Tipping v Meas

The Court went on to note a further limitation on an appeal against a damages assessment made by a judge, citing an earlier decision of this Court which in turn cited the decision of the High Court in Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 at 369 (Gibbs J; McTiernan, Stephen and Murphy JJ agreeing): Whether the assessment was made by a judge or a jury the court of appeal will not interfere simply because it would have awarded a different figure had it tried the case at first instance. Where the assessment was made by a judge, and it has not been shown that he acted on any error of principle or misapprehension of the facts, the appellate court will only intervene if satisfied that the judge has made a wholly erroneous estimate of the damages suffered.

In determining whether error is established in an assessment of damages, it is also important to bear in mind the nature of the assessment task. As noted by Kiefel J in Tabet v Gett [2010] HCA 12; 240 CLR 537 at [136], “[d]ifferent standards apply to proof of damage from those that are involved in the assessment of damages”. Her Honour explained: Sellars v Adelaide Petroleum NL confirms that the general standard of proof is to be maintained with respect to the issue of causation and whether the plaintiff has suffered loss or damage. In relation to the assessment of damages, as was said in Malec v J C Hutton Pty Ltd, “the hypothetical may be conjectured”. The court may adjust its award to reflect the degree of probability of a loss eventuating. This follows from the requirement that the courts must do the best they can in estimating damages; mere difficulty in that regard is not permitted to render an award uncertain or impossible. (Footnotes omitted.)

However, it is important to bear in mind the principle explained by Gummow ACJ in the same case at [39]-[42], that before the probability of a loss (or gain) eventuating can be brought to account in the assessment of damages, it must have a foundation in the evidence. After referring to English authorities taken to have manifested a “robust and pragmatic approach” to the drawing of inferences concerning the loss of a chance of a better outcome (at [41], quoting Rufo v Hosking (2004) NSWLR 678 at 694), his Honour noted that this approach had been advocated in those cases “with respect to the drawing of inferences from undisputed primary facts” whereas, in the case of Ms Tabet, “there were deficiencies in the evidence necessary to support a finding [for her] on a critical matter”. Thus, while the hypothetical may be conjectured, the conjecture must have a proper foundation in the evidence.

Those principles are important in the present case. There was no issue as to causation. Mr McIlwaine SC, who appeared with Mr Crowe for the appellant, opened his submissions by confirming “the appellant does not dispute that Daniel sustained a brain injury consistent with frontal lobe damage causing executive dysfunction in the car accident that occurred in 2003 when he was 10 months old”. The task then was to assess damages including for future hypothetical events by the application of legal method. That required the primary judge, not to speculate, but to draw inferences from the established facts. Mr McIlwaine expressly confirmed that the appellant does not challenge any of the primary judge’s findings of fact.

In written submissions, the point was framed as a challenge to “the primary judge’s implicit factual finding (that there is no scope for improved employment or domestic function)”. This second formulation of the alleged error assumes a premise that is inconsistent with the premise of the first formulation. More significantly, whereas the submission refers to the finding as implicit, there was in fact an explicit finding at [107] that the evidence relied upon by the appellant did not establish “a real level of uncertainty as to Daniel’s capacities and employability in the future”. There is no challenge to that factual finding.

In oral submissions, Mr McIlwaine referred to the alleged error as “what I loosely call the Malec adjustment” (a reference to the decision of the High Court in Malec v JC Hutton [1990] HCA 20; 169 CLR 638). The written submissions similarly allege error specified as the failure to “carry out the Malec v JC Hutton exercise in relation to future economic loss and future care”.

The oral submission was expanded upon in the following terms: His Honour’s finding of no earning capacity is challenged because his Honour found there was no earning capacity at all, that Daniel was completely unemployable for the rest of his life. It is challenged on this basis that the correct approach, as explained by the High Court in Malec, requires the court to evaluate the degree of probability…or possibility…of a future event.

This third formulation of the alleged error suggests error of law, or perhaps mixed law and fact. The submission seeks to impugn a factual conclusion that is not otherwise challenged in the appeal (“no earning capacity”) on the basis of an alleged failure to apply a legal principle said to have required an “adjustment” (reduction) to the damages calculated arithmetically to reflect the degree of probability of a future event (improvement to a degree that would render Daniel’s prospects of obtaining employment in the open market more than negligible). As I have endeavoured to explain, in the proper application of legal method, the possibility or probability of future improvement is only required to be brought to account in the assessment of damages if it exists, which is to say, if it is a legitimate inference from established facts.

In the alternative, the defendant contends that the primary judge provided inadequate reasons for making “any such finding” and that this amounts to appellable error in and of itself. However, this also was not specified as a ground of appeal.

It appears from the primary judge’s discussion of this issue that the submission about potential improvement at trial was based on a single observation made by Dr Jungfer, a neuropsychiatrist called by the plaintiff. After expressing the view that Daniel’s “comprehensive management should be with a brain injury service” and that he would require “case management to organise and structure support and assistance”, Dr Jungfer referred to “the prospect of looking at some pharmacotherapy, particularly the stimulants which can be used in disorders of drive and may have some benefits for him”. Dr Jungfer said, “this would need to be initiated by a rehabilitation specialist or consultant psychiatrist”.

The primary judge considered that evidence carefully, in the context of the wealth of other evidence on the topic of Daniel’s functioning capacity and employability. His Honour noted that it was a cautious statement (“may have some benefits for Daniel”) about a prospect Dr Jungfer thought would be better considered by persons other than her, with different expertise. He noted that Dr Jungfer did not expand on the “benefit” such therapy might have for Daniel. He noted that the suggestion appeared in the part of her report headed “management” and did not form any part of her diagnosis or her analysis of Daniel’s capabilities or employment prospects. He noted that the issue was not taken up in the evidence of any of the experts in the fields indicated by Dr Jungfer and that it was not put to any of the experts that Daniel’s employment prospects could be improved by pharmacotherapy. Finally, his Honour noted that, earlier in the same report, Dr Jungfer had expressed the opinion that Daniel had “reached the period of maximal medical recovery”, together with other expressions of opinion, not contradicted or cross-examined on, to the effect that Daniel’s deficits were permanent.

The primary judge concluded at [107]: In the light of these matters, the brief suggestion by Dr Jungfer concerning future pharmacotherapy cannot be taken as establishing a real level of uncertainty as to Daniel’s capacities and employability in the future.

That was a conclusion on a question of fact. It followed from that conclusion that there was no occasion for the primary judge to proceed to evaluate or quantify the possibility or probability of future improvement. Nor was there any occasion for awarding only a buffer rather than calculating damages arithmetically. Indeed, it is likely, having regard to the primary judge’s findings, that the award of only a buffer would have resulted in significant under-compensation. The so-called “Malec adjustment”

The appellant does not take issue with the primary judge’s application of the principle in Mead v Kearney referred to above. Furthermore, in his written submissions, he acknowledges that it was open to the primary judge to hold that the evidential onus of proving residual capacity that could in fact be exploited in the form of actual employment had not been discharged. But the appellant submitted: However, it does not follow that the plaintiff will never enjoy any improvement in his earning capacity and it was incumbent on the primary judge to allow for the possibility of some improved function; or at the very least to explain why he would not make any allowance at all. (Emphasis in original.)

