SAFI v ADOUNI and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SHELLER and STEIN JJA, and SHEPPARD AJA 8 August 1997, 7 October 1997 [1997] NSWCA 271 MOTOR VEHICLE ACCIDENT — Damages for personal injury — Amount awarded plaintiff in running down action claimed to be manifestly too low — Question of fact — Consideration of large quantity of lay and medical evidence — Medical evidence conflicting — Sufficiency of award for economic loss — No question of principle. MOTOR VEHICLE ACCIDENT — The appellant, the plaintiff in the action, was injured in a motor vehicle accident when six years of age. Claims were made by his family and by friends of the family that he had suffered intellectual impairment as a consequence of the injuries which he sustained, particularly a fractured skull. The accident occurred in 1983. The action was commenced shortly afterwards. Thereafter, the appellant was seen by a large number of doctors and other medical specialists over a period of many years. There was conflicting medical evidence as to whether he was intellectually impaired, as to the degree of any intellectual impairment from which he suffered, and importantly, as to whether any intellectual impairment suffered by him was the consequence of a head injury suffered in the accident The trial Judge concluded that the intellectual impairment suffered by the appellant was not caused by the accident but was slightly exacerbated by it. This affected the already limited economic capacity which the plaintiff, 19 years of age when the matter came to trial, had at the time of the accident. His Honour awarded $50,000 for pain, suffering, loss of amenity of life, and anxiety and depression, most of which was for the past. He awarded interest of $10,400 on so much of the sum of $50,000 ($40,000) as represented the past, and $6,000 for past and future economic loss. There was a question, accepting his Honour's findings at face value, whether the amount awarded for economic loss was manifestly too low. It was held that it was. The amount of $6,000 was increased to $30,000 with the consequence that the judgment in favour of the appellant in the sum of $67,052 (which included $652 for out-of-pocket expenses) was increased to $91,052. The Court made remarks critical of the state of the appeal books and of the written submissions lodged on behalf of the appellant. It also commented on the absence of a chronology. Sheller JA I have had the benefit of reading Sheppard AJA's judgment in draft. I agree with the orders proposed and his Honour's reasons. The Court received no satisfactory explanation for the defects in the appeal books which are referred to. To allow appeal books in such a state to be filed and to fail to follow the required practices for furnishing written submissions and a chronology adds to the time and cost involved in the appeal process. The legal practitioners retained by the appellant allowed themselves to fall well below accepted standards of practice. Stein JA I agree with the reasons for judgment of Sheppard AJA and with the orders which he proposes. 2 UNREPORTED JUDGMENTS In particular, the award of $6,000 for economic loss, when viewed from the perspective of the trial judge's conclusion that the appellant's economic capacity had only been 'slightly impaired' by the accident, is manifestly inadequate and must be set aside. I agree that the sum of $30,000 is a proper figure to substitute. I also endorse the remarks of Sheppard AJA regarding the disgraceful presentation of the appeal on behalf of the appellant. It does not reflect well on the legal profession. The costs order proposed by his Honour, as well as his proposed directions relating to costs of the appeal books and preparation of the appellant's written submissions, are appropriate to the circumstances exposed before the court. Stein JA This is an appeal from a judgment of the District Court (McLoughlin A/DCJ) given on 21 December 1995 in an action in which the appellant sued for damages for personal injury suffered on 14 January 1983 when the appellant was 6 years old. At the trial liability, was in issue but it was not in issue on appeal. The ground of appeal is that the amount of damages awarded by his Honour was manifestly too low. The amount of the judgment was $67,052 made up of $50,000 for "past" pain and suffering, loss of amenity of life, and anxiety and depression which his Honour found had contributed to the appellant's lack of motivation and concentration and also to his behavioural problems; $10,400 being interest at 2 per cent per annum for 13 years on so much of the award of $50,000 (a sum of $40,000) intended to compensate the appellant for pain and suffering and other disabilities suffered in the past; $6,000 for past and future economic loss; and $652 for agreed disbursements. It is to be observed that his Honour originally said that the whole of the sum of $50,000 was for past pain and suffering and other disabilities. Later, he attributed $40,000 to the past. Inferentially he must have intended the balance of $10,000 for the future. That is how the matter was approached on the hearing of the appeal. I have accordingly regarded the earlier statement as a slip and treated the award as I have explained. Except in relation to the amount awarded for economic loss, the challenge to his Honour's judgment is based, not on any submission that his Honour's award was too low if one were to accept his findings of fact as to the appellant's condition, but upon the basis of challenges to his factual findings made in relation to both the medical and lay evidence called in the case. The appellant is confronted, of course, by the decisions of the High Court in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1992) 177 CLR 472. A particular problem for the appellant is the dictum of Brennan, Gaudron and McHugh JJ in the second of these cases where their Honours said (at 479) that more than once in recent years the Court had pointed out that a finding of fact by a trial judge based on the credibility of a witness was not to be set aside because an appellate court thought that the probabilities of the case were against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of a witness, the finding must stand unless it be shown that the trial judge has failed to use or has palpably misused his or her advantage or has acted on evidence inconsistent with facts incontrovertibly established by the evidence or which is glaringly improbable. I feel bound to say that it appeared to me that counsel for the appellant, in presenting his submissions, was prepared only to pay lip service to these authorities. At no time did he face up to the difficulties which they posed for his approach. Nevertheless, in an endeavour to overcome his problems, he developed URJ SAFI v ADOUNI and ANOR (Stein JA) 3 four submissions based upon statements made in medical reports, evidence given by doctors, evidence given by the appellant and members of his family and the general probabilities of the case. When one speaks of probabilities in this context one needs to be mindful of the wanting sounded in the judgment of the High Court in Devries about substituting one's own view of the probabilities if the judge's conclusions about them depend upon a finding of credibility of witnesses made after the opportunity of observing them in the witness box. Both at the trial and before us the appellant made a case which, if accepted, would require us to conclude that, as a consequence of the accident, he had been intellectually disabled on a permanent basis to such an extent that it would be unlikely that he would be able to engage in continuous employment for the balance of his working life. If this case had been