New South Wales Court of Appeal CITATION : State of New South Wales v. Gee (aka Michaels) [2002] NSWCA 326 FILE NUMBER(S) : CA 40066/02 HEARING DATE(S) : 27 August 2002 JUDGMENT DATE : 25 September 2002 PARTIES : State of New South Wales - appellant Brett Douglas Gee (also known as Michaels) - respondent JUDGMENT OF : Giles JA at 1; Hodgson JA at 4; Young CJ in Eq at 42 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT SC20223/00 FILE NUMBER(S) : LOWER COURT Grove J JUDICIAL OFFICER : COUNSEL : Mr. J.D. Hislop QC with Mr. P.R. Sternberg for appellant Mr. D.A. Wheelahan QC with Mr. G.M. Radburn for respondent SOLICITORS : I.V. Knight, Crown Solicitor for appellant Walter, Solicitors, Lismore for respondent CATCHWORDS : DAMAGES - Frontal lobe epilepsy causing blackouts and aggressiveness - Residual earning capacity assessed at 35% of uninjured capacity, itself assessed as being a capacity to earn average weekly earnings - Whether defendant liable for whole 65% difference, with 15% allowance for vicissitudes. CASES CITED: Rosniak v. Government Insurance Office (1997) 41 NSWLR 608 DECISION : 1. Appeal allowed. 2. Judgment for the respondent against the appellant in the sum of $616,918.00, in lieu of the sum of $826,023.00 awarded by the primary judge. 3. Respondent to pay the appellant's costs of the appeal, and to have a suitors' fund certificate if otherwise entitled. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40066/02 SC 20223/00 GILES JA HODGSON JA YOUNG CJ in Eq Wednesday 25 September 2002 STATE OF NEW SOUTH WALES v. Brett Douglas GEE (now known as MICHAELS) Judgment 1 GILES JA: I have had the advantage of reading the judgment of Hodgson JA in draft. I agree that, for the reasons given by his Honour, the findings as to suffering from temporal lobe epilepsy should not be disturbed but the conclusions as to the damages which flow can not stand. The difficulty lies in re-assessing damages, when the appellant's stance at the trial was that the temporal lobe epilepsy had subsided and in any event did not contribute to any earning incapacity or inability to lead a normal life. 2 The solution proposed by his Honour is even closer to a guess than usual, but I accept that there is a continuing effect of the temporal lobe epilepsy resulting in an entitlement to damages, however difficult the assessment may be. The damages proposed by his Honour may turn out to be generous, but as the evidence was left are a fair attempt to meet the difficulty. 3 I agree with the orders proposed. 4 HODGSON JA: On 14 December 2001, Grove J gave judgment for the respondent Brett Michaels against the appellant the State of New South Wales for $700,023.00 and ordered the appellant to pay the respondent's costs of the proceedings. On 20 February 2002, Grove J ordered that costs incurred on and after 1 November 2001 be on an indemnity basis. On 4 March 2002, the judgment in favour of the respondent was amended to $826,023.00 pursuant to Pt.20 r.10 of the Supreme Court rules (the slip rule). 5 The appellant appeals from the decision of Grove J. CIRCUMSTANCES 6 The respondent was born on 22 April 1976. On 22 October 1985, he was injured in the playground of Inverell Public School, when he was struck on the head by a softball bat wielded by another pupil. The primary judge found that this was due to a breach of a duty of care owed by the school staff to the respondent, for which the appellant was vicariously liable; and no challenge is made to that finding. This appeal is on quantum only. 7 The respondent's subsequent history was set out in the judgment of the primary judge in a way not subject to criticism on appeal, as follows: 7 The immediate after effects of the accident were precisely recorded by the school nurse Sister Ware (whose qualification and registration are indicated by her post nominal letters "SRN" - the principal's reference to her as a clerical assistant seems to overlook this) and I accept the accuracy of the matters which she has recorded namely: "At 1.15pm Mrs L. de Gunst came to the Staffroom and asked me to come to Sick Bay to look at Brett Gee who had received a blow to the head from a Softball bat. He had a very large swelling on the temporal area on the right hand side of his head. On further testing, he had no pain in the mastoid area but was hyper-sensitive in the area of the zygomatic process. His pupils were equal and he could tell me his name, his teacher's name etc. although his voice sounded very drowsy. A crushed ice-pack was applied and left in position for 20 minutes. His mother was contacted and the doctor contacted to say that Mrs Gee would be bringing Brett down as soon as she arrived in town. His pulse was monitored regularly and was steady and strong. I requested another member of staff to hold Brett's head steady whilst the icepack was removed, having been on for the 20 minutes. Within a minute of this being done, all colour drained from his face, there was no radial pulse and only a faint carotid pulse and he was not breathing. I requested Mrs Duff to ring the ambulance and Brett was given mouth to mouth resuscitation. His pulse returned and his colour improved and he began breathing on his own. Two minutes later his eyes rolled back, his left arm raised in a typical tetany spasm, three was no radial pulse and he once again stopped breathing. Further mouth to mouth resuscitation was given for a short time. The ambulance officers arrived and administered oxygen. As his condition stabilised, he was transferred to the Inverell District Hospital where the doctor was waiting to meet the ambulance." 