain damage are permanent features of his life. 443It therefore seems reasonable that the plaintiff should receive a measure of damages to cover the cost of occasional medical expenses in the form of reviews by his general practitioner for the purpose of monitoring his condition and determining any need and timing for more specialised attendances on account of his brain damage, and its behavioural, work and social consequences for him. The nature of the plaintiff's problems suggest that an allowance of a lifetime average of several consultations per annum with a general practitioner would meet this need, perhaps less frequently in the earlier years, and more frequently in the later years. 444The immediate need to implement Dr Jungfer's initial recommendations for the treatment of the plaintiff's obsessional compulsive symptoms appears to have receded as the intensity of that problem receded. Nevertheless, the nature of the plaintiff's executive dysfunction and the potential for this to cause the plaintiff to become depressed as he ages, and possibly experiences some of the setbacks outlined by Dr Jungfer in the course of her oral evidence, indicates that some allowance should be made for the possibility that the plaintiff will need specialist treatment in the future. 445The evidence does not permit a precisely formulated projection of a weekly sum to meet those potential needs. The anticipated treatment, which is likely to be in the form of psychological therapy, psychiatric consultations and prescription medications when considered necessary, is likely to be intermittent, and involves unpredictable frequency, duration and cost. 446In approaching this aspect of the assessment in the above manner, I am mindful of the fact that separate allowances have been made in respect of domestic assistance and case management, which will also have a part to play in keeping a vigilant eye on how the plaintiff will be managing his life in the future when he leaves home in order to live independently of his family. 447In those circumstances, this accident-related need is best met by way of an award of a lump sum buffer allowance. In light of the evidence, I consider that the suggested allowance of $15,000 as was submitted by the defendant represents a reasonable allowance for this head of damage, which would include the exercise and occupational therapy recommendations made by Ms Heathcote. 448I therefore assess the plaintiff's damages for future treatment expenses in the amount of $15,000.

Past out-of-pocket expenses 449The parties have agreed that the plaintiff has incurred out-of-pocket expenses totalling $19,580.47. I therefore assess the plaintiff's damages for past out-of-pocket expenses in the amount of $19,580.47.