The appellant also renewed the submission made at trial that the issue of future improvement was “sufficiently uncertain so as to justify assessing damages for future loss of earning capacity and attendant care on a buffer basis”. He submitted that a buffer of $500,000 would make due allowance for the possibility that the plaintiff will one day secure paid employment. However, it was not suggested (and cannot be correct to say) that the primary judge was obliged to adopt the buffer approach rather than making an arithmetic calculation of future loss. Accordingly, the issue of a buffer can be put to one side.

Alternatively, the appellant submitted that the relevant awards should have been significantly discounted to allow for the possibility of improved function with the relevant “interventions”. As already explained, the obligation to apply such a discount did not arise unless that possibility had a foundation in the evidence. The argument on this issue is not unlike the argument rejected by the High Court in Tabet v Gett, in which a claim in medical negligence included a claim for loss of the chance of a better outcome. As explained by Gummow ACJ at [43], the critical matter concerning the alleged lost chance was “what would have been the efficacy of steroid treatment” in the short period of opportunity for which Dr Gett was to be held responsible: at [43]. The difficulty was that the evidence provided a basis for no more than speculation as to the loss of a chance of a better outcome had such treatment been provided. In the present case, the matter raised was: what would have been the efficacy of pharmacotherapy (the prescription of medication)? Dr Jungfer suggested it “may have some benefits” for Daniel, conceded that this was a matter for people with different expertise and did not purport to suggest that any benefit obtained might be manifested in greater employability. The evidence provided a basis for no more than speculation as to the possibility of future improvement. The primary judge was right to hold as his Honour did at [107] that Dr Jungfer’s “brief suggestion” concerning future pharmacotherapy could “not be taken as establishing a real level of uncertainty as to Daniel’s capacities and employability in the future”.

The respondent submitted that the appellant’s reliance on Malec v Hutton is misconceived, just as it was held to be in the decision of the New South Wales Court of Appeal in South Western Sydney Local Health District v Sorbello [2017] NSWCA 201. With respect, I am not persuaded that the comparison is apt. The plaintiff in that case was the mother of a child born with profound disabilities such that his life expectancy was significantly shortened and he would require a lifetime care. She claimed damages for psychiatric injury. The hospital admitted liability. As in the present case, the matter went to trial on an assessment of damages.

As to future economic loss, it was common ground that, but for her psychiatric condition, Ms Sorbello would have returned to her former full-time employment at the expiration of her 12 months’ maternity leave. The Court of Appeal recorded at [56] that the primary judge “determined that damages for future economic loss should be assessed on the basis that Ms Sorbello would not be able to exploit any residual earning capacity before retirement age – that is, that notwithstanding a possible working capacity she had no realistic earning capacity” (emphasis in original).

One of the grounds of appeal in Sorbello was that “the primary judge erroneously failed to undertake the exercise set out in Malec v JC Hutton”: at [57]. The Court held that the appellant’s reliance on that decision was “misconceived”: at [70] (Simpson JA, Macfarlan and Meagher JJA agreeing at [1] and [2] respectively). That was essentially because (at [71]): [I]t was no part of the appellant’s case at trial or on appeal that there was a chance that Ms Sorbello would, even without the appellant’s negligence, have developed a psychiatric illness that would have disabled her from working. It was found by the primary judge, and not challenged, that Ms Sorbello suffers from a debilitating psychiatric condition that renders her fit only to work part-time. The issue is not whether she would have come, or been likely to come, to that point absent the appellant’s negligence. That the appellant’s negligence is the cause of her condition is established. The process required for the assessment of a chance as set out in Malec is entirely irrelevant to the present case. In the ordinary case, the possibility that some cause other than the defendant’s negligence might have affected the plaintiff’s earning capacity is catered for by the conventional allowance that is made for “vicissitudes”. That was the appropriate approach in this case.

The present case is different because an adjustment for a future hypothetical event was part of the defendant’s case at trial. It was not an event of the same kind as in Malec v Hutton, but the principle holds. The defendant contended that there was a possibility of future improvement in Daniel’s capacity which might render him employable and reduce his need for attendant case. The difficulty is that the primary judge was not satisfied as to the existence of that possibility for want of evidence. As there is decidedly no challenge in the appeal to the primary judge’s findings of fact, the ground of appeal must fail for that reason.

It was submitted in the alternative that the 15% vicissitudes allowed by the primary judge should be increased to at least 50% in light of the expert evidence as to possible future improvement. The submission makes the same point in a different way. If there was no factual basis for entertaining the possibility of future improvement, there was no proper basis for reflecting it in the reduction for vicissitudes. It fell into the realm of speculation.

As already explained, although the appellant expressly disavowed any challenge to the primary judge’s findings of fact, his submissions in support of his reliance on Malec v Hutton tended (inconsistently) to impugne the primary judge’s conclusion on the issue of the possibility of future improvement. Indeed, the only way the Malec v Hutton argument could succeed is if there was an evidentiary basis for the contention that there was a possibility of future improvement in Daniel’s employability and capacity for self-care. Accordingly, in case I am wrong in my understanding of the grounds of appeal, or wrong to overlook a point not raised in the grounds of appeal but squarely raised in argument, it is appropriate to consider those submissions.

The appellant made plain that he is not suggesting there is scope for any improvement in Daniel’s medical condition “in terms of there being any sort of physiological recovery from his brain injury” but only that “there is a sufficient basis in the evidence to make at least some allowance for the prospect of an improvement in the plaintiff’s function over the course of his life; and therefore, any assessment of future loss of earning capacity damages or future attendant care based on his current function is appealably wrong”.

In support of that submission, the appellant relied on a broader scope of evidence than appears to have been argued in respect of the same point at the trial. In addition to Dr Jungfer’s reference to the possibility of pharmacotherapy, the submissions on appeal also fastened on expert evidence that Daniel requires a brain injury rehabilitation service and disability vocational support and evidence that those supports are available to Daniel.

A review of the evidence now relied upon only serves to reinforce the correctness of the primary judge’s allowance of the full amount claimed by the plaintiff for loss of future income. Apart from the comment of Dr Jungfer considered by his Honour, the principal further evidence relied on in the appeal is the evidence of Dr Sophia Lahz, a rehabilitation physician called at trial by the plaintiff. Dr Lahz stated in her report that Daniel would have difficulties with finding and maintaining employment on multiple fronts. After setting out those difficulties in some detail, she concluded “Daniel will not be competitive on the open market given his [traumatic brain injury-related] difficulties”. She expressed the opinion that “supported employment will probably be Daniel’s only option”. She noted that supported employment can occur at different levels depending on assessment of work abilities, behaviour, supervision requirements and so on.

The appellant’s arguments seize on Dr Lahz’s recommendations about Daniel’s future management divorced from that important context. The argument treats her recommendations as a “prescription” for achieving what she has elsewhere made clear would be unachievable. There is nothing in Dr Lahz’s report to suggest that the assistance Daniel will need in the future has any prospect of overcoming the central fact that supported employment will, in practice, be his only option. That is the kind of employment to which she is referring, as made clear in the following part of her report: Daniel will need assistance from a multidisciplinary brain injury rehabilitation service and vocational rehabilitation service working in unison for him to find and maintain suitable employment. Daniel will need disability employment services, supervised employment or a buddy work arrangement…

It was in this context that Dr Lahz referred to Koomarri, an employment agency with “expertise in helping disabled people find suitable employment”. The appellant relied on the fact that Daniel has been referred to Koomarri as a matter demonstrating error in the primary judge’s determination to award the whole amount claimed by the plaintiff, without reduction for the possibility of future improvement. But it is clear from Dr Lahz’s report that all she was describing was the support Daniel would need just to find and maintain supported employment in the disability sector. In short, far from providing evidence to support the application of a discount to the award for loss of future income, her report provides evidence that Daniel will not only be unable to earn any income but that there will be significant expenses in providing him supported employment and daily care.

