New South Wales District Court CITATION: Choy v Arnott [2009] NSWDC 17 HEARING DATE(S): 28, 29, 30 and 31 July 2008; 29; 30 and 31 July 2008 JUDGMENT DATE: 4 March 2009 JURISDICTION: District Court - Civil JUDGMENT OF: Levy SC DCJ 1. Verdict for the Plaintiff in the sum of $2,692,664.54; DECISION: 2. The Plaintiff's contributory negligence is assessed in the apportionment agreed at 20 percent; 3. Judgment for the Plaintiff in the apportioned sum of $2,154,131.60; 4. Defendant to pay the Plaintiff's costs. CATCHWORDS: DAMAGES – personal injury – Plaintiff sustained a head and brain injury in a motor vehicle collision – negligence admitted – agreed apportionment for contributory negligence – assessment of multiple heads of damage pursuant to Motor Accidents Compensation Act, 1999. Motor Accidents Compensation Act LEGISLATION CITED: 1999 Uniform Civil Procedure Rules, 2005 : Schedule 7 Griffiths v Kerkemeyer [1976-1977] 139 CLR 164 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 CASES CITED: Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49 Stewart v Andri [1993-1994] 19 MVR 1 Strinic v Singh [2009] NSWCA 15 Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627 PARTIES: Henry Choy (Plaintiff) Demetrious Peter Arnott (Defendant) FILE NUMBER(S): 1647 of 2007 COUNSEL: Mr C Leahy SC (Plaintiff) Mr J Turnbull (Defendant) SOLICITORS: Ron Kramer Associates (Plaintiff) Holman Webb Lawyers (Defendants) JUDGMENT Nature of case 1. The Plaintiff brings these proceedings claiming damages for personal injuries he sustained in a motor vehicle collision that occurred at 4.00am on Thursday 29 January 2004 whilst he was on his way to work. He was driving a motor vehicle that was involved in a heavy impact collision with a prime mover truck that was towing a trailer at an intersection. The Plaintiff sustained a severe closed head injury and facial fractures. He has been left with frontal lobe brain damage. Liability 2. The parties have resolved the issues of primary liability. The Defendant has conceded the issue of negligence. The Plaintiff has conceded the issue of contributory negligence and the parties have agreed that the apportionment on account of the Plaintiff's contributory negligence should be at 20 percent. Accordingly, the matter proceeded to an assessment of the Plaintiff's entitlement to damages. Assessed heads of damage 3. A total of nineteen heads of damage required assessment. These are listed below together with paragraph references: Head of Damage Paragraphs (a) Non economic loss [60] - [62] (b) Past loss of earning capacity [63] - [81] (c) Fox v Wood [82] (d) Future loss of earning capacity [83] - [116] (e) Past loss of employer funded superannuation contributions [117] (f) Future loss of employer funded superannuation contributions [118] (g) Past domestic and attendant care services [119] - [151] (h) Future domestic care services [152] - [160] (i) Future treatment [161] - [178] (j) Case Manager [179] (k) Drop-in supervision by Case Manager [180] - [183] (l) Respite care [184] - [189] (m) Gymnasium membership and personal trainer [190] - [195] (n) Sex worker [196] - [199] (o) Additional vacation expenditure [200] - [205] (p) Back to base alarm [206] (q) Independent living, training and support [207] - [209] (r) Past out-of-pocket expenses [210] (s) Funds management charges [211] - [215] 4. The following witnesses gave evidence in the Plaintiff's case: (a) Henry Choy, the Plaintiff; (b) Wai Ling Lo, the Plaintiff's mother; (c) Duc Huynh, a former employer of the Plaintiff; (d) Yunhg Wang, the Plaintiff's stepfather; (e) Lu Hui Lian, the Plaintiff's Aunt. 5. No medical witnesses were called to give evidence. No witnesses were called to give evidence in the Defendant's case. An array of documentary exhibits was tendered including a large number of medical, paramedical and rehabilitation reports that required analysis to enable a quantum assessment. The Plaintiff 6. The assessment of the Plaintiff's entitlement to damages requires a review of the Plaintiff's personal background, his educational and work history as well as the pre-injury plans he and his family had for his economic future. The factual evidence concerning the Plaintiff's pre-injury situation was not disputed although there was some dispute over the significance of the Plaintiff's pre-injury school results with regard to the Plaintiff's economic future. Background 7. The Plaintiff was born in 1985. At the time of his injury on 29 January 2004 he was aged almost 19 years. He was aged 23 years at the time of the trial. There is no suggestion within the medical evidence that the Plaintiff has anything other than a normal future life span. On the prospective life tables, at the age of 23 the Plaintiff has a probable life span of a remaining 62 years. He is the eldest of three siblings and he has a younger half-brother and half-sister. At the time of his injury he resided with his mother, his stepfather and his siblings. His mother and his stepfather operated a food supply business through a corporate entity. At the time of his injury the Plaintiff was employed in that business in a junior capacity and in addition had another job as a pizza delivery driver. 8. The Plaintiff described himself pre-injury as having a quick mind, with a very good memory and being at ease with strategic thinking. He had a calm temperament and was not prone to panic. His mother described his pre-injury organising skills as being very good. The Plaintiff's mother stated that before his injury she had not noticed limitations in the Plaintiff's range of activities. His mother described how, before his injury, the Plaintiff was a hard working person with a happy personality with friends and a social life. She went on to describe how, following the Plaintiff's injury, his character changed. He had become very irritable, he had no perseverance, he had poor memory and he was a little bit more violent. In context I infer this to mean that after his injury he had less control over his temper, such that he would chase and beat his younger siblings whereas before his injury he would only hit them lightly in the manner some siblings relate to each other. His mother described how when he spoke, the content of the beginnings and the ends of his conversations had little co-relation. The relationship between the Plaintiff and his mother had deteriorated since his injury. Educational history 9. The Plaintiff attended Robert Townson High School at Raby in western Sydney. He completed Year 11 but he left school in August 2003 without completing Year 12. He said his reason for doing so was he did not like to study. He said that he had reached the stage of not wanting to study at school any more and this was reflected in his school marks. He said in evidence that at an earlier stage of his schooling he was one of the top students in his class and had even attended camps for gifted and talented students. The post-injury neuropsychological testing aimed at estimating the Plaintiff's pre-morbid intellectual functioning revealed this to be in the high-average range. 10. The Plaintiff's Year 2000 School Certificate test report was tendered. The Plaintiff's test results were 83 for mathematics, 72 in English and 80 in Science. His record of achievement for Part A of the School Certificate, using the performance grading descriptors, indicated that in the graded subjects his performance was in the high and substantial range. In the ungraded subjects his performance results were satisfactory. 11. Whilst the Plaintiff's mother acknowledged that prior to his injury the Plaintiff was not coping with his Year 11 studies and was often late for his school in Year 11, this was not inconsistent with the Plaintiff's own evidence that he had lost interest in his studies, a circumstance that was reflected in his school marks. 12. The Defendant sought to make much of the Plaintiff's pre-injury poor school performance in the lead up to the Plaintiff leaving school without completing the higher school certificate. In my view the Plaintiff's pre-injury school performance is of marginal if any relevance. I accept that the Plaintiff lost interest in continuing his schooling. The critical issue is whether the Plaintiff had the ability to achieve his potential if he was motivated to do so. In this regard, it is relevant to note that Dr John Smith, a neuropsychiatrist who had examined the Plaintiff at the request of the Defendant's solicitors and who was asked to comment on the Plaintiff's school records stated that the records confirmed that the Plaintiff had above average potential. I accept that portion of Dr Smith's commentary as it coincides with my own overview of the evidence and the Plaintiff's school records. 13. The Plaintiff's school records for the years 1997 and 2002 were analysed by Mr Mark Ravagnani in a report dated 15 January 2008. Mr Ravagnani is a vocational psychologist who was retained by the Plaintiff's solicitor to examine the Plaintiff's school records. Mr Ravagnani summarised his overview of the significance of the Plaintiff's school records to his pre-injury vocational potential in the following terms: "Summary Mr Choy's educational background suggests a turning point in mid to late adolescence where his interest in school waned and his academic performance dropped off. He persisted with Year 11 despite problems with truancy, lateness and poor submission of work but left before completing Year 12. I note a report by Dr Smith (28 September 2006) in which it was posited that Mr Choy's deterioration in performance may have be (sic) result of developing depression after a friend died during Year 9. Despite his limited interest in school, Mr Choy was motivated to find work upon leaving and was undertaking two part-time jobs at the time of his accident. As stated in my previous report Mr Choy hoped to eventually progress to a managerial role in the family business. Even if he did not follow this path or self-employment he should (sic) been able to secure full-time stable work within a range of elementary to intermediate occupations related to sales, clerical or service applications." 14. I accept Mr Ravagnani's above quoted interpretation of the Plaintiff's school records and the relationship between these records and the Plaintiff's vocational potential. I reject Dr Smith's quoted comment concerning the possible link between the Plaintiff's depression and the death of a friend and the link Dr Smith sought to make between that event and the Plaintiff's lowered school performance as being speculative. Work history and Plaintiff's plans for his economic future 15. Having left school in August 2003, in November 2003 the Plaintiff commenced work in the family business known as Green Star Enterprises Pty Ltd. Before leaving school the Plaintiff had previously carried out some part-time work for the family business on the weekends. That company was owned and operated by the Plaintiff's family, mainly his stepfather, at Prestons. The principal business of that company was to source, process, package and supply chicken meat and frozen seafood for the restaurant trade as well as supplying hospitals and government departments. The factory premises comprised both factory and warehouse activities. Before the Plaintiff's injury some 20 to 25 people were employed at the premises whereas at the time of the trial some 40 people were employed. 16. Whilst the Plaintiff was still at school he worked in the business as a storeman and packer on Saturday mornings. He later worked in more menial positions in the company, including working as a labourer. Whilst working in that capacity he came to realise he wanted to work himself up into a higher position within the company and move into a management position. 17. The Plaintiff's pre-injury work history demonstrates that he had a strong work ethic. In addition to rising at 3.30am to start work in the family business at 4.00am and then working for about three and a half hours per day, he also started work in another part time job as a pizza delivery driver on four to six days per week, starting at around five o'clock in the afternoon and finishing at about midnight, depending on the amount of custom that business had at any given time. 18. The Plaintiff said that before his injury his plans were to attend a TAFE college to undertake a business administration course as a first step to joining the family business. The reason underpinning that plan was that he had been offered to manage the family business with a view to taking it over. To that end, the Plaintiff planned to enrol in a business administration course at Liverpool TAFE. In fact he had planned to travel there with a friend to enrol in that course on the very day of his injury but the collision had prevented him from attending on that day. 19. The Plaintiff's evidence concerning his pre-injury plans to undertake a TAFE course in business administration in order to assist him to take over his parents' business was at odds with the history recorded by his treating rehabilitation specialist to the effect that before his injury the Plaintiff wanted to pursue a TAFE course with the aim of becoming a motor mechanic. 20. This conflicting evidence was not explored or explained at the trial. The Plaintiff's evidence as to his plans to work in the family business was corroborated by his parents' evidence. In my view, the conflicting note in the rehabilitation specialist's letter is based on an incorrectly recorded history evidenced by an erroneously recorded statement that it was the Plaintiff's pre-injury plan to return to his work as an apprentice motor mechanic. The Plaintiff had not pursued such work before his injury and had only attempted it later as part of his attempts at rehabilitation. I therefore find the reference to the pre-injury aim of the Plaintiff to work as a motor mechanic to be an error of summation. I accept the evidence of the Plaintiff and that of his parents to the effect that prior to his injury the Plaintiff had planned to enter the family business with the aim of positioning himself for a managerial role. History of a previous injury 21. When the Plaintiff was aged 9 years he had attended Liverpool Hospital for treatment of an injury to the face. That injury occurred because the Plaintiff had been hit in the face by a rock. The treatment for that incident is recorded in the hospital notes that were tendered in evidence. That injury left the Plaintiff without lasting problems. Before his injury the Plaintiff was quite fit, he exercised regularly and had, as he put it, a "natural buzz for life". Injuries 22. The Plaintiff was on his way to work at the family business when the collision occurred. He was unable to recall the details of the collision in question. The ambulance report described the Plaintiff as having been found sitting slumped forward in his seat, unconscious, with left-sided facial swelling, haemorrhaging from the nose and mouth, cerebrally agitated with a Glasgow coma score of 7. That score later deteriorated to 6 as was noted in the hospital records. Other injuries were also noted in the ambulance report. These consisted of a contusion to the right shoulder and chest, abdominal tenderness and contusions and abrasions to the right shin. Intravenous midazolam was administered to reduce the Plaintiff's cerebral agitation. 23. The hospital notes detailed the Plaintiff's other injuries which included a closed head injury, multiple factures to his facial bones, lacerations to his left eyelid and chin as well as soft tissue injuries to his neck, right shoulder, chest and right shoulder. An initial CT scan revealed the Plaintiff to have a right frontoparietal brain contusion, a right-sided subdural haematoma and facial fractures consisting of fractures of the left orbit and the maxillary antrum. Subsequent imaging revealed post-traumatic abnormalities in the frontal lobes of the Plaintiff's brain. 24. The Plaintiff had no memory of the collision. His first post injury memory is of being aware that he was strapped to a hospital bed. The Plaintiff described himself as being aware of physical pain of a muscular nature in the areas of his neck, shoulders and back. Treatment, rehabilitation and residual disabilities 25. The Plaintiff was transported by ambulance to Liverpool District Hospital where he was admitted to the intensive care unit and then later transferred to the Brain Injury Unit. The Plaintiff remained in hospital for a total of 68 days between 29 January and 7 April 2004. The brain injury and associated swelling was treated with a burr hole craniotomy to allow for the insertion of an intra-cranial pressure monitor and an extra-ventricular drain. The Plaintiff was thought to have seizures in the acute phase of his admission. He was also intubated. On 13 February 2004 the Plaintiff underwent an operation for open reduction, elevation and internal fixation of the left maxilla. Whilst an in-patient he was medicated for behaviour control because of his cerebral irritation. The severity of the Plaintiff's head injury can be gauged from the fact that he had a period of post-traumatic amnesia that covered 43 days which Dr Smith described as indicating a persistent dysfunction at the level of the brain stem. The Plaintiff also had incontinence of both urine and faeces in the acute phase of his recovery. He also developed hemiparesis and pneumonia. Fortunately he has recovered from these latter conditions. 26. On 24 February 2004, once the acute phase of his treatment had concluded the Plaintiff was transferred from the Brain Injury Unit ward of the hospital to the Brain Injury Rehabilitation Unit. Whilst he was there he had physiotherapy treatment, he obtained concentrated help from psychologists and occupational therapists as well as from other disciplines including the specialist medical practitioners who worked in that unit. During this time he was noted to be sexually disinhibited, impulsive and tactless. 27. The Plaintiff was discharged from hospital on 7 April 2004. At the pre-discharge meeting on 7 April 2004 his post-injury problems were surveyed. His disinhibition had settled to some degree. It was noted that the Plaintiff had major issues with expressive language in that he added irrelevant detail to his conversation. He also had difficulty reading emotions and situations. His attention span was noted to fluctuate and he would "go off topic" and have difficulty with "specificity". He required extra time for visuo-spatial scanning and needed the assistance of checklists, cues and prompts. It was recommended that he not drive or use alcohol. In fact his licence had been cancelled due to his brain injury. He was cautioned to avoid risk-taking behaviour and not to use power tools or machinery. He was allocated a case manager with the Head-2-Work organisation to allow for rehabilitation follow-up following his discharge from hospital. 