New South Wales Court of Appeal CITATION: De Groot v The Nominal Defendant [2005] NSWCA 61 HEARING DATE(S): 07-10/3/2005 JUDGMENT DATE: 15 December 2005 JUDGMENT OF: Giles JA at 1; Bryson JA at 12; Gzell J at 292 DECISION: (1) Appeal dismissed with costs; (2) Upon the Summons for leave to cross-appeal; (a) grant leave to cross-appeal with respect to liability; (b) direct that Notice of Cross-Appeal be filed and served within 7 days; (c) save as aforesaid, dismiss the Summons; (3) Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal. CATCHWORDS: NEGLIGENCE - Motor Vehicle - The plaintiff aged 4 as passenger was injured by wheel cleat from unidentified vehicle travelling in opposite direction - challenges to DCJ's findings on negligence and on extent and nature of injury and continuing disabilities - numerous factual issues on liability and damages - consideration of - mitigation of damages MAA s.39 where infant's treatment decided by parent - allowance under s.45 of MAA for sums paid by insurer where payments exceeded damages assessed - claim for special order for costs under Calderbank offer - claim for order for costs against plaintiff's legal representatives. Civil Procedure Act 2005 (NSW) s 98 District Court Act 1973 (NSW) ss 127(1)(c), 148B, 148E District Court Rules 1973 (NSW) Pt 39A r 14 LEGISLATION CITED: Motor Accidents Act 1988 (NSW) ss 39, 45, 70A, 79; Sch 4 Pt 7 cl 17 (7A) Motor Accidents (Amendment) Act 1989 (NSW) No. 47 Motor Accidents (Amendment) Act 1995 (NSW) No. 66 Supreme Court Act 1970 (NSW) s 75A Abalos v Australian Postal Commission (1990) 171 CLR 167 Carter v Boan [2001] NSWCA 160 Devries v Australian National Railways Commission (1993) 177 CLR 472 Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FLR 17; 209 ALR 568 Fox v Percy (2003) 214 CLR 118 Jones v Dunkel (1959) 101 CLR 298 Jones v Hyde (1989) 63 ALJR 349 Knight v F P Special Assets Ltd (1992) 174 CLR 178 Luxton v Vines (1952) 85 CLR 352 CASES CITED: Mifsud v Chemplex Australia Limited [1999] VSCA 175 Moylan v Nutrasweet (2000) NSWCA 337 Nominal Defendant v Haslbauer (1967) 117 CLR 448 O'Brien v O'Brien (1995) 35 NSWLR 664 Purkess v Crittenden (1965) 114 CLR 164 Schellenberg v Tunnel Holdings Pty Ltd (1999-2000) 200 CLR 121 State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395 Warren v Coombes (1979) 142 CLR 531 Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127 Daniel Rory De Groot - Appellant PARTIES: The Nominal Defendant - Respondent FILE NUMBER(S): CA 40998/02; 41166/03 L. King SC, P. McGuiness, J. Priestley - Appellant COUNSEL: J. Poulos QC and J. Morris - Respondent Conroy & Stewart - Appellant SOLICITORS: Abbott Tout - Respondent LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 2012/01 LOWER COURT JUDICIAL OFFICER: Gibb DCJ IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40998/02 DC 2012/01 GILES JA BRYSON JA GZELL J 15 December 2005 DANIEL RORY DE GROOT (an infant by his tutor Arlena Van Oosten) v THE NOMINAL DEFENDANT Judgment 1 GILES JA: Subject to the following additional observations, for the reasons given by Bryson JA and Gzell J orders should be made as proposed by Bryson JA. 2 In his consideration of Ground 4, Bryson JA refers to Professor Werry's opinion to the effect that the neuro-psychological testing purporting to show the appellant's pre-accident ability was unreliable. The judge accepted that opinion. 3 Professor Werry said that the testing was designed primarily to measure current function and ability, although accepting also pre-injury ability "in part". He did not consider that great reliability could be placed on the wide-ranging tests administered by Ms Packer, describing one of them as "quick and dirty". He said that the more comprehensive Weschsler test administered by Dr Boon was "subject to considerable error", that it did not permit deduction of "pre-morbid" ability with 100 per cent accuracy, and that "the closer it gets to average, the more difficult it is to make that distinction". He said of that test that it was of "limited sensitivity and specificity, and is subject to the problem that human intelligence is not a unitary thing. People have different abilities." He said that the test "may be 50 per cent accurate, which means its got 50 per cent error in it." 4 Professor Werry maintained his position under a testing cross-examination. He was highly qualified. While there was a body of evidence demonstrating that some neuro-psychologists saw reliability in deducing from the neuro-psychological testing the appellant's pre-accident ability, there was scant reasoned explanation for that position or rebuttal of Professor Werry's reasons for discounting the reliability to the point of unhelpfulness. 5 I draw attention to these matters, in amplification of my agreement with Bryson JA in this respect. 