As already noted, the appellant did not invoke that evidence in his submission to the primary judge that there was potential for improvement such as to warrant a reduction in damages for future economic loss and future care. That is unsurprising. The evidence hardly supported a possibility of future earning capacity. The evidence accepted by his Honour was that Daniel’s prospects of obtaining employment in the open market were negligible and that his weekly earning capacity in supported employment was around $98 but that he would spend at least that amount in the course of earning it.

Mr McIlwaine nonetheless contended in the appeal, based on that slender evidence, that Daniel’s incapacity for future employment would be “not more than 50 per cent”. He accepted, based on the evidence of Dr Jungfer, that there will be no improvement in Daniel’s condition. However, he submitted that, with the treatment and support recommended by Dr Jungfer and Dr Lahz, Daniel’s “capacity to exercise his capacity” might improve.

In oral submissions, Mr McIlwaine identified four matters to support the submission that Daniel’s incapacity would be not more than 50 per cent. First, he noted there is no physical reason preventing Daniel from working. Accordingly, he does not have special workplace needs. Secondly, he noted the evidence of Daniel’s carer, Ms Adcock, that Daniel can use the light rail and so could travel to and from the workplace.

Thirdly, Mr McIlwaine noted that neuropsychological testing conducted by Associate Prof Bachelor revealed Daniel to be performing at average levels on tests of intellect, working memory and recent memory. What was overlooked in the submission was that the report went on to say, “in contrast, he demonstrated significant difficulty on measures of executive function and in particular, mental flexibility and response inhibition”. It is the impairment of executive function that renders Daniel effectively unemployable on the open market. In her oral evidence at the hearing before the primary judge, Dr Lahz assessed Daniel’s prospects of obtaining employment on the open market as “virtually zero”. As to employment through disability services, she said it would have to be “highly routine, highly learned, structured, repeated and repeated, initially supervised”. She said “maybe… with some luck” there might be able to be a withdrawal of supervision provided it was a “rote-learned, mundane job where you didn’t have to cope with any sort of surprises”.

Fourthly, Mr McIlwaine relied on the evidence of Ms Atteya, a labour market analyst who gave evidence at the trial that the Australian government has a disability employment strategy to support jobseekers with disabilities, including those with intellectual disabilities (the primary judge rejected her evidence, but it was only relied upon here to establish the existence of the strategy). He also referred to the evidence of Mr Martin, the vocational capacity assessor engaged by the plaintiff, who was also aware of the government strategy. At the same time, however, Mr McIlwaine acknowledged that Mr Martin did not think Daniel had any real prospects of employment other than “some sort of sheltered employment”.

Mr McIlwaine referred to the cross-examination of Daniel’s carer, Ms Adcock, where she gave evidence that, in relation to work, what Daniel needs is “to be micromanaged”. Mr McIlwaine submitted “that’s the very thing which the evidence shows these Commonwealth government programs and opportunities can provide”.

Finally, Mr McIlwaine noted that Daniel’s evidence was that “he wants a job”.

None of that evidence proves the existence of any possibility, let alone an assessable chance, of future improvement to a point where Daniel could obtain remunerative employment, or the availability of a regime of support that would make such employment possible. The simple fact is that it cannot be expected that a person with a traumatic brain injury of the kind Daniel has will earn an income; on the contrary, significant resources must be expended to give them quality of life. Employment in a supported structure can be a part of that, but it is not remunerative.

In short, as submitted on behalf of the respondent, there was no error in not undertaking the “Malec v Hutton exercise” because the evidence established that there was no possibility of future earning. The primary judge noted at [85] that there was no detailed evidence concerning the operations of Koomarri or of “where participation in its programs would lead”. Mr Campbell SC, who appears with Mr Bradfield for the respondent, submitted that the benefit of the program could be as much for social integration and providing quality of life as for generation of income but even that was speculative as there was no evidence on the topic.

The respondent’s submissions must be accepted. The appellant has not demonstrated any error in the primary judge’s assessment of loss of future income.

His Honour did not allow 17.25 hours of care per week recommended by Ms Prattley, saying at [143]: As with past attendant care services, I am not persuaded that all of the weekly hours of attendant care estimated by Ms Prattley are necessary. Daniel will need (for example) prompting to clean his residence rather than to have that done for him. That need will be reduced to some extent if occupational therapy (which I have made allowance for) is successful in creating structures and prompts for him to perform tasks of daily living. I therefore propose to adjust the proposed allowance for future attendant care downwards…

Those remarks indicate that his Honour applied a discount for the very reason now agitated in the appeal. Mr McIlwaine sought to make good this ground by relying on the evidence of Ms Adcock, a family friend who has acted as Daniel’s carer and litigation guardian. Mr McIlwaine submitted that she was a truthful and reliable witness and that she would be best placed to know and speak about Daniel’s future needs. Ms Adcock gave evidence that, once Daniel receives the proceeds of these proceedings, he wants to buy a home unit and live independently. Mr McIlwaine submitted that it was her evidence that “what Daniel needs” if living independently is domestic assistance for two or three hours once per week. Mr McIlwaine submitted that would be $195 per week which would give an allowance of $248,987 from the age of 25 using 3% tables.

That is not a fair reflection of Ms Adcock’s evidence. She was not, in the passage relied on, purporting to address all of Daniel’s future care needs. Further and in any event, the submission reflects a wholesale failure to engage with the realities of Daniel’s future based on the expert evidence accepted by the primary judge. To repeat, Dr Lahz said that, if Daniel were living alone, unless he receives attendant care support (not just domestic assistance), he will likely finish up socially isolated, unemployed, eating poorly, and not gainfully occupied, tending to spend all day in his room playing computer games. But the appellant says it will be enough to address those issues that he is compensated for three hours domestic assistance per week. There is no merit in that submission and no error demonstrated in the primary judge’s approach.

The appellant’s first ground of appeal must be rejected.

The next ground of appeal is: The learned trial judge erred in his assessment of damages for future out-of-pocket expenses in making the allowance his Honour did, or any allowance, for pet ownership and/or personal training (see [120]-[122]).

At the passage cited, the primary judge said: Pet ownership and personal training can be dealt with together as they raise similar issues. For most people, these are discretionary expenditures to be funded out of ordinary income. I have allowed a significant sum by way of damages to compensate Daniel for his loss of earning capacity and thus to stand in for such income. These claims, however, are put on the basis that Daniel has a need – arising from the accident – for the things that pet ownership and personal training provide: in the case of a pet, a need for companionship, structure and responsibility and for prompting to leave the house regularly; and in the case of personal training, for structured, regular, supervised physical exercise. There is force in this argument. I accept that the accident has left Daniel severely hampered in his ability, without support and supervision, to find companionship and structure in his life and to achieve a healthy lifestyle. The point is not that Daniel has an accident-related “need for a pet” (as the defendant’s submissions framed it). Rather, it is that he has a need for the things mentioned in the previous paragraph, which could realistically and economically be met by pet ownership; and the cost of keeping a pet is thus an appropriate measure of compensation for that need. The same can be said of the cost of a personal trainer or gym membership. The plaintiff led no evidence to establish that Daniel is likely to own a pet or to engage a personal trainer. There is reason to doubt that, left to himself, he would do either of those things. Of course, what Daniel does with the damages he receives is completely a matter for him. However, because of the uncertainty as to whether pet ownership or personal training will actually arise as items of expenditure for him, I propose to discount the specific allowance that is made for these things by 40 percent to $20,353.80 and $153,892.70 respectively.

