(6) Severe diminution of the quality of life.
26 In regard to those matters, I am particularly concerned to have regard to what provision is made in this award which might be referrable to the other components of damage since they are matters in respect of which the plaintiff will receive compensation under that heading. There is some overlap in concept, but I take care to avoid double counting. Thus, although under this heading, provision is made for the loss of amenities of life and for the limited value of expedients in mitigating the severe diminution of quality of life, I have regard to the awards I will make for future attendant care, holiday assistance, past care, loss of support from co-dependency relationship, transport costs and transport training, home modification, gym use and the provision of future equipment or occupational therapy aids, particular provision.
27 I apprehend by the use of the term "general damages" in the schedule of damages that what is intended is to refer to matters of general nature, in contrast to the various other specific items contained in the schedule; that what the parties intend to refer to under this heading is an amount of damages referrable to the loss of enjoyment of life, pain and suffering and such items as are conventionally unable to be estimated as distinct components of the award of damages unlike those otherwise specifically referred to in the schedule which are to be treated as discrete and capable of being particularly assessed
28 It was submitted that, were the general damages to be assessed under s.16 of the Civil Liability Act 2002 (which does not apply to this case) at the maximum, the plaintiff would be entitled to $384,500 and that that figure or the award of general damages in Simpson v. Diamond [2001] NSWSC 1048 of $390,000 which was not contested on appeal were useful guides. I do not regard either as of any particular relevance. Simpson (supra) was a case involving substantially different injuries and, indeed, injuries of an even more crippling kind than those suffered by this plaintiff. It is not permissible to compare different awards on such a basis.
29 It is notorious that it is impossible to equate different injuries and thereby derive some formula with which general damages can be calculated. The Civil Liability Act 2002 has no application here nor can some formula or formula derived from it, have application.
30 I turn to a description of the circumstances of the plaintiff additional to those I have already stated as might reflect on the matters referred to by the parties under this heading.
31 The plaintiff initially underwent great pain and suffering. The history of treatments afforded to him included prolonged periods of occupational therapy and physiotherapy, the necessity to re-learn essential human skills, including speech, toilet training and so forth, in a context where he was required to undergo the considerable ongoing training to deal with the significant disabilities. This included the necessity to acquire skills to deal with both the paresis and the limited visual perception, which amounts to effective blindness, to deal also with his aphasia and epilepsy. A shunt, which had been placed in his brain to drain the haematomas in 1986, was removed some six years later under general anaesthetic. He was again hospitalised for that purpose.
32 Although the plaintiff does have some visual perception in the left eye, his vision is less than 6/60. This limited amount of vision is exacerbated by abnormal eye movements and a constant right divergent squint and the plaintiff suffers bilateral optic atrophy.
33 His hemi-paresis involves a significantly lower muscle strength on his right side; in the right shoulder it is one fifth of normal. Flexion and extension of the fingers in the right hand are limited to two fifths of normal range and the weakness on the right side has resulted in a deformity of the right arm with deficient co-ordination as a result of the motor loss, that arm being shorter in length, he thus becomes susceptible to tripping, imbalance and instability which, taken in conjunction with his blindness, renders him highly at risk when getting about.
34 In addition, there is there is a slight facial weakness and loss of normal pain sensation in the right trunk and lower limbs. There is a fixed scoliosis concaved to the right in the lumbar region resulting in a decreased range of movement of side flexion and rotation to the left due to the decreased muscle strength in the right trunk. There is also decreased muscle strength in the right calf and hamstrings.
35 These deficits impact significantly on the plaintiff's ability to perform almost all normal daily living tasks, even in a controlled and familiar environment.
36 There is overactivity in the muscle groups in the trunk, leading to muscle imbalance, a decreased calf length in the right leg and that overactivity in that context becomes more taxing, leading to a reduction in voluntary control over those muscle groups decreased strength. It is necessary for the plaintiff to wear a splint on his right arm to prevent muscle contracture and it is something about which the plaintiff needs constant reminders, he being reluctant to wear the splint, since he feels it sets him apart.
