Aoun v GIO [2001] NSWSC 493

New South Wales Supreme Court

CITATION : Aoun v GIO [2001] NSWSC 493 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 13226 of 1985 HEARING DATE(S) : 30/10/2000; 31/10/2000; 1/11/2000; 10/11/2000; 21/11/2000; 22/11/2000. JUDGMENT DATE : 15 June 2001

PARTIES : Michael Aoun by his tutor Najib Aoun (plaintiff) Government Insurance Office of New South Wales (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : P J Doherty (plaintiff) P Jenkyn (defendant) SOLICITORS : Bond & Bond (plaintiff) Helen Chrysotomidis (defendant) CATCHWORDS : DAMAGES - action for damages for personal injury - assessment of damages - plaintiff brain damaged - provision for future care CASES CITED : Sullivan v Gordon (1999) 47 NSWLR 319 DECISION : See para 24ff

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

Friday 15 June 2001

No: 13226/85 Michael Aoun by his tutor Najib Aoun v Government Insurance Office of New South Wales Reasons for judgment

1 HIS HONOUR: In the morning of Saturday, 30 March 1985 the plaintiff, Michael Aoun was run over by a car in a suburban street in Sydney. He was then about a month short of his fourth birthday. He is now twenty years old (born on 4 May 1981). With his father as tutor, he has brought proceedings in this Court for damages for personal injury against the defendant, the Government Insurance Office of New South Wales. 2 The parties are to be commended for their practical and sensitive approach to the matter. Particularly is this so of the defendant. Liability has been admitted and most of the heads of damage have been the subject of agreement. The only issue which I have to determine is the level of care the plaintiff will require in the future. Even on that issue the defendant, while not forgoing the protection of its legitimate interests, has adopted a stance which it perceives to be conducive to the plaintiff's welfare. 3 The plaintiff suffered a severe closed head injury. Upon his admission to hospital on the day of the accident he was unconscious, or effectively so, for a significant period of time. Some days passed before he began to obey commands and for several days thereafter he was able to make no more than incomprehensible sounds. There is in evidence a report of Dr Arthur Shores, a consultant neuro-psychologist, who concluded from an examination of the hospital records that there had been "a frank alteration to his level of consciousness for at least ten days". He has been left with a right hemi-paresis, reducing sensation on his right side and affecting the use of his right arm and leg. The movement of his right arm is restricted and he has lost the dexterity of his right hand. He is effectively left-handed. Similarly, there has been a loss of function in his right leg, which is somewhat shorter than his left. He walks with a limp unless he wears special shoes and he tends to trip. He kicks a ball with his left foot and even in the special shoes his ability to run is limited. 4 Perhaps of more importance for present purposes are his other neurological deficits. He left school at the end of year ten, finding that he could not cope with the work as it became more difficult. He lacks concentration. He is unable to persevere with a task for any length of time or to focus on something (such a video) for more than short periods. His memory is bad. If asked to do something, he is likely to forget what it was unless he attends to it straight away. If asked to buy a number of items at a shop, he is likely to forget what those items were when he arrives at the shop. 5 His motivation is poor. In the absence of direction or encouragement from others, he tends to get out of bed late and spend the day doing nothing more stimulating or productive than visiting friends or relatives who live nearby. Associated with these problems is a level of frustration leading to outbursts of anger, usually directed at members of his family but sometimes at others. These outbursts are short lived and are not accompanied by physical violence. 6 This pattern of behaviour is clearly attributable to the accident and is consistent with what Professor Tony Broe, a neurologist retained by the plaintiff's legal advisers, described in evidence as the diffuse nature of traumatic brain injury. The plaintiff is the son of conscientious and devoted parents, who migrated to this country from Lebanon in 1974. His older brother, Jihad, is a successful builder. His two older sisters, Zauhad and Noel, have qualifications in fashion designing and marketing respectively. His two younger sisters, Salama and Rhonda, have progressed satisfactorily at school. There is every reason to believe that, but for the accident, the plaintiff would have enjoyed much the same success as his siblings. 7 Notwithstanding his disabilities, the plaintiff drives a car, although he obtained his license only after several attempts. He has a bank account into which his disability pension is paid. He operates it with a key-card at an automatic teller, although he has his PIN number written down because he cannot memorise it. He has a mobile phone but, while he can remember its number, he has difficulty recalling the telephone numbers of other people. Between 1990 and 1999 his father owned a grocery shop, and in the more recent of those years he helped his father in that shop. After the shop was sold he did some work on building sites for his brother, Jihad. 