28. Initially, following his discharge from hospital the Plaintiff felt he was normal. He described how when he was at home he did not feel normal and found that carrying out tasks that were previously second nature to him became more difficult for him after his injuries. Examples of such tasks included the simple tasks of brushing his teeth and having a shower. These were activities that he noticed were taking him longer than was the case before his injuries. 29. The Plaintiff noticed that after he was discharged from hospital he noticed he was sleeping a lot. He noticed that since his injury he was experiencing memory problems and found difficulty remembering names and his banking personal identification number. He also began to experience difficulty concentrating. His thinking processes changed so that he found himself lingering and taking time on single ideas or issues that then became "split" into fragmented ideas or issues. He became obsessive so that the pre-existing perfectionist trait in his character began to cause him problems with his intellectual and daily functioning whereas this was not the case before his injury. 30. His emotional state also changed after his injury. After his discharge from hospital and as part of his rehabilitation he began to see a psychologist. The Plaintiff found difficulty in putting his thoughts down in writing. He experienced difficulty understanding the written word and had difficulty with comprehension. He noticed he was forgetting or misunderstanding the meaning of words. He expressed difficulty with reading and understanding what he had read. He also found he was experiencing problems with mental arithmetic whereas before his injury he did not have these problems. He became depressed when he started to realise the extent of the problems he was experiencing. He found himself becoming easily angered and frustrated and vented this frustration by punching walls. His younger siblings became scared of him because of this behaviour. 31. Dr Smith took a history of the Plaintiff's psychological outlook on discharge from hospital, which he recorded in his report in the following terms: "When I asked what his mood was like when he was first discharged home he stated: 'I felt like a normal person. I was happy I was alive. It was only after a time I realised what problems I had. Then I started going into a depressed stage … I didn't want to live anymore. I wanted to kill people.'" 32. The Plaintiff became less confident and his friends began to regard him differently and he experienced deterioration in his social life. His own perception was that he had become a different person from which I infer that he underwent a change of personality. His mother described how he had expressed suicidal thoughts. A psychiatrist noted that the Plaintiff had nihilistic attitudes. His relationship with his mother has deteriorated. His mother described how after his injury, at times the Plaintiff needed to be reminded to eat. Sometimes he needed reminders to pay his bills. He often needed reminders for doctors' appointments. His mother described how a post-injury attempt at work in the family business resulted in the Plaintiff making mistakes and mixing up different types of products that required sorting and packing. From the vantage point of her familiarity with the Plaintiff's post-injury situation and condition his mother felt he could not manage caring for himself and could not holiday unaccompanied because he is forgetful and was not good at finding his way. As part of the regime for managing the Plaintiff's condition, at times he went to stay at a residential respite hostel at Chipping Norton that was run by the Brain Injury Unit. 33. In April of 2004 the Plaintiff enrolled at Mt Druitt TAFE in a motor mechanics course. The motivation for enrolling in this course was that the Plaintiff had a life long interest in motor vehicles and the rehabilitation assessment was that the Plaintiff had a need to find something to do for work. He also undertook this course at the suggestion of the Head-2-Work rehabilitation organisation so as not to sit around and waste time whilst he was recovering from his injuries. The Plaintiff completed this course but was not awarded a certificate of completion because he had failed to attend a number of classes. In addition, he had not completed some of the coursework and he had not completed the work experience portion of the course requirements. He was found to have been too slow and unable to adjust to the pace of work required of him in the trial of employment Head-2-Work had arranged for him to attempt as part of the course work. The transcript of his 2004 academic record at TAFE for the Automotive Mechanical course he had undertaken showed he had failed to complete some aspects of the course yet he achieved passes and credits in other aspects. 34. Whilst the Plaintiff was undergoing rehabilitation the suspension of his driver's licence by the RTA for medical reasons led to him experience travelling and mobility problems which in turn affected his TAFE attendances. Without his driver's licence, the Plaintiff found it difficult to travel from his home to Mt Druitt in order to attend classes. The Plaintiff's failure to complete the practical course work was due to problems he was experiencing with muscle pain in the neck, shoulders and back which he was experiencing at the time. Additionally, his doctor at the Liverpool Brain Injury Unit had advised him not to undertake mechanical tool work. 35. In January 2005 as part of his automotive course, he commenced an apprenticeship with Henry Wilson Autos, a small suburban automotive business, with the aim of becoming a motor mechanic. This entailed working five full weekdays and a half-day on Saturdays. He found his concentration and memory impairments impeded his ability to carry out the work required of him which in turn annoyed his employer. He found he could not cope with the work and resigned from this employment after persevering for one month. 36. In April 2005, after a number of failed attempts, the RTA re-issued the Plaintiff with a driver's licence restricted to driving automatic vehicles. Subsequently after further efforts he was re-issued with his full licence. 37. Towards the end of 2005 he obtained a trial of employment in the automotive field with a company named Midas. His work with that company entailed carrying out relatively minor automotive repair and servicing jobs such as cleaning parts, and carrying out minor and easy servicing tasks. That position concluded after one week of a trial of employment. Following that trial he was not offered a position with that employer. 38. In January 2006 the rehabilitation provider Head-2-Work arranged for him to have a job interview with the Motor Traders Association. This entailed taking an aptitude test however no offer of employment followed. He continued to receive assistance from Head-2-Work to seek employment but was not been able to obtain a job. He has attended labour hire agencies and has also made many job applications, enquires and telephone calls to seek employment in the automotive field but without success. 39. The Defendant has submitted that the Plaintiff has failed to take reasonable steps to mitigate his loss of earning capacity. I am required to give consideration to the steps undertaken by the Plaintiff to mitigate his loss : Motor Accidents Compensation Act, 1999 s.136(2). The onus of proving the assertion that the Plaintiff has not mitigated his loss lies with the Defendant : s.136(4) of the Act. 40. The Plaintiff said he has not actively sought work just prior to the hearing of his case because, as he explained, in my view reasonably, he did not want the requirements of the current litigation to interfere with his attempts to find stable employment. The Plaintiff also described that he felt he could not deal with the requirements of a job and also deal with the requirements of his case. Given the sequelae of the Plaintiff's head injury I consider that explanation to be a reasonable one and, properly understood, it does not constitute a failure on the Plaintiff's part to mitigate his loss. I find that his actions in this regard are in keeping with his obsessive traits that have been influenced by his injury and they have been made more pronounced. 41. Further, I consider that the Plaintiff's regular attendances at the Brain Injury Rehabilitation Unit and the Head-2-Work organisation, together with his post-injury attempts at work in the family business and at the other places he has been sent, when taken together represent more than reasonable attempts to mitigate the claim for loss of earning capacity. 42. The Plaintiff regularly attended the Head-2-Work organisation between 13 May 2004 and 17 January 2007 for work rehabilitation assistance. After extensive attempts to find suitable employment for the Plaintiff, as is documented in the 14 very detailed reports prepared by the Head-2-Work organisation which worked in conjunction with the Brain Rehabilitation Unit and the workers' compensation insurer, further attempts at finding suitable work for the Plaintiff were abandoned by Head-2-Work in January 2007. In these circumstances, in the context of his brain injury, I am satisfied that the Plaintiff has made more than reasonable attempts to mitigate his loss of earning capacity and I reject the Defendant's submission to the contrary. In my view the same can be said of his compliance with treatment recommendations. It is difficult to envisage what else could have been reasonably done by the Plaintiff or the rehabilitation provider to attempt to find work for him before accepting that his employment prospects were severely curtailed. I reject the submissions that the Plaintiff has failed to mitigate. 43. Despite the practical realities of his situation, the Plaintiff does not seek to convey the impression that he cannot work. His experience of his attempts thus far to obtain work have led him to feel, I find realistically so, that any future employment options he may have, if there are any, will be limited to menial physical and repetitive factory type work that will not place cognitive demands on him as he finds such demands to be very stressful. Realistically, in view of the problems he had with his memory and concentration, his self-assessment was that he thought he could not manage the full time work required of a storeman and packer. This has been borne out by the evidence of the Plaintiff's mother to the effect that he made mistakes in sorting and packing chicken pieces in the family business. He had no such difficulty performing these duties satisfactorily prior to his injury. 44. The Plaintiff said he intends to actively seek work. He acknowledged that be could perform labouring work such as digging ditches. In my view such concessions made by the Plaintiff have to be viewed in context of the Plaintiff's cognitive and emotional difficulties that will undoubtedly have an adverse overshadowing impact on his ability to gain and sustain any form of remunerative employment. These concessions also have to be viewed in the context of the Plaintiff's over-confident manner. 45. The Plaintiff's own summation of his cognitive difficulties provides a useful insight to his functioning and, I infer, his prospects of finding employment: "Q. What is it about using your brain that you don't like or that you're unhappy with? A. It's just when I use my brain it's hard to concentrate and I get very stressed and it's not that good anyway. ….. Q. What do you mean it's not that good anyway? A. Well, my memory is not as good as it was before and the speed – the reaction that I have is not as fast and you could basically say my brain now – the process is if you could compare it to a computer, my brain is – the processor is slower than the processor I had before. I guess that the best way you could describe it – is like a computer" 46. The Plaintiff described how he gets anxious and stressed when assigned tasks. Although he has learnt strategies to try and help him to cope with such stresses these strategies are not always successful for him. For example, one of his coping strategies is to write things down or draw diagrams but the problem emerges later when he draws a different meaning from the words he had written down when compared with what was intended by the process so that the strategy is effectively rendered unsuccessful. I find that these difficulties will remain as a permanent impairment to the Plaintiff's employment prospects and they will therefore severely and permanently impair his earning capacity. 47. The Plaintiff's neck and shoulder pain has resolved about a year after his injury and this has left him without lasting problems in these areas. His incapacity for work is therefore largely influenced by cognitive, emotional and behavioural issues. 48. Before his injury the Plaintiff enjoyed a good social life with plenty of friends. Since his injury he continues to see a group of friends about once per week but does not enjoy that interaction because he cannot see the humour of some of the things they say to him and he feels unable to respond appropriately or in a dynamic or timely way. He feels his friends laugh at him about this and this makes him feel depressed and upset. Before his injury he had a girlfriend and he enjoyed a good personal and sexual relationship but no longer has the benefits of such arrangements. 49. Since his injury he has not been on holidays and is too apprehensive to go on holidays alone because he harbours a fear of some injury related event occurring which may cause him some problems. He is able to operate a modest bank account and a credit card account by himself and he seems to be able to manage his modest pocket monies. 50. He no longer enjoys reading and he no longer has an interest in participating in sports. He is no longer motivated to exercise with weights and this has affected his weight and his fitness. Before his injury he was much lighter and fitter than he is now. 51. He now finds that his vocabulary has become limited and he has difficulty finding appropriate words when he is speaking whereas beforehand this was not the case. He has difficulty thinking and expressing himself adequately and this causes him difficulty with his interaction with others and with his social relationships. He also experiences noise intolerance. He has required a considerable background supervisory domestic presence and has needed assistance to organise himself. He feels he could not look after all of his daily living needs were he to live alone in the future. I consider that to be a reasonable self-assessment on his part. 52. The Plaintiff still remains under the intermittent care of the Brain Injury Unit at Liverpool District Hospital where he continues to have contact for advice, treatment, management and occasional residential respite care. I infer from this that he still needs such assistance even though his condition has been stable for some time. From this ongoing contact I infer and find that such needs will remain permanently. 53. Although the Plaintiff appears to presently receive follow-up contact without charge I think it is unsafe to assume he will receive treatment and care without charge after he is compensated. I interpret the situation to be that the follow-up contact is without charge but the therapies and respite care costs are not, as is evidenced by the fact that these costs have been charged to the workers' compensation insurer. Further, it is well known and beyond dispute that such public resources are stretched to straining point. I therefore find that after the Plaintiff receives his compensation from this case he will not be able to receive such services without cost. I will address these costs when dealing with the individual components of the damages claim. 54. The Plaintiff will continue to adversely suffer from the cognitive, emotional and behavioural effects of his head injury. That injury has caused gliosis or scarring of the brain from the shearing forces involved with his head injury. The post-haemorrhage scarring of his brain has affected both of the Plaintiff's frontal lobes. At page 14 of his report dated 28 June 2006 Dr Smith's neuropsychiatric opinion was that the initial injury caused the Plaintiff to suffer compromise bilaterally to the long motor fibres that emanate in the frontal lobes and traverse the brain stem to terminate in the contra-lateral aspect of the spinal cord. Whilst the initial disturbance to the Plaintiff's motor function improved, Dr Smith's summation was that the Plaintiff suffered from damage to the right frontal lobe and its connections. 55. Dr Smith summed up his neuropsychiatric assessment in the following terms: "He told me that it was in mid 2005, when he realised that he had changed, that he started to become depressed. He then started thinking about killing people and harming himself. He started to neglect his hygiene and he started drinking on a daily basis. In September 2005 Dr. Veerabangsa started him on Avanza but it would seem that he has taken it sporadically. Nevertheless he told me that his depression is now much better so that he feels down only for a few hours at a time and about two or three times a week. Fortunately he stopped using alcohol some months ago. Of concern, however, is the fact that he started gambling after the accident. His disinhibition and depression may have contributed to this tendency. He admits that it is an addiction and he has not been able to control it. He apparently has not told anybody else about this but I would advise that (sic) see a behavioural psychologist who could help him overcome this habit. His IQ did not change after the accident. Testing shortly after the accident showed that he had mild memory problems, particularly of a visual type which is consistent with his right cerebral hemisphere damage; he told me that his memory has improved since. However, it would seem that his mentation is slower and he has difficulty coping with too much information at once, and during his Driving Assessment it was noted that he lacked insight and reasoning. This constellation is consistent with damage to the frontal lobes but the degree of cognitive impairment is mild." 56. The description of the Plaintiff's impairments as being "mild" must be seen to be a relative one. Of greater relevance is the practical impairment to the Plaintiff's day to day functioning which adds meaning and context to the medical description of his condition. In this regard I have taken into account and accept the evidence of the Plaintiff's problems as he described them, as his mother, aunt and stepfather have described them and I have also taken into account the histories of the Plaintiff's problems as were provided to the various medical examiners whose opinions are in evidence. 