DECISION
25 In my opinion, it was plainly open to the primary judge to find that the respondent suffered from temporal lobe epilepsy, and that this condition was continuing. Despite the primary judge's reservations about the respondent's credibility, the primary judge was justified in accepting the quite early complaints of olfactory hallucinations as strongly corroborative of temporal lobe epilepsy. Furthermore, particularly in circumstances where it had not been put in cross-examination that the "spacing out" episodes were not continuing, it was clearly open to the primary judge to find that the respondent was still affected by temporal lobe epilepsy, and to accept the medical evidence that this situation was effectively permanent.
26 However, I think there is a real question as to whether the primary judge's conclusions about the effects of this condition were justified.
27 It is clear that the primary judge determined that the respondent's residual earning capacity was 35% of what it would have been if uninjured (see judgment par.[77]), and that his earning capacity if uninjured would have supported earnings equal to average weekly earnings (see judgment par.[73]); and the primary judge held that the appellant was liable for the whole of that difference, subject only to the usual 15% discount for vicissitudes.
28 The effects of the accident, and in particular the temporal lobe epilepsy, said to justify holding the appellant responsible for all of this difference, appear to be primarily the respondent's susceptibility to blackouts, and problems with aggression and anger management associated with temporal lobe epilepsy. I note that Dr. McLaughlin, who was accepted by the primary judge, referred also a psychologist's report asserting "impairment of higher cognitive functions"; but there was conflict on this matter between psychologists, which was expressly not resolved by the primary judge: see judgment pars.[43] and [44].
29 Returning to the issue of susceptibility to blackouts, the evidence of Dr. Tomlinson and Dr. McLaughlin was to the effect that the respondent would need fairly constant supervision in the workplace, and should not drive a vehicle. However, the primary judge did not accept that this was absolutely definitive, but rather concluded that "driver oriented" occupations "have a shadow cast over them by the medical opinion", referring also to the opinion of Dr. Currie on the basis of which the respondent's driving licence had been renewed on two occasions (see judgment par.[71]).
30 In my opinion, there are serious difficulties with making the appellant wholly liable for the 65% difference in earning capacity, with only 15% allowance for vicissitudes.
31 In the first place, the actual employment history of the respondent over the seven and a half years since he attained 18 suggests that the susceptibility to blackouts has had no impact whatsoever on his employment.
32 Secondly, and more importantly, as regards the aspect of aggression and anger management, it is in my opinion wrong in principle to make the appellant wholly responsible for the consequences of these matters. In my opinion, unless psychological or psychiatric problems are so severe as to substantially remove altogether a person's responsibility for behaviour, a person in the position of the respondent must be regarded by the law as having some responsibility for his own behaviour. If, for example, the respondent out of anger committed an assault on someone, and was sued by that person for damages, it would in my opinion be quite inappropriate to require the appellant to give the respondent a 100% indemnity because the appellant had caused the respondent to have a condition in which he had difficulties with anger management.
33 The primary judge in par.[63] did recognise that epilepsy was not "the exclusive cause of the plaintiff's bad behaviour"; but he treated the other causes as in effect coming from transient environmental triggers, and did not treat the respondent as being to any extent responsible for his own conduct. I think this was an error which should be corrected.
34 There are in my opinion a number of less important matters suggesting either that the appellant should not have been made liable for the whole of the 65% difference, or that the vicissitudes discount should have been greater than 15%.
35 It was not inappropriate to take average weekly earnings as a starting point (see Rosniak), but at par.[71] the primary judge said "I take into account the notorious statistical fact that in raw numbers, more Australians in the workforce earn less than the average than earn that average or more than it". However, there is no indication of any way in which the primary judge did take that fact into account.
36 There were in fact circumstances suggesting that, uninjured, the respondent may well have earned less than average weekly earnings. Although the respondent claimed that his performance at school was detrimentally affected by the accident, the fact is that the school reports suggest that his academic performance was at least as good after the accident as before it, and the only reference in the reports to bad behaviour (specifically, lack of self-control and as an instigator to distracting others) is in a report prior to the accident. There is also the notorious circumstance of high unemployment in country areas.
37 For these reasons, it was in my opinion an error of principle to make the appellant liable for the whole of the 65% difference, and to combine this with no more than the usual 15% deduction for vicissitudes.
38 It seems that the primary judge was not assisted by submissions from the appellant as to the correct calculation of damages: in effect, the appellant submitted that all the respondent's problems were due to his own bad behaviour for which he was entirely responsible. In those circumstances, I do not think that this Court should adjust the primary judge's figures any more than it considers absolutely necessary. I think it appropriate to treat the appellant as responsible for a diminution of earning capacity equivalent to 50% of average weekly earnings, rather than the 65% adopted by the primary judge.
39 This results in a reduction of past economic loss from $130,000.00 to $100,000.00; reduction of interest from $31,478.00 to $19,484.00; and reduction of future economic loss from $497,080.00 to $382,369.00.
40 I think the primary judge's approach, in effect treating the appellant as wholly liable for consequences of the respondent's bad behaviour, affected also the assessment of general damages; and I would propose reducing that figure from $140,000.00 to $110,000.00. Out-of-pockets remain the same at $5,065.00, and the resulting total is $616,918.00.