The appellant submitted that those items should not have been allowed because they do not satisfy the test for future expenses stated by the High Court in Sharman v Evans [1977] HCA 8; 138 CLR 563 of being “reasonably necessary”. He relied in particular on the following remarks of Gibbs and Stephen JJ at 573: The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick C.J. put it in Arthur Robinson (Grafton) Pty. Ltd. v. Carter "The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent"…

As the decision in Sharman itself reveals, the statement of that principle is simpler than its application. The plaintiff was severely injured in a motor vehicle accident and became quadriplegic, as a result of which she needed constant nursing attention and was therefore in effect permanently hospitalised. The disputed expense was recorded by Barwick CJ as “the cost of providing premises at the respondent’s mother’s house and of nursing attention during those periods in which the respondent might choose to sojourn in that house”: at 566. In what was described by Gibbs and Stephen JJ as “a most carefully reasoned judgment”, the trial judge, Sheppard J, included that component in the damages award. It was upheld in a split decision of the Court of Appeal and disallowed in a split decision of the High Court.

Barwick CJ confessed to having found the resolution of the appeal “a matter of considerable difficulty”, recalling the fundamental principle “that the exercise of discretion by the trial judge in the estimation of damages ought not to be interfered with by an appellate court unless the trial judge has erred in point of law or in his approach to the assessment or unless the assessment itself, by its disproportion to the injuries received, demonstrates error on the part of the trial judge”: at 565. His Honour concluded that it was not reasonable to make the appellant pay for those costs because “[t]hey were not reasonably necessary in any real sense for the treatment and care of the respondent”. However, as the history of that litigation demonstrates, reasonable minds might differ as to whether occasional time at her mother’s home was reasonably necessary for an otherwise permanently hospitalised quadriplegic woman.

Justice Kennett’s judgment is also a most carefully reasoned judgment, no less on this issue than any other. His Honour acknowledged that pet ownership and personal training are discretionary expenditures funded out of ordinary income and that his award for loss of earning capacity stood in for such income. However, his Honour reasoned that Daniel’s established need for companionship, structure and responsibility and for prompting to leave the house regularly could realistically and economically be met by pet ownership; and that his need for structured, regular, supervised physical exercise could realistically and economically be met by having a personal trainer. On that basis, he accepted that those costs were an appropriate measure of compensation for those needs.

As to the cost of a personal trainer, I find no error in that approach. The benefits of physical exercise are beyond question. Particularly for a person such as Daniel, who has no physical impairment and is at increased risk of depression because of his traumatic brain injury, supervised physical exercise is perfectly adapted to meet his needs at a cost that is not disproportionate.

As to the allowance for pet ownership, different issues arise. The respondent noted that the amount awarded was not large and that it was discounted heavily (by 40%) for contingencies. While Daniel himself did not give evidence that he wants a dog, it was submitted that there was evidence that it would be beneficial to him to have the responsibility of looking after an animal. Mr Campbell explained that much of the evidence in support of Daniel’s case was led from Ms Adcock, whose evidence was that Daniel “took to” her dog and played a role in its care, especially when prompted.

On that basis, Mr Campbell submitted that the primary judge came to a view that was open to him against evidence suggesting a risk that Daniel would become socially isolated and would remain in his bedroom to an unhealthy extent and fail to engage in any regular meaningful activity.

Mr Campbell acknowledged that there was evidence that Daniel had in the past failed to exercise Ms Adcock’s dog when prompted and had allowed it to toilet itself within the home, adding, with all the ingenuity of a seasoned advocate, “hence the need for supervision”. Mr Campbell accepted, however, that Daniel’s evidence was silent as to whether he wanted a dog and would look after it.

While the primary judge’s reasoning on this issue was logical, in my assessment it overlooked the extent of chaos that pet ownership can bring. Mr Campbell’s point about the need for supervision is apt and was, with respect, not adequately considered by the primary judge. In order to ensure that an animal’s needs were met, a high level of supervision would be required. I have accordingly concluded that the pet allowance should not have been included in the award, not so much because it is not reasonably necessary but because it is impractical and would give rise to other needs. It is important to note that a different conclusion might be reached in a different case, if a plaintiff had an established capacity to care for a support animal and there was evidence of the likely benefit of having one.

The appellant’s argument in support of this ground overlooks not only the evidence of Dr Jungfer but the realities of disability care. Daniel is unlikely to have the same caseworker for the rest of his life. While some disability caseworkers might have the necessary skills to assist him in the day-to-day management of money, there is no basis for having confidence that every caseworker will have those skills, or the will to apply them carefully, let alone the skills to undertake the “significant task” described by the primary judge of managing a large fund in such a way as to ensure that it is used for maximum benefit but also lasts for the rest of Daniel’s life.

In oral submissions, Mr McIlwaine submitted that a second basis for challenging the award for fund management (apart from the primary submission that the need could be met by a case manager) is that the amount awarded was “too much”. That issue was not addressed in the written submissions. The basis for the submission was a point acknowledged by the primary judge in the passage set out above, that, if the fund was used to purchase a property in the near future, the fund to be managed would be smaller. His Honour took that into account and reduced the amount claimed accordingly. No error is established.

For those reasons, the damages awarded by the primary judge should be reduced by the agreed miscalculation of $187,776.18 and the amount of $20,353.80 allowed for pet ownership. I would otherwise dismiss the appeal.

Accordingly, the orders I propose are: (1) That the judgment sum of $6,085,323 awarded to the respondent be reduced by $208,130 giving a judgment sum of $5,877,193. (2) Direct the parties to bring in short minutes of order within 14 days setting out a revised calculation of interest on that basis together with a proposed order as to costs, if agreed. (3) Failing agreement as to costs, the parties are to provide short submissions within a further 14 days following which the issue will be determined on the papers.

I have had the benefit of reading the draft reasons of McCallum CJ and McWilliam J. Like McWilliam J, I agree with the Chief Justice that the appeal should be allowed in part, with ground 2 (miscalculation of future attendant care) being allowed by consent and ground 4 (as it relates to pet ownership) being partially allowed for the reasons expressed by McCallum CJ. I also agree that ground 1 (loss of earnings) should be dismissed for the reasons expressed by McCallum CJ and the additional reasons of McWilliam J.