8 Inverell Hospital admission notes include an observation that the plaintiff was cyanosed when CDA (ambulance) arrived. Nursing notes record that he was incontinent of urine at A & E (casualty) and vomited twice after admission. At 3.50pm he was transferred by air to Royal North Shore Hospital Sydney. Shortly before departure from Inverell Hospital (at 3pm and 3.30pm) ward notes record sluggish RTL (reaction to light) and irritability. 9 On admission at Sydney he was wide awake and well oriented. A right temporal skull fracture was found which was described as "depressed - width of skull". He was scheduled to be seen by a neurosurgeon Dr Grant and given 100 mg Dilantin and doses (60 mg) prescribed. 10 He was however discharged on 25 October, the relevant summary containing the following: "There was bruising and tenderness in his right temporal region but CNS examination was otherwise normal. The morning following admission, a CT brain scan was performed and a fracture of the right parietal bone was noted. There was a very shallow extracerebral collection noted on the right side beneath the fracture. A large extracranial haemorrhage was also noted. He remained well throughout his admission, and was discharged to home to the care of his parents on 25/10/85 and no medications for follow up with his local doctor." 11 It would seem that the prescription of Dilantin was precautionary and over the next several years the plaintiff was neither presented for treatment in respect of any perceived consequences of the accident (given his age I would not have expected him to seek it for himself) nor did he partake of any routine medication. 12 He returned to school and in accordance with family moves the plaintiff left Inverell Public School and was enrolled sequentially at Tabulam Public School, Bonalbo Central School and Casino High School. A complete series of school reports is in evidence. They are quite laudatory. Something was sought to be made of a "parents comment" (Tabulam mid 1987) which read "very pleased with his report. We know he will try in anything relating to school. But wished he would be the same at home" apparently endorsed by his father who was not called as a witness. However his absence was impliedly explained by reference to a gross breakdown in family relations, a factor in the plaintiff abandoning his family name of Gee and adopting the surname Michaels. The comment provides some slight corroboration that the plaintiff was exhibiting some poor behaviour at home. Whether such is to be sourced in injury is associated with major issues in dispute at trial. 13 The plaintiff's final school report (Year 11 Casino High School) was endorsed as a "pleasing report" but there was an estimate that he was capable of improvement "with more attention being paid in class". He left both school and home and went to live with a girlfriend's family. This girl had been in Year 12 at the school. She was pregnant to him. This pregnancy miscarried but a further pregnancy resulted in the birth of a son on 23 September 1994 at which time the plaintiff was eighteen years of age. He was employed for about a year during this period collecting trolleys at Woolworths Supermarket at Casino. Prior to that he had undertaken some brief work experience. 14 The relationship which had led to the birth terminated after about eighteen months. There has been acrimony and litigation about custody and access to the child. Some time was spent at trial on credit issues concerning an ex parte order obtained by the plaintiff but little light was thereby cast on the central issues. The plaintiff entered a further relationship described by his counsel as "the next long term relationship". Two more sons were born of this relationship on 24 December 1995 and 6 March 1998. A marriage took place on 10 February 1997, separation of the parties in August 1998 and a subsequent divorce. 15 Evidence was led of further "long term" relationships with other women culminating in a current association in respect of which the plaintiff testified that there would be an official engagement on 21 November 2001. 