accepted, the award of damages which would have resulted would have been very large indeed. The acceptance of matters stated in particulars formulated by the plaintiff would have resulted in an award of damages in a sum in excess of $1,000,000. It should be clear that there was much evidence to support the view that the appellant was suffering from some impairment of his intellect. But the respondents' case was that, to the extent that this was so, it had been caused by factors other than the accident. There was evidence to suggest that the appellant's intellect was already impaired at the time he was injured. His Honour found that the plaintiff had suffered some anxiety, depression and behavioural effects as a consequence of the accident and the Court case being superimposed upon his fragile psyche and the "dysfunctional" family background in which he was brought up. But he thought that such anxiety and depression as resulted from the accident would subside within two years of the end of the litigation. He also considered that the appellant had a residual economic capacity. He said that, whilst significantly impaired because of his premorbid condition and family dysfunctional and behavioural problems unrelated to the accident, he thought, notwithstanding those difficulties, that the appellant did have a residual economic capacity which had been "slightly impaired" as a result of the aggravation to such dysfunction and underlying cognitive difficulties. The four submissions relied upon by counsel for the appellant were: 1. His Honour was in error in rejecting much of the appellant's family's evidence as to how the appellant was prior to the accident. It was submitted that the evidence of the family as to his then condition was inconsistent with their observation afterwards. Counsel said that support for this submission was to be found in school reports made before the accident In fact, there was only one such report, the appellant being only six years of age at the time he was run ova. 2. His Honour was in error in rejecting much of the appellant's medical evidence, particularly evidence of Professor Dennis Smith, Dr Canaris and Dr O'Flaherty. 3. In counsel's submission, the gap of three or four years which there was between the date of the accident and the first sign of possible brain damage was to be explained by reference to the medical evidence on which he relied. That, so counsel said, overcame any significance which might otherwise have been attached to the interval of three or four years as a factor tending to show that the accident had not contributed to the appellant's condition. 4 UNREPORTED JUDGMENTS 4. Assuming, contrary to the thrust of these submissions, that his Honour's conclusions as to the effect of the accident upon the appellant's earning capacity were correct, the sum of $6,000 was substantially below that required properly to compensate him for this part of his claim. Although counsel did not put the submission under a separate heading, he also said that his Honour was in error in finding that the appellant suffered no period of unconsciousness immediately after the accident. This matter is relevant both to the first and second submissions. The plaintiff was born on 2 August 1976. He was thus not quite 6/2 years old at the time of the accident. He was crossing the road with his older brother and was struck by a motor car being driven by the second respondent. The accident happened about 4.30pm in daylight. There is no independent contemporaneous evidence which would lend support to the appellant having been rendered unconscious as a consequence of the accident. An examination of the records of the Royal Alexandra Hospital for Children, to which the appellant was admitted, and of the ambulance report does not suggest it. His Honour referred to notes from the Children's Hospital which, after referring to the accident, said that there was no loss of consciousness and that the appellant had been crying since it occurred. That statement was made by the appellant's mother who, although not present at the time the accident happened, had arrived at the scene very shortly afterwards and found him crying. But his Honour noted that. because of language difficulties, it was unlikely that the mother would have been capable of giving the history in the terms in which it was recorded. He concluded that the history was taken partly from her and partly from ambulance officers. The question of loss of consciousness is important because some of the neurological evidence suggested that, in the absence of a period unconsciousness, it was less likely that the appellant would have suffered brain damage as a result of the accident. Notwithstanding that he was found to have a fracture of the right parietal lobe as well as lacerations to the left side of his skull, his Honour said that he thought it unlikely that the appellant had lost consciousness although he may have been in a state of extreme shock and concussed. His Honour discussed the hospital notes for the days following the accident. He referred to the fact that on 19 January at 10pm there was a complaint by the plaintiff of headaches and dizziness and a note to the effect that there had been no previous headache or "temporoneural problems". The assessment was that the appellant was stable neurologically. His Honour said that the records disclosed complaints of abdominal and kidney pain but no further complaint of headache. The appellant was discharged to his mother's care on 11 March 1983. A reading of the notes bears out what his Honour said. His Honour said that the appellant's family gave evidence of significant changes in the plaintiff immediately after the accident. It was for that reason that he said that he needed to undertake a close review of the contemporaneous material and compare the complaints then made with the sworn evidence of the appellant's family. His Honour said that the appellant's mother's English was limited and the appellant's "far from perfect" for a 6-year-old boy at that time. He said that Arabic was the language spoken in the home. Nevertheless, apart from the first few days after the accident, there was no complaint by either the appellant or his mother of headache, dizziness or subtle changes that might have been suggestive of brain damage except for a complaint of headache to a general practitioner later in the year. URJ SAFI v ADOUNI and ANOR (Stein JA) 5 After his discharge, the appellant was seen by Dr Filmer on five occasions between February and July 1983, on one occasion by Dr Barrett in May 1983 and on one occasion by Dr Malik in April 1983, when Dr Malik saw him because of an infection in his left ear. None of these doctors is a neurologist. Nevertheless it is true to say, as his Honour did, that there ff no suggestion to any of those doctors of there being anything untoward in the appellants conduct or recovery from his injuries. Clearly he had injuries to his kidneys and there had been apparently some effect on his hearing. He also had a fractured thigh. The doctors whom I have mentioned saw the Appellant in order to treat him for these problems. It is significant that none noted any complaint of headache nor made any observation about any consequence of his head injury. Undoubtedly he had a fractured skull but he seemed to recover from this as he did from the other consequences of the accident which have been mentioned. That is evidence, which his Honour accepted, that the appellant had a disturbed childhood particularly because of absences of his mother from the home. In his first few years of life he spent a year or two without her when she returned to Lebanon. He lived with his father and grandmother until his mother's return. The