Funds management charges 450Before the accident the plaintiff was not afflicted with any form of traumatic brain injury and he had no executive function impairments rendering him vulnerable to financial exploitation. In contrast, he is now in a position of significant vulnerability. This has given rise to a claim that he has an accident-related need for protection from such potential exploitation, and therefore needs funds management, although he has brought these proceedings in his own right, and does not need a tutor as he is capable of giving instructions regarding the litigation. 451On 24 April 2012, Dr Jungfer raised the possibility of the need for the plaintiff to have assistance provided to him with respect to financial management because of his young age. In her report of that date, Dr Jungfer suggested that her opinion in that regard might alter, depending upon the results of psychometric testing of the plaintiff's cognitive capacity; Exhibit "C", p 37. 452On 31 July 2012, Dr Jungfer had the opportunity of reviewing psychometric testing performed by Dr Rawling on 29 June 2012. On that occasion, Dr Rawling noted that the plaintiff's father had expressed concern over whether the plaintiff could manage his financial affairs. In his expert review of that question, Dr Rawling considered that those concerns on the part of Mr Schoupp were entirely justified: Exhibit "C", p 64. 453Dr Jungfer's comments on the results of psychometric testing undertaken by Dr Rawling identified the following test result abnormalities: (1)impairment of capacity to complete assessment tasks determined by complexity of those tasks; (2)executive or frontal lobe functioning; (3)struggles with higher levels of processing speed and the need to switch between responses; (4)deficiencies in planning and organisation, with errors of distortion and omission; (5)abnormalities of insight and associated poor error monitoring; (6)rigidity of thinking and struggling to make conceptual shifts; (7)difficulty with problem-solving and slowness to abandon a failing strategy; (8)a major weakness of auditory memory; (9)aggravation of pre-morbid difficulties with language acquisition, with exacerbation of that pre-existing weakness; (10)marked weakness of verbal memory and learning, with a slow rate of information processing. 454Dr Jungfer considered that the foregoing matters were consistent with the plaintiff having sustained a significant acquired brain injury: Exhibit "C", p 53 - p 54. Dr Jungfer went on to state: "In terms of the previous opinions that I reported, I indicated that there were no psychiatric grounds by which he could not manage his financial affairs. I did however, indicate that I would require further psychometric testing with regards to having a firm opinion with respect to the financial management. On the basis of the fact that the psychometric indicated that he failed to recognise the errors that he made, he had difficulties with complex problem solving and that there were significant problems with regards to verbal learning, I would have concerns with respect as to how he would be able to manage large sums of money, and that he would find it difficult to process the complex information required to make financial management decisions. The other concern that I would have is that should he make some initial errors with regards to the management of his funds, he would be slow to change his financial management decisions as he does not learn from his errors as demonstrated in the psychometric testing. The psychometric testing also demonstrated problems with regards to problem solving, and more particularly a lack of recognition that he has these problems and difficulties. Therefore I would agree with Mr Rawling that it would be prudent that his affairs be placed under the Protective Estates Act, but that this be revised after approximately five years for reconsideration. At this time to determine his behaviour within the community. I would only have his settlement monies placed under the Protective Estates Act, I would allow his normal daily income to be managed by himself to determine how he can actually manage those affairs. This would provide a good indication of how he manages monies on a daily basis, to determine whether or not he does have the capacity to manage other sums." 455Dr Jungfer's oral evidence on this issue provided further persuasive and compelling justification for her views on the funds management issue as follows: (1)the plaintiff was at increased risk of being unfairly prevailed upon, including in the sense of financial exploitation where he may try to compensate for his impairments when being manipulated: T499.19 - T499.35; (2)the plaintiff's lack of insight into his impairments indicated that he really needs someone to look after his money for him: T500.15 (3)a distinction must be made between a capacity for management of day-to-day financial affairs for which he is capable, and an inability concerning planning and self-monitoring decisions of a financial nature involving large sums: T500.45; (4)the plaintiff is vulnerable to plausible financial advice that may be aimed at exploiting him: T500.47 - T501.2; (5)the plaintiff's vulnerability to exploitation through making poor financial decisions is extreme because the plaintiff does not have the insight, judgment capacity and oversight ability when making decisions in his best interests, thereby indicating he needs a trustee with a much better knowledge base about the plaintiff's impairments when complex decisions are required to be made: T501.5 - T501.16; (6)the plaintiff's vulnerability in that regard is greater than the average person because of the plaintiff's accident-related impairments: T501.26. 456The potential for financial exploitation is not viewed in a vacuum. On an all too frequent basis, courts of various jurisdiction are provided with unfortunate examples of how persons who are unable to look after their own best interests due to disability, are exploited, at times cleverly, by others with mal-intent. 457Against the position taken on behalf of the plaintiff on the issue of financial management, the defendant relied upon the 21 December 2012 opinion of Dr Spira, who, in respect of this issue, stated: "I believe that Mr Schoupp will have the capacity to manage his own financial affairs in the longer term." [Exhibit "1", Tab 3, p 6]. 458For the reasons that follow, in my view, there are a number of difficulties that preclude any material reliance being placed on the cited opinion of Dr Spira as a basis upon which to contradict the opinions of Dr Jungfer on the funds management issue. 459First, as Dr Spira did not appear to have been given a copy of the psychometric testing results of Dr Rawling that were considered by Dr Jungfer. His opinion should therefore be seen as being based on insufficient information for it to be viewed as a comparable assessment to that of Dr Jungfer. Therefore Dr Spira's cited opinion is not relevantly authoritative. The two opposing opinions proceed upon the basis of different materials. Secondly, Dr Spira expressed his opinion cited above in qualified but undefined and ambiguous terms, which suggested there may be a present shorter term incapacity for self-management followed by a future capacity for self-management of funds. Thirdly, the opinion of Dr Spira relied upon by the defendant fails to comply with the formal requirements of an expert opinion in that it does not state the supporting reasons underpinning the stated opinion: UCPR Sch 7 cl 5(1)(c): Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705; Dasreef Pty Ltd v Hawchar [2011] HCA 21. 460Therefore, I consider that Dr Spira's views on the funds management issue do not represent a material challenge or contradiction to the expert views of Dr Jungfer on this issue. Accordingly, I prefer and accept the views of Dr Jungfer on this issue compared to the briefly and unexplained view of Dr Spira as cited in paragraph [457] above. 461I find that the plaintiff's need for financial protection through the provision of funds management does not arise because of his young age and inexperience, or from the simple fact that he will require advice and assistance for appropriately investing and managing the significant damages that he will receive from the finalisation of these proceedings. Instead, I find that the plaintiff's need for financial protection arises from the cognitive and functional impairments that are due to his acquired brain injury, as explained by Dr Jungfer. 462It follows that an assessment of the plaintiff's damages should include an appropriately calculated allowance for the cost of funds management. 463It was submitted that the funds management regime to be costed, should be based on the costs associated with the appointment of a private trustee, for at least a period of about 5 years, in accordance with the recommendation of Dr Jungfer as cited above. I consider that to be a reasonable approach to the issue, but the 5 year period may need to be reviewed along that timeline, and some allowance will need to be made for that prospect because the plaintiff's brain damage and his resultant cognitive and executive dysfunctions will continue to affect him and there is no basis for reasonably concluding that his need for financial assistance and protection from possible exploitation will expire after 5 years. 464The question of choice between a public or private trustee arrangement, and the costs involved, will have to be resolved either by consent or by evidence, preferably but not necessarily, in affidavit form. 465The parties have agreed to defer making their quantum submissions on the issue of funds management charges pending the announcement of these findings on whether the plaintiff has incurred an injury-based need for future expenses for funds management. 466In the foregoing reasons, I have found that the plaintiff has such a need. 467In the event the parties find they are unable within a reasonable time to agree upon the appropriate course to be followed for quantification of that head of damage, application may be made on notice for directions on how to proceed to have this final damages issue determined before the entry of final judgment in the proceedings.