8 Apart from the plaintiff, I heard evidence from his parents, Najib and Sabah Aoun, and Jihad himself. Much of this evidence was directed to the plaintiff's disabilities and the level of his day to day dependence upon others. There was some conflict between the witnesses about those matters, and some inconsistency between the evidence of the plaintiff and his parents and the histories they had provided to Dr Jeffrey Bogan, a neuro-psychologist retained by the defendant. 9 I found the plaintiff to be an honest witness but, given the sequelae of his head injury, one would have to question his level of insight into his condition. I shall turn to the medical evidence about this in a moment. His parents' evidence about his capacities may well have been unduly pessimistic. In so far as it is inconsistent with the more optimistic picture they painted for Dr Bogan in a consultation of December 1997, it reflects no more than the anguish one would expect of parents committed to the care of a son disabled in his tender years. It is they who have dealt daily with his impediments through the stages of his development to young manhood, and it is understandable that they might be over protective of him. 10 I have derived most assistance from the evidence of Jihad Aoun, whose honesty also is unquestioned and whose perception appears to have been in no way compromised by his obvious devotion to his brother. True it is that he has not had as much contact with the plaintiff as his parents, as he left the family home when he was married in 1997 and had his own life to lead prior to that. Nevertheless, I find his observations reliable. They leave me in no doubt of the deficits which I have summarised in paras 4 and 5 of these reasons. 11 Jihad sometimes worked with the plaintiff in their father's shop. He observed that the plaintiff could perform simple tasks such as stacking drinks in the fridges or putting goods purchased by customers into bags. He could serve regular customers who were buying only a few items and were tendering the exact money or a sum close to it. However, he could not cope with serving customers if the shop became busy and would make mistakes calculating the change due after a sale. On this, his father's evidence was to the same effect. 12 The plaintiff's work for Jihad on building sites was of a menial kind: cleaning up or fetching and carrying for the workers on the site. Jihad's experience was that he could manage quick, simple tasks but was easily "sidetracked" from a job which took any length of time. He was not reliable when sent to a hardware store to buy trade requisites and, even when he was supplied with a list, he would sometimes phone back to the site in confusion about what exactly was required. 13 The plaintiff's father bought him two cars, the first of which he wrote off in an accident. He has been involved in two other accidents, in which he may not have been at fault, and he has twice been fined for speeding. Jihad's evidence was that he was not comfortable in a car driven by his brother, as he did not concentrate on the road and tended to drive too fast. 14 Jihad observed that the plaintiff tended to "laze around" the house, particularly after the shop was sold. He appeared to be "very down" when he was alone, although his self-esteem was satisfactory when he was with friends. It was this which led Jihad to offer him work, but even at the building site he found his motivation to be "very poor". 15 None of this is to deny that there are positive signs for the future. Jihad and his parents said that, despite his outbursts of anger from time to time, the plaintiff is a young man of a normally pleasant personality. Apart from the support of his family and relatives, he has some good friends who, according to Jihad, understand and make allowance for his condition. Since his school days he has been encouraged to use a diary to remind him of things he needed to do. He has not engaged in basic domestic tasks such as cooking and cleaning, but it is not suggested that he is incapable of them. Asked in evidence if he would be prepared to accept professional training to assist him to live independently, he said, "I would like to try, I mean I don't want to sit down for the rest of my life, I would like to try things." 16 Against this briefly sketched background, I turn to the expert evidence. I received a large number of reports, tendered by both parties, from doctors, psychologists and other experts in the field of rehabilitation. Given the relatively narrow issue which I have to determine, it is unnecessary to refer to most of this material. The matter turns primarily upon the reports and oral evidence of Professor Broe, to whom I have referred and who is relied upon by the plaintiff, and Associate Professor Richard Jones, a specialist in rehabilitation medicine relied upon by the defendant. 17 Professor Broe saw the plaintiff for medico-legal purposes in March 2000. He also interviewed his parents and Jihad. He had access to the medical reports obtained by that time, including the defendant's. In his own report he concluded that the plaintiff had sustained "a very severe head injury … which has resulted in a combined picture of bilateral motor deficits and retarded development with severe cognitive and behavioural sequelae". He added, "In cognitive and behavioural terms he has marked memory impairment both functionally and on testing but is most profoundly disabled by a pervasive frontal syndrome of inertia, apathy and loss of motivation." 