6 It being unnecessary to do so in order to dispose of the appeal, I would prefer not to express a view as to attribution to the appellant of the decisions of his mother in relation to his treatment (Ground 19(a)). 7 I respectfully do not concur in Bryson JA's observations (Ground 22), which do not affect the determination of the appeal, upon the reference by Senior Counsel for the respondent to possible conflict of interest between the appellant's tutor and his legal representatives. When coming to submissions upon the application for a costs order against the legal representatives, the judge raised in strong terms with counsel for the appellant that she did not have evidence from the tutor to the effect that the tutor did not support such an order but opposed it. Whether the judge was right or wrong in that respect, it seems to me clear that there was present to her mind the possibility of a conflict of interest between the tutor and the legal representatives in relation to the making of the order. I am not prepared to regard it as inappropriate that, albeit it seems without an invitation for a submission, the respondent's counsel made known the respondent's position as set out by her Honour. The judge was thereafter provided with information which satisfied her concern, but I consider it understandable that counsel for the respondent reacted to the judge's then unsatisfied concern in the manner he did. That is not to endorse inany way the unsatisfactory manner in which the application for a costs order against the legal representatives was made. 8 Finally, I would take a slightly different path to refusal of leave to cross-appeal in relation to the application for a costs order against the legal representatives. 9 The effect of the judge's decision in relation to the Calderbank offer was that the respondent had to pay the appellant's costs to a time on 5 December 2001 but not thereafter. The application for a costs order against the legal representatives was that the respondent's costs from 5 December 2001 be paid in whole or in part by the legal representatives. Neither s 148E(1)(a) nor s 148E(1)(b) could found an order that the legal representatives pay costs to the respondent, and, since the application was restricted to costs other than costs which the respondent had been ordered to pay, neither could s 148E(1)(c) – there were no relevant costs payable by the respondent against which the legal representatives could be ordered to indemnify. 10 To this extent, the judge was correct in saying that she had no power to make the order. Where her Honour erred, in my opinion, was in apparently overlooking s 148B, which had sufficiently been raised in the submissions in support of the application. It gave a wide discretion (see Knight v F P Special Assets Ltd (1992) 174 CLR 178), which could well have extended to a power to make the costs order against the legal representatives. 11 It is not necessary to decide this. If s 148B were a source of power to make the order I respectfully agree with Bryson JA that the judge erred in her reasons why she would not have made a costs order against the legal representatives. I do not, however, think in the circumstances leave to cross-appeal in that respect should be granted. As Bryson JA has noted, the cross-appeal would involve an appraisal of the manner in which the legal representatives conducted the litigation. The respondent simply did not provide evidence to the judge appropriate for the conclusion that they had so misconducted the proceedings that, in the exercise of the discretion under s 148B, liability for the costs in question should fall upon them. The tutor's contentment with the conduct of the proceedings was relevant in that respect, although not determinative; like Bryson JA, I am not satisfied that the proposed cross-appeal would have any real prospects of success. 12 BRYSON JA: Daniel Rory De Groot, the plaintiff in the District Court, appeals against the judgment of her Honour Judge Gibb. The Notice of Appeal claims that the assessment of damages be set aside; and the Court of Appeal is asked to assess damages or alternatively to remit the proceedings to the District Court for reassessment of damages. There is also a challenge to orders for costs made by Judge Gibb. 13 These reasons do not deal with the application made by the respondent, defendant in the District Court, for leave to cross-appeal from Judge Gibb's decision in favour of the appellant on the issue of the respondent's liability to pay damages. For reasons which appear in the judgment of Gzell J, with which I agree, the respondent has failed to demonstrate that her Honour erred in concluding that the driver of the truck was negligent. For reasons stated by Gzell J, the proposed cross-appeal as to liability should not succeed for that reason, leave to cross-appeal on liability should be granted, and the cross-appeal should be dismissed with costs. 