57. Dr Smith reviewed the results of psychological testing carried out by Dr Gilandas and made the following comment: "Dr. Gilandas' testing indicated that Mr. Choy has an above average IQ but his memory functioning remains impaired, especially for non-verbal tasks, and this is consistent with his right cerebral hemisphere damage. There is also evidence from other sources that he has difficulty coping with too much information at once and has some problems with insight and reasoning and such features are consistent with a mild degree of damage to the frontal lobes." 58. I accept that the Plaintiff has the limitations that I have summarised and which are described in the evidence I have summarised. The Plaintiff's neck and shoulder pain has resolved about a year after his injury and this has left him without problems in these areas. I accept that the remaining cognitive, emotional and behavioural problems cause the Plaintiff considerable difficulty and frustration. I accept that these problems are permanent and will prevent him from working in the capacity of manager in the family business. I accept that he could not take on the stresses and pressures of managing the family business or its equivalent. I also accept that they will adversely operate on any attempts the Plaintiff may make in seeking to exercise an earning capacity in the future. Assessment of damages 59. I now turn to the assessment of the individual heads of damage claimed by the Plaintiff. Non-economic loss 60. In my view the survey of the Plaintiff's residual problems that I have set out in the preceding paragraphs calls for a significant award of damages for non-economic loss to compensate the Plaintiff for the considerable loss of the amenity of his life. This relates not only to his frontal lobe brain damage and the emotional and cognitive sequelae of such damage but also to the change in his personality and his loss of the previous "buzz" of life that he had previously experienced and which is now lost to him. The Plaintiff's pre-injury high intelligence makes him acutely aware of the change in his situation caused by the described impairments and this undoubtedly fuels his frustrations. The Plaintiff's residual facial scarring is not a significant problem for him but I also take this factor into account. 61. The Plaintiff submits that a substantial award for non-economic loss is warranted and submits that an award of $225,000 would be appropriate. The Defendant submits that an award of $150,000 would be an appropriate sum for non-economic loss. I regard the sum submitted by the Defendant to be a manifestly inadequate sum to compensate the Plaintiff for his injuries, disabilities and the resultant loss of the amenity of his life caused by the effects of his injuries. 62. Having regard to the far reaching nature and extent of the Plaintiff's ongoing disabilities and impairments that impact on every aspect of his life and which I have surveyed over the preceding paragraphs, I consider that an appropriate award for non-economic loss has to be in the amount submitted by the Plaintiff. I therefore assess non-economic loss in the sum of $225,000. Past loss of earning capacity 63. The Plaintiff's mother gave evidence that before his injury the Plaintiff was a healthy, hardworking and happy young man with an active social life. She described how, before he left school he had worked in the family business on weekends. She described how he had performed his work well in a reliable manner and had showed good organisational skills when tasks were delegated to him. She described how, before the Plaintiff left school she and her husband had planned to let the Plaintiff take over the family business. The detail of her evidence on these matters was not relevantly challenged and I accept that but for the Plaintiff's injury he would have worked his way up to a managerial role in the family business. The evidence of his pre-morbid intellectual functioning certainly supports this view. 64. Mr Wang, the Plaintiff's stepfather gave evidence to the effect that prior to his injury the plaintiff performed his work in the family business quite well. That work comprised mainly despatching goods in addition to some simple management duties. He described how over time the business had grown from having 20 employees to having a workforce of 40 employees. The nature of that workforce was not explored either as to any full and part time components or as to the distribution of tasks. Mr Wang confirmed that before the Plaintiff's injury the intention was for the plaintiff to take over the family business. He said he was not worried about the Plaintiff taking over the business however he said the Plaintiff would obviously have to acquire some familiarity or training with some aspects and divisions in the business if he took it over. This evidence was not relevantly challenged and I accept it. 65. Mr Wang acknowledged that if the Plaintiff were to have taken over the family business he and his wife would no longer have expected to receive income from the business. He said that they had other savings and other business plans to pursue. I accept the unchallenged evidence Mr Wang gave concerning these matters. 66. The Plaintiff tendered as Exhibit "B" a forensic accountant's report dated 24 January 2008. This was prepared by Mr Lance Kahler from Vincents, chartered accountants. The underlying mathematical assumptions upon which that report was based were not in dispute. 67. Mr Kahler prepared his economic loss calculations on the basis of two alternative assumptions. The first assumption was that the Plaintiff would have taken over the management of the family business and would have derived income commensurate with that level of responsibility after a suitable period of training. The second and alternative assumption was that the Plaintiff's loss of earnings should be calculated according to the net value of the rate specified for Average Weekly Earnings of Full-Time Adult NSW Males. 68. Before approaching the task of assessing the claim for past loss of earnings it is necessary to briefly review the situation of the family business. Green Star Enterprises Pty Ltd was incorporated on 10 March 1997. The business of the company was the processing, distribution and sale of chicken meat and then later, seafood as well. At the time of the Plaintiff's injury the Plaintiff's stepfather Mr Wang was the sole director and shareholder. At the time of the Plaintiff's injury the company operated by contracting out the processing side of the business so that its principal activities were in the areas of sales and distribution. At some time prior to the Plaintiff's injury Mr Wang had planned to transfer the business to the Plaintiff which meant that he and his wife would then direct their energies to other forms of business. To facilitate the transfer of the business to the Plaintiff a new company was formed called Green Star Food Service Pty Ltd. That company was incorporated on 26 November 2003. To this end the Plaintiff was appointed sole director and shareholder. These events occurred before the Plaintiff was injured. The financial figures for these businesses were extracted and set out in Mr Kahler's report. 69. The evidence was that plans for the Plaintiff to run the business continued to remain in place even after the Plaintiff was injured and whilst the Plaintiff was still undergoing rehabilitation treatment for his injuries in the expectation that he would make a good recovery and would ultimately be in a position to run the business as planned. I accept the evidence of the Plaintiff's mother and stepfather to the effect that their plan was for the Plaintiff to take over the family business as outlined above. 70. During the Plaintiff's rehabilitation treatment and as a result of the effects of his injuries the newly formed business of Green Star Food Service Pty Ltd was restructured so that the sales function was contracted out to leave only the distribution side of the business for the Plaintiff to operate when and if he made a sufficient recovery. As things turned out the Plaintiff did not make a sufficient recovery to enable him to pursue and take on the business responsibilities that were being planned for him. As a consequence, subsequently the Plaintiff's stepfather resumed the task of full-time management of the company which has continued to trade in its restructured form. 71. In order to provide a basis for estimating the Plaintiff's claim for loss of earning capacity as the operator of the Green Star businesses Mr Kahler has analysed the profit and loss statements and tax returns of Green Star Enterprises Pty Ltd between 30 June 2001 and 30 April 2004. He undertook a similar exercise in respect of Green Star Food Service Pty Ltd for the period 1 May 2004 to 30 June 2006. He also carried out some adjustment calculations to reflect the fact that rent for the business premises was being paid to the Plaintiff's mother as she owned the property from which the business was conducted. 72. In making that estimate, and after allowing for the offset of the Plaintiff's relatively modest post-injury earnings, Mr Kahler has estimated the Plaintiff's loss of earning capacity based on projected Green Star earnings between 1 July 2004 and 31 January 2008 in the sum of $127, 334 net as set out in Table 1 in his report Exhibit "B". That table makes no additional allowance for the probable earnings that the Plaintiff would have derived whilst working in his pre-injury position between 30 January 2004 and 30 June 2004, a period of some 22 weeks. Mr Kahler's calculation also requires some upward adjustment for an additional period of 25 weeks of loss being between the date of the calculation date in the report, namely 1 February 2008 and the commencement of the trial on 28 July 2008. 73. A question arises as to whether the sum of $127,334 as adjusted in the manner I have identified, derived as it has been from assumptions concerning the continued and profitable successful operation of a business by the Plaintiff, represents a fair and reasonable method of assessment of the Plaintiff's past loss of earnings in this case. For a number of reasons I come to the view that such an approach is not reasonable in this case. 74. First, the Plaintiff had no relevant management experience in the industry in which his proposed business was to operate. Notwithstanding the Plaintiff's pre-injury intelligence and motivation, I consider that this factor casts doubts and uncertainty over his ability to sustain the business at a level to continue to maintain income and profits in the period leading up to the trial. Secondly, a business that was limited to sales and distribution and which depended for its viability on outsourcing the cost of labour for processing its food products would, in my view, remain hostage to the vagaries of labour market conditions and this would be likely to serve to undermine the profitability and viability of the business. 75. In view of those factors I think that Mr Kahler's alternative approach to estimating past economic loss, namely, using the yardstick of rates for Average Weekly Earnings of Full-Time Adult NSW Males represents a reasonable approach to assessing the value of the Plaintiff's past loss of earning capacity. 76. No precise evidence was given of the Plaintiff's net earnings whilst he was working in the part-time position of storeman with Green Star Enterprises Pty Ltd. Similarly, there was no precise evidence of his level of earnings in his part-time employment as a pizza delivery driver. The answers to questions in the claim form filled out on the Plaintiff's behalf suggests a total combined earnings of about $540 per week gross. I find that in respect of the period 30 January 2004 and 30 June 2004, consistent with the plan for the Plaintiff to take over the business, in this period, the Plaintiff would probably have gravitated to full-time employment with the company and this would have led to him leave his work as a pizza delivery driver in order to derive a higher rate of earnings as an employee of the family business and in order for him to properly attend to his envisaged role in that business. This still leaves the question of what would have been his likely net earnings in this period. 77. In the absence of precise evidence as to actual earnings in this period, and accepting that the Plaintiff was a motivated and industrious worker, I infer from these facts that the Plaintiff's earnings would be no less than the rates applicable to adult storemen as has been identified by Mr Kahler. 78. An analysis of Mr Kahler's economic loss report reveals the two relevant periods for the assessment of past loss of earnings. 79. The first period is between 30 January 2004 and 30 June 2004, a period of 22 weeks, during which time I find that the Plaintiff would most probably have left his work as a pizza delivery driver to assume a greater responsibility and earnings rate in the employ of Green Star Food Service Pty Ltd, probably as a storeman for the gross weekly wage of $660. Applying the applicable published tax scales and Medicare Levy to such earnings this yields a net weekly equivalent of $540 per week which I round down to an average rate of $500 per week net to reflect an element of uncertainty as to precisely when the pizza delivery work would cease in favour of full time work in the employ of Green Star Enterprises Pty Ltd. After deducting the first week of loss of income as the statutory deductible threshold required by s.124 of the Motor Accidents Compensation Act, 1999 the calculation of the Plaintiff's past loss of earning capacity for the remaining 21 weeks in the period 30 January 2004 to 30 June 2004 is $10,500 net. 80. The second period of the claim for past loss of earning capacity is between 1 July 2004 and 28 July 2008, during which time I find that the Plaintiff would have worked in full-time employment earning no less than the industry average wage for a full-time storeman as identified by Mr Kahler. In Schedule B to Exhibit "B" Mr Kahler has set out an estimate of the value of loss of earnings at full time storeman's rates for the period 1 July 2004 to 30 June 2008 in the sum of $163,187. After adjusting this figure upwards to allow for an additional 4 weeks of earnings between 1 July 2008 to 28 July 2008 at the rate of $566 per week net or $2,264 ($29,474 net per annum as stated in Schedule B of Exhibit "B" divided by 52 weeks) this calculation is revealed to be $165,451. In my view this is a reasonable approach to assessing this period of loss of earnings in respect of this period. I therefore assess this component of the loss in the sum of $165,451 net. 81. The total calculation for the Plaintiff's loss of earnings incorporating the foregoing components between 29 January 2004 and 28 July 2008 is therefore $175,595. This sum takes into account and reflects an offset for the actual net earnings the Plaintiff derived during the two short periods of employment during this period. Those periods were first, between 4 January 2005 and 7 February 2005 when the Plaintiff worked as an apprentice motor mechanic and secondly, between 21 November 2005 and 27 January 2006 when the Plaintiff undertook a trial of work with Midas. These offset figures are included in the calculations in Schedule B to Mr Kahler's report Exhibit "B". I therefore assess the Plaintiff's past loss of earnings between 29 January 2004 and 28 July 2008 in the component amounts of $10,500 and $165,451 yielding the total net sum of $175,951. Fox v Wood 82. The amount of tax that has been deducted from the Plaintiff's weekly workers' compensation payments is in the agreed amount of $12,800. I therefore assess the Fox v Wood component of the Plaintiff's damages in the sum of $12,800. Future loss of earning capacity 83. I have formed the view that the Plaintiff has suffered a severe diminution in his future earning capacity such that from a practical perspective he is and will remain, unemployable. In my view any residual earning capacity that may emerge from time to time would be theoretical and would be so intermittent as to be unlikely to be productive of any significant remunerative income. I consider that for practical purposes, the Plaintiff should be considered to be unemployable for the remainder of what would otherwise be a normal working life to age 65. 84. Section 126 of the Motor Accidents Compensation Act, 1999 requires that I must state my reasons for any assessment I make in respect of damages for future loss of earning capacity in this case. Before outlining those reasons I will review the opinions from the medical and allied experts whose views are relevant to my findings on the issue of the Plaintiff's claim for damages for future loss of earning capacity as I find those opinions to be instructive. 85. I will commence my analysis with the opinion of the treating rehabilitation specialist. I do so for several reasons. First, in my view that specialist has had a distinct advantage because he was able to assess the Plaintiff's condition over time. Secondly, that specialist has had the opportunity of making cumulative observations of the Plaintiff over the course of his recovery in the years since the injury compared to the more limited opportunity others have had when making their assessments of the Plaintiff on more limited occasions. Thirdly, in my view, in a general sense, some of the cognitive and behavioural effects of the sequelae of the Plaintiff's traumatic brain injury are subtle and could be masked by his over-confident manner. This is a matter that is relevant to assessing future loss of earning capacity and it is a factor that is more readily observable and available to the treating clinician for his consideration over time compared to the more limited observations that could be made in the setting of a medico-legal examination. 86. In his report dated 22 January 2008 the Plaintiff's treating rehabilitation specialist at the Liverpool Hospital Brain Injury Rehabilitation Unit, Dr Veerabangsa, expressed the opinion that it would be difficult for the Plaintiff to maintain suitable employment on account of his various emotional, behavioural and cognitive residual disabilities that were due to the traumatic brain injury. These problems included reduced concentration and attention span, slow speed of information processing, poor self-monitoring, over-confident thinking and impulsiveness. I accept as reasonable Dr Veerabangsa's assessment in this regard. 87. The Plaintiff was assessed by Dr Adeline Hodgkinson at the request of the Motor Accidents Authority Medical Assessment Service. It appears this examination was on 4 January 2007. Her report is dated 24 January 2007. Co-incidentally, she is the Director of the Brain Injury Rehabilitation Unit where the Plaintiff was treated and where he still attends intermittently. She confirmed that all of the Plaintiff's injuries and their residua were due to the head injury. She confirmed that significant neurological improvement was unlikely and tellingly she stated that the barriers to the Plaintiff obtaining employment "are known and significant". 