37 The plaintiff has problems with memory, his dis-executive syndrome, his impaired problem solving skills, impaired socialisation and impaired general cognitive abilities. He is unable to cope for his blindness and his other physical defects and his ability to retrieve learned information is seriously affected by the damage to his frontal lobes.
38 He thus, as was submitted by Mr. Semmler of Senior Counsel, in the light of the evidence from Dr. Jungfer, is left totally dependent on others to act as his frontal lobes and is hence, not only liable to exploitation, but to mis-interpret things to his danger and disadvantage including well meaning information that is not perfectly communicated or not accurate.
39 I have referred already to the plaintiff's educational difficulties. His physical and intellectual disabilities have dramatically disadvantaged him in almost all aspects of life and will do for the whole of his life. He is well aware of what he has lost and I find he could have expected a comfortable life as his siblings appear likely to enjoy.
40 There are extremely limited opportunities for the plaintiff to participate in social and recreational activities or to enjoy any normal life including any normal sex life, although, as to the latter, I accept the evidence that there is a reduced sexual drive.
41 I had the benefit of observing the plaintiff in the witness box. He appeared to be an entirely honest, extremely well cared for young man who is courteous and reasonable. It was also, however, clear that he was of some limited understanding; his word skills were much better than one would have expected, no doubt due to the amount of education he had received both at home and at school and, in particular, from his parents, but his problem solving abilities were plainly impaired. His ability to sign his name illustrated how he and his family had devised modes to attempt to allow him to cope, but his problems in using a template to be able to effect a signature plainly illustrated, not only his awareness of his deficits, but also the very great extent of deficit under which he will have to attempt in due course to care for himself. Under supervision and with continued training, he attends a gym and visits the shops. He can, under one on one supervision, use a swimming pool. He can attend the movies if taken by another. These, however, are very limited activities in the way he performs them and he must be continually re-trained, accompanied or supervised to be able to do them. Even though he can to a limited extent use a mobile phone, any disruption to the normal routine courts disaster. His limited ability to use, to a limited extent, public transport or even to leave his home for any purpose, requires repeated, frequent training on short or simple routine routes or that he be accompanied and supervised.
42 It is quite plain that the plaintiff has an awareness of and an insight into his disabilities. He is not at present subject to any psychiatric condition of depression. With the support he has enjoyed from his family and parents, the adverse psychological mechanisms which might normally operate, he having undergone such catastrophic injuries, seem, for the moment at least, to be held at bay. It cannot be expected that he would continue to receive that support as his parents grow older and as he is himself eager to try to live apart from them to avoid remaining a burden on them for the rest of their days. He seeks some degree of independence and has sufficient insight to wish to achieve that independence so as to cease constituting the 24 hour burden to his parents he has been for so long. In sum, his quality of life has been appallingly affected.
43 The plaintiff's school friends and present friends and present friends are very limited, most of those friends being persons who themselves suffer disabilities so that he had limited contact, except through his family and particularly his siblings, with others.
44 He has attended courses at TAFE, but this cannot continue indefinitely. There he has some social contact. Otherwise his social activity is very limited and, in particular, turns upon his attendance at the gym, something he very much enjoys. His ability to get to and from TAFE and the gym, as I have said, turn substantially on his learning and re-learning of the particular routes and the use of access facilities and transport and the avoiding of disruptions to his learned routine. He is dependent on the use of a cane in unfamiliar areas. He does not like asking people for assistance because of the deficiency of hearing in his right ear. Notwithstanding the effect upon his muscular structure, he turns his head to ensure he gets the sound in the left ear. This in combination with the squint leads to fairly severe postural problems which I noted in the witness box. This all combines to make his circumstances, when unaccompanied outside his familiar home environment, entirely precarious and probably outright dangerous.
45 He is unable to use his right hand even for computer keyboard work, notwithstanding the exercises he attempts at the gym which include seeking to straighten the arm and lengthen it as it is presently shorter than his left arm. He needs continuous help from a personal trainer in the gym, not only to do the exercises but also for safety's sake. He is able to swim and to walk, but has difficulty kicking a football.