appellant's mother again went overseas within a short time of the accident and a further period of two years elapsed during which he was left in the care of an older sister, his father and grandmother. His Honour said that, notwithstanding this, there was no contemporaneous material from any medical practitioner supporting the dysfunction or cognitive impairment of which the appellant's family, to use his Honour's words, "attempt now to relate back to the time of the accident." His Honour said that he "conceded" that it may well have been a dysfunctional family in great difficulty because of the mother's absences. But he said that he was uncertain as to what contribution the father, sister and grandmother were making to the health of the appellant and was not satisfied that the appellant was suffering from the cognitive defects that the family urged upon him. His Honour referred at length to entries in records from schools which the appellant had attended. His older brother had also attended the same schools. His Honour concluded that the behavioural problems referred to related not only to the appellant but also to the brother. After an extensive review of the family evidence and the medical evidence, his Honour said: "Tt follows that my view is in addition to the physical trauma the plaintiff suffered by way of skull fracture, leg fracture and congenital kidney aggravation the plaintiff has suffered some anxiety, depression and behavioural effects as a result of the effect of this accident and court case being superimposed upon his fragile psyche, and the dysfunctional family background. It is my view that such anxiety and depression as resulted from the accident, will subside within two years of this judgment." It was then that his Honour concluded that a proper figure to compensate the plaintiff for pain and suffering, loss of amenity of life, and anxiety and depression was $50,000 and that, of this sum, $40,000 should be regarded as compensation for the past. That led his Honour to reach the figure of $10,400 for interest. His Honour then turned to the question of economic loss and said: "T find the accident has not contributed to the plaintiff's economic incapacity, except in a very minor way in the past because of the motivational loss attributed to the accident. I find as I have said that the plaintiff does have a residual economic capacity. While significantly impaired because of his premorbid 6 UNREPORTED JUDGMENTS condition and family dysfunctional problems and behavioural problems unrelated to the accident, I find that notwithstanding those difficulties he did have a residual economic capacity, which has been slightly impaired as a result of the aggravation to such dysfunction and underlying cognitive difficulties. A proper figure to compensate the plaintiff for such economic impairment that relates to the accident, for the period from the time he would have left school until two years hence, would in my view be the sum of $6,000." His Honour rejected evidence that the appellant had or would require domestic assistance. He found him well able to care for himself. He said he reached this conclusion on the basis of notes from the Westmead Hospital, his review of certain videos of the appellant which had been taken on behalf of the respondents and his rejection of the evidence given by the family of the need for care. He said that he rejected their evidence because of their presentation in the witness box and matters to which he had earlier referred, namely, the lack of contemporaneous complaint in a family aware of the compensation process and the plaintiff's presentation on video. He said that all these matters gave support to the view to which he had come. The reference to notes from the Westmead Hospital needs to be explained. The appellant was treated as an outpatient at that hospital over a significant period commencing in 1989. Apparently he had been referred to the hospital by a school counsellor. He underwent examinations and testing by members of the hospital's staff at the Paediatric Rehabilitation Clinic and the Community Paediatric Unit, and also by members of the Paediatric Brain Injury Outreach Team. As mentioned, counsel for the appellant submitted that his Honour was in error in rejecting the evidence of the family. I do not find it necessary to go into the detail of it. There was no submission calculated to persuade a court on appeal to disturb his Honour's finding on a matter which had involved him in the consideration of evidence given orally before him. There was no case made out based on his having misused his advantage. It follows that I would reject the first of the submissions relied upon by counsel for the appellant. To some extent similar considerations apply in relation to his Honour's rejection of medical evidence called in the appellant's case. That statement needs to be qualified because not all doctors were called to give oral evidence. A number were, but the evidence of others is to be found only in their reports which were tendered without objection. Moreover, much of the reports of the doctors consists of accounts of histories either given to them directly or obtained from other reports with which they were furnished before writing their own reports. There are also references to hospital notes, results of tests and other matters which do not give rise to problems of credibility. As in so many of these cases, much depends upon the histories upon which doctors rely to express opinions and upon the opinions themselves. Usually no question of dishonesty or unreliability on the part of doctors is involved; there appears to be no such question here. Differences usually occur because of differences in histories or because of genuine differences of view as between doctors. They may also occur because of substantial intervals of time between an examination by one doctor and an examination by another. And sometimes, although I think not in this case, results of tests may vary. It should be said at this point that the hearing of this matter occupied 13 days. More than 20 witnesses were called and more than 20 doctors gave evidence, some orally, some by report and some both by report and oral evidence. It was obvious that over a number of years the appellant had been referred by his family URJ SAFI v ADOUNI and ANOR (Stein JA) 7 and his solicitors to a great number of doctors and clinical psychologists and that, although the responses to these on behalf of the respondents to the appeal had perhaps not matched them in number, they went some of the way. It does seem that there ought to be some limit to the number of doctors who may be called by each side in cases of this kind. Otherwise it simply becomes medical report piled on medical report. Doctors who see the patient later are given many of the earlier reports. It is clear that part of their reports and opinions are based upon what has gone before. One becomes confused as to what history each doctor really had and whether opinions which are expressed are entirely the doctor's own or have been influenced by those who have expressed opinions on earlier occasions. It is not just treating doctor's reports which are given to them, but reports of doctors who have seen claimants solely for medico-legal reasons. The whole picture becomes clouded and confusing. That is certainly so in the present case. I return to the submissions made in the present case. It is convenient to deal next with the submission concerning the state of the appellant's consciousness immediately after the accident. The matter is important because of the histories of unconsciousness that were given to some of the doctors For instance, Dr Vilo, who saw the appellant in March 1988, ie