88. The problems Dr Veerabangsa has identified are given further emphasis by the further problems noted by the plaintiff's general practitioner, Dr La in his report dated 9 April 2008, namely, depression, emotional lability, frequent agitation, being easily angered, forgetfulness and an inability to express himself clearly which leads to frustration. I accept as reasonable Dr La's assessment in this regard. 89. Dr Milder undertook a neurological assessment of the Plaintiff. In his report dated 18 July 2006 he expressed the opinion that from a work perspective the Plaintiff may be able to participate in particularly simple structured activities requiring slight concentration. In his subsequent assessment dated 22 October 2007 Dr Milder was of the opinion that the Plaintiff's outlook remained poor with a marked resultant diminished capacity to attain previous personal and professional affairs which I infer to mean work ambitions. I consider these views expressed by Dr Milder to be reasonable and applicable to the plaintiff and I accept them. 90. Dr Gilandas, a psychologist, assessed the Plaintiff and prepared assessment reports dated 14 June 2006 and 11 October 2007. Dr Gilandas noted that in June 2006 the Plaintiff was carrying out what I interpret was limited and sheltered employment in his parent's business for two hours per day. Dr Gilandas was of the opinion that from a psychological point of view the Plaintiff was at a significant disadvantage on the open labour market and may in fact be unemployable in his current state. In my view that was a most significant conclusion which I accept because, by June 2006 the plaintiff had, in the opinion of his treating and assessing specialists, already reached his maximum state of medical improvement. In his subsequent report dated 11 October 2007 Dr Gilandas re-iterated his earlier expressed views on limitations on the Plaintiff's earning capacity. 91. On 25 July 2006 Dr Klug, a consultant psychiatrist assessed the Plaintiff and considered that he was not totally incapacitated for work but clearly had difficulties in the workplace. In his report dated 14 January 2008 Dr Klug offered the more pessimistic view that, from the perspective of the employability of the Plaintiff, his level of impairment was severe. He noted that the Plaintiff may be totally impaired for employment purposes. I consider Dr Klug's view to be an understatement of the problem facing the Plaintiff with regard to future employment. 92. In his report dated 7 November 2007 Dr Deveridge, a surgeon, expressed the qualified view that the Plaintiff was completely unfit for all work until he made a reasonable recovery from his brain injury, a period about up to two years following his injury, following which the recovery from the physical injuries would permit a gradual and conditioned return to some physical work tasks. That view was expressed to be subject to a need to consider the effects of the head injury which was a matter outside the remit of Dr Deveridge's expertise. I interpret Dr Deveridge's comments on the Plaintiff's work fitness to relate to the neck and shoulder problem from which the Plaintiff had made a good recovery. I find that although the Plaintiff has reached the point of maximum improvement following his brain injury he has not and will not make a recovery from it. As to what constitutes a "reasonable recovery" is obviously a matter of fact and degree. I do not read the opinion of Dr Deveridge to indicate a practical residual earning capacity. 93. In their joint occupational therapy and psychological assessment report dated 23 May 2007 Mr Mark Ravagnani and Mrs Suzanne Miller Ravagnani considered the issue of the Plaintiff's future vocational potential and expressed the view that were the Plaintiff to be placed in the normal work situation where he would be expected to be consistently productive, flexible and reliable he would be likely to experience significant difficulty with these requirements. They expressed the opinion that the Plaintiff should be capable of light, repetitive activities were he to be given regular direction and be closely supervised. They expressed the view that the Plaintiff's future vocational capacity will be limited to part-time supported employment. I infer from their assessment and description that such employment is not employment on the open labour market but rather, represents sheltered employment of uncertain duration with low entry level wages without prospects for advancement. This leaves open the question of whether such limitations on the Plaintiff's employment prospects are likely to be productive of income from a practical perspective. In my view there are no such prospects. 94. The joint Ravagnani report also expressed the opinion that: "Mr Choy's confident presentation, reasonably articulate manner and willingness to work may initially make a positive impression on a potential employer. Although this will perhaps aid him in finding an elementary job (with assistance), the persistence of his other cognitive, mood and motivational problems will mean that he is unlikely to keep a job for long. He would have extreme difficulty with highly stressful, physically demanding or ambiguous work environments, where he must be consistently productive or where he is expected to make decisions or judgments. He would also require an extremely supportive employer given his problems with memory, judgment and motivation. " 95. Although the foregoing opinion took into account the Plaintiff's complaints of neck pain from which he has recovered, in my view the quoted portion of their opinion applies with full and undiminished force to the cognitive, emotional and practical sequelae of the Plaintiff's head injury. In my view this operates as a very significant obstacle to the Plaintiff's future employability. 96. Dr Ross Mellick, a consultant neurologist, examined the Plaintiff on 14 December 2006 at the request of the workers' compensation insurer. He expressed the view that the Plaintiff was capable of resuming work and noted that there is some permanent impairment of the Plaintiff's capacity to work as efficiently as he did prior to his injury. 97. For a number of reasons I reject Dr Mellick's opinion concerning the Plaintiff's fitness to resume employment. These reasons include firstly, the non-specific assessment of there being "some impairment" is of little if any probative value and is of no assistance in reaching a concluded view on the issue under consideration. Secondly, Dr Mellick's opinion was based on the erroneously assumed history that the Plaintiff's work involved what he referred to and what I infer to be the completely unskilled work of packing chicken bones when it in fact the work involved sorting and packing chicken pieces intended to be used in the restaurant trade. That work is of an entirely different character and requires discrimination, concentration and sorting skills. Thirdly, Dr Mellick for whatever reason, obtained an incorrect history that the Plaintiff had also been working as a motor mechanic prior to his injury. In my view this incorrect history is likely to have wrongly influenced Dr Mellick's opinion. Whether or not it did, the significant point is that, inconsistent with whatever Dr Mellick perceived to be the work duties of a motor mechanic, it has been objectively demonstrated by his unsuccessful work attempts that the Plaintiff was incapable of such work and could not even qualify for it. Fourthly, Dr Mellick based his assessment on what I consider to be an inadequate and superficial account of the Plaintiff's presenting problems. Whilst the sparseness of that account was not the fault of Dr Mellick and was probably due to the Plaintiff's over-confident presentation, a degree of depression and limited insight on the day, the fact remains it was misleadingly limited as is evident when it is compared with the more detailed summaries prepared by other doctors who have seen the Plaintiff over time. The relevant part of Dr Mellick's report is at page 2 where in just a few short lines that I find to be inadequately representative of the true position with regard to the Plaintiff's residual disabilities, he wrote: " PRESENT COMPLAINTS Mr Choy said his depression has been a varying condition since the motor vehicle accident and that it is associated with constant slowness of thinking and impairment of memory. These complaints are not associated with disordered or violent behaviour or the specific antisocial activity." 98. Accordingly, I find Dr Mellick's views on the issue of the Plaintiff's work potential to be of no assistance in resolving the employability issue in this case and I reject his opinion concerning his views of the Plaintiff's employability. 99. The Defendant relied upon the opinion of Dr Smith. At page 5 of Dr Smith's second report which was dated 6 December 2007 he expressed the following view on the Plaintiff's employability: "His cognitive functioning is thus less efficient than before the accident. However, he did manage to complete part of his TAFE course and to regain his Driver's Licence for both automatic and manual vehicles. I continue to believe that he should be able to cope with sales work in the automotive industry." 100. In Dr Smith's earlier report, which was dated 28 September 2006, at page 15 he expressed his concluded view on the Plaintiff's work capabilities. That earlier view underpinned the later view and was in the following terms: "Nevertheless he has succeeded in regaining his Driver's Licence for automatic cars and he has since managed to obtain a licence to drive manual vehicles. He seems motivated to work but he has been thwarted by taking on jobs that taxed his intellectual capacities. He should be able to cope with sales work in the automotive industry but to date he has not been able to find such a position. …" 101. I reject Dr Smith's stated opinions on the Plaintiff's capacity to cope with sales work. I do so for a number of reasons. 102. First, the reasoning adopted by Dr Smith is in my view intuitive rather than based on a rational analysis of the tasks required of sales work in the automotive industry co-related to a discussion on the Plaintiff's disabilities and his remaining abilities. On face value it might be thought that the notion of sales work in the automotive industry involves generic tasks that are self-evident and require no further elaboration. In ordinary discourse that may be so. However, in the case of Mr Choy who has a constellation of cognitive, emotional and behavioural sequelae of his frontal lobe brain damage, in my view it is incumbent upon the opinion giver to provide a discussion that co-relates the relevant aspects of the tasks associated with sales and aspects of the Plaintiff's disabilities, for example, without an exhaustive analysis, memory impairment, slowed mentation, impairment of expressive language function or word finding, a degree of disinhibition, tactlessness, irritability, impulsivity, a tendency to abrasiveness, depression, nihilistic thoughts, taking medication to try and control his behaviour, problems with comprehension and even interpreting the meaning of his own written notes. Instead Dr Smith has simply made a prospectively sweeping statement that is not based on a reasoned analysis. 103. Secondly, the opinion does not differentiate the specific categories of sales within the automotive industry. The range of potential positions is very wide and varies from new or used car sales to the selling of new or used parts or accessories. In my view the non-specific nature of the expressed ability to cope with "sales work" renders the opinion to be of little, if any, probative value. 104. Thirdly, in my view the opinion as to the Plaintiff's suggested ability to cope with sales work is glaringly improbable in that his array of emotional, cognitive and behavioural detriments would be most likely to militate against the capacity to successfully cope with such work either at all or on a meaningfully sustained basis because such detriments detract from the Plaintiff's inter-personal skills which in my view are critical to success in any kind of sales position. 105. Fourthly, Dr Smith's opinion appears in an entirely speculative context. In my view none of the materials with which he was provided could legitimately support the view he has expressed concerning the Plaintiff's ability to cope with sales work in the automotive industry. 106. Sixthly, I infer from the extensive efforts of the Brain Rehabilitation Unit in conjunction with Head-2-Work, based as they were in the input of psychologists, rehabilitation counsellors and other skilled persons in the team that directed their efforts at trying to place the Plaintiff in work, that if the Plaintiff in fact had the capacity suggested by Dr Smith in September 2006, those skilled and insightful persons, if they had come to a view similar to that of Dr Smith, would have had the Plaintiff trialled in such work. Further, if the Plaintiff had demonstrated the capacity suggested, I infer this would have been commented upon in the extensive series of detailed reports that were issued by Head-2-Work. Instead, on 7 January 2007 Head-2-Work gave up on their efforts to place the Plaintiff in employment. This is a noteworthy fact because, as Dr Smith has acknowledged, the results of psychological testing to detect malingering in the Plaintiff confirm that the Plaintiff was giving a good effort, which was consistent with his stated motivation to try and find work. 107. Seventhly, Dr Smith's opinion must be based on the products of his interview with the Plaintiff. When looking at the structure of Dr Smith's first report, which was the genesis of his opinion of the Plaintiff's capacity to cope with automotive sales work, it appears that in the one-and-a-half hours of interview Dr Smith had with the Plaintiff, he obtained very little in the way of history and in my view nothing in the record of the history obtained would support the work capacity conclusion proffered by Dr Smith. In fact much of Dr Smith's report is taken up with analysing other materials rather than analysing the significance or otherwise of the history he obtained from the Plaintiff. This leads me to the view that Dr Smith's opinion under consideration is based on a superficial consideration of the issue of work capacity. 108. Eighthly, on the topic of history, Dr Smith recorded the following summary in his report: "On questioning he denied that he was unduly anxious, depressed, irritable or moody … He then said 'sometimes I would get depressed but the next day it would be gone." 109. Two things impress me concerning the abovementioned quote. The first is the apparent glibness and understatement in the summarised history. The second is the complete absence of any analytical discussion from Dr Smith giving consideration to the obvious question of whether or not the reliability of the history given by the Plaintiff could have been afflicted by the Plaintiff's over-confident manner. The problem with the quoted sentence is the unexplained opacity of the descriptor "unduly". Dr Smith has not identified the comparator for this qualification. Perhaps Dr Smith was in a position of disadvantage in examining the Plaintiff because he did not have available to him any before and after reference points such as could be provided by a relative or friend. Be that as it may, in my view the suggested work capacity component of Dr Smith's opinion is undermined by the limitations on his forensic methodology in this case. In contrast I have had the benefit of not only hearing from the Plaintiff in greater detail than his discussions with Dr Smith and I have also had the benefit of the evidence of the Plaintiff's mother and his aunt, which I have accepted, as to the Plaintiff's situation both before and after his injury. 110. For each of the above reasons, alone and in combination, I reject Dr Smith's opinion that the Plaintiff should be able to cope with sales work in the automotive industry. In my view Dr Smith's opinion on the Plaintiff's work capacity is not a reliable expert view according to the well known criteria for such opinions : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 - including the absence of the supporting reasons required by Clause 5(c) of Schedule 7 - the Expert Witness Code of Conduct required by the Uniform Civil Procedure Rules, 2005. 111. The Defendant commissioned on occupational therapy report from Ms Sanja Zeman of Empact Pty Ltd. The report was dated 1 February 2008. The stated purpose of the report was to undertake an assessment of the Plaintiff's living arrangements, the Plaintiff's current status and treatment requirements and to provide recommendations regarding the Plaintiff's current functional abilities and limitations. 112. There was no specific request for her to undertake an evaluation of the Plaintiff's capacity for employment. At pages 30 to 31 of her report Ms Zeman provided a discussion of vocational related and employment activities. She undertook what appears to be a statistical and demographic vocational analysis relating to the Plaintiff's age cohort and remarkably, suggested or recommended for the Plaintiff the job options of store person, tyre fitter and repairer and light vehicle motor mechanic. She also suggested that with additional supervision and training the Plaintiff's job opportunities may extend to photographic developer and printer, general gardener and library assistant. I find these suggestions to be entirely theoretical, speculative and without practical application to the Plaintiff's circumstances and true capacity. These recommendations appear to me to be proffered without transparent reasoning to demonstrate their relevance and appropriateness to the Plaintiff's situation. I therefore reject that component of Ms Zeman's opinion : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705. 113. Having taken into account all of the surveyed opinions on the issue of the Plaintiff's future work capacity, I have reached the conclusion that the Plaintiff has been left in the position of having no significant or measurable residual earning capacity. I therefore find that his damages for future loss of earning capacity should be assessed on the basis that he is permanently unemployable. I am reinforced in this view by the documented lack of success experienced by the rehabilitation provider Head-2-Work had in trying to place the Plaintiff in mitigatory employment between 2004 and 2007 in addition to the Plaintiff's own family being unable to find him a lasting and non-sheltered productive position in their company. 