16 The plaintiff's employment with Woolworths had been terminated following a dispute with a superior which he claimed related to the number of trolleys to be manipulated in a single collection. The employer issued a termination advice which showed assessments of his ability as poor, productivity as low, attendance as irregular, and conduct as poor. Re-engagement was emphatically recommended against. Subsequent employment has been sporadic. In the early part of 1996, the plaintiff as part of a "new work opportunities" scheme undertook a training course at Casino Memorial Hospital scheduled to extend over six months. The plaintiff's descriptions in chief were somewhat obscure but he indicated that he did not complete whatever the course involved which apparently had connection with general maintenance and he was sent to work in the garden. More detailed circumstances were examined in cross examination but the ultimate significance is that the plaintiff was not offered any position at the hospital. In early 1997 he worked for two months as a meat packer. He testified that he could not remember how he came to leave. He was married at about this time and recollected that he commenced to receive unemployment benefits about a month later. In 1998 the plaintiff worked for brief periods as a courier driver for Discount Freight Express at Lismore and Ballina Taxi Trucks. 17 The last employment engaged in by the plaintiff was with TNT South Lismore. His form of application for employment is in evidence. It contains a number of inaccuracies but of importance is the negative response to a question about suffering any relevant disability. The plaintiff was interviewed on behalf of the employer by Mr Lowe whose evidence I accept unreservedly, in particular his contradiction of the plaintiff's testimony that he told "TNT (that is Mr Lowe) that he was in fact suffering from epilepsy but was advised by the interviewer to answer in the negative." Mr Lowe's evidence includes the circumstances of the plaintiff's leaving employment apparently because there had been some domestic upheaval. As Mr Lowe commented "all we really needed to know was whether he wanted a job or whether he didn't". I conclude that he did not, but such a conclusion must be looked at in the context of the plaintiff's claim that a wide spectrum of his behaviour is inspired, or at least affected by the after effects of the accident. I do not accept the plaintiff's evidence that he "lost" this job because he was required to do some cleaning rather than work in the job as a loader/driver for which he was employed. His description of the circumstances of the termination of this employment I find to be invention. 18 For completeness I should record that the plaintiff for a time held a licence which authorized him to drive a bus of limited size and he did so for a time in order to avoid a Sunday school having to pay for some other driver. He does not have a currently effective driving licence. 19 Asked by counsel upon what he currently survives the plaintiff responded "Newstart" which I infer is a current euphemism for unemployment benefits. 8 These proceedings were commenced on 11 July 1991. DECISION OF PRIMARY JUDGE 9 As noted by the primary judge, the central issue at the trial was whether the respondent suffered and is suffering from temporal lobe epilepsy as a result of the accident, and if he is, the extent of the consequences thereof for which the appellant is liable. 10 The primary judge expressed considerable reservations concerning the credibility of the respondent; but he considered that certain evidence of the respondent supported the finding of temporal lobe epilepsy, especially his complaints of olfactory hallucinations (a symptom of temporal lobe epilepsy) and of "spacing out". He also apparently accepted the respondent's mother as a reasonably reliable witness, and apparently accepted her evidence of deterioration in temper control and aggressive behaviour, and of receiving complaints from the respondent of olfactory hallucinations. 11 The primary judge accepted that by early 1989, the respondent's parents considered that there was something wrong with the respondent, or at least something needing investigation, leading to consultations with a physician Dr. Laird and a neurologist Dr. Reid. Dr. Laird diagnosed temporal lobe epilepsy. (I note that Dr. Laird's first report dated 14 April 1989 records the respondent's complaint of olfactory hallucinations.) Between 1989 and 1995, Dr. Reid administered and interpreted a series of EEGs, all of which showed some abnormality, though not plainly characteristics of epilepsy. 12 The primary judge preferred the evidence of Dr. McLaughlin (a neurologist) and Dr. Tomlinson (a neurosurgeon) to the effect that the respondent did have temporal lobe epilepsy to the evidence of Dr. O'Neill (a neurologist) that he did not. He did not accept evidence from a psychiatrist Dr. Bell to the effect that the respondent was a psychopath. 13 The primary judge gave the following reasons for his ultimate conclusions: 61 This brings me to the difficult issue of just what that condition provokes in terms of pain, disability, incapacity or handicap which needs to be identified in order to assess damages. 