five years after the accident, said that the appellant was taken by ambulance to the Children's Hospital "where he remained unconscious for some five to six hours and semi-conscious for some days having sustained a severe head injury". Dr Vilo's opinion is vitiated by the contemporaneous evidence accepted by his Honour that there was no period of unconsciousness at all. Dr Griffith is not as specific but the history he received from the appellant's mother was that, upon hearing the squeal of brakes, she ran outside to find the appellant lying on the side of the road with a bus driver putting a blanket over him. He was unresponsive. She asked him questions and he did not reply. He was in hospital for approximately two months during which time he was confused and dazed. This runs counter to the hospital notes which contain contemporary observations by medical staff of the appellant's condition in the days immediately following the accident. Certainly some of the entries indicate a certain amount of confusion and restlessness and there is one entry, noting a headache complained of by the appellant. But, insofar as it is suggested that he was confused and dazed for the whole time he was in hospital, the suggestion was one which it was open to his Honour to reject on the basis of what is written in the hospital notes. Because the three doctors mentioned in the second submission are put forward as doctors whose evidence his Honour should have accepted in preference to other evidence, it is appropriate to refer to their understanding of the state of consciousness of the appellant in the days after the accident. Professor Smith is a professor of rehabilitation medicine. He has positions both at the Royal Rehabilitation Centre in Sydney and at the Royal North Shore Hospital. At the time he gave his evidence he had held those positions for two and a half years; previously he had been in Adelaide. Professor Smith wrote one report. He saw the appellant on 15 November 1994. He had not previously seen him. In the report he said that the appellant remained confused and dazed while in hospital. He did not mention a period of unconsciousness in his report, but in his oral evidence he was asked by counsel for the appellant to assume that, following the accident, the appellant was observed to be bleeding and unconsciousness, those observations being made by his family. He was also asked to assume that the appellant recovered consciousness prior to the arrival of the ambulance and that he was observed by the ambulance officers to be drowsy. These matters were 8 UNREPORTED JUDGMENTS listed amongst a series of assumptions that Professor Smith was asked to make, but he did not himself suggest a period of unconsciousness. I shall return to Professor Smith's evidence a little rata. Dr Canaris made two reports, one on 20 April 1994 and the other on 29 August 1994. He appears to have seen the appellant only once, namely, on 2 March 1994. Dr Canaris does not mention unconsciousness in his reports. However in the first of them he does say that, given the documented skull fracture, the obtundation observed at the time of admission and the presence of a significant but unquantifiable degree of post traumatic amnesia, it is highly likely that the appellant sustained a head injury of sufficient severity to produce enduring cognitive sequelae. "Obtundation" is a lessened sensibility. Dr O'Flaherty is a paediatrician At the time he wrote his first report on 18 September 1989, he was a member of the Community Paediatric Unit at Westmead. He said, "We understand that he was unconscious for several hours and was drowsy for some days afterwards". These statements run counter to the contemporary evidence contained in the Children's Hospital notes made in 1983. Accordingly, my conclusion so far as unconsciousness is concerned, is that there is no basis for disturbing the primary Judge's conclusion. In order to deal with the second of the submissions made by counsel for the appellant, it is necessary to refer to the medical evidence in more detail. As mentioned, Professor Smith said that the appellant remained confused and dazed u bile in hospital. He said that the appellant had left school at year 9 and had been put on to the invalid pension as a result of his disabilities. He was sent to the Westmead Brain Injury Unit. He was seen by a Dr Ault at his home on 18 May 1990. Dr Ault was a member of the Paediatric Brain Injury Outreach Team. He was found by Dr Ault to be in good general health. His power and tone in the limbs appeared normal and his walking was symmetrical. There were no gross motor or sensory neurological signs, but his language, although quite good, revealed that his reading was very slow and laborious and only at the level of a child in year 2 or 3. His spelling was poor and he had difficulties with simple arithmetic. An EEG and a CT scan taken of the eye by Dr Ault showed no significant abnormalities. Dr Ault's opinion, so Professor Smith said, was that the appellant's problems were related to the "mild head injury" and compounded by the emotional reactions and those of his family since that injury. Professor Smith saw the appellant on 15 November 1994. He found him to be a poor historian with "a very flat affect" and a considerable amount of boredom was exhibited by him "over the whole procedure of his having to have a further medical examination". Professor Smith said that his "feeling" was that there was probably some degree of depression and perhaps a degree of "frontal lobe problem". He said that the appellant lacked initiative and drive, and appeared not to be interested in any particular activities. Professor Smith said that his "feeling", having perused the notes and reports, and having interviewed and examined the appellant, was that he was a young man whose education had bean sadly neglected since the age of eight "as the result of a mild to moderate head injury" from which he has probably made a reasonably good recovery. He added, however, that his family had treated him as an invalid ever since the accident. He agreed in general with the description of him by Dr Canaris (to whose evidence I shall refer in a moment) as being locked into a situation "which he will find it extremely difficult to get out of'. He thought it would be worthwhile exploring the possibility that the appellant might respond to an antidepressant. URJ SAFI v ADOUNI and ANOR (Stein JA) 9 Professor Smith thought the appellant was totally unemployable. He thought that the contribution of the head injury to this was "primary", but that there had been some degree of secondary neglect by the family in that they had not encouraged him to make more of his opportunities than he had done. His view was that there was little that could be done for him other than prolonged counselling and regular review by psychiatric services. In the course of his evidence in chief, Professor Smith was asked what was the significance of the normality of the EEG and the CT scan, and also an MRI scan. The Professor said that it indicated that the appellant had been lucky to have been spared such things as scarring which might have shown on the MRI scan or the CT scan. He might have developed epilepsy which had not transpired. He expressed the opinion that the findings were of diffuse brain damage which predominantly affected the right parietal lobe, "the right hemisphere probably". He was asked whether the fact that he was struck by a car and ended up on the road, would have involved any type of contre-coup type injury as a consequence of the brain moving within the vault of the skull and creating injury. Professor Smith said that he thought that the likely thing was that the appellant would have