114. When the Plaintiff was cross-examined about his future work intentions he indicated that he would most likely get a factory job or perhaps run his own business. The Plaintiff agreed that there were a number of physical jobs tasks that he could perform including digging ditches. In my view the Plaintiff's evidence of his conceded potential work capacity was lacking in insight, largely inconsistent with medical opinions I have accepted and was based on a feature of his brain injury, namely an attitude of inappropriate or misplaced over-confidence, a characteristic of the Plaintiff that has been remarked upon by a number of assessing doctors. This merely serves to confirm my view that the Plaintiff has no practical or exercisable residual earning capacity that is likely to result in him deriving remunerative employment. 115. I therefore find that his damages for future loss of earning capacity fall to be assessed as if he were totally and permanently unemployable. I find that the projection of that loss should be extended to the conventional retirement age of 65 although I note the current community trend is for people to remain in the workforce for longer than to age 65. In my view there is no reason to depart from the application of a conventional discount of 15 percent on account of potential adverse vicissitudes. 116. In my view the appropriate sum representing the Plaintiff's future loss of earning capacity is $960 per week net as identified by Mr Kahler. The projection of $960 per week net at 5% over the remaining 42 years of his working life to age 65 (x 931.6) yields the amount of $894,336. After making the appropriate allowance for the impact of potentially adverse vicissitudes assumed in the conventional discount of 15 percent, this yields the resultant sum of $760,185 and I assess the Plaintiff's damages for future loss of earning capacity in this amount. Loss of past employer funded superannuation contributions 117. Consistent with my finding that in the period 30 May 2004 to 28 July 2008 the Plaintiff has lost earning capacity in the sum of $175,951 it is necessary to assess the value of the past loss of employer funded superannuation benefits. The convention is that in the absence of actuarial evidence of that loss, 11 percent of the net sum awarded for past loss of earning capacity is taken to represent the loss for this head of damage. Accordingly, 11 percent of $175,951 is the equivalent of $19,354 and I assess the Plaintiff's entitlement to past loss of employer funded superannuation benefits in this amount. Loss of future employer funded superannuation contributions 118. Consistent with my findings in respect of past employer funded superannuation losses net it is necessary to assess the value of the loss to the Plaintiff of future employer funded superannuation benefits, I apply a similar convention of 11% of the net sum awarded for future loss of earnings to represent the loss for this head of damage. Accordingly, 11 percent of $760,185 is the equivalent of $83,620. I therefore assess the Plaintiff's damages for the value of past loss of employer funded superannuation benefits in the amount of $83,620. Past gratuitously provided domestic care services The claim 119. The Plaintiff makes a claim for the value of past domestic and attendant care services that were provided to him by members of his family. The claim consists of two components within the overall period between the time the Plaintiff was discharged from hospital on 7 April 2004 and the date of the commencement of the trial on 28 July 2008. 120. The first component of the claim relates to the period of 38 weeks between 7 April 2004 and 31 December 2004 during which time a claim is made for the value of 12 hours of care services per day at the claimed rate of $23 per hour in the submitted total sum of $73,416. 121. The second component relates to a period of 197 weeks between 1 January 2005 and the commencement of the trial on 28 July 2008 during which time a claim is made for the value of 15 hours per week at the claimed rate of $23 per hour in the corrected submitted sum of $64,170. I use the term corrected sum because there were some computation errors in the submissions. 122. The total amount claimed by the Plaintiff in respect of these two components of the claim for past care is in the corrected submitted sum of $137,586. 123. The claim in respect of both component periods is based on the premise that following his discharge from hospital the Plaintiff required the provision of daily care to the level claimed. The evidence in support of the claim came from the Plaintiff, his mother and his aunt. 124. In the Defendant's final submissions it was acknowledged that there was no doubt that "in the first year or so" following his injury the Plaintiff would have required considerable assistance from his family. 125. The Defendant submits that for this first period between the date of his discharge from hospital on 7 April 2004 and for the balance of that calendar year, the Plaintiff is entitled to an allowance of 21 hours per week at the rate of $21 per hour. It was submitted that this revealed the Plaintiff's entitlement to damages for domestic and attendant care services in 2004 to be in the sum of $16, 758. That amount is a vastly different sum to the amount claimed by the Plaintiff in respect of this first period, namely $73,416. 126. The difference in these two submissions is not accounted for by the simple $2 difference contended for by the parties in respect of the claimed hourly rate. It is therefore necessary to review the evidence because in my view both parties have taken an incorrect approach to the assessment of this head of damage. I consider the Plaintiff's approach to be over-simplistic in two respects. 127. First, there has been no allowance made for an offset in the submitted calculation to reflect the fact that during the first period of 7 April 2004 and 31 December 2004 the Plaintiff was not at home being cared for all of the time. In fact the evidence discloses that he was not at home for a number of undefined hours per week over an indeterminate number of weeks, whether consecutive or not, whilst he attended appointments, rehabilitation and a TAFE course. This is a circumstance that requires an offset from the claimed hours advanced on behalf of the Plaintiff in that first period. That task is rendered very difficult because although the evidence is that the Plaintiff's TAFE course required him to attend on 3 days per week, the evidence also discloses that he had frequent absences from such required attendances. 128. Secondly, neither party's submissions reflect the mandatory effect of an application of s.128 of the Motor Accidents Compensation Act, 1999 which requires, notwithstanding that the actual hours of attendant care services provided to the Plaintiff may have exceeded 40 hours per week, the amount awarded as compensation for such services must not exceed the maximum statutory rate of 40 hours per week : s.128(4)(a) of the Act. On a purposive interpretation of s.128(4)(a), the hourly rates proffered by the parties are numerically non-compliant with the mandatory requirements of s.128(4)(a) which states that compensation for this head of damage "must not exceed" the rate specified from time to time by the Australian Statistician. In the case of the Plaintiff's proffered rate of $23 per hour, it exceeds the specified rate in all but one of the relevant periods. In the case of the Defendant's proffered rates, these slightly exceed the specified rates in respect of part of the period and under-assesses the value of the services in respect of the majority of the period. Normally the parties would be in agreement as to the rates to be used for this aspect of the assessment but that was not the case here. 129. Whilst the relatively small differences in rates may be a justification for an application of the maxim de minimus non curat lex, or for taking a roughly calculated average figure for practical purposes, until otherwise advised, I am bound to apply the provisions of s.128(4) so as to ensure that the statutory rate is not exceeded when awarding compensation to which s.128 of the Act applies. I have therefore set out the details of the relevant rates and calculations in Tables 1 and 2 that are appended to my reasons for judgment. Analysis of the claim for past-care – Period 1 : 7 April 2004 to 31 December 2004 130. The starting point for the review I am required to undertake is the evidence of the Plaintiff's mother. Her evidence was to the effect that before his injury the Plaintiff attended to his own washing, tidying, cleaning and vacuuming. Counsel for the Defendant cross-examined the Plaintiff's mother and asked whether she had come to court to exaggerate the difficulties her son had experienced since his injury. She denied that suggestion and the question was not followed up with any further questions along that line or with any contrary evidence. Her evidence was not shown to be improbable, unlikely or internally inconsistent. I am satisfied that her denial of the suggestion of exaggeration was truthful and I accept her description of the Plaintiff's pre-injury domestic situation. It follows, from my review of the services that were actually provided to the Plaintiff after his injury, that I am also satisfied that the services claimed by the Plaintiff would not have been provided to him even if he had not been injured : s.128(2) of the Act. 131. Whilst a superficial review of the Brain Injury Rehabilitation Unit discharge summary may suggest the Plaintiff was capable of independent self care when discharged on 7 April 2004 that must be seen as a relative statement. I do not take the statement on discharge to mean that the Plaintiff was not in need of domestic attendant care services when he was discharged home. On the contrary, he had to make major adjustments following his injury and I find he required ongoing supervision and assistance to achieve this for his day to day existence. The Plaintiff developed depression, he had memory problems, difficulties with expressive language and a constellation of other problems to which I have already referred. In my view these matters provide ample justification for the need of such assistance. 132. Following my review of the medical evidence in this case I am satisfied that the Plaintiff required a great deal of domestic care and services during 2004. This view is reinforced by the evidence of the Plaintiff's mother, his aunt and the concession fairly made by the Defendant and which I have already cited. I reject the unexplained and unreasoned view to the contrary expressed by Dr Smith at the conclusion of his report dated 28 September 2006 to the effect that the Plaintiff's capacity to cope with domestic chores has not been affected : Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 133. The Plaintiff said that during the first period of the claim for services his mother was working between Mondays and Fridays so her sister, his aunt used to care for him and provided him with domestic care assistance. The Plaintiff described how his aunt used to arrive at the Plaintiff's house between 9.15am to 9.30am on weekdays and would leave at about 7.00pm. He described how his aunt used to massage his muscles to improve his circulation. I infer from this evidence that such activity was directed to relieving symptoms in his neck and shoulders which were problematic for him for some time after his injury. The Plaintiff apparently slept a lot during the day but obviously attended appointments, rehabilitation activities and his TAFE course. This was not explored in much detail in the evidence. However, having regard to the sequelae of the Plaintiff's traumatic brain injury, I am satisfied that the Plaintiff was not in a position where he could be reasonably left alone and unsupervised on his discharge from hospital and for some time afterwards. This was because the Plaintiff had problems with motivation and needed prompting to do things, including prompting to eat, to attend to matters of hygiene and other matters. These and the other attendances the Plaintiff received were in my view injury caused needs that required the provision of domestic attendant care services. 134. In her evidence the Plaintiff's aunt said that when she attended the family home it was to look after the Plaintiff's daily living needs which included preparing his meals. She said, and I accept, that her weekday attendances were between 9.30am to 7.30pm. This is the equivalent of 10 hours per day, not the claimed 12 hours per day. The weekday total of the aunt's attendances was 50 hours per week. 135. In this time she was responsible for rousing the Plaintiff to ensure he did not sleep too long, she made his breakfast, supervised his medications which he took several times per day, monitored his mood and emotional state, made his lunch, tidied the place up after him after his lunch whilst he had a nap and then prepared his dinner. She was responsible for his three daily meals as well as his medications. She also took him for walks to the park and back and provided him with general supervisory support. This latter activity was significant as the Plaintiff was prone to lose his way if he journeyed alone. She related how he had a poor memory, did not speak much and wanted to be alone. She also described how he was slow to react to things and did not respond appropriately to questions in conversation. He was forgetful of having had meals and needed supervision for both eating and being prevented from over-eating because he would forget that he had already eaten. She remained present in a supervisory role, for example, whilst the Plaintiff took a 2 hour nap in the middle of the day. I accept the foregoing factual description extracted from the evidence of the Plaintiff's aunt. I also accept her evidence on this regime of attendances. 136. I find that the services described were all reasonably required by the Plaintiff as a consequence of his injuries which created the need for such services. Although a superficial analysis of the aunt's evidence conveyed the impression that she attended to the Plaintiff's needs in this way on each and every weekday, I consider such a literal interpretation to be unduly narrow in this case. I accept that she carried out the duties she described but I infer that there were some variations on the range of daily activities depending upon the exigencies and requirements of the day. 137. The Plaintiff's aunt said she attended to the Plaintiff in this way for about a year. In my assessment this evidence paints a picture of a young man recovering from frontal lobe brain damage and who could not be left alone during this phase of his recuperation notwithstanding that he was assessed to be well enough to be discharged from the Brain Injury Rehabilitation Unit. This was especially so because of the Plaintiff's depression and nihilistic thoughts. I find that it was reasonable for the Plaintiff's mother and aunt to be concerned to ensure that he was not left alone and that he was responsibly supervised and cared for in this period in the manner described in their evidence. There would also have been many treatment and therapy sessions to which the Plaintiff would have been taken in this period in addition to his attendances at TAFE. I note that his driver's licence was cancelled after his injury and was not restored to him until April 2005. 138. In infer from the detailed evidence of the Plaintiff's aunt as to the nature and extent of the "hands on" services as well as the supervisory and organising services she provided to the Plaintiff on weekdays in the first period that he required no lesser degree or extent of attention, supervision and assistance on the weekends in the same period albeit that on the weekends this was provided by his parents and siblings, mainly by his mother. On the basis of that inference this indicates that the Plaintiff was provided with about 70 hours per week in respect of such services. The weekly hours were probably greater than 70 as the Plaintiff would also have required additional supervisory services in the evenings in the period after his aunt had left the house and before he went to sleep. Examples of those additional evening services are meal supervision, hygiene and prompting of activities. In relation to those additional hours I infer that the Plaintiff would most probably have received additional services for an hour or so but as there was no direct evidence of this I will not speculate further in this regard. 139. The Defendant made no submissions on an apparent discrepancy that emerged within the detail of the claim as it was advanced on behalf of the Plaintiff for attendant care services based the evidence of the Plaintiff's aunt. The Plaintiff's aunt said she provided the services she described from the time he was discharged from hospital until the end of 2004. Nowhere in her evidence or in the submissions was there factored into the analysis an offset for the time the Plaintiff would have spent away from home whilst he was at TAFE in 2004. The state of the evidence does not permit me to reconcile the discrepancy. The evidence having closed, this discrepancy gives rise to a number of options for assessment: (a) Reject entirely as unreliable the evidence of the Plaintiff's aunt as to the extent of the services she provided as her evidence does not deal with the indisputable fact that the Plaintiff was absent from the house on an unstated number of days over an unstated number of weeks in an unknown pattern whilst he attended his TAFE course; (b) Discount part of the evidence of the Plaintiff's aunt as to the extent of the services she, and therefore by inference, the Plaintiff's family provided to him in the first period between 4 April 2004 and 31 December 2004; (c) Find I am not satisfied as to the evidence concerning the quantification of this aspect of the Plaintiff's claim and therefore award no damages for this part of the claim; (d) Simply accept the Defendant's monetary concessions made in submissions concerning the quantification of the amount for this head of damage. 140. To adopt course (d) and to simply accept the Defendant's submissions would, in my view, lead to an obvious undercompensation of the Plaintiff and therefore an injustice to the Plaintiff. To adopt course (c) and make no award for the value of past services would also lead to an injustice to the Plaintiff because although the problem of the state of the evidence presents some difficulty for assessment, it does not create an insurmountable obstacle as the evidence is amenable to identifying some sort of reasonable assessment. To adopt course (a) and simply reject the evidence of the Plaintiff's aunt would in my view also lead to an injustice to the Plaintiff because the Plaintiff's aunt gave evidence through an interpreter and the Court is in a diminished position of advantage to assess the demeanour and integrity of a witness in such circumstances where the scope exists for misunderstanding or for some important detail to be lost in translation. Another reason for not taking this course is the inherent reasonableness of the aunt's description of the services she provided and which calls for an assessment to be made. Yet another reason is the fact that at the relevant time the Plaintiff had obvious deficits which gave rise to a reasonable and identifiable need for supervision and services. This is a compelling reason for attempting a broad but discounted approach to the assessment of this head of damage and to therefore follow course (b). That is the approach I will adopt. 