The central area of disagreement between McCallum CJ and McWilliam J concerns ground 3, which relates to the provision of damages for the cost of a “buddy”. The primary judge’s finding concerning this head of damage (at [145] – [147]) was as follows: The plaintiff also claims, in lieu of a claim previously advanced for vocational supports, a buffer of $400,000 to provide for a “buddy”. The particulars envisaged this person facilitating the satisfaction of Daniel’s needs for “exercise, general wellbeing and any vocational support that might arise”. There is some risk of double counting if substantial provision is made for vocational support in circumstances where Daniel’s loss of future earnings has been assessed on the basis that he is essentially unemployable. However, the findings that I have made concerning future employment prospects do not rule out Daniel being able to do some work in a volunteer capacity or in a supported environment; and, should he do that, the cost of the support he would require would most likely be greater than his earnings. As things stand, the effects of the accident have not only deprived Daniel of the ability to earn an income to support himself. They have also deprived him, in the absence of support, of the opportunity to experience the psychological benefits that come from participation in productive activity. Some allowance for vocational support is therefore appropriate. Based on a rough calculation of one hour per day at $50 ($350 per week), the plaintiff arrives at a figure of $521,850 which he accepts, given the uncertainties involved, could be discounted to $400,000. As a provision to cover important features of a normal life to which Daniel presently does not have access as a result of his injuries, this does not appear to me to be excessive. I will include this amount.

As can be seen in the above extract, the primary judge expressly recognised that there was a risk of “double counting” in relation to vocational support, in circumstances where his Honour had accepted the submission that Daniel was “essentially unemployable” and that Daniel had been fully compensated for a complete loss of earnings. There was also a risk of double counting in respect of the compensation that had been awarded to facilitate Daniel’s need for exercise, and a risk of double counting or inconsistent findings in respect of the compensation that the primary judge had awarded for Daniel’s loss of amenity and future attendant care.

Justice McWilliam has concluded that the primary judge erred in affording damages for a “buddy” either because the damage sought to be compensated by that award was already covered by one or more of these other heads of damage, or because the award was outside the realm of compensable loss. In so finding, I do not understand her Honour to have taken a binary approach to the award of damages for amenity and vocational support. Rather, I understand her Honour to have reached this conclusion based on an analysis of the particular findings of the primary judge in the circumstances of the present case.

I have given very careful consideration to the draft reasons of McWilliam J, as well as the able submissions of counsel for the appellant on the appeal. On balance, I have concluded that, when the primary judge’s reasons are read in the context of the judgment as a whole, and assessed against the evidence that was adduced at first instance, error has not been demonstrated in the primary judge’s decision to award damages for a “buddy”. Accordingly, I agree with McCallum CJ that the appeal in respect of ground 3 should be dismissed.

The expert evidence adduced at first instance suggests that the future attendant care provision was limited to assistance for domestic chores. Ms Prattley’s report records that the 17.25 hours of attendant care recommended for the “second period” was in turn comprised of 3.5 hours per week of “personal care” (described as “ongoing support to maintain appropriate standards”); 13.5 hours per week of “domestic duties” (including overall household cleaning, prompting and supervision for changing bed linen and maintaining care of the personal room and the bathroom, prompting for laundry maintenance, prompting to maintain meal preparation, cooking and dishwasher management, and accompaniment for shopping); and 0.25 hours per week of property maintenance (external cleaning of the balcony/ patio).

In circumstances where the primary judge separately addressed the need for a “buddy” to “[facilitate] the satisfaction of Daniel’s needs for ‘exercise, general wellbeing and any vocational support that might arise’”, I consider that it should be inferred that the 12 hours of attendant care afforded by his Honour did not encompass prompting Daniel to undertake tasks other than those of a purely domestic nature. This is particularly so given his Honour’s express concern to avoid any double counting.

So viewed, I consider that the role envisaged by the provision of a “buddy” was not that of a ‘friend’ or ‘companion’ who would accompany Daniel to personal training, nor would the “buddy” physically accompany Daniel in other forms of exercise, or work beside Daniel when he engaged in voluntary employment or vocational support; cf Mills v Lee [2006] NSWSC 1031; Hulanicki v Walton [2014] ACTSC 17 and Pawlak v Pesaturo [1997] SASC 6407; 195 LSJS 51 (concerning applications for a “leisure buddy” or “paid companion”). Indeed, it may be observed that the one hour per day afforded by this award would in no way be sufficient for such involved support. Rather, the provision for a “buddy” envisaged a role which would primarily consist of prompting Daniel to engage in the activities listed in the same way that the attendant carer would prompt Daniel to perform his domestic and personal chores.

Equally, there is no overlap between the damages awarded for a personal trainer and the provision for a buddy. The award for damages for the personal trainer did not include the prompting which Daniel would require in order to actually attend upon that trainer.

Nor is there overlap between the award of damages for occupational therapy and the overall damages for future attendant care (including the award of damages for the “buddy”). The provision for occupational therapy concerned a four-year program of occupational therapy sessions, not daily attendant care. This approach was supported by the expert evidence. Specifically, Dr Lahz explained that whilst an occupational therapist could devise an occupational therapy program to help Daniel incorporate multiple activities into his daily routine, this could not successfully be achieved if Daniel were living alone “without any input from attendant care”.

Similarly, there is no overlap between the award of damages for Daniel’s loss of amenity and the provision of the buddy. Specifically, when the primary judge spoke of the fact that Daniel “effectively” lives the life of “a recluse” (at [77]), he was not stating that Daniel would in fact become a recluse, in the sense that Daniel would not have any social contact with the outside world. Rather, his Honour was making a finding about the extent of enjoyment that Daniel derives from social interaction. This construction of his Honour’s finding is supported by the sentence which immediately followed this statement, namely that Daniel lacks “the joyful experiences that come from conversation with others, shared experiences and intimacy” (at [77](e)).

The evidence before the primary judge did not suggest that Daniel would obtain joy, or even satisfaction, from his volunteer or supported work. Although on first reading, the primary judge’s reference to the “psychological benefits that come from participation in productive activity” (at [146]) may at first suggest otherwise, when read in context and against the evidence adduced with respect to this claim at first instance, it is clear that provision for facilitating volunteer or supported work was justified not because it would increase Daniel’s enjoyment of life, but because facilitating routine and structure in Daniel’s life was necessary to maintain Daniel’s mental, as well as his physical, health. In circumstances where no provision had been made in the award of damages for any deterioration in Daniel’s physical or mental health, this did not constitute double compensation: see similarly Stewart at [53] – [55], contrasting the approach in Sharman.

Accordingly, I do not accept that the provision for a “buddy” doubly compensated Daniel with respect to any other head of damage awarded by the primary judge.

Dr Lahz’s evidence was that Daniel required routine and structure in his days in order to maintain both his physical and mental health. Professor Kornberg (neurologist) likewise accepted that it would be “unhealthy” for Daniel to become socially isolated, and agreed that “structure in prompting, initiative and guidance and dealing with apathy” was “important” for Daniel. Professor Roldan and Professor Batchelor (neuropsychologists) gave evidence to similar effect.

Personal training was one way in which this structure could be provided. Volunteer employment, or employment in a supported environment, was another way in which this routine and structure could be provided.

The material relied upon by the appellant to demonstrate that Daniel did not require such prompting did not adequately address the particular needs that were created by the brain injury which Daniel has sustained. For example, the appellant pointed to evidence that Daniel was able to travel independently to Cambodia as indicating that he was able to live alone with a measure of independence. However, the evidence was that Daniel’s foster mother drove him to the airport and assisted him through security. Daniel was then collected by his father once he arrived in Cambodia. As noted above, the medical evidence was that Daniel’s brain trauma affected his capacity for motivation and planning. The fact that Daniel was able to find his way to a connecting flight in Singapore does not undermine this evidence.