62 The plaintiff complained of what I will broadly describe as anger management and I am satisfied that his failed relationships with family and women and his failures to maintain employment are probably contributed to in a material way by his lack of reasonable control over his utterances and his behaviour. The next question is whether this situation is related to his epilepsy. I have cited Dr Bell's forceful rejection of the proposition that epilepsy affects behaviour and causes aggression, however, on the other hand, Dr McLaughlin reported: " I would accept the view put forward by Dr Bell that other causes of his rage attacks or temper outbursts be considered apart from epilepsy. However, I would note that aggression occurring between recognized seizures does occur in patients with temporal lobe epilepsy and to quote from Adam & Victor 'that some patients with temporal lobe seizures also exhibit a number of abnormalities in behaviour and personality during the inter-ictal period, also they are often subject to outbursts of bad temper'." 63 I do not consider that epilepsy is the exclusive cause of the plaintiff's bad behaviour but it is likely that other precipitants will come and go and, given the long and persistent history of bad conduct by the plaintiff, I conclude that it is probable that the constant factor of extant temporal lobe epilepsy is a relevantly causative factor in that misbehaviour. That is not to say that sometimes a particular instance may not be entirely precipitated by instant non-epileptic circumstances and in the context of the evidence the best I can do is to bring all these factors into account and endeavour to make a balanced judgment. 64 Other than in the provocation of the condition of temporal lobe epilepsy I do not find that the plaintiff sustained frank brain damage as a long term effect. Nor am I satisfied that the headaches complained of have been shown to be tort induced. In this regard I accept the opinions of Dr Laird who saw the plaintiff over a significant span. At times he attributed the headaches complained of to muscle contraction or tension and to stress in relationships and disputes with current or recent partners or, I would add, possibly family members. I do not overlook the possibility of chain reaction in the sense that the claim of epilepsy being at the root of inability to sustain a harmonious relationship might in turn provoke the situation which led to those headaches. I accept that some headache symptoms should be so regarded but they do not loom large in the overall picture. 65 Dr Tomlinson was asked his opinion about the plaintiff's employment potential. I am conscious of my earlier remarks concerning the dispute between psychologists but Dr Tomlinson used neuropsychological material in what I would regard as an appropriate fashion, that is, as a source of information and an assistance to the clinician. He reported: "The neuropsychology report by Debbie Anderson supports the previous neuropsychology assessment and my clinical impressions. The neuropsychology assessment also provides important information regarding the ongoing management of Mr Michael's epilepsy and also a prognosis for entering the workforce. I believe both of these are poor. I don't believe that Mr Michaels will be compliant with regard to his anti-convulsant therapy. This has far reaching implications. Concerning activities of daily living, if Mr Michaels is not compliant with his anti-convulsant medication, I do not believe that he should continue to have the privilege of driving an automobile. If Mr Michaels is not compliant with his anti-convulsant medication, it is more likely than not that his epilepsy will become more severe and incapacitating. If this is the case then I believe that Mr Michaels would be a candidate for consideration of seizure surgery. The cost of this would be approximately $30,000. I don't believe that Mr Michaels will be able to enter the workforce unless this was in a closely supervised environment. Neuropsychology assessment demonstrates that Mr Michaels' executive functioning is impaired which will affect his ability to maintain employment. This is also compounded by his seizure-disorder." I interpolate that no claim was advanced seeking indemnity for the hypothesized surgery. 66 Dr McLaughlin reported: "Because of the nature of Mr Michaels' impairment of higher cognitive function as outlined by Debbie Anderson and his relative lack of insight into his problems, I think it is improbable that he will ever be reliable in taking anti-convulsant medication. As I consider that his epilepsy is a life long condition, this effectively means that he is unlikely ever to be fit to hold a driver's licence. Regards his future employment, I consider that his prospects are effectively limited to those types of employment where he works under reasonably constant supervision. Because of the presence of epilepsy it should be noted he would not be safe to work in certain work environments (such as being exposed to power machinery, working on roofs or at heights and working on ladders). I do not consider that he would benefit from rehabilitation." 