141. In respect of the services described by the Plaintiff, his aunt and his mother, I am satisfied that they were provided necessarily in order to meet the injury created need in the Plaintiff consequent upon the disabilities he has been left with following his head injury : Griffiths v Kerkemeyer [1976-1977] 139 CLR 164. 142. On an acceptance of the evidence of the Plaintiff's aunt and his mother I find that in the period 7 April 2004 and 31 December 2004, a period of some 38 weeks, the Plaintiff was provided with a considerable number of hours of domestic assistance, care services on weekdays and on weekends which he reasonably required as a consequence of the disabilities due to his brain injury. On the assumption that the services were generally provided for 10 hours per day or 70 hours per week as contended for by the Plaintiff, and which I accept, the tally of those hours is something of the order of 2,660 hours in respect of the first period. Doing the best I can on the state of the evidence on this topic which is of some importance to the parties, I have decided to take a practical course and discount those hours by forty percent to reflect the fact that the Plaintiff was absent from home attending at TAFE and related requirements for some of this time. This results in a finding that about 1,600 hours of services were provided to the Plaintiff by his aunt and family in respect of the first period and which requires monetary assessment. 143. When this figure of 1,600 hours is divided by 38 weeks it reveals the analysed hours to be no less than 42 hours per week. The purpose of such a pseudo-mathematical exercise is to demonstrate that on the balance of probabilities a proper basis exists for being satisfied that in the first period the Plaintiff received more than 40 hours per week of such services. I find that a proper basis is shown. This leads me to the view that in respect of the first period the Plaintiff should be awarded damages for past services in the maximum amount permissible under s.128(4)(a) of the Act. 144. Table 1 appended to these reasons reveals the value of such services and assistance for the first component of the Plaintiff's past care claim to be $30,384. I therefore reject the Defendant's submission to the effect that such services for this period should be valued at $16,758. Analysis of the claim for past care– Period 2 : 1 January 2005 to 28 July 2008 145. The evidence of the Plaintiff's aunt was that the care and services she provided to the Plaintiff and as outlined in the first period above continued on into the second period for about a year. Taken literally this indicates that the level of services described would have continued for about another 12 weeks into 2005, namely until about April 2005. In my view that analysis of the evidence is overly simplistic and has to be tempered and reconciled with the objective evidence of the fact that the Plaintiff undertook periods of albeit limited attempts at employment as an apprentice motor mechanic in January 2005. 146. In respect of this second component of the Plaintiffs claim for services, that is, between 1 January 2005 and 28 July 2008, the claim is for a reduced number of hours per week, namely, 15 hours per week or a little over 2 hours per day. In my view this reduction in the extent of the time taken to provide necessary services to 15 hours per week is reasonable and is consistent with a level of improvement and plateauing of the Plaintiff's condition and a progressive concomitant lessening in the Plaintiff's need for attendant care services. In 2005 the reduced hours claimed were probably also due to the Plaintiff regaining his licence, his attendances at the Head-2-Work organisation and participating in work trials where he would have been supervised by others. However, he still needed prompting for hygiene, he was depressed and his use of alchohol needed to be addressed through supervision. I am satisfied that the Plaintiff received services of the kind claimed in respect of this second period for an average of 15 hours per week over this period. 147. At the Plaintiff's claimed rate of $23 per hour for 15 hours per week over 186 weeks between 1 January 2005 to 28 July 2008 this results in a claim of $64,170. 148. In respect of this second component period the Defendant concedes that the Plaintiff is entitled to damages for domestic assistance for an average of 3.5 hours per week at the rate of $22 per hour yielding a calculation of $14,390 for this period. This is in contrast to the Plaintiff's corrected claim for $64,170 for the same period. Whilst I find that the hours in this period are identified by the Plaintiff reasonably at 15 hours per week the rates require re-calculation at the correct applicable mandatory rates pursuant to s.128(4) of the Act. I have set out those calculations in Table 2 appended to these reasons. On that basis the monetary assessment for the second period is in the amount of $60,974. Defendant's occupational therapy report 149. In arriving at my assessments of the need for past services I have been mindful of the opinions of Ms Zeman on these issues. I consider Ms Zeman's views to carry little weight in the evaluative exercise I have had to undertake. I have reached this conclusion for a number of reasons. 150. First, the focus of Ms Zeman's assessment was that of functional capacity which did not include a significant consideration of the cognitive, emotional and behavioural issues that generated the need for such services. Secondly, the assessment was based on the history from the Plaintiff without commentary from his family members and without any allowance for the factor of the Plaintiff's over-confident presentation. In my view this has lead to an overly optimistic and therefore misleading picture of the Plaintiff's abilities. Thirdly, minimal regard has been had to the fact that the Plaintiff exists in a structured family environment which allows him to function with appropriate prompting. Fourthly, her observation of the Plaintiff's rudimentary use of kitchen appliances in a safe manner and his ability to prepare simple meals is a superficial analysis. This does not mean the Plaintiff is competent to manage and maintain his own home and routine and plan for these matters without prompting and assistance. Ms Zeman's acknowledgment at paragraph 10.12 of her report that the Plaintiff should have the benefit of interventions for planning, task execution, supervision and monitoring of task performance supports this view. So too does her observation that the Plaintiff's residence was messy and disorganised. The impression Ms Zeman gives of the Plaintiff using a functioning kitchenette in his quarters is given relevant context when taken together with the fact that there is no stove in that kitchenette. In my view, the fact that the Plaintiff has poor motivation for task performance and needs prompting, as is acknowledged by Ms Zeman , undermines the general tenor of her opinion. For these reasons I do not accept her views on the Plaintiff's level of need for either past or for that matter, future services. Instead, I prefer the multidisciplinary joint views as expressed in the Ravagnani report which I accept. Summary of assessment of claim for past domestic care services 151. For the reasons outlined above my assessment of the Plaintiff's entitlement to damages in respect of the first period is $30,384 and my assessment of the Plaintiff's entitlement to damages in respect of the second period is $60,974. This results in a total assessment for damages for past domestic attendant care services in the sum of $91,358. Future domestic assistance 152. The plaintiff makes a claim for the cost of future domestic or attendant care services. The basis of that claim is found in section 5.7 of the report of Mrs Miller Ravagnani in which she surveys the activities of daily living that would ordinarily be expected of a non-disabled person and which in her opinion requires the provision of regular paid services were the Plaintiff to live independently of his family. The services in question relate to housework, meal preparation, menu planning and shopping, garden and lawn care, home maintenance and spring cleaning. In the tabulated analysis of these issues in her report she estimates that such activities would require a total of 414.5 hours per annum which is the equivalent of 8 hours per week. The question to be determined is whether the Plaintiff in fact requires such assistance and to such an extent. 153. The Defendant submits that the Plaintiff needs little in the way of future domestic assistance and this should be assessed at no more than 2 hours per week. That submission seems to be based on the report of Ms Zeman of Empact Pty Ltd. The basis of Ms Zeman's opinion in this regard is evident in the summary table at paragraph 11.6 of her report at page 34. She appears to have taken the Plaintiff's own statement that he was able to manage tasks at face value without making allowance for the Plaintiff's over-confident attitude, his word finding difficulties and the other difficulties that relate to his frontal lobe disorder. She clearly has not taken into account the content of the evidence of the Plaintiff's aunt and his mother. In my view her analysis is over-simplistic and internally inconsistent. On the one hand she states the Plaintiff does not need assistance with, for example, housekeeping and bedroom maintenance, yet in contrast, and inconsistently, at paragraph 10.12 she noted her observation that the Plaintiff's residence was messy and disorganised. She also refers to the Plaintiff's needs for occupational therapy for planning for task execution, supervision, and monitoring of task performance. She noted he needed prompting with tasks. She appears to have paid little or no regard to the Plaintiff's problem with motivation to engage in task performance due to loss of executive function associated with his frontal lobe problems. For these reasons I find Ms Zeman's opinions and report unreliable on the issue of the Plaintiff's future care needs. I do not accept Mr Zeman's opinions on the levels of future care and assistance required by the Plaintiff. 154. Instead I prefer and accept the estimate within the Ravagnani report. In my view that estimate is inherently reasonable when examined against the tasks required. 155. I find that the Plaintiff's ongoing cognitive, emotional and behavioural problems, together with his depression will in combination preclude him from properly attending to and carrying out his day to day housework, shopping, cooking and attending to ordinary household tasks and home maintenance tasks that he would normally have attended to himself without prompting if he were not injured. 156. I consider that the above tasks which Mrs Miller Ravagnani has described would readily occupy at least 8 hours per week. I therefore allow 8 hours per week for future domestic and attendant care assistance on an ongoing week-to-week basis. I am satisfied that uninjured, the Plaintiff would not have needed to have paid for such assistance. Further, I am of the view that 8 hours per week is a conservative estimate because it makes no allowance for the prospect that the Plaintiff may not always be in a position to drive a motor vehicle. At section 5.9 of her report Mrs Miller Ravagnani raises for consideration an issue that whilst the Plaintiff drives a motor vehicle he displays some behavioural and cognitive features that are of concern. These concerns include difficulty with community orientation, which in the context I take to mean recognising his perspective relationship with those around him, and his difficulty in moderating his behaviour which leads to "road rage". I consider Mrs Miller Ravagnani's expressed concern to be a realistic one. If the Plaintiff did lose his licence on account of such factors, which I consider to be a real but unquantifiable possibility, then his need for additional future assistance in the form of driving him to and from where he needs or reasonably wants to go would considerably increase this need beyond the estimated 8 hours. 157. A question that falls to be determined is whether the allowance for future care should be costed to apply at the present time or be deferred to some future date. Although the Plaintiff gave Ms Zeman the impression he would not be leaving home in the near future I feel that view is an unsafe assumption. I think this is so because of the state of tension between the Plaintiff and other members of the household and the evidence of a deteriorated state of the relationship with his mother. I believe it to be in the Plaintiff's best interests to establish his supported independent living environment as soon as practicable and make the necessary and inevitable adjustment to it as soon as is possible and I therefore assess his damages on that basis without deferring the calculation. 158. The parties have agreed that the applicable rate for the assessment of this head of damage is $35 per hour. The projection of $35 per hour for 8 hours per week which is the equivalent of $280 per week which, at 5% over 62 years (x 1017.5) yields an amount of $284,900. 159. The Plaintiff has submitted that the amount assessed for future care should be discounted by 15 percent. I do not accede to that submission for two reasons. First, I consider that such an approach would involve impermissible double discounting as the 5% actuarial discount tables already incorporate a discount factor and, secondly, the concerns raised by Mrs Miller Ravagnani relating to the Plaintiff's driving contraindicate and serves to counterbalance the appropriateness of any discount. 160. I therefore assess the Plaintiff's damages for future domestic or attendant care at $284,900. Future treatment 161. I find that as a consequence of his injuries the Plaintiff will need to incur future expenditure when he obtains treatment from time to time in respect of a number of required treatment modalities. These include general practitioner consultations, consultations with a psychiatrist, consultations with a psychologist, medications of various types and periodic review by the Brain Injury Rehabilitation Unit. I will review these issues in the ensuing paragraphs. General practitioner consultations 162. Notwithstanding that the evidence does not directly or specifically identify a need for the Plaintiff to have future consultations with a general practitioner, I find that the Plaintiff has an obvious need for such services. For example he has been prescribed the psychotropic and neuroleptic medications Avanza and Epilim and he suffers from depression. I infer from this fact that he will need to be periodically reviewed and monitored by a general practitioner to have prescriptions renewed from time to time and for the general practitioner to consider whether he needs any other referrals to specialists or other treatments from time to time, including any re-assessment by the Brain Injury Rehabilitation Unit. 163. In these circumstances, although there was no costing evidence tendered to guide me in the monetary assessment of this need, I consider that an allowance for three consultations per annum with a general practitioner at a cost of $50 per consultation would be a reasonable way of addressing these needs. This is the equivalent of $2.88 per week which, when projected over 62 years at 5 percent ( x 1017.5) yields the amount of $2,916. Consultations with a psychiatrist 164. The Plaintiff suffers from depression and experiences bouts of anger triggered by unpredictable external factors that cause him to become frustrated. This is a permanent feature of his condition. Dr McClure describes the Plaintiff as having a major depressive disorder in partial remission. He takes medication to address this. This indicates to me that the condition may not always be in partial remission. He has expressed suicidal ideas in the past and has nihilistic thoughts. He also has frontal lobe brain damage with impaired executive functioning. 165. In my view the Plaintiff's circumstances justify a reasonable provision being made for him to have ready access to the opportunity for regular consultations with a psychiatrist to assist with the review, monitoring and management of these conditions and their resulting behaviours especially since he has had suicidal thoughts in the past and he thinks obsessively. There is also a need for professional monitoring of the appropriateness or dosage of the Plaintiff's prescriptions for psychotropic and neuroleptic drugs such as his current medications of Avanza and Epilim or any alternatives that may be thought to be appropriate to be prescribed for him from time to time over the course of the Plaintiff's remaining lifetime. 166. Notwithstanding that there is no direct evidence of the current cost of consultations with a psychiatrist, doing the best I can to be fair to the Plaintiff and not unfair to the Defendant, I assess the Plaintiff's need for such services to be reasonably addressed by allowing two referred monitoring consultations per annum with a consultant psychiatrist at a cost of $200 per consultation which is the equivalent of $7.69 per week. I have selected two consultations per annum recognising that the Plaintiff will most probably be seeing a psychologist separately and probably with greater frequency, however a psychiatrist will still need to see him for medical review for the appropriateness of the prescriptions and dosages of his medications. The projection of $7.69 per week over 62 years at 5 percent (x 1017.5) yields the amount of $7,824. Psychologist consultations 167. The Plaintiff claims an allowance should be made for the cost of future consultations and treatment sessions with a psychologist for 20 one hour sessions per annum at a cost of $120 per hour for the next 30 years of his life. This is the equivalent of $46.15 per week. The need for future consultations with a psychologist is supported by the opinion of Dr Andrew McClure, a psychiatrist and Medical Assessor retained by the Motor Accidents Authority. At page 9 of his report Dr McClure recommends treatment consisting of regular clinical psychology consultations for the Plaintiff's condition of permanent major depressive disorder in partial remission. Dr Smith, who reported for the Defendant, also supports the need for future consultations with a psychologist. 