had a shearing injury, that is to say not the bouncing backwards and forwards, which is what is thought of as contre-coup, but a twisting of the upper part of the brain on the lower part of the brain This he thought would probably have produced diffuse damage throughout the sub-cortical part of the brain. That, so he thought, could explain the real reason that his memory was relatively poor. He said that the fact that it was diffuse damage which had been suffered was the reason why the scans showed no abnormality. He explained the mechanism which is caused as acceleration, deceleration and twisting. It produced oedema (accumulation of excess fluid) and swelling of the brain. It might have produced some diffuse destruction and increase in fibrous tissue which would only show up on things like a biopsy which, in his opinion, would be quite unjustified in his opinion. With respect, this examination-in-chief of Professor Smith seems to have involved his being invited to engage in a good deal of speculation. An analysis of it shows that the evidence does not establish very much Furthermore, it is to be remembered that Professor Smith is a specialist in rehabilitative medicine. He does not specialise in neurology. I do not suggest that he has not had experience in neurology, nor do I suggest that he was not qualified to express the opinions which he did, but the case is one where there was neurological evidence to a different effect. I have yet to refer to the other evidence, but it was, in my opinion, evidence which his Honour was entitled to prefer to that of Professor Smith. Professor Smith said that the appellant's behaviour was not normal. He had been treated by his family indulgently. They had not, because he had been injured, "chided" him on his behaviour. They had tended to tolerate it. They had also treated him as an invalid and looked after him very easily, and "if you like, in a lay sense, they have pandered to his immediate whims and desires to a very great extent". Professor Smith said that, having spoken to the appellant and read other reports that were provided to him, the appellant's behaviour was, "at most', socially unacceptable. He needed a considerable amount of direction in such things as appropriate behaviour, appropriate dressing, appropriate activities, and eating the right sort of foods. His behaviour was "disinhibited" and impulsive, and he required to be constrained from doing himself harm by eating too much. He was bad tempered at times and this needed to be supervised. He needed substantial 10 UNREPORTED JUDGMENTS care, probably provided by his family. Professor Smith described him as like a very large grown up, somewhat disinhibited six year old. This evidence was not accepted by his Honour. He preferred the evidence of the members of the staff of Westmead Hospital who, on the basis of their observation of him in 1989 and 1990, thought that he was well able to look after himself, his dressing and his hygiene. It should be observed at this stage that some of Professor Smith's conclusions must depend on what he had been told by the family. He referred to the reports of other doctors and psychologists but some of the things could not have come otherwise than from the appellant himself or members of his family. There are indeed places in his oral evidence where he says as much. Professor Smith was cross examined at some length. I do not refer to the detail of the cross-examination. I mention, however, one answer given by him to the effect that it was quite characteristic of people with mild to moderate head injuries to be liars. He said that it was often a characteristic to manipulate situations by saying something that was less likely to get them into trouble or was likely to reward them at a superficial level. He said this amounted to what be called "naughty behaviour". He said that it was characteristic of what had happened to the appellant as a consequence of the head injury, but it was also quite characteristic of the environment he had found himself in. To dissect the two was extremely difficult. As mentioned, Dr Canaris saw the appellant on 2 March 1994. He said that "all the neuropsychological assessments" indicated that the appellant was severely damaged. An overall picture highly consistent with significant cognitive impairment was documented in a range of non-medical reports. He said that his examination revealed that there were undoubtedly cognitive deficits of marked severity affecting a range of intellectual functions. He also said that, given that the appellant was reported to have functioned at a reasonable level prior to the accident, it was probable that his present deficits were in large measure directly attributable to the closed head injury he had suffered. He added that, even if it were to be contended that perhaps the appellant had not been "all that bright to begin with", the fact remained that the accident, "as documented", would have been very likely to have produced at least some permanent neuropsychological deficits. He thought that, in that event, the loss of even a few points of IQ could make all the difference between an individual who was able to cope, albeit at a marginal level, and an individual being able to cope at all. Dr Canaris said that the appellant's situation was further complicated by the fact that he was seriously depressed. He said that the type of depression was known as "organic affective disorder'. It was not uncommon in head-injured patients and was presumed to arise in part from disruption of the neurological structures which underpinned the perception and expression of emotion. He strongly recommended antidepressant medication. He concluded by saying that, unfortunately, the limitations of his socio-cultural milieu had precluded any effective intervention for the appellant. He thought it would be difficult to break the bonds of enmeshment which had effectively trapped him in the role of "a perpetual baby". Dr Canaris also said that, even in the best of circumstances, the appellant's cognitive deficit would pose a considerable problem for him without the added impediment of environmental deprivation, lack of rehabilitation and infantilisation by his mother. URJ SAFI v ADOUNI and ANOR (Stein JA) 11 Dr Canaris gave oral evidence but I do not find it necessary to refer to it except to say that he added significantly to his report in his evidence in chief and was cross-examined upon both the report and his oral evidence. As mentioned, Dr O' Flaherty was a member of the Community Paediatric Unit at Westmead Hospital. In a letter dated 18 September 1989 written to the appellant's local doctor, he said that a peripheral nervous examination showed no abnormality with normal tone, power and deep tendon reflexes, and downgoing plantar responses. The appellant's balance was within normal limits and, whilst he had fine motor problems, he thought that these were consistent with his overall cognitive difficulties. His assessment was that the appellant had significant cognitive difficulty, a mild visual disturbance, and some behaviour problems. Dr O'Flaherty saw the appellant again in February 1990. In his letter of 18 September 1989, he said that, at that stage of the appellant's assessment, it was unclear whether or not the problems that he was exhibiting were those that one would expect after a significant head injury. Dr O'Flaherty was called to give oral evidence. He was subjected to a very long cross examination. I do not find it necessary to refer to his oral evidence except to note, as his Honour did, that he eventually conceded that it was possible that such intellectual disability as the appellant had was not caused by head injury suffered in the accident. If