67 Despite these views, as already noted, the plaintiff continues to drive motor vehicles and engage in employment directly involving so doing. He was submitting certificates from Dr Currie, a general practitioner, to the RTA for the purpose of maintaining licensed status. No doubt the plaintiff's potential handicaps would be markedly reduced if he is medicated but the failure to comply with medication is a commonplace, and as I understand the commentary of the medical experts, to be regarded as a concomitant of the underlying condition. Again, purely on probability, I find the cycle of illness caused by tort, the consequences of it being capable of being ameliorated by medication but the failure to ameliorate it by so doing being traceable back to the illness. It is unnecessary to advert to opinions on employability expressed by Dr O'Neill whose "serious doubts about the plaintiff having any continuing adverse sequelae from the significant closed head injury of 22/10/85" are contrary to the opinion I have preferred and for like reasons the opinion of Dr Bell that the plaintiff's problems are essentially sourced in his status as a "young psychopath" which I have rejected. 68 I turn to assess the ingredients of damage. 69 A table of out of pocket expenses was tendered (Exhibit M). They amount to $5,065 and should be included. 70 The impossible questions are what would the plaintiff have done if uninjured and what will he do in the future in particular in reference to employment. It is clear that after leaving school the plaintiff has had and will continue to have some exercisable earning capacity, significantly enhanced when he maintains disciplined attention to medication. I have elaborated upon the contribution of the condition to lapses in such maintenance. In my view the diminution in exercisable earning capacity induced by the tort is greater by degree. Although nothing like precision can be achieved, the plaintiff is not deprived of damages for that reason: Malec v J.C. Hutton Pty Limited 1990 169 CLR 638; Medlin v State Insurance Commission 1988 127 ALR 180. 71 The defendant contended that damages should not be awarded hence it was not part of its submission to canvass any factors for calculation. The plaintiff submitted that a useful guide could be derived by reference to average weekly earning figures published by the Commonwealth Statistician. I agree. To select any particular employment would be impermissibly speculative. The plaintiff's "driver" oriented occupations have a shadow cast over them by the medical opinion (other than that apparently of Dr Currie) concerning whether he should be licensed to drive at all. In using average weekly earning figures I take into account the notorious statistical fact that in raw numbers, more Australians in the workforce earn less than the average than earn that average or more than it. 72 The present average weekly earnings for adult males is $740 per week nett. It is about seven and half years since the plaintiff turned eighteen. The plaintiff's claim was formulated on the basis that an award for five years (presumably for the purpose of interest dating back from now) at that rate would encompass any necessary discount. The result of the submission was a claim for about $193,000. 73 The conclusion that I have reached is that it will do justice between the parties if the plaintiff's compensable loss of earning capacity is assessed at 65 percent of what it would have been if he were uninjured. If one were to assume a loss of $740 per week for seven and half years, an award of 65 percent results in a figure of $187,590. However that figure does not allow for the probability that the present rate ($740 per week) was no doubt reached in a process of growth over the period nor does it allow for the unknown earnings during actual employment. 74 Taking all factors into account I would award the plaintiff $130,000 for economic loss to date. 75 For the purpose of interest calculation, it is agreed that the plaintiff has received $51,259 in relevant social security benefits. The table of interest rates in Schedule J to the Supreme Court Rules averages 10.66 percent over the relevant period. I award interest at 5.33 percent for 7.5 years on $78,744 namely $31,478. 76 I take a broadly similar approach to future economic loss. Counsel extrapolated figures capitalizing $740 per week over a notional working life of the plaintiff to age sixty five at an assumed 3 percent (multiplier 1215.87) at $899,692 but expressly acknowledged that this was a "maximum calculation" (an assumption of total loss of earning capacity) and that it was not argued that this sum was sought. 