168. The Defendant submits that an allowance of $5,000 which ought also cover future occupational therapy reviews should be sufficient compensation to meet any such need of the Plaintiff which suggests to me that it is acknowledged that the Plaintiff is in need of psychological treatment and it is the frequency and therefore the amount which is at issue. I consider an allowance of $5,000 to cover the Plaintiff's needs for consultations with a psychologist and for the services of an occupational therapist to be an inadequate allowance to address the Plaintiff's needs in this regard. 169. There is no evidence as to the current cost of a consultation with a psychologist however a comparison of the claim for $120 per hour when measured against $135 for the hourly cost for the services of a Case Manager leads me to the view that the rate of $120 per hour is reasonable. 170. In my view the claimed frequency of 20 visits per annum may be excessive. I consider it reasonable that the Plaintiff see a psychologist to have the opportunity to vent his frustrations in an appropriate professional setting so that he can receive guidance and instruction on strategies to manage his behaviours, his depression and issues concerning his inter-action with others. Doing the best I can to be fair to the Plaintiff whilst not being unfair to the Defendant, I consider that an allowance of a monthly visit to a psychologist as a lifetime average would be reasonable. I do not understand the basis for limiting such consultations to a 30 year projection period as the visits to a psychologist relate to permanent behavioural issues that arise from the Plaintiff's head injury and are unlikely to abate by cure and will therefore require ongoing palliative attention for management. Twelve visits to a psychologist at $120 per visit is the equivalent of $27.69 per week. 171. The projection of $27.69 per week over 62 years at 5 percent (x 1017.5) yields the amount of $28,174. Physiotherapy, massage and acupuncture 172. The Plaintiff claims an allowance should be made for the cost of future treatment from a physiotherapist, massage therapist or an acupuncturist for 12 one hour sessions per annum at a cost of $90 per hour over the Plaintiff's remaining lifetime. This is the equivalent of $20.76 per week. There is no evidence to support that submission. Further, the Plaintiff's neck and shoulder problems have resolved years ago. Therefore, it would appear that there is no reason to make any allowance for such services or treatment. I therefore accept the Defendant's submission that the Plaintiff does not have an injury based need for such services and I therefore make no allowance for these services. Occupational therapy reviews 173. The Plaintiff claims an allowance should be made for the cost of future reviews by an occupational therapist consisting of 6 one hour sessions every three years at a cost of $135 per hour over the Plaintiff's remaining lifetime. This is the equivalent of $5.19 per week. That submission is based on Section 5.10(c) of the report of Mrs Miller Ravagnani which suggests an occupational therapy assessment of 4 hours per year at a rate of $135 per hour which is the equivalent of $10.38 per week. Mrs Miller Ravagnani identifies the basis as providing a benefit in the nature of what I consider to be the diversional therapy goals, namely leisure activities the identification of which would enhance the Plaintiff's life and allow maximum enjoyment. 174. I would not allow this amount simply on the suggested basis of a benefit to the Plaintiff as to do so appears to be impermissible and the Plaintiff is already being compensated for non-economic loss in respect of the loss of enjoyment of his life. However, I allow the sum I have identified on the basis of reasonable diversional therapy aimed at distracting the Plaintiff from his depression, nihilistic thoughts and obsessive and impulsive behaviour including the ever present potential for him to resort to alcohol and gambling which have been problems for him in the past following his injury. This relates to an injury related need rather than a benefit. 175. On the other hand the Defendant submits that an allowance of $5,000 ought to cover the likely cost of both future occupational therapy reviews as well as consultations with a psychologist. I have already rejected that submission in my assessment of the Plaintiff's damages for the cost of future consultations with a psychologist and I also reject it insofar as it applies to this component of the claim for occupational therapy consultations. I consider the Plaintiff's claim to be reasonable. I also note that the Defendant's own occupational therapist recommends occupational therapy consultations at a cost of $1,300 per annum or $25.38 per week. In my view this confirms the inherent reasonableness of Mrs Miller Ravagnani's recommendations. 176. The projection of $10.38 per week over 62 years at 5 percent (x 1017.5) yields the amount of $10,561. Medications 177. The Plaintiff's treating rehabilitation specialist, Dr Veerabangsa has noted that the Plaintiff is currently prescribed Epilim 200mg twice daily and Avanza 60 mg at night to assist him with his anger management issues. Dr Veerabangsa also noted that these medications require review. He noted that the Plaintiff's earlier attempt to cease medication resulted in a return of increased anxiety, anger and low mood. I infer from this evidence that in order to try and achieve some sort of stability in his emotional state the Plaintiff will continue to require such medication or its equivalent for the remainder of his lifetime. In their respective submissions the parties both agree that an allowance of $5 per week should be made for the likely future cost of medications. The projection of $5 per week over 62 years at 5 percent (x 1017.5) yields the amount of $5,087. Summary of future treatment costs 178. The foregoing allowances for the Plaintiff's future treatment costs total $54,562. Taking a global view of the components of that aggregate sum on first glance it may be thought that an allowance should be made for contingencies and the potential for a slight overlap of the respective costs and services. On the other hand, the conditions calling for treatment may get worse and require more intensive and therefore more costly treatment. I therefore do not propose to round this sum down and I assess the Plaintiff's entitlement to damages for future treatment costs in the sum of $54,562. Case manager 179. The Plaintiff makes a claim for the lifetime cost of the services of an independent case manager at an average frequency of 1.8 hours per week at the rate of $135 per hour which is the equivalent of $243 per week. This component of the claim is based on the recommendation of Mrs Miller Ravagnani at Section 5.29a) of her report dated 27 May 2007 in which she has expressed the opinion that the Plaintiff will require this category of assistance for 8 hours per month to ensure that he has adequate access to the appropriate services and assistance to address his needs in a comprehensive, co-ordinated and consistent manner to meet his changing needs over time. Given the nature of the Plaintiff's disabilities I consider this to be a reasonable recommendation directed at fulfilling an injury caused need. The projection of $243 per week at 5 percent over 62 years (x 1017.5) yields the amount of $247,252. I consider that it is inappropriate to discount this amount for adverse vicissitudes as has been suggested on behalf of the Plaintiff as I consider that in this case the vicissitudes are more likely to operate adversely to the Defendant, that is, the Plaintiff's condition could lead to entrenched and challenging behaviours which would then operate to increase his need for such services. I therefore assess the Plaintiff's entitlement to damages for case management services in the sum of $247,252 without further discount. Drop-in supervision by Case Manager 180. The Plaintiff claims the cost of ad hoc or drop-in supervision under the vigilance of a Case Manager for 12 hours per week at a cost of $37.95 per hour. This claim is based on the recommendation of Mrs Miller Ravagnani in Section 5.2(a) of her report dated 27 May 2007. The rationale for the claim is that the Plaintiff needs to be monitored in the areas of domestic, social, financial, emotional, transport and community orientation, which I take to mean a check on his relations with those around him, as well as his medical and nutritional needs. It is proposed that such drop-in vigilance be initially staged at 4 hours per visit on three days per week with the possibility that the need for this service will increase in the future. 181. Mrs Miller Ravagnani's reasoning for this recommendation in a case such as this where the Plaintiff's brain damage affects so many areas of his life seems unremarkable and appropriate to the Plaintiff's situation and I accept her opinion in this regard. However, what is remarkable is the discrepant hourly cost between this type of care manager, i.e. $37.95 per hour, and the other case management recommendation aimed at ensuring that the other services required by the Plaintiff are, as Mrs Miller Ravagnani described it at Section 5.2(b) of her report, "comprehensive and co-ordinated and that these services are consistent as well as being flexible enough to meet Mr Choy's changing needs over time". 182. I have been left to speculate on the basis of this discrepancy as it was not explored in the evidence or in argument. The possibilities are that the lower rate could be a typographical error or, alternatively, the lower rate may be correct but could involve a different and therefore lesser paid professional skill set so that the service could be provided under the supervision of the professionally qualified Case Manager employed at the higher rate of $135 per hour. Having seen this type of care over a number of years I lean towards the latter explanation. However, in identifying the foregoing potential explanation I am mindful of the need to avoid substituting my own opinions for evidence : Strinic v Singh [2009] NSWCA 15. In these circumstances I have decided to simply take the recommended figures at face value without further analysis as such analysis would be speculative and the figures seem to me to be inherently and unquestionably reasonable for the services described. 183. Accordingly, I allow the cost of 12 hours of drop-in case management at $37.95 per hour which is the equivalent of $455.40 per week, which, when projected at 5% over 62 years (x 1017.5) yields the amount of $463,369. I do not propose to apply a further discount of 15 percent as submitted by the Plaintiff for the reasons already given in relation to the claim for future psychological consultations and occupational therapy. Further, I must have regard to the unchallenged evidence that the Plaintiff's need for such services will not decrease and may in fact increase. I therefore assess the Plaintiff's entitlement to damages for future drop-in case management in the amount of $463,369. Respite care 184. A claim is made for the cost of respite care calculated at a cost of $285 per day at 5 percent (x 231.5) for 5 years to yield the sum $53,245. The argued basis for that claim is the recommendation of Ms Ko, the Plaintiff's Head-2-Work case manager and Dr Veerabangsa, the Plaintiff's treating rehabilitation specialist. In my view there is little room for doubt that the Plaintiff will, from time to time, probably life long, need occasional respite care in the Community Living Unit of the Brain Injury Rehabilitation Unit at Liverpool Hospital. The cost of a 7 day respite care admission is identified in Ms Ko's report dated 17 May 2006 to be $1,955 or $285 per day. There is no argument as to the basic cost of such an admission. In his report dated 22 January 2008 Dr Veerabangsa refers to the Plaintiff having benefited from weekend/week stays at the Community Living Unit of the Brain Injury Service. 185. I read Dr Veerabangsa's reference to the Plaintiff being benefited by such a respite admission to be in a different contextual sense to Mrs Miller Ravagnani's use of the word benefit in that Dr Veerabangsa refers to a medical benefit. The past admission proposed by Ms Ko, as is evident from her report dated 17 May 2006, was proposing an imminent admission and was in response to an immediate need for the Plaintiff to have respite accommodation to not only assist in reducing family tensions and conflicts but to also assist to monitor his compliance with medications and as an additional strategy to alleviate his exposure to alcohol. Dr Veerabangsa's recommendation, although stated in his report dated 22 January 2008, clearly relates to the same events referred to by Ms Ko in June 2006. 186. In my view, if the Plaintiff is awarded compensation to cover the cost of the services of a case manager, a drop in case manager, a psychologist and the treatments regime I have already assessed, the need for the expense of respite care as claimed would be somewhat reduced although I find it should always be available as a background consideration and treatment option for the Plaintiff if his circumstances required it in the opinion of those responsible for addressing his reasonable injury caused needs. 187. In these circumstances I consider that a reduced allowance for a lifetime average of a three night weekend admission each year would reasonably address this need. I do not accept that such a claim should be limited to only 5 years. In my view it represents a lifetime need and needs to be assessed accordingly. 188. The analysed cost of such a provision is $16.44 per week which when projected at 5 per cent over 62 years (x 1017.5) yields an amount of $16,727. I assess the Plaintiff's damages for respite care in the sum of $16,727. 189. In view of the relatively modest sum assessed for this head of damage I make no offset from this assessments for any possible savings on the cost of future care because during the Plaintiff's periods of respite there will be an ongoing cost and need to maintain his living circumstances and such offsets, if they arise, appear to be negligible and difficult to identify. Gymnasium membership and personal trainer 190. The Plaintiff makes a claim for the cost of gymnasium membership and for the services of a personal trainer for 2 hours per week at the rate of $78 per week. The basis of this claim is found in the reports of Dr Veerabangsa dated 31 May 2006 and 11 November 2006 as well as in Section 5.1 of the report of Mrs Miller Ravagnani dated 27 may 2007. She recommended the Plaintiff be provided with an exercise programme as well as a "training buddy" being someone who will take him to the gymnasium and exercise with him. She also makes a recommendation for a separate allowance for two hours of supervision at the gymnasium each week. The total cost of these recommendations is $4,070.53 per annum or $78 per week. 191. The Plaintiff's evidence was that before his injury he was much lighter in his weight and he was much fitter than he is now. He said that at that time he felt good about himself. Before his injury the Plaintiff used to work out with weights and for between three and five days per week he also pursued a programme for keeping fit. He also used to play soccer and basketball occasionally. 192. The Defendant submits that the Plaintiff's physical condition does not suggest that such an allowance is called for. That submission ignores the basis for and the effect of the opinion of Dr Veerabangsa who felt it was reasonable to offer the Plaintiff a gym programme that incorporated feedback, which I interpret to mean supervised, rather than self-directed exercises, presumably to promote motivation in the Plaintiff to continue with the programme. I accept that opinion as being reasonable and reject the Defendant's submission arguing that the Plaintiff should not be compensated for this item of future expense. 193. I am persuaded that as a consequence of his head injury the Plaintiff has a reasonable and injury based need to be motivated and supervised in connection with his exercise needs in the interests of promoting and optimising his continued physical and mental good health. 194. Although I accept the reasonableness of the recommendation for the provision of access to a gymnasium and personal trainer I am not satisfied that the entire amount claimed as the cost for such services should be visited upon the Defendant. I have come to this conclusion because before the Plaintiff acquired his brain injury the evidence discloses that he exercised with weights for between three and five days per week. Whilst the evidence is silent as to where and at what cost if any he took such exercise I infer from this evidence that he did so at a gymnasium. In my view it therefore follows that the Plaintiff was already incurring a degree of this type of expenditure before he was injured. It is true that before his injury such activity and therefore the expenditure for its cost was at his discretion, however, now it is a therapeutic recommendation and therefore it is a cost for which he should be compensated. However, the amount claimed by the Plaintiff in this regard will require some discounted adjustment for this factor and I therefore allow the discounted sum of $50 per week. 195. The projection of $50 per week over 62 years at 5 percent (x 1017.5) yields the amount of $50,875. In my view this sum requires some further discounting for the impact of adverse vicissitudes as it is unlikely that the Plaintiff will avail himself of this assistance for the whole of his remaining lifetime as this requires a degree of intensity in the motivation and dedication for this task which may be lacking in him over the entirety of his remaining years. True it is it will be the function of the case manager to encourage the Plaintiff to comply with the recommendations made to him in this regard by Dr Veerabangsa and those who will take over his management in the future. Even if he were to do so I consider that it is unlikely that he will continue to adhere to the recommended intensity of such an exercise programme on a regular weekly basis despite the advisability for him to do this. To reflect the impact of such factors I apply a discount of twenty-five percent to yield an amount of $38,156 in respect of this head of damage. Sex worker 196. In the opinion of the occupational therapist Mrs Miller Ravagnani the Plaintiff's ability to appropriately initiate sexual contact and to establish a long-term sexual relationship has been compromised by the effects of his injury. There is no evidence that this identified compromise relates to matters of physical function but rather, it seems to relate to the cognitive and emotional sequelae of the Plaintiff's brain injury. On behalf of the Plaintiff Mrs Miller Ravagnani advocates for funds to be made available for the Plaintiff for him to have access to specialised sexual counselling and education including the provision of the regular services of a sex worker for two one hour sessions per month at a cost of $310 per hour. The defendant opposes the assessment of a separate award for this claimed head of damage and submits that a modest sum of the order of no more than $5,000 should be added to the award for non-economic loss on account of any such need. 197. The evidence that bases the claim for the cost of the services of a sex worker is meagre. The Plaintiff said that since his injury he no longer has a girlfriend or a sexual relationship. He was asked whether he would be interested in having such a relationship if the opportunity arose but was unsure if in the future he would avail himself of the services of a sex worker for this purpose. 