The primary judge was correct to conclude that a “buddy” was a “reasonable response to repair the consequences of the tort and to restore his position prior to the tort”: Stewart at [4]. The consequence of the appellant’s negligence was the impairment of Daniel’s executive functioning. As Dr Lahz explained, Daniel now has a “disconnect” between motivation and cognition. The role of the “buddy” is, so far as possible, to remedy that disconnect. Indeed, in this way, the buddy might be seen as an external substitute for the ‘internal voice’ or motivation that was profoundly impaired as a result of the accident.

I agree that Daniel does not require a buddy to attend his personal trainer with him. However, as noted above, I do not understand the role of the buddy to be to physically attend personal training with Daniel. The evidence at first instance established that Daniel required constant prompting to attend the personal trainer at all. (A relative of Daniel’s gave evidence that he would telephone Daniel ahead of time to tell him to get ready as he was coming to collect him to go to the gym together. Despite these calls, Daniel would still be in his pyjamas around 90% of the time when his friend arrived.) Insofar as the “buddy” would be responsible for prompting Daniel to attend upon his personal trainer (and/or other forms of physical exercise), that award was reasonably necessary to ensure Daniel’s continued physical and mental health. Indeed, there would be little point in making provision for a personal trainer unless there were also mechanisms put in place to ensure that Daniel attended the trainer.

Similarly, insofar as the ‘buddy” would be responsible for prompting Daniel to engage in other structured activities in his day, such as volunteer or supported employment, that award was also reasonably necessary to ensure Daniel’s continued physical and mental health. As noted above, I do not understand the role of the buddy to be to physically attend these activities with Daniel.

The appellant has not established that there was error in the primary judge’s decision to award damages for a “buddy”. Was the award of damages for a “buddy” excessive?

Although the form of the award of damages for a “buddy” was described by the primary judge as a “buffer”, that buffer was calculated on the basis of one hour per day of assistance, rounded down and discounted by approximately 20% in recognition of “uncertainties”. The reasonableness of that award must be considered in conjunction with the related award of 12 hours per week (a little less than two hours per day) for future attendant care relating to personal care and domestic chores for the second period. This comes to a total of a little under three hours per day for assistance with personal care, domestic chores and the facilitation of exercise, general wellbeing and vocational support.

As summarised above, the impairment of Daniel’s capacity for executive function has the result that Daniel requires prompting to engage in basic daily activities. As many parents have experienced, such prompting can sometimes be as time consuming as performing the task in question. It may be noted that Dr Lahz considered that Daniel requires 6 to 8 hours of attendant care per day.

The appellant has not established that the primary judge erred in making provision for an overall award of a little less than three hours per day of attendant care, including as provided by a “buddy”.

With rounding, the reduction in the award of damages for the “buddy” was close to 25%. This was consistent with the reduction in the award of damages for future attendant care. The award of damages for a buddy was relatively small, at only one hour per day.

In all of the circumstances, I consider that the appellant has not established that primary judge erred in awarding $400,000 in damages for the “buddy”.

Those conclusions have a consequence for ground 5 (funds management), in that the damages sum overall will be reduced to the point where it becomes appropriate to revisit compensation for funds management. I have determined on the rehearing that the appointment of a trustee remains the appropriate course and made a modest reduction in the award of damages for funds management. While there may have been some force in the complaint about inadequacy of the primary judge’s reasons for determining funds management by a trustee, that point is overtaken in light of the conclusions reached.

It is unnecessary to repeat the applicable principles governing appellate intervention, and the introductory discussion of the facts leading to this dispute about damages. Damages of $6,247,370 (comprising $6,085,323.21, plus interest where appropriate) were awarded to the plaintiff (the respondent on the appeal) by the primary judge. As explained by the McCallum CJ, the present task is to consider whether in awarding that amount, the primary judge “acted on any error of principle or misapprehension of the facts”, or “made a wholly erroneous estimate of the damages suffered”: Precision Plastics Pty Ltd v Demir [1975] HCA 27; 132 CLR 362 at 369.

It is important (both for the resolution of ground 1 and for the reasoning in relation to ground 3) to understand the principles applying when assessing claims for future economic loss. They were set out in Howard v Aikman [2015] ACTCA 64, where it was stated at [85]: … damages are not awarded for loss of earnings but for the diminution in a plaintiff’s earning capacity caused by the injury the subject of the proceedings to the extent that it is or may be productive of financial loss: Graham v Baker above. That means it is necessary to identify the capacity that has been lost and the economic consequences that will or might flow from that loss: Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at [7] (Gleeson CJ, Gummow, Kirby and Hayne JJ).

The first citation was a reference to Graham v Baker [1961] HCA 48; 106 CLR 340 and the principle articulated at 347 that “an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss”.

The principle the appellant says ought to have been applied was that set out in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638. The relevant part for the resolution of this ground is at 643: … in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. The future may be predicted and the hypothetical may be conjectured. But questions as to the future or hypothetical effect of physical injury...are not commonly susceptible of scientific demonstration or proof. If the law is to take account of future or hypothetical events in assessing damages, it can only do so in terms of the degree of probability of those events occurring. The probability may be very high — 99.9 per cent — or very low — 0.1 per cent. But unless the chance is so low as to be regarded as speculative —- say less than I per cent — or so high as to be practically certain — say over 99 per cent — the court will take that chance into account in assessing the damages. … the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability. The adjustment may increase or decrease the amount of damages otherwise to be awarded...The approach is the same whether it is alleged that the event would have occurred before or might occur after the assessment of damages takes place.

The primary judge’s assessment of future economic loss was based on the finding that the plaintiff has no earning capacity at all. His Honour traversed that evidence and found at [100]: In the light of the lay and expert evidence concerning Daniel’s condition, I am satisfied that he is unable to undertake employment that, but for his injury, would have been available to him as a person of average intelligence. In the light of that conclusion, the defendant bore an evidential onus of adducing evidence of what work Daniel is capable of doing, what jobs are reasonably open to him and what he could earn in those positions: Mead v Kerney [2012] NSWCA 215 at [24]–[27] (Macfarlan JA (McColl JA and Sackville AJA agreeing)). It will be clear from what I have said above that I do not think that onus has been discharged. Subject to the next issue to be considered, it follows that I should assess loss of earning capacity in the manner suggested by the plaintiff.

This finding makes it clear that the primary judge expressly determined that there was no current capacity. The primary judge went on to consider the potential for improvement in capacity (or functionality arising from a permanent condition, to use the appellant’s characterisation), finding at [101]-[107]: Potential for improvement 101. The defendant also submitted that the appropriate approach was to use a “buffer” because there was a potential (the extent of which was unknown) that Daniel’s condition might improve. This submission was based on the following observation by Dr Jungfer: There is the prospect of looking at some pharmacotherapy, particularly the stimulants which can be used in disorders of drive and may have some benefits for him. This would need to be initiated by a rehabilitation specialist or consultant psychiatrist. 102. The following points should be made about this passage. 103. First, the relevant statement is very cautious. It goes only so far as to suggest that it might be appropriate to look at pharmacotherapy. It is apparent that Dr Jungfer regarded that consideration as something properly done by people with different expertise to her own. She did not expand on the “benefit” that might be obtained for Daniel. 104. Secondly, the statement appeared in the section of Dr Jungfer’s report headed “Management”, which outlined the level of support Daniel would need. It was not part of her diagnosis; nor was it part of an analysis of Daniel’s capabilities or employment prospects. 105. Thirdly, this suggestion was not taken up in the evidence of any experts in the fields indicated by Dr Jungfer (other than Dr Lahz acknowledging the suggestion). The report in which Dr Jungfer made the suggestion was dated May 2021, so that there was ample time before the trial for it to be followed up; and the defendant had available to him the expertise of Dr Dalton. It was not put to any of the experts (including Dr Jungfer herself) that Daniel’s employment prospects could be improved by pharmacotherapy. 106. Fourthly, Dr Jungfer opined earlier in the same report that Daniel had “reached the period of maximal medical recovery”. There were other expressions of opinion, not contradicted or cross-examined upon, to the effect that Daniel’s deficits were permanent. This view was expressed by Dr Kornberg (the defendant’s witness), Dr Lahz and Professor Batchelor. 107. In the light of these matters, the brief suggestion by Dr Jungfer concerning future pharmacotherapy cannot be taken as establishing a real level of uncertainty as to Daniel’s capacities and employability in the future.