Summary of damages assessment 468My assessment of the Plaintiff's damages is summarised as follows: (a) Non economic loss $300,000 (b) Future economic loss $610,000 (c) Future loss of superannuation $88,267 (d) Past gratuitous domestic assistance $45,000 (e) Future externally paid domestic assistance $712,250 (f) Future gratuitous domestic assistance $42,331 (g) Case manager $121,722 (h) Future treatment expenses $15,000 (i) Past out-of-pocket expenses $19,580.47 (j) Funds management charges To be assessed Interim Total $1,954,150.47

Disposition 469The plaintiff has succeeded in establishing an entitlement to an interim verdict and judgment in his favour in the amount of $1,954,150.47 without discount for alleged contributory negligence before any assessment of a sum for funds management charges. 470In view of my findings on the need of the plaintiff for damages for funds management to be included in his damages award, I will defer the entry of final orders until the parties have had the opportunity to consider the implications of those findings and the scope for an agreed sum to be added to the assessment of damages on account of the funds management issue, or in the event of a dispute on that issue, the opportunity of the parties to call further evidence and to make further submissions following my findings on that issue.

Costs 471It follows from my stated findings on the plaintiff's entitlement to an assessment of damages, and my findings that rejected the defence of contributory negligence, that the plaintiff is entitled to an order that provides for his costs of the proceedings to be paid by the defendant on the ordinary basis unless a party is able to show an entitlement to some other order for costs.

Orders 472Final orders for judgment are deferred pending the parties having the opportunity to consider these reasons for decision.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2014