14 The appellant was born on 2 July 1990. His mother Ms Arlena Van Oosten is his tutor in the proceedings, and she was by far the most important lay witness. Much of her evidence was challenged and Judge Gibb took an severely adverse view of her credibility and of her evidence. 15 The appellant then aged four years and eight months was injured in what Judge Gibb spoke of as a freak accident on the Pacific Highway at Ulmarra in the Clarence River district of New South Wales on 3 March 1995. A wheel cleat became separated from the wheel of an approaching semi-trailer and was propelled through the windshield of the vehicle in which the appellant was travelling. The cleat struck him on the head and he sustained serious head injuries. The other persons in the vehicle at the time of the injury were the driver Mr Milczarski, who was then in a personal relationship with Ms Van Oosten, and Ms Van Oosten who was seated next to the driver. The appellant was seated on the front bench seat adjacent to the passenger door next to his mother. The accident happened at about 2.00 or 2.15 pm. Mr Milczarski drove the appellant to Grafton Base Hospital where the records show that he arrived at 14.45 hours. Medical notes of Grafton Base Hospital show that the appellant initially had a Glascow Coma Score of 15. While at that hospital he suffered two focal and one generalised seizures, and these were followed by reduction of the Glascow Coma Score to 13. An x-ray showed a depressed skull fracture. A CT scan was reported on by Dr Karunanithy, Radiologist as showing "a depressed comminuted type fracture … to the right posterior parietal bone associated with overlying soft tissue swelling consistent with a prominent scalp haematoma" (and there were further observations). The appellant was then transferred by air to the Royal Children's Hospital at Brisbane where he was admitted at 23.14 hours. Dr Frank Tomlinson operated on him that night for elevation of depressed right parietal skull fracture. The report made on behalf of Dr Tomlinson was to the effect that the appellant made a good post-operative recovery showing no effects of his injury, that he was discharged home on 10 May 1995, and that he returned on 25 May 2005 for a CT head scan "…which revealed that the fracture had healed nicely and there was no underlying cerebral abnormality evident." 16 Judge Gibb's judgment published on 30 September 2002 (Red 1/22) occupies 250 close-set pages and is distinguished for its close examination of contentious issues. A later judgment of 29 November 2002 (Red 1/2/274) dealt with costs and other matters in 35 pages. The Amended Notice of Appeal specifies 19 grounds upon which the judgment on liability is challenged, and also several grounds on which the judgment dealing with costs is challenged. Judge Gibb assessed the appellant's damages at $18,344.45 by allowing general damages of $17,440.00, the appropriate award under the Motor Accidents Act 1988 where the injuries constituted 14% of the most extreme case, together with $904.45 for past out-of-pocket expenses. The assessment was based on findings to the effect that the appellant recovered fully by November or December 1995, that is within nine months; that his physical recovery was rapid, that he may have suffered some shock and some post-traumatic stress and that there were no long term sequelae other than some very minor scarring. Judge Gibb rejected many claims for the inclusion of elements in the assessment of damages, including some claims for past out-of-pocket expenses for past medical treatment and other out-of-pocket expenses; claims for future medical and past economic loss, past domestic care, future domestic care, future educational needs, funds management, future economic loss; and made some observations on failure to mitigate loss and on s 39 of the Motor Accidents Act 1988. 17 There is no room to doubt that the appellant is a person with disabilities; what is to be decided is whether these disabilities or some of them were caused by the injury which he suffered on 3 March 1995. He has a condition referred to as Attention Deficit Disorder and sometimes as Attention Deficit Hyperactivity Disorder (ADD or ADHD). The appellant put this forward as one of the sequelae to his head injury; the respondent sought to show that this was a pre-existing condition. 