his Honour had accepted the evidence of Professor Smith, Dr Canaris and Dr O'Flaherty at its face value, he would very likely have found the appellant's case made out. But these doctors are only three of a number who saw the appellant, some, as mentioned, consulted by him for treatment, others consulted by him for medico-legal reasons, and others to whom he was sent to be examined on behalf of the respondents. It is convenient next to go again to his Honour's judgment in order to see what evidence he did accept and what findings he made. It will than be appropriate to consider whether the challenge which is made to these findings has bean made out. His Honour referred to the report of a neuropsychologist, Ms Klein-Boonschate. The report is dated 21 July 1989 and was written when Ms Klein-Boonschate was a member of the staff of the Neuropsychology Unit at Westmead Hospital. In her report, she said: In summary, it would appear that Hysam currently demonstrates a significant pattern of cognitive disability against a background of potentially low average ability. His relative strengths cognitively would seem to be visuo-spatial processing and problem-solving, but Hysam really only managed simple material of this type. He had comparative difficulty with all verbally based tasks presented to him and memory and new learning skills were generally very poor. It is not surprising, in view of these cognitive problems, that Hysam is struggling at school (a low level of academic achievement was confirmed on testing). I feel that Hysam will require a great deal of input in the form of remediational assistance. Verbal instructions and material need to be kept very simple and perhaps supplemented with visual input if possible, to maximise understanding and remembering. Hysam will require extra repetition. This degree of cognitive disability would typically be expected to result from a very severe head injury, which was not apparently the case in this particular instance, from available reports. My feeling is that at least some of Hysam's cognitive difficulties were premorbid although the head injury may have 12 UNREPORTED JUDGMENTS exacerbated this. It is difficult to be certain however in view of the lack of reliable developmental history prior to the accident.. His Honour quoted this passage and said that he accepted the view expressed by Ms Klein-Boonschate. He added that the contemporaneous material over several years after the accident and also the evidence of Dr O' Flaherty, when the full facts were put to him, seemed to support what was said. His Honour then said that Dr Sydney Smith (not to be confused with Professor Smith), Professor Jones, Dr Allsop, Dr Walker and Dr Roldan all accepted the view that the appellant's cognitive disability was premorbid and not accident related. His Honour said that most of these doctors did not accept any exacerbation. In order to do justice to the submissions made on behalf of the respondents, it is necessary to refer briefly to their evidence. Dr Sydney Smith (hereafter referred to as "Dr Smith") is a neuropsychiatrist. Dr Smith made a number of reports, the first on 13 August 1993. He had seen the appellant on 5 August 1993. He was given copies of a large number of medical reports, but at that stage he did not have the notes from the Children's Hospital. The report is a lengthy one and I do not refer to the detail of it. Not unnaturally, Dr Smith asked for further material. He reported again on 6 June 1994 after he had been given a number of documents including the notes from the Children's Hospital. Dr Smith said that the appellant had suffered a fracture of the right parietal bone of the skull without any significant depression. He said that, despite the fracture, the appellant was never observed to be unconscious. From the neurological observation chart made available to him, he thought that it was evident that the appellant had become fully orientated and conscious within six hours of the accident. There was no observation of any focal neurological abnormalities. Accordingly, Dr Smith said that the evidence suggested that the appellant suffered only a minor and transient disturbance of brain function. He said that, with the history to which he had referred, it was unlikely that the appellant would have sustained any significant change of intellect or memory or any organic change of personality. It was more likely that his intellectual handicap was the result of factors other than brain damage incurred in the accident. Dr Smith saw the appellant again on 12 October 1994 and reported on 16 October 1994. He made another very lengthy report. In his assessment he said, amongst other things, that the appellant was mildly intellectually retarded. He thought that the same could be said of the appellant's older brother. He thought that it most likely that the appellant's cognitive problems arose entirely from congenital factors. Dr Smith reported again on 22 January 1995 after he had received copies of 15 further medical reports. Dr Smith said that the appellant was clearly intellectually retarded with an IQ of about 70 and a memory functioning to match. He continued: "... Had he been of average ability before the accident then this would represent a fall of some 30 points of IQ. However, if the fall was due to brain damage incurred in the accident then it would have been much greater, perhaps of the order of 60 points, immediately after the accident, some improvement then occurring over the next 12 to 24 months. He would thus have impressed as grossly demented during his hospitalisation and would most likely have lost a great deal of his previously acquired skills. Yet there is no evidence of any such features being observed. URJ SAFI v ADOUNI and ANOR (Stein JA) 13 Further as intelligence and memory are subserved by widespread areas of the brain on both sides then it is most likely that such an IQ fall would be associated with a prolonged period of coma and altered consciousness and obvious normal neurological signs, yet these were not observed and a CT scan of the brain was not considered to be warranted. It is thus likely that his intellectual retardation antedated the accident and was not affected by it. Yet further material was provided to Dr Smith and he reported again on 19 February 1995. The additional material comprised the videos of the appellant to which his Honour referred. Dr Smith referred to a report of Dr Jungfer dated 16 December 1991 in which Dr Jungfer had suggested that the appellant's symptoms were, to a substantial extent, assumed. The videos suggested to Dr Smith that the appellant was working in a video shop. His conclusion was that, if the appellant was not psychotic and had shown himself capable of working outside a sheltered situation, he should be capable of living independently. He said that was the case despite his borderline IQ and memory functioning. Dr Smith was cross-examined but I do not find it necessary to refer to the cross-examination. Professor Jones saw the appellant in January 1995. Professor Jones is the Director, Department of Rehabilitation Medicine at the Prince Henry/Prince of Wales Hospitals. He said that the appellant presented as "a severely impaired young man". But he said that his responses to questions "indicated probable tutored responses". He said that there were marked variations in the appellant's ability to perform the various tests and that on occasions there were bizarre, apparently fundamentally, flawed responses which, despite the indications, did suggest a far better performance than he would have wished to convey. Nevertheless, Professor Jones expressed the view that the appellant was intellectually impaired, but said that the probability