198. In my view the evidence does not suggest this to be an appropriate case for the consideration of such a head of damage. Further, this issue has been considered by the Full Court of the Supreme Court of Western Australia in Stewart v Andri [1993-1994] 19 MVR 1 where a similar claim was rejected at pages 12-13 per Owen J in the following terms: "In my opinion the trial judge was in error treating the loss of the opportunity to develop a conventional sexual function in the way that he did. There was a paucity of evidence relating to the issue. The occupational therapist said in his report: '[The respondent's] limitation on his independent undertaking of social activity and restriction on ability to establish relationships and to perform as an active sexual partner have seriously eroded his lifestyle. In all likelihood such limitations will continue and having broached the issue of sexuality with [the respondent] and his mother there is a general acceptance that access to a masseuse in the future would go some way to satisfying this young gentleman's sexual needs.' The issue of sexuality was not put to the respondent when he gave evidence. None of the medical practitioners commented on it nor did the occupational therapist or the respondent's mother in their oral evidence. To treat the award in the same way as, for example, an allowance for the costs of acquiring a telephone answering machine or a Braille text reader seems not to be warranted on the evidence. It could also raise issues of public policy depending on the view that is taken as to the nature of the services to be provided. This is not to say that the sexual aspect of the respondent's future life was not a relevant consideration. The impairment of sexual capacity and the loss of realistic prospects of a meaningful married life or other personal relationship are serious matters that reflect in loss of enjoyment of life. But the rationale for compensation lies in the loss to the injured party of the faculty, not its preservation in a different form. This is what entitles the injured person to compensation. It is a loss of amenity and should properly be regarded as a component of the award for general damages in the sense of non-economic loss: see for example, Linsell v Robson (1976) 1 NSWLR 249 at 252-253; Vassilef v BGC Marine Services (NSW) Pty Ltd [1980] Qd R 21 at 22-23." 199. I find the decision in Stewart v Andri to be persuasive authority in this instance. In my view, consistent with that authority, in this particular case, this component of the Plaintiff's claim must be regarded as having been subsumed into the award for non-economic loss without the identification of a separate or calculable component for damages as it relates to the loss of amenity of the Plaintiff's life. Notwithstanding the Defendant's submissions to the contrary, I therefore make no separate allowance for this part of the Plaintiff's claim. Additional vacation expenditure 200. A claim is made for additional costs the Plaintiff is likely to incur when he takes his future vacations. The evidence relied upon in support of this claim is that the Plaintiff needs to be accompanied when he travels as he tends to forget where he is or where he is going even if he has made the same journey beforehand. A graphic example comes from the evidence of the Plaintiff's mother, who described the Plaintiff had forgotten the way to the Court from Central Railway Station even though he had taken that route beforehand. Another example was the Plaintiff's evidence concerning his experience of not remembering the location of the home of his friend at Minto whereas beforehand, as a delivery driver, he had a good sense of direction and memory for locations. The Plaintiff said he would worry about having a holiday alone in case something untoward might happen to him indicating an anxiety over such a prospect. I accept the evidence given by the Plaintiff and his mother in respect of these matters. This component of the claim is supported by the opinion of Mrs Miller Ravagnani who in Section 5.10(d) of her report dated 27 May 2007 identifies a need for the Plaintiff to have assistance and supervision on vacations. She identifies this need to extend to not only having someone organise vacations for the Plaintiff but to also accompany him on such vacations as well. 201. The Defendant submits that any such allowance should be modest. That submission was based on the speculative assumption that the Plaintiff may well prefer to travel with a companion in any event, irrespective of the effects of his traumatic brain injury. I reject that submission as it pays no regard to the injury created need in the Plaintiff for assistance of the kind claimed. The Plaintiff argues that this item represents an injury caused need. I accept that submission as being reasonable. 202. The Plaintiff submits that this need should be assessed according to the suggestion made by Mrs Miller Ravagnani, namely 24 hour care, which I interpret to include supervision, for 4 weeks of vacation taken every 3 years at a cost of $3,120 for each week of vacation plus an allowance of an additional sum of $2,500 to allow for the travel costs of a companion carer. Properly, the claim makes no allowance for the cost of arranging the holidays as this item is incorporated within the costings of the claim for the cost of the assistance of a case manager, for which a separate allowance has already been made. 203. The above costings are analysed to be the equivalent of $96 per week which, in my view is a reasonable allowance especially as it makes no provision for the additional accommodation and sustenance costs that a carer would undoubtedly require on such vacations. I consider the frequency of one four week holiday every three years to be a reasonable basis for assessment and I consider the suggested travel costs component for the companion carer to be reasonable as well. 204. The Defendant submits that the amount claimed is excessive because the Plaintiff may not go overseas for his holidays, or may not take overseas holidays as frequently as once every three years. Whilst that argument has some superficial attraction I remind myself that the assessment of this head of damage requires a balancing exercise. On the one hand there is some force in the Defendant's submission as I have paraphrased it. On the other hand, accepting the Defendant's submission as to frequency of holidays for the purpose of analysis, if the Plaintiff took less frequent holidays overseas in my view he would be more likely to take more frequent holidays within this country so that the analysed weekly cost of a companion carer would therefore increase. Further, in my view, the absence of an inclusion of the likely additional cost for the companion carer's accommodation and sustenance costs, together with the latter point serve to tip the balance in favour of accepting the Plaintiff's suggested costings. 205. The remaining issue concerning the need for additional vacation assistance is to determine the period over which the Plaintiff is likely to enjoy the benefits of such holidays. I consider that it is unlikely that the Plaintiff will travel and incur such expense at the contended frequency towards the end of his projected life expectancy. I therefore propose to allow the sum of $96 per week over the lesser period of 50 years at 5 percent (x 976.2 ) which yields an amount of $93,715. I consider that this sum should be reduced to reflect a number of potentially adverse vicissitudes. I will apply a discount of 15 percent in this regard which yields the amount of $79,657. I therefore assess the Plaintiff's entitlement to damages for the additional cost to the Plaintiff of periodic vacations in the sum of $79,657. Back to base alarm 206. The Plaintiff makes a claim for the cost of a 24 hour back to base alarm system involving an installation cost of $2,000 and a recurring expenditure of $7 per week plus some extra call-out charges in the event the alarm is activated. Given that the Plaintiff has at times forgotten the personal identification number to his bank account it is quite possible that such call-out charges could be incurred. This raises the question of the practicality of such an alarm for the Plaintiff. The submitted basis for this claim is so that the provision of such a service would assist the Plaintiff to keep in touch with family and friends and his case manager and also in the event that the Plaintiff may need to contact his case manager. Section 5.11 of the report of Mrs Miller Ravagnani dated 27 May 2007 does not invoke such a rationale and instead proposes that the suggested need for such a service is on account of the Plaintiff's security needs. In my opinion the Plaintiff does not have an injury created need for the provision of a home security system. Further, on the assumption that the claimed need for such a security system was to facilitate communications between the Plaintiff, his family and his case manager, in my view a standard domestic telephone service would more than adequately address any such need without the need to visit the cost of a back to base alarm service on the Defendant. Independent living, training and support 207. The Plaintiff makes a claim for the cost of training for and the supervision of the transition it is anticipated he will be required make from living with his family to living independently in his own residence in the future. The basis of this claim is explained by Mrs Miller Ravagnani to be that the Plaintiff's presence at home is having a negative effect on his mother and his younger siblings due to his behaviour this justifying the provision of monitoring, assistance and support during the first twelve months of the transition to independent living. In addition there is the obvious point that neither the Plaintiff nor the Defendant can assume the Plaintiff will continue to live with his parents indefinitely. His right as an adult is to live independently and it is that right that has been adversely affected by the effects of his injury. I find that it is reasonable that the Plaintiff be provided with the funds for such a transition now rather than postponing it until later. 208. The basis of Mrs Miller Ravagnani's recommendation is that the Plaintiff would benefit from the provision of such training and support. In my view that reason alone would be an insufficient reason to award such damages. The threshold test for such an allowance is not so much whether the service would benefit the Plaintiff but rather, whether the injury has created a need in the Plaintiff that has to be addressed when assessing damages. 209. In this regard Dr Veerabangsa's report states that the Plaintiff is capable of independent living with the provision of support and set up structures in the initial short-term. Dr Veerabangsa is of the opinion that this would involve someone checking on the Plaintiff once or so per week and such an arrangement would also address the need to assist the Plaintiff with the initial set up of his independent living surrounds to ensure they are adequate for his needs. I accept as reasonable Dr Veerabangsa's recommendation in this regard. I also accept as reasonable Mrs Miller Ravagnani's costing estimate of $21,600 to implement the arrangement. This represents 160 hours required in the course of the first twelve months which is a little over three hours per week at $135 per hour. I am conscious of the need to avoid overlap with the services that will be provided by a case manager and for which I have made a separate allowance within my assessment of damages. Having regard to the need to avoid such an overlap I round Mrs Miller Ravagnani's costing recommendation down to $14,000 which is the equivalent of about two hours per week for the provision of such a service. Past out-of-pocket expenses 210. The Plaintiff's out-of-pocket expenses have been agreed in the sum of $125,773.54 and I assess the Plaintiff's entitlement to an award for out-of-pocket expenses in that amount. I note that it has been agreed that of this sum the Defendant's insurer has paid an amount of $3,947.70 : s.83 of the Act. Funds management charges 211. The Plaintiff makes a claim for funds management charges. The argued basis of that claim is that the Plaintiff's compensable injury has damaged his capacity to invest and manage his funds. The Defendant contests the claimed entitlement and points to the fact that the Plaintiff did not have a Tutor in the proceedings and further submits that in the relevant legal sense that there is no evidence of an impairment of the Plaintiff's capacity to manage his compensation funds. 212. The legal basis upon which an award of damages for funds management charges in cases such as this is well settled. If the claimed purpose of damages for funds management arises simply from the size of the damages award and the resultant need to obtain skilled assistance with investment choices and systems for managing such investments the cost of obtaining such assistance is not a matter that sounds in damages : Nominal Defendant v Gardikiotis [1995] HCA 56; (1996) 186 CLR 49, 54-55; Willett v Futcher [2005] HCA 47; (2005) 221 CLR 627. 213. There was no evidence that the Plaintiff had an intellectual deficit that materially impaired or adversely affected his ability to understand or appreciate his specific injury caused needs. He has a form of brain damage that has changed his personality, changed his behaviours and created a need for him to access an array of therapeutic and assistive services. He manages his own bank account and credit card account. There was evidence that the memory problems affecting the Plaintiff tend to render him liable to forget to pay his bills as they fall due for payment however a case manager would address this issue. There is no evidence that he cannot handle money or appreciate the value and importance of money. In the past he has exhibited obsessive behaviours and an addictive attitude to gambling in response to low moods. He will receive an award for the cost of treatment and for the services of a case manager to manage this problem if it becomes recurrent. 214. In my view the foregoing summary reveals no special features of the Plaintiff's situation entitling him to an award of damages for the cost of funds management charges. 215. The Plaintiff is the recipient of a sizeable and once only award of damages that is aimed at addressing his multiple and significant needs insofar as these can be reasonably measured in money terms. It is therefore imperative that he has the benefit of wise and careful advice concerning money management to enhance the longevity of his compensation funds. This circumstance is a compelling reason for the Plaintiff to seek out and implement a prudent investment regime in an endeavour to maximise his potential investment returns and avail himself of the tax benefits available to persons in his situation. Such advice and assistance will undoubtedly come at a price. In cases of substantial awards for personal injury it is commonplace to see a trustee company appointed to provide the requisite financial advice and implementation of that advice. The Plaintiff would be well advised to follow that course. However, in my view, on the current state of the law, the cost of such an endeavour is not an expense that can be reasonably visited upon the Defendant in this instance. Accordingly, I am constrained by authority to reject the claim for the cost of funds management charges. Summary of damages assessment 216. My assessment of the Plaintiff's damages claim is summarised as follows: (a) Non-economic loss $225,000.00 (b) Past loss of earning capacity $175,951.00 (c) Fox v Wood $12,800.00 (d) Future loss of earning capacity $760,185.00 (e) Past loss of employer funded superannuation contributions $19,354.00 (f) Future loss of employer funded superannuation contributions $83,620.00 (g) Past domestic and attendant care services $91,358.00 (h) Future domestic care services $284,900.00 (i) Future treatment $54,562.00 (j) Case manager $247,252.00 (k) Drop-in supervision by Case Manager $463,369.00 (l) Respite care $16,727.00 (m) Gymnasium membership and personal trainer $38,156.00 (n) Sex worker $Nil (o) Additional vacation expenditure $79,657.00 (p) Back to base alarm $Nil (q) Independent living, training and support $14,000.00 (r) Past out-of-pocket expenses $125,773.54 (s) Funds management charges $Nil Total $2,692,664.54 Disposition 217. The total of the foregoing damages assessment in the sum of $2,692,664.54 requires adjustment to reflect the agreed 20 percent apportionment on account of the Plaintiff's own contributory negligence. That apportionment results in a reduced award for the Plaintiff in the sum of $2,154,131.60. Orders 218. I make the following orders:- (a) Verdict for the Plaintiff in the sum of $2,692,664.54; (b) The Plaintiff's contributory negligence is assessed in the agreed apportionment of 20 percent; (c) Judgment be entered for the Plaintiff in the apportioned sum of $2,154,131.60 after discount; (d) The Defendant is to pay the Plaintiff's costs; (e) The exhibits may be returned; (f) Liberty to apply on 7 days' notice if further orders are required. TABLE 1 WEEKLY PERIOD WEEKS s.128(4) AMOUNT RATE 1. 07.04.2004 to 20.08.2004 19.28 $793.60 $15,300.60 2. 21.08.2004 to 19.11.2004 12.85 $797.70 $10,237.59 3. 20.11.2004 to 31.12.2004 5.85 $828.50 $4,846.72 37.98 $30,384.91 TABLE 2 WEEKLY HOURLY PERIOD WEEKS s.128(4) s.128(4) AMOUNT RATE RATE 1. 01.01.2005 to 18.02.2005 6.85 $828.50 $20.71 $2,127.95 2. 19.02.2005 to 20.05.2005 12.85 $836.10 $20.90 $4,028.47 3. 21.05.2005 to 19.08.2005 12.85 $862.70 $21.56 $4,155.69 4. 20.08.2005 to 18.11.2005 12.85 $863.80 $21.59 $4,161.47 5. 19.11.2005 to 17.02.2006 12.85 $867.00 $21.67 $4,176.89 6. 18.02.2006 to 19.05.2006 12.85 $856.30 $21.40 $4,124.85 7. 20.05.2006 to 18.08.2006 12.85 $872.20 $21.80 $4,201.95 8. 19.08.2006 to 17.11.2006 12.85 $879.50 $21.98 $4,236.64 9. 18.11.2006 to 17.02.2007 13.00 $903.40 $22.58 $4,403.10 10. 18.02.2007 to 18.05.2007 12.71 $905.50 $22.63 $4,314.40 11. 19.05.2007 to 17.08.2007 12.85 $916.20 $22.90 $4,413.97 12. 18.08.2007 to 16.11.2007 12.85 $912.60 $22.81 $4,396.62 13. 17.11.2007 to 15.02.2008 12.85 $920.60 $23.01 $4,435.17 14. 16.02.2008 to 16.05.2008 12.71 $904.70 $22.61 $4,310.59 15. 17.05.2008 to 28.07.2008 10.28 $904.70 $22.61 $3,486.46 184.05 $60,974.22 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.