18 In that report Professor Broe expressed the view that, in the absence of his parents, the plaintiff "would need a housekeeper/minder to supervise his activities, maintain his personal care and provide his domestic care and nutrition as well as support for his social and recreational activities". He did not think that twenty-four hour a day attendant care was called for but he recommended fourteen hours per day every day, six hours in the morning and eight hours in the afternoon and evening. Effectively, he would be supervised during his waking hours. The Professor also recommended a case manager for eight hours per month and a handyman/gardener for half a day each week. 19 In evidence, Professor Broe explained that the plaintiff's need for supervision arose from his having suffered frontal lobe damage. This has resulted in a measure of impulsiveness and a lack of insight, motivation, perseverence and reliability. The professor accepted that the plaintiff could perform the mundane tasks of day to day living, such as cooking, housekeeping and attending to his personal hygiene and appearance, but said that he could not be relied upon to do so consistently. As he put it, the plaintiff "would classically let himself go…". As to the management of money, he doubted that the plaintiff could manage anything other than a small budget. He added that his dis-inhibition and lack of insight would make him vulnerable to the influence of people who might wish to take advantage of him. 20 In short, Professor Broe considered that the plaintiff needed the extent of supervision which he recommended to ensure an acceptable level of order and structure in his daily life. He did not envisage that the situation would ever change, as the lack of motivation and initiative inherent in his condition was not amenable to rehabilitation. He saw his prescription as the minimum required, acknowledging the danger that excessive care could create dependency. Pressed about the matter in cross-examination, he said that the plaintiff should not be left for more than two or three hours while he was awake and was prepared to modify his recommendation to a minimum of twelve hours per day, seven days a week. He also thought that after a few years his prescription of eight hours per month for a case manager could be reduced to four hours. 21 Associate Professor Jones saw the plaintiff, in the company of one or both of his parents, on three occasions between January 1998 and August 2000. He also had access to the other reports obtained by the parties. His conclusion was very different from that of Professor Broe. He considered that the plaintiff was capable of living independently in the community but that it would be reasonable to provide care for up to three hours per day, as he put it in evidence, "to ensure the house and the finances were organised". To provide care for many hours each day, he said, would be "counter productive" and "demeaning" to the plaintiff. 22 Associate Professor Jones noted inconsistencies in the history provided to other experts, including that obtained by Dr Bogan to which I have referred at para 8 of these reasons, and observed that the reports "present a confounding number of widely variant opinions". Nevertheless, he based his conclusion primarily upon the history which he obtained and his own clinical observations. While he did not have the benefit of an interview with Jihad Aoun, the effect of Jihad's observations was put to him in cross-examination but did not cause him to modify his opinion. 23 He had read reports of MRI scans of the plaintiff's brain but, unlike Professor Broe, had not examined the scans themselves. However, he explained that structural changes observed on scanning are not a reliable indicator of a person's capacity to function. In the light of the whole of the material presented to him, including the more encouraging matters which I have summarised in para 15 of these reasons, he said in evidence, "I feel on balance that this boy does not have such brain damage, be it frontal or wherever it happens to be, to compromise his capacity to have a high level of independence in the community…". 24 The Associate Professor thought it possible that the plaintiff might benefit from admission to a transitional living unit such as that conducted by the Brain Injury Rehabilitation Service at Westmead Hospital, where his ability to manage day to day activities, such as cooking, shopping and budgeting, might be improved. The program at such a unit might also focus upon his leisure activities, ascertaining what his interests are and providing him with the means to pursue them. At the end of his cross-examination, having said that he thought his prescription of three hours daily care was generous, Associate Professor Jones expressed his view about the matter forcefully: Having people hovering around this young man all the time is counterproductive, not productive. It is better to set him up with programs that he will enjoy doing. He will reject someone telling him what to do. He would tell them to get lost. Take my word for it, this man will live independently in the community. If I enforced upon him a carer he would be very angry with me. It doesn't work. … He has friends, he helps out in the family. This boy will mature, he has had a nasty head injury but he is at an age now when the apron strings have got to be removed. I understand the family being supportive and caring, but at some stage some person, rehabilitation person or doctor, has got to say: "Let this boy live his life, let him have a girlfriend, let him have his family", that's going to help. 25 I have not found this matter easy to resolve. Professor Broe and Associate Professor Jones are both practitioners of eminence, although their experience and expertise have different emphases. Counsel for the plaintiff realistically acknowledged that the issue turns upon their evidence, and I am not materially assisted by the other reports