18 Judge Gibb rejected by far the major claims in the appellant's case on damages, claims that he suffered many continuing sequelae of his injury of 3 March 1995; the rejection related both to causation and to the existence and extent of many of the alleged disabilities. It was the appellant's case that he suffered severe continuing disabilities, cognitive deficits and behavioural changes, which were caused by his injury and arose from brain damage, a lesion in the right parietal region with subtle damage to the frontal system, and to some extent the right parietal system and temporal lobes, through general diffusion of shock waves through the brain. No means of objectively observing physical signs of brain damage of that kind are available. Expert evidence relating to existence and causation of continuing disabilities caused by brain injury on behalf of the appellant was principally the evidence of Dr Buckley, Professor Broe and Dr Johnson, and on behalf of the respondent the evidence of Professor Werry and Dr Jones. The expert opinions depended, of course, not only on observations of the appellant made by the expert witnesses themselves, but also and most significantly on the actual existence of facts which were given to experts as history and which had, or could have had significant influence on the formation of opinions. The Trial Judge regarded Ms Van Oosten as a very unreliable witness. Her Honour did not accept the expert views of Professor Broe and Dr Johnson on the appellant's condition and its causation, and gave acceptance to views of Professor Werry and Dr Jones. 19 Senior counsel contended that it was no part of the appellant's medical case that his injury resulted in any motor abnormalities or neurological deficits; and hence that a normal observation on a routine examination at the physical and neurological level by a general practitioner, occupational therapist or physiotherapist does not gainsay the presence of the type of brain damage that the appellant was contending for. It was contended that the Trial Judge did not have a full or firm grasp of the nature of the appellant's contention; and that this was illustrated by her treatment and acceptance of the contention that there had been a good recovery, of which Senior counsel observed that on the appellant's case good recovery of a motor kind was irrelevant. 20 The hearing before Judge Gibb was very lengthy, according to transcript headings taking 45 days, seven days in December 2001, five days in March 2002, 9 days late in April and in May and a long more or less continuous session from 3 June 2002 until 11 July; there were other hearing days. There were several thousand transcript pages of evidence and submissions and 1860 pages of exhibits. The trial was conducted in a highly combative way and issues were explored to a degree which retrospectively is not always easy to understand. The combative and even confrontational nature of the hearing is sometimes observable in exchanges between the Bar and the Bench. The narrations I have given in an attempt to outline the issues could well be regarded by one or other of the parties as open to contention in some ways. 21 The nature of the issues naturally led to close examination of whatever indications were available of the condition and abilities of the appellant before he was injured. As well as the evidence of Ms Van Oosten, which the Trial Judge found to be very unreliable, there were other sources, but although they had inherent importance they were very difficult to assess, largely because the appellant was only four years and eight months old when injured and there were very few sources of objective information or professionally trained observation of his abilities so early in life. 22 At all times on appeal, as at first instance, it is necessary to keep it clearly in view that the onus of proof, on the balance of probabilities, of the facts upon which the damages claim rested lay upon the appellant. 23 It is also necessary to keep in view the duties and the responsibilities of the appellate Court in an appeal against findings of fact at first instance. The responsibilities of this Court when deciding an appeal by way of rehearing under Supreme Court Act 1970 (NSW) s 75A have been considered a number of times in the High Court of Australia, most recently and significantly in Fox v Percy (2003) 214 CLR 118. The principal judgment (and the High Court was unanimous as to the outcome) is that of Gleeson CJ, Gummow and Kirby JJ, who considered the powers and functions of the Court of Appeal in a passage at 124 [20] to 129 [31], and pointed [25] to the obligation of the appellate Court to conduct a real review of the trial and of the judge's reasons and to its duty to decide on the proper inference to be drawn from facts which are undisputed or have been established by other findings, and referred to Warren v Coombes (1979) 142 CLR 531 at 551 and other authorities. 24 In Fox v Percy their Honours referred to decisions later than Warren v Coombes