77 Applying the stated methodology, 65 percent of the above capitalization results in a figure of $584,800. I need to consider whether there should be discount for preponderance of adverse vicissitudes in the future and I conclude that there should. The "reduction" to 65 percent from 100 percent is an estimate to reflect residual capacity and does not involve the matters usually assumed in applying the conventional discount of 15 percent which I propose to do and I therefore award the plaintiff $497,080 for future economic loss. 78 The submissions on behalf of the plaintiff that I have referred to were conveniently reduced to writing. No similar submission was offered focussed upon expenditure for future treatment or medication. The evidence does not permit an award based upon illusory figures. Insofar as such may need to be accommodated it will be included in non-special damages. 79 The final ingredients are general damages and interest thereon. General damages are necessarily matters of impression. The plaintiff's situation is, on the medical evidence which I accept, lifelong. His condition is a contribution to an inability to settle to a stable and peaceful life. Whilst his condition is not significantly pain producing and there is not devastation in that sense or in the sense of loss of limb or paralysis of bodily function, it is in my view an insidious detriment against the attainment of a contented life. I assess general damages at $140,000. Exclusively for the purpose of interest, I specify one half that sum as representative of loss to date and interest thereon at 2 percent for sixteen years is $22,400. It is common ground that the words "to 65" in par.[77] should be "to 35". GROUNDS OF APPEAL 14 The appellant relied on the following grounds of appeal: 1. His Honour erred in finding the respondent suffered from temporal lobe epilepsy; 2. Alternatively, if the respondent did suffer from temporal lobe epilepsy his Honour erred - (a) In finding that such condition continued at the time of trial; (b) In finding that such condition was permanent; (c) In finding that such condition affected the respondent adversely in his relations with his family, women, employers and others; (d) In finding that such condition impaired the respondent's ability to drive motor vehicles or work with machinery, (e) In finding that the losses and damages of which the respondent complained were attributable to such condition; (f) In failing to reflect his finding that the epilepsy was not the exclusive cause of the respondent's bad behaviour in his assessment of damages; (g) In failing to make any or any adequate allowance for the possibility the respondent would make appropriate use of available medications, or that the condition would not be permanent; 3. The award of damages was excessive; 4. The assessment of general damages was excessive; 5. The assessment of damages for past loss of wages was excessive and, inter alia, over assessed the respondent's earning capacity in the absence of the subject accident, failed to make appropriate allowance for the respondent's retained earning capacity, failed to make any allowance for vicissitudes and compensated the respondent for losses which were not attributable to the effects of the subject accident; 6. The assessment of damages for impairment of future earning capacity was excessive and, inter alia, made excessive allowance for the respondent's earning capacity in the absence of the subject accident failed to make appropriate allowance for the respondent's retained earning capacity and vicissitudes and compensated the respondent for losses which were not attributable to the effects of the subject accident; 7. In the event the above submissions are upheld the assessment of interest on general damages and past loss of wages involves error; 8. His Honour failed to give adequate reasons. 15 The Notice of Appeal sought a re-assessment of damages or alternatively a new trial, and consequential relief. SUBMISSIONS 16 Mr. Hislop QC for the appellant submitted that, even accepting the primary judge's finding that the accident caused temporal lobe epilepsy, which continues, the damages were excessive. 17 He submitted that the consequences of temporal lobe epilepsy were not disabling. He submitted that it could not reasonably be regarded as the cause of disruptions to the respondent's family relationships. There was no suggestion of continuing symptoms amounting to anything more than occasional "spacing out", and no clear evidence even of this in recent years. He pointed to evidence from the respondent's mother that this does not happen when he is driving; and he noted that this had not prevented the respondent from having and using a driving licence. His applications for a licence had been supported by a certificate from his GP Dr. Currie that he had been "seizure-free" for years, and his subsequent loss of a driving licence was for other reasons entirely. It was suggested that the temporal lobe epilepsy caused aggression and problems in anger-management, but this was not supported by school reports, and his brother had worse problems of this kind. 18 Mr. Hislop submitted that, having regard to interruptions to the respondent's education from frequent changes of school, his leaving school part-way through Year 11, and the high unemployment rates in country areas, there was nothing in his employment history not explicable by his school career, lack of enthusiasm for work, and circumstances of country life. The evidence did not suggest he had lost any jobs because of anything caused by temporal lobe epilepsy. Although he had lost some jobs due to disagreements with employers, the loss of his most substantial job with TNT was not, on the findings of the primary judge, the result of any such disagreement. 