46 His short term memory is sufficiently defective that he cannot remember from day to day what he did the day before. He is dependent on his parents and carers to remind him of what is to be done each day. His memory for appointments is defective.
47 He has been able to travel on holidays, including overseas, with his parents, enjoys music, particularly Irish music, attends organised groups available for disabled persons but finds difficulties communicating with some of the persons with more severe disabilities than he has.
48 He is functionally able to attend to simple household tasks, particularly in the kitchen, and his own hygiene, but would have difficulty caring for a guide dog.
49 The plaintiff is not a paraplegic or quadriplegic. He is mobile and able to participate to a limited extent, at least for some time, in activities which he enjoys.
50 He is, however, dependent on the provision of transport, provided by his family, for trumpet lessons, obtaining books from the library and for his attendance at blind cricket to which he is assisted. Otherwise these activities require quite a complex use of both route selection and public transport.
51 From time to time he does attend a movie or dinner or sees his friend, Ryan, who comes from Kellyville to the plaintiff's home. He speaks to other friends over the phone and may meet for a cup of coffee when convenient at a local shopping centre.
52 Although he resides at home and is entirely dependent on the wonderful care provided by his family, he wishes to leave home and live independently, although he would not expect to do so immediately rather than within the next couple of years. He would like his parents, who have cared for him, almost without respite, particularly, in the case of his mother, to have assistance available and thereafter when he lives apart from them to step aside from the present undertaking of full time care. He accepts that he needs someone everyday to assist him get about and has obviously no ability or capacity to cope with the ordinary events of life occurring outside his learned routine.
53 Plainly, his cognitive deficits, memory problems and dis-executive syndrome, in particular, as well as the whole of his disabilities, render him incapable of attending to even the most minor financial and social matters without supervision and assistance. All his financial and social affairs will need to be managed for him by some one who can, as his parents (particularly his mother) have done for so long, substitute for his lack of a normal frontal lobe.
54 He is, of course, bound to the use of Braille, a Braille reader or having someone read to him from print. He is able to use a mobile phone. It is also clear that thanks to his cognitive and memory defects he is unable to budget for his use of the mobile phone and is unaware of the specific features it has.
55 I was most impressed with the plaintiff's evidence and, in particular, with his attempts to persuade me that he can cope and the extent that evinced his willingness to cope, but this wish to live apart from his family would involve him living a life with which I find he could not cope without very great support care and assistance.
56 I was very impressed too with the evidence of his father, mother and brother concerning the family's support to him and how he and they had attempted to cope with his deficits. I shall discuss aspects of the evidence of this mother and father shortly when referring to other components of the award. Their evidence was almost unchallenged and I accept it. I conclude that his parents have, both out of love for him and because of his necessities, afforded him immense care so that he now has, I find, the ability to live apart from them if under a high degree of supervision and care. It should be noted here that the family's care of him at home has replaced what otherwise would have been full time intensive specialist institutional care involving almost constant monitoring and assistance. The mitigation provided by the family to the defendant is thus considerable.
57 The plaintiff's brother, Alexander Sullivan, gave evidence. In particular his evidence was relevant, not only to the plaintiff's prospects of academic success and to his loss of future earnings and earning capacity, but also to the nature of the family and the support its members gave to the plaintiff.
58 Alexander Sullivan had attained a UAI of 87.6 at his Higher School Certificate in 1999, having attended Knox Grammar where he had enjoyed school sports, although did not play them with any marked degree of prowess. Following his high school graduation, he enrolled in a combined Bachelor of Science/Bachelor of Business Course at the University of Technology, a four year course from which he changed in 2002 to a Bachelor of Science and Applied Chemistry, with a proposal to do Honours in Forensic Science at the University of Sydney embarking on a straight Bachelor of Science degree intending to major in psychology as of 2003. He had, by 2003, completed the first year of that three year course, having available the option of a further honours year. He received credit for the subjects he had completed at the University of Technology giving him a lessor work load. He has in view the prospect of private practice as a clinical psychologist or something of that kind.