The primary judge had earlier recognised the theoretical possibility of improvement to the point he was able to undertake supported employment, stating at [86]: The plaintiff submitted that Daniel’s prospects of obtaining employment in the open market were negligible; his weekly earning capacity in supported employment was around $98.00 (based on the report of Mr Craig Martin, a vocational assessor); but he would spend at least that amount in the course of earning it. Average weekly full time male earnings were $1,551.00 net at the time of final submissions. The claim finally advanced was for $1500.00 per week. Using the appropriate multiplier, this led to a figure of $1,987,950.00. The plaintiff accepted that it was appropriate to discount this figure by approximately 15 percent to allow for possible vicissitudes. This produces a final figure of $1,690,000.

These aspects of the primary judge’s reasoning indicate that the primary judge expressly turned his mind to the circumstances whether there was any probability of improvement in functionality, including through supports or pharmacotherapy, and how realistic any theoretical capacity (based on supported employment) was. His Honour found that it was so low that it could not be taken as establishing a real level of uncertainty. That is, this was a case where any chance of improvement in functionality fell in the realm of being so low as to be regarded as speculative.

In this case, having independently reviewed the expert evidence, there was sufficient evidence before the court (discussed in the reasons of McCallum CJ) to make that finding of effectively ‘no real chance’ squarely open to his Honour. Once it is accepted that the primary judge’s finding was open on the evidence, on the Malec reasoning, his Honour was not required to engage in any adjustment of damages otherwise to be awarded.

In respect of future attendant care, I agree with McCallum CJ that the primary judge did take into account the chance that the plaintiff’s situation would improve, and adjusted damages accordingly. This is revealed by the primary judge’s reasons at [143], which were set out in the reasons of McCallum CJ. The adjustment reflected the necessarily imprecise nature of the hypothetical exercise. While a different method of adjustment might have been adopted, the reduction in hours per week that attendant care would be required had a reasonable basis in the evidence and was not an erroneous approach.

I therefore agree with McCallum CJ’s conclusion that there was no error in respect of ground 1.

His Honour then applied that principle in assessing future attendant care and the cost of maintaining an independent existence. Immediately preceding the reasoning with regard to a buddy, the primary judge awarded $1,301,904.22 (reduced to $1,114,128.04 on this appeal) for future attendant care. That amount was for “continuing intervention to provide structure, prompting, a healthy diet and engagement in activity” (primary judgment at [137]).

The primary judge then dealt with the separate claim for the buddy. The purpose of the claim was set out in [145] of the primary judgment as “facilitating the satisfaction of Daniel’s needs for ‘exercise, general wellbeing and any vocational support that might arise’”.

His Honour then stated at [146]-[147] (emphasis added): 146. There is some risk of double counting if substantial provision is made for vocational support in circumstances where Daniel’s loss of future earnings has been assessed on the basis that he is essentially unemployable. However, the findings that I have made concerning future employment prospects do not rule out Daniel being able to do some work in a volunteer capacity or in a supported environment; and, should he do that, the cost of the support he would require would most likely be greater than his earnings. As things stand, the effects of the accident have not only deprived Daniel of the ability to earn an income to support himself. They have also deprived him, in the absence of support, of the opportunity to experience the psychological benefits that come from participation in productive activity. Some allowance for vocational support is therefore appropriate. 147. Based on a rough calculation of one hour per day at $50 ($350 per week), the plaintiff arrives at a figure of $521,850 which he accepts, given the uncertainties involved, could be discounted to $400,000. As a provision to cover important features of a normal life to which Daniel presently does not have access as a result of his injuries, this does not appear to me to be excessive. I will include this amount. Error is established

The emphasised words of the reasoning at [146]-[147] above reveal the key difficulty in respect of this ground. The primary judge’s reasons for making the provision were either not open because of other findings the primary judge had made or were part of compensation awarded in other heads of damage.

With regard to exercise, that was also compensated by a separate award for a personal trainer, which as McCallum CJ explains, met the need for structured, regular, supervised physical exercise. I agree there was no error in the approach with regard to damages for the personal trainer but again, that has a consequence for the separate award for a buddy to meet that same need. To the extent that an additional buddy might make the attending to that need through personal training more enjoyable, in my view, that goes beyond reasonable necessity and into the area of ‘nice to have’. Only the former sounds in compensable loss.

I disagree that compensation should be awarded for both a personal trainer and in the form of a separate additional component for prompting or facilitating attendance with the personal trainer (that is, for a separate buddy to prompt Daniel to engage in a gainful structured activity). That travels beyond what is a reasonable need. The personal trainer is the prompt, being well able to call an injured plaintiff to remind him to attend training sessions or even attend the plaintiff’s house so that he can access the personal training service.

Whichever way the primary judge’s reasons are analysed to ascertain the purpose of that component, the separate and additional award for a ‘buddy’ was properly to be viewed as either unreasonable because it was outside the realm of compensable loss or compensating twice over for the one detriment. In either case, it should not have been awarded.

For those reasons, in my view, ground 3 succeeds. Ground 5 – funds management and inadequate reasons for the sum awarded

I will deal briefly with the substance of this ground because, as stated at the outset of these reasons, the extent of success in respect of grounds 2, 3 and 4 means that it becomes appropriate to adjust the figure awarded for funds management, quite apart from whether error is established in the primary judge’s conclusion or reasoning. What follows is relevant both to considering the ground argued and the drawing of conclusions on a rehearing in light of the success on other grounds.

In addition to the principles set out in Nominal Defendant v Gardikiotis [1996] HCA 53; 186 CLR 49 at 54-55 and Willett v Futcher [2005] HCA 47; 221 CLR 627 at [51] (referred to by the primary judge in his reasons), the principles that I have applied are as follows: (a) In order to obtain compensation for funds management, the plaintiff had to establish a causative connection between the tortfeasor’s conduct and the reasonableness of that expense: Pel-Air Aviation Pty Ltd v Casey [2017] NSWCA 32; 93 NSWLR 438 at [106]. (b) As to the precise management arrangement with a private trustee, the question is whether what is proposed is so unreasonable in its terms that it could not be regarded, as a matter of common sense, as a consequence of the plaintiff’s injury: Gray v Richards [2014] HCA 40; 253 CLR 660 at [47]. (c) In terms of the fees proposed for such management, applying Gray at [46], the question of the reasonableness of the expenses… … is not at large as a matter of judicial discretion. The court does not make an open-ended judgment about the reasonableness of the fund management expense component of damages. The court is not concerned to regulate the market for the provision of funds management services. The court’s concern is to ensure that the plaintiff’s actual loss is compensated. There is, for example, no scope for the court to say that the amount is simply “too much” as a matter of intuition or impression if the plaintiff has not practical utility to bargain for a lesser charge.” (d) Where there is an alternative between a private and public trustee, the onus is on the tortfeasor to prove that the plaintiff had failed to mitigate his loss by preferring the appointment of a private trustee to the public trustee, which cannot be achieved simply by proving there is a cheaper alternative, particularly where a long-term relationship and satisfactory working relationship looms large: Pel-Air at [106].