which are before me. On balance, I am persuaded that the appropriate prescription is that of Associate Professor Jones, which I consider to be both sensible and humane. I cannot accept that the plaintiff's deficits call for the extent of monitoring recommended by Professor Broe. Certainly, I am not satisfied that his view should be preferred to that of Associate Professor Jones. In arriving at this conclusion, I am mindful of the plaintiff's limited employment opportunities. (A substantial sum for future loss of earnings has been agreed upon.) For future care I would allow three hours per day. 26 To determine the appropriate hourly rate for a carer I must resolve the conflict between the evidence of Ms Dena Blackman of Dial an Angel, relied upon by the plaintiff, and Ms Shirley Wruck of Macquarie Nursing Service, for the defendant. Both produced reports and gave oral evidence. For reasons which I need not elaborate, I found the evidence of Ms Wruck more reliable than that of Ms Blackman. However, again, I need say no more than that I am not persuaded that Ms Blackman's figures should be preferred to those of Ms Wruck. The amount for future care should be assessed according to her rates, which average twenty dollars per hour. Following my ruling upon the admissibility of certain evidence about the plaintiff's life expectancy, the parties agreed that it is fifty-seven years. 27 Fifteen thousand dollars should be allowed for the plaintiff's access to a transitional living unit and for other counselling which might be required. This figure was proposed by counsel for the defendant and counsel for the plaintiff made no submission about the matter. 28 The parties were agreed that there should be a case manager, the only issue being the extent of that provision. Counsel for the plaintiff relied upon the recommendation of Professor Broe, which I have set out at the end of paras 18 and 20 of these reasons. Counsel for the defendant argued that one hour per month would be adequate, given that it was accepted that there must be a daily carer as well as a fund manager and that agreement had been reached about an amount for future treatment, embracing review regularly by a general practitioner and periodically by a specialist. I can see the force of this argument but, for more abundant caution, I would allow two hours per month. Counsel were agreed that the rate should be seventy-five dollars per hour, midway between the figures advanced by Ms Blackman and Ms Wruck. 29 It was also agreed that there should be allowance for a handyman/gardener, but again, not as to the extent of it. Counsel for the plaintiff sought three hours per week, based upon Professor Broe's recommendation (also at para 18 of these reasons). Counsel for the defendant submitted that one hour per week was adequate. As Associate Professor Jones pointed out in evidence, much depends on where the plaintiff would be living and, clearly, it would be undesirable for him to be in a home which required a lot of maintenance, including gardening involving significant physical exertion. Again, I think that justice would be done by a figure somewhere between those proposed by the parties. I would allow two hours per week at the rate to be found in the Macquarie Nursing Service Report, twenty-two dollars per hour. 30 An amount of $45,000 has been agreed upon for additional holiday expenses. However, I must still decide what provision is to be made for a carer for that purpose. It is accepted that the plaintiff will require a carer when he is holidaying away from home, but the question remains for how long and at what rate. There is a paucity of evidence about this and I find, upon a reading of the transcript, that I am not entirely clear about the thrust of counsel's submissions. They should have the opportunity to be heard further on this aspect. 31 One final matter needs to be resolved. In his evidence Professor Broe said that, because of his lack of insight, motivation and application, the plaintiff would be unlikely to have the skills necessary to raise children. Associate Professor Jones appeared to be of the same view, making it clear that he thought it undesirable that the plaintiff should undertake that responsibility, although he was not prepared to express a concluded view about the matter. There was no other evidence bearing on this issue. 32 Counsel for the plaintiff submitted that provision for future care should embrace the contingency of the plaintiff's requiring assistance to meet his parental responsibilities over a period of, say, twenty years: cf Sullivan v Gordon (1999) 47 NSWLR 319. However, as counsel for the defendant pointed out, this is not a claim which was particularised before trial. No doubt, that is why Professor Broe's observation was dealt with only briefly in his evidence-in-chief and was not tested in cross-examination. Equally, the matter was touched upon in cross-examination of Associate Professor Jones but was not pursued at any length. It is an issue which the defendant did not come prepared to meet and, in any event, the evidence is insufficient to enable me to make an assessment in favour of the plaintiff. 33 The question of fund management is to be dealt with upon my delivery of these reasons. I request the parties to bring in short minutes to give effect to my findings. It may be that some figures will need to be adjusted because of the passage of some months since the case was argued. I trust that counsel will inform me if I have made any technical or procedural error, or have failed to deal with any matter in dispute. If necessary, I shall hear the parties on costs. **********