19 Mr. Hislop submitted that the material could not possibly support a finding of economic loss to the extent of 65% of average weekly earnings. Furthermore, $140,000.00 for general damages was plainly excessive. 20 Mr. Hislop submitted also that the finding of temporal lobe epilepsy was not justified. It depended on the respondent's credibility, which was poor. The most recent and most substantial EEG testing, for six hours at the RPA on 7 May 2001, supported normalcy. 21 Mr. Wheelahan QC for the respondent, in response to a suggestion from me that, in so far as the respondent's difficulties were due to aggression and problems with anger management, the respondent must be considered to some extent responsible for these matters himself, submitted that this consideration was taken into account by the primary judge at par.[63]. 22 In any event, Mr. Wheelahan submitted, temporal lobe epilepsy had far greater consequences than in relation to aggression and anger management; and he referred to the passages from medical reports referred to in par.[65] and [66] of the judgment. The respondent's employment opportunities were plainly very substantially limited when he should not drive and needed constant supervision. 23 Mr. Wheelahan submitted that it was not open to the appellant to submit that affectation by epilepsy was not continuing, in circumstances where it had not been put either to the respondent or to his mother in cross-examination that the "spacing out" episodes were not continuing: these episodes, properly described as complex partial seizures, were the manifestation of the temporal lobe epilepsy. In circumstances where his first employer had made the assessment that the respondent should not be re-employed in any position, it was plain that his ongoing earning capacity was very limited indeed. 24 Mr. Wheelahan also submitted that no submission had been made to the primary judge that he should not be satisfied that, uninjured, the respondent would have achieved average weekly earnings; and in any event, this was an appropriate starting point: Rosniak v. Government Insurance Office (1997) 41 NSWLR 608. DECISION 25 In my opinion, it was plainly open to the primary judge to find that the respondent suffered from temporal lobe epilepsy, and that this condition was continuing. Despite the primary judge's reservations about the respondent's credibility, the primary judge was justified in accepting the quite early complaints of olfactory hallucinations as strongly corroborative of temporal lobe epilepsy. Furthermore, particularly in circumstances where it had not been put in cross-examination that the "spacing out" episodes were not continuing, it was clearly open to the primary judge to find that the respondent was still affected by temporal lobe epilepsy, and to accept the medical evidence that this situation was effectively permanent. 26 However, I think there is a real question as to whether the primary judge's conclusions about the effects of this condition were justified. 27 It is clear that the primary judge determined that the respondent's residual earning capacity was 35% of what it would have been if uninjured (see judgment par.[77]), and that his earning capacity if uninjured would have supported earnings equal to average weekly earnings (see judgment par.[73]); and the primary judge held that the appellant was liable for the whole of that difference, subject only to the usual 15% discount for vicissitudes. 28 The effects of the accident, and in particular the temporal lobe epilepsy, said to justify holding the appellant responsible for all of this difference, appear to be primarily the respondent's susceptibility to blackouts, and problems with aggression and anger management associated with temporal lobe epilepsy. I note that Dr. McLaughlin, who was accepted by the primary judge, referred also a psychologist's report asserting "impairment of higher cognitive functions"; but there was conflict on this matter between psychologists, which was expressly not resolved by the primary judge: see judgment pars.[43] and [44]. 