Here, as explained below, the evidence established that there was a causal connection, the management arrangement proposed as a consequence of the plaintiff’s injury was reasonable, the reason for seeking to appoint a private trustee in the circumstances of this case (and compensation for doing so) was soundly based, and the trustee’s fees over the lifetime of management, including the fees for financial advice obtained by the private trustee, were market rates.

It is apparent from reading the primary judge’s reasons in their entirety that the primary judge accepted the evidence of Dr Jungfer, including her recommendations as to the most appropriate means of funds management. That acceptance is most clearly seen in the primary judge’s reasons at [153], which are set out in the judgment of the Chief Justice, who noted the factual findings of fact therein were not challenged.

Specifically, it was Dr Jungfer who recommended the involvement of a trustee as being reasonably necessary, with such necessity causally related to the accident. She explained in the witness box that she had recommended case management, a recommendation which the primary judge plainly accepted given the damages awarded for that component. Dr Jungfer described how the case manager was most commonly the person that would be interacting with the financial trustee. The evidence about reasonable necessity can be seen in this exchange with the respondent’s senior counsel: … what is it about a trustee that is important in having them involved in persons such as [the plaintiff]?---The opinion that an individual should have a trustee relates to an assessment that the person, by nature of their injury, disability or disorder, is disadvantaged in comparison to the general or average person and that the disadvantage would place them at risk of exploitation, inappropriate management of their funds, a lack of understanding of the implications of having received a settlement and so the trustee essentially provides a protective and supervisory role.

Dr Jungfer went on to describe different forms of involvement by a trustee as follows: I have two groups of patients; I have patients who have a trustee and a case manager and I have patients who have a trustee, a case manager and lifetime care and that obviously varies then what the role of the trustee is. In the absence of lifetime care, the trustee becomes the person who looks at the recommendations of the case manager and makes decisions as to whether or not the expenditure is affordable, appropriate and then ensures that the services are paid for. In the case of lifetime care, the trustees would be involved in, really, issues like equipment that isn’t injury related, day to day expenses, clothing, whereas lifetime care would provide the funding for services and …the case manager would provide a plan that justifies and then that plan is assessed by lifetime care as being reasonable and necessary and they fund the treatment.

Under cross-examination, the appellant’s senior counsel raised with Dr Jungfer precisely the matters that were re-agitated on appeal, as to a lack of any likelihood of the plaintiff being exploited and whether the scheme of funds management through the involvement of a case manager taking financial advice was preferable to the control by a trustee of any moneys awarded.

As to the exploitation point, Dr Jungfer’s evidence was that “bitter experience” had shown her that people act very differently when large sums of money were involved. As to the second point, this was her evidence in response to the questions asked by senior counsel for the appellant: Provided a properly qualified financial adviser is retained to firstly set up whatever scheme is determined as being the most appropriate for Daniel when he gets his lump sum and continues to provide advice when a case manager asks for it, that would be an appropriate scheme, I suggest to you, for Daniel rather than have his money controlled by an independent trustee?---No. Can I ask you to explain why not?---Yes, I’m happy to explain why not. The information that was provided to me either from Daniel, his guardian, and with reference to the documents, the evidence that’s been provided to date, in the context of, you know, extensive experience working with people with acquired brain injury over many years, some of my patients, you know, it’s 40 years that they’ve had their brain injury and longer that I’ve been involved for…up to 30 years with some of my patients. A number of things happen; the first is that someone who has a disorder of drive who, as Daniel is described, has black and white thinking, they will not necessarily seek financial advice if its, you know, given to a financial adviser. If they have to enact that financial advice it’s often too complex. It’s complex for well-educated people and people of, you know, above average and superior intelligence let alone someone who has difficulties with initiative and drive and, you know, average intelligence.

Dr Junger then went on to give a further reason, relating to the plaintiff receiving advice by a financial manager but not acting on it because it does not accord with his ideas, or because he comes to resent being controlled by family members. She continued: … So you provide Daniel with an individual who is independent, a trustee, who is able to meet with the individual but overall has the…professional qualifications, understanding and expertise, and you take out the family because when you add family dynamics into financial management orders there are competing demands, conflicting ideas, and in the case of this young man, the goal is to allow them to be as independent as possible but also protected from the effects of their brain injury and an independent financial trustee would be the safest and most prudent step in this young man’s situation.

She was then asked by the primary judge whether a trustee could overcome the concern that the plaintiff was very frugal with his money and if awarded a large sum of money, may not spend it on things that would benefit him. Dr Jungfer’s answer was: … As in my reports, I’ve actually recommended that he have case management and often the – no disrespect to trustees but they are, you know- they’re people with financial training. They’re not trained in brain injury and they don’t necessarily have the interpersonal skills, so it actually becomes the case manager’s role. The case manager develops the relationship with the individual and then, you know, explores those needs. And so if we use the example of Daniel and the example you’ve given that the trustee wants to purchase him a house but he doesn’t want a house, then in that case what would normally happen is there would be a meeting with the trustee, Daniel and his case manager. They would talk through why it would be relevant. …Often people say no, and someone like Daniel will say, ‘No, I don’t want to do that. I just want to leave the money in the bank,’ but then when it is explained to them, ‘Well, this is going to earn income,’ and you know, develop their assets, they will agree. So it becomes a work in progress and the case manager there becomes essential.

In addition to that evidence, there was an affidavit dealing with the appointment of Australian Executor Trustees Limited (AET) and Aeran Pty Ltd (Aeran), including the trust deed proposed, which set out and satisfied all the relevant considerations that a court would take into account when appointing a particular trustee (as to which see Williams v Hoang [2019] ACTSC 144 at [11]). These details were not discussed in the judgment presumably because the choice of trustee was not in issue here; the issue was the nature of the arrangement – that is, whether a trustee was involved at all and the extent of their involvement in management.

Taken together, this was the evidence the primary judge accepted as justifying the appointment of a trustee as a reasonable expense and there was really no competing expert evidence justifying the alternative structure for which the appellant contended. To the extent that there was an expert forensic accounting report from Vincents, it merely reviewed the costs estimates of funds management provided by AET and Aeran rather than the appropriateness of the underlying structure itself.

For those reasons, I agree that the appointment of AET as trustee in the financial arrangement proposed by the plaintiff was not only reasonably open to the primary judge, it was the appropriate course on the evidence and circumstances of this case. Error has not been established in respect of that conclusion.

As to whether there were adequate reasons for that conclusion, the relevant principles were set out in Howard at [23], citing the authorities collected in O’Brien v Noble [2012] ACTCA 13; 6 ACTLR 132 at [20]. On the application of those principles, there may have been force in the appellant’s submission about the inadequacy of reasons, but as I have explained, it is overtaken by the requirement to adjust the component for funds management in light of the findings on appeal.