existed that he was so impaired prior to the accident in 1983. Notwithstanding that there was no loss of consciousness, the appellant did sustain a head injury and there may have been some exacerbation of his symptoms. Professor Jones added, "Unfortunately his performance is now clouded by learned responses and an apparent inability to respond to all but the simplest commands. It is not my view that these responses are due to cognitive impairment". Professor Jones gave oral evidence and was cross-examined. I do not find it necessary to refer to the detail of the oral evidence. I then come to the evidence of Dr Allsop. Dr Allsop's first report was made on 13 September 1989. Like Dr Smith, he asked for some additional information. Dr Allsop heard nothing for five years when he was asked to review "an extensive medical file". He reported again on 23 September 1994. Dr Allsop said that the psychological examination at Westmead Hospital suggested that the appellant had intellectual impairment and associated emotional disturbance. This was his assessment based on his examination of the appellant and the reports sent to him. He said that the critical question was whether the appellant's intellectual impairment was the result of the head injury. He said that he shared the view of the neuropsychologist from Westmead Hospital (no doubt Ms Klein-Boonschate) that he would not expect impairment of this degree to result from a moderate head injury. Dr Allsop saw the appellant again on 11 November 1994 and reported on that date. He expressed the view that the appellant suffered from a 14 UNREPORTED JUDGMENTS moderate intellectual impairment with an associated emotional disturbance. He expressed the view that the intellectual impairment was not the result of a head injury. Dr Walker made two reports, one in September 1993 and the other in October 1994. In the latter he concluded that, although the appellant was clearly of below average intelligence, he did not,believe that there was any factual information available to suggest that this was related to his head injury. Dr Roldan concluded that, on the evidence he had, it was highly unlikely that the appellant's cognitive and behavioural disabilities were related to the accident. He expressed this opinion in a report dated 8 November 1994. The evidence of the five doctors to whose reports I have referred amply justifies his Honour's conclusion that the appellant's cognitive disability was premorbid and not accident related. Furthermore, as his Honour said, most of them did not accept any exacerbation. It was a question for him to decide whether there was any exacerbation as a result of the injury to the appellant's skull. He accepted a middle course based largely on the evidence of Ms Klein-Boonschate as his judgment indicates. Before he came to his conclusions, he referred to the report of a psychiatrist at Westmead Hospital, Dr Jungfer (mentioned by Dr Smith) who said on 16 December 1991: At present Hysam Safe does not demonstrate any evidence of having a major psychiatric illness. The behaviours his mother has described that suggested psychosis are more a reflection of his abnormal illness behaviour than psychosis. Hysam does not perceive himself to have any problems The tendency to somatize is a concern, but I cannot think of any therapeutic intervention that would succeed in this family. Currently the entire family have a remarkably disturbing pattern of abnormal illness behaviour. This is well entrenched, and they are resistant to change There are no aspects of the patient's current presentation that indicate a need for thoracotherapy. Optimally the patient should be treated in a long term facility which could directly target the sick role, and encourage Hysam adapting a healthy role. Rapid settlement of the compensation case may reduce some of the behaviours in the family. I've not organised to see them again unless there is a specific reason." I have not found "thoracotherapy" explained in the record. It suggests a procedure involving the chest cavity, the relevance of which is not obvious. The sense of what Dr Jungfer has said is clear and the meaning of the word is not a matter of any moment. His Honour said that he accepted Dr Jungfer's view and also that of Ms Klein-Boonschate. He said that the evidence of both was from impartial medical observers brought in to treat the appellant at the Westmead Hospital subsequent to referral to them by a school counsellor. In passing, it should be said that the opinions expressed in the two reports do not appear to be to the same effect. Ms Klein-Boonschate does not question the appellant's genuineness; Dr Jungfer does. Nevertheless, it is true to say that both agree that for whatever reason, head injury played either no part, or no more than a small part, in causing such intellectual disability as the appellant suffers. His Honour came to the difficult question whether the accident was playing any role in increasing psychological frustration in the form of anxiety, depression and behavioural difficulties being suffered by the appellant. He embarked on a lengthy discussion in which he referred to further medical evidence and also to the evidence of Professor Smith, Dr Canaris and Dr O'Flaherty. He referred to the lay evidence and weighed up the venous considerations to which the evidence URJ SAFI v ADOUNI and ANOR (Stein JA) 15 gave rise. The judgment is a most comprehensive one in which his Honour, in my opinion, has done his best to analyse the evidence and reach a conclusion in what must have been quite a difficult case. Eventually he reached the conclusion referred to earlier in this judgment that the appellant had suffered some anxiety, depression and behavioural effects as a result of the effect of the accident and the court case being imposed upon "his fragile psyche" and also the dysfunctional family background. It was then that he expressed the view that the anxiety and depression resulting from the accident would subside within two years of the judgment and reached his conclusions on figures. There can be no successful challenge to his Honour's conclusions in this regard. They were based on a mass of evidence which it was well open to his Honour to accept. The second submission made on behalf of the appellant should therefore be rejected. The third submission concerns the gap of three or four years between the accident and the perception of symptoms of an intellectual impairment in the appellant. His Honour had said that the appellant's family had given evidence of significant changes in the appellant immediately after the accident. He said that it was for those reasons that there needed to be a close review of the contemporaneous material and a comparison of that with the sworn evidence of the family. His Honour emphasised that, apart from the first few days after the accident, there was no complaint by either the appellant or the appellant's mother, of headache, dizziness or subtle changes that might have been suggestive of brain damage except for a complaint of headache later in that year to a general practitioner. Earlier I referred to the fact that his Honour had said that there was no contemporaneous material from any medical practitioner supporting the dysfunction or cognitive impairment of which the family were attempting "to relate back to the time of the accident". Later his Honour referred to evidence given by the appellant's father and sister, both of whom, so he said, had the care and control of the appellant during the period 1983 to "probably" late 1985 or early 1986 when the mother was overseas. His Honour said there was a similarity between the complaints and no explanation as to why there was no recorded complaint to any