59 He has been, as has his brother, afforded the support and assistance at home of Mrs. Sullivan, a teacher by profession, and Mr. Sullivan, a part-time university professor and the provision by his parents of an affluent home environment. This has no doubt contributed to his advancement as it could have been expected it would have, for the plaintiff, except for his injuries.
60 During the witness' evidence, I expressed the view that he was a person of some considerable sense, and I confirm here, accurate appreciation of social difficulties. I was confirmed in that view by the whole of his testimony and the assessment I made of his parents and his family. He referred to his concern for fitness, a concern his brother shares to some extent, and reading including of such magazines as "New Scientist". With reference to his fitness concerns, he attends weight training four to five times a week at the local gym, the place to which the plaintiff goes as well. He also referred to his expectation of travelling overseas, something to which he had been introduced by the family. These are options, of course, that are not available to the plaintiff except in the context of family or other support. He appeared to be happy with his life and its prospects. I infer that all the children, because of their innate abilities and their intelligent, concerned, affluent and devoted parents whose nurturing was exemplary, could have been expected to have been achieved equally successfully, speaking in a broad sense, so that I can derive from the example of Alexander a rough guide to the quality of life lost by the plaintiff.
61 He gave evidence that the plaintiff was able to cope with access to the flat, the use of which he enjoys at his parents' home and that the plaintiff tried to exercise in the family pool with the family's encouragement; that the plaintiff was accompanied in his use of the pool. His evidence of his own life illustrates how much the plaintiff has lost compensable under this and the other headings which I will consider.
62 There is a high probability that the plaintiff will increasingly find himself alone except for paid carers as his parents advance in years, even given his being housed in an institution, in due course. Notwithstanding that he is, in my view, entitled to live independently even if housed with a carer. This is a matter to which I will return when considering other components of the award. It is likely as he grows older in years and more likely the older he grows that he will require institutionalisation absent some technological advance which might provide assistance to him in remaining independent from full time care longer than I would at present expect.
63 He enjoys TAFE, swimming, the gym, holidays and leaving the house but effectively he must be supervised or closely monitored. The only unsupervised pleasure he appears to have available is listening to music or talking books and the evidence is that he must be roused and a change in activity initiated or he would simply continue to listen. He also enjoys using his computer to e-mail people over the internet and playing the trumpet.
64 Notwithstanding the agreed life expectancy of 60 and the strength of the loving and efficient support for him afforded by his parents and siblings, his present good health can be expected to progressively decline and the ability of his family to see to his welfare similarly to diminish. It can only be expected that his enjoyment of life will progressively diminish and thus the suffering from his disabilities will increase.
65 Particularly having regard to the plaintiff's awareness of his defects and the increased effect on him of those defects as he grows older, his support mechanisms lessen and his abilities deteriorate, I have concluded that the damages awarded under this head, whilst not of the very highest order, should be of an order approaching that.
66 I have already referred to the plaintiff's limited circle of friends whose direct society he enjoys occasionally to his association with his family and to the social activities including the gym he undertakes in person, as well as his telephone and computer contact with people. At school he was subjected to a life of limited social contact with some students ignoring him entirely.
67 There was evidence from Dr. Jungfer that he has a problem initiating social conversations and relationships as a consequence of his intellectual disabilities and that his injuries have affected his libido. The likelihood of his being able to enjoy a long term intimate relationship is very low, if at all existing. In addition, Dr. Jungfer gave evidence that I accept that people with intellectual disabilities have a higher rate of relationship breakdown than people without such disabilities. The evidence including of Dr. Jungfer and Mrs. Olymbios persuades me that it is extremely unlikely the plaintiff will ever form a relationship akin to that of a close friend or sexual nature.
68 With that in mind, and having regard to the matters to which I refer when discussing submissions on loss of a marriage partner, which I also take into account when quantifying the award for this component, I am of the view that he should receive the sum of $310,000 under this heading, whilst paying regard to the necessity, derived from dealing with other matters as distinct components of damage, of avoiding double compensation.