29 Returning to the issue of susceptibility to blackouts, the evidence of Dr. Tomlinson and Dr. McLaughlin was to the effect that the respondent would need fairly constant supervision in the workplace, and should not drive a vehicle. However, the primary judge did not accept that this was absolutely definitive, but rather concluded that "driver oriented" occupations "have a shadow cast over them by the medical opinion", referring also to the opinion of Dr. Currie on the basis of which the respondent's driving licence had been renewed on two occasions (see judgment par.[71]). 30 In my opinion, there are serious difficulties with making the appellant wholly liable for the 65% difference in earning capacity, with only 15% allowance for vicissitudes. 31 In the first place, the actual employment history of the respondent over the seven and a half years since he attained 18 suggests that the susceptibility to blackouts has had no impact whatsoever on his employment. 32 Secondly, and more importantly, as regards the aspect of aggression and anger management, it is in my opinion wrong in principle to make the appellant wholly responsible for the consequences of these matters. In my opinion, unless psychological or psychiatric problems are so severe as to substantially remove altogether a person's responsibility for behaviour, a person in the position of the respondent must be regarded by the law as having some responsibility for his own behaviour. If, for example, the respondent out of anger committed an assault on someone, and was sued by that person for damages, it would in my opinion be quite inappropriate to require the appellant to give the respondent a 100% indemnity because the appellant had caused the respondent to have a condition in which he had difficulties with anger management. 33 The primary judge in par.[63] did recognise that epilepsy was not "the exclusive cause of the plaintiff's bad behaviour"; but he treated the other causes as in effect coming from transient environmental triggers, and did not treat the respondent as being to any extent responsible for his own conduct. I think this was an error which should be corrected. 34 There are in my opinion a number of less important matters suggesting either that the appellant should not have been made liable for the whole of the 65% difference, or that the vicissitudes discount should have been greater than 15%. 35 It was not inappropriate to take average weekly earnings as a starting point (see Rosniak), but at par.[71] the primary judge said "I take into account the notorious statistical fact that in raw numbers, more Australians in the workforce earn less than the average than earn that average or more than it". However, there is no indication of any way in which the primary judge did take that fact into account. 36 There were in fact circumstances suggesting that, uninjured, the respondent may well have earned less than average weekly earnings. Although the respondent claimed that his performance at school was detrimentally affected by the accident, the fact is that the school reports suggest that his academic performance was at least as good after the accident as before it, and the only reference in the reports to bad behaviour (specifically, lack of self-control and as an instigator to distracting others) is in a report prior to the accident. There is also the notorious circumstance of high unemployment in country areas. 37 For these reasons, it was in my opinion an error of principle to make the appellant liable for the whole of the 65% difference, and to combine this with no more than the usual 15% deduction for vicissitudes. 38 It seems that the primary judge was not assisted by submissions from the appellant as to the correct calculation of damages: in effect, the appellant submitted that all the respondent's problems were due to his own bad behaviour for which he was entirely responsible. In those circumstances, I do not think that this Court should adjust the primary judge's figures any more than it considers absolutely necessary. I think it appropriate to treat the appellant as responsible for a diminution of earning capacity equivalent to 50% of average weekly earnings, rather than the 65% adopted by the primary judge. 39 This results in a reduction of past economic loss from $130,000.00 to $100,000.00; reduction of interest from $31,478.00 to $19,484.00; and reduction of future economic loss from $497,080.00 to $382,369.00. 40 I think the primary judge's approach, in effect treating the appellant as wholly liable for consequences of the respondent's bad behaviour, affected also the assessment of general damages; and I would propose reducing that figure from $140,000.00 to $110,000.00. Out-of-pockets remain the same at $5,065.00, and the resulting total is $616,918.00. ORDERS 41 I propose that the following orders be made: 1. Appeal allowed. 2. Judgment for the respondent against the appellant in the sum of $616,918.00, in lieu of the sum of $826,023.00 awarded by the primary judge. 3. Respondent to pay the appellant's costs of the appeal, and to have a suitors' fund certificate if otherwise entitled. 42 YOUNG CJ in Eq: I agree with Hodgson JA. ********** 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.