medical practitioner during that period. He said that it was not until 1988 that there were suggestions being made to medical practitioners that supported the cognitive damage which was being claimed. In the course of the argument, counsel for the appellant said that he accepted that this was the fact. No other course was reasonably open to him. It follows that the gap referred to by his Honour was there. He used it along with a number of other matters to reach the conclusions which he did. The third submission is designed to overcome the problem which confronts the appellant's case as a consequence of this. In my opinion the third submission cannot overcome that problem. It remains. Accordingly, the third submission should be rejected. It is then necessary to come to the question of economic loss. The question is whether the sum of $6,000 is sufficient to compensate the appellant for this head of damage. His Honour's finding was that the accident had not contributed to his economic incapacity except in a very minor way in the past because of the motivational loss to be attributed to the accident. His Honour found that the appellant had a residual economic capacity which was significantly impaired because of his premorbid condition and family dysfunctional problems and also behavioural problems, all of which were unrelated to the accident. His Honour found that, notwithstanding those difficulties, the appellant had residual economic capacity which had been "slightly impaired" as a result of the 16 UNREPORTED JUDGMENTS aggravation to such dysfunction and underlying cognitive difficulties. He then reached his conclusion as to amount. The question is whether, upon his Honour's findings, the amount is inadequate. His Honour thought that the effects of the accident would be spent two years after his judgment which was given on 21 December 1995 when the appellant was 19 years old. There was support for this conclusion in the medical evidence. It is likely that his Honour awarded the economic loss component of the award for a period of four years, that is for the last two years of the period between the accident and the hearing, and for two years thereafter. If one ignores any question of interest on past economic loss and of discounting for two years in respect of future economic loss, the amount which he has awarded is, in round terms, equivalent to $30 per week for the four year period. But his Honour does not say that that was how he arrived at the sum of $6,000. In such a careful judgment one could have expected that, if his Honour had approached the matter in that way, he would have said so. I think that the better view is that his Honour approached the matter imprecisely and arrived at a round figure of $6,000 in this way, rather than by selecting a particular weekly sum of money as representing the loss. His Honour has made no finding concerning the amount which the appellant might have been expected to earn had he not been injured. Apart from saying that he concluded that the appellant had a residual economic capacity which had been slightly impaired, he was not able to be more specific no doubt because the evidence would not permit him to be. The question whether the amount should be increased has caused me a good deal of concern. It must be said that, in this day and age, $30 per week or $6,000 for four years' loss of earnings are comparatively insignificant sums. I bear in mind his Honour's finding of slight impairment. Obviously questions of degree are involved. The exercise is one which requires judgment. Furthermore, his Honour's decision involves the exercise of a discretion and ought not be disturbed unless the Court is of opinion that it is dearly wrong because the amount awarded is plainly too low. Having reflected on the matter, I have, nevertheless, reached the conclusion that the amount is substantially below what a reasonable award required. One's general knowledge of earnings in the community in the relevant years (1993-1997) by unskilled workers would suggest that it would be unlikely that such a worker would earn less than $300 per week. That is a conservative figure. There is then a point made by Dr Canaris. His evidence was not accepted, but the matter I am about to mention is not, I think, affected by the rejection of his evidence. It is, in any event, a matter of common sense. The evidence accepted by his Honour establishes that the appellant has an impaired intellect and cognitive defects. The cause of these was congenital They were present prior to the accident. The accident "slightly" exacerbated the appellants condition. A slight effect on someone who has a normal intellect is one thing; a slight effect on someone whose intellect is already impaired may be quite another. It could be quite disastrous in the sense that it could push an intellectually impaired individual over the edge, turning someone who was able to cope into someone who could not. That is not this case. Nevertheless, a slight effect on this appellant's intellect ought not be viewed lightly. I find it difficult to engage in this exercise with any degree of precision. Despite what I have said about $30 per week, his Honour did not take that approach at least so far as one can tell from what he has said. He toot a round sum of $6,000 for past and future economic loss over a period of about four years. In URJ SAFI v ADOUNI and ANOR (Stein JA) 17 my opinion, that sum was, in all the circumstances, substantially too low. I would substitute a sum of $30,000. To that extent, the fourth submission made on behalf of the appellant should succeed. Before I conclude this judgment I need to say something about costs. The presentation of this case on behalf of the appellant has been nothing short of appalling. The appeal books comprise four volumes occupying in all 1137 pages. The index was useless and did not enable one to find any of the many documents one needed to look at in order to dispose of the appeal. Counsel for the respondents helpfully prepared a proper index which enabled the Court to find the various exhibits and pages of the transcript. Without it, the Court s task would have been impossible. A further criticism to be made of the books is that in many places photocopies of documents are, if not illegible, so indistinct as to make it difficult for the reader to be sure that an accurate understanding of the document has resulted from one's reading. Then counsel for the appellant presented the case without observing the Courts practice in relation to the furnishing of a chronology and provided written submissions without a clear indication in them of what it was that was really to be relied upon in the appeal. That said, the orders I would propose are as follows: 1. The appeal be allowed in part. 2. The judgment be varied by increasing the amount of it to $91,052. 3. The variation operate from the date of the judgment, 21 December 1995. 4. The appeal be otherwise dismissed. 5 The respondents pay to the appellant his costs of the appeal, but those costs are not to include any amount incurred for costs or fees in relation to the preparation of the appeal books or the preparation of the written submissions lodged on behalf of the appellant. DIRECTIONS 1. These orders not be entered until the judgment appealed from has been entered by the Registrar of the District Court. 2. The appellant's solicitor recover no costs or fees from the appellant relating to the preparation of the appeal books or the preparation of the written submissions lodged on behalf of the appellant. Counsel for the appellant: M S Abdul-Karim Solicitors for the appellant: Benjamin & Khoury Counsel for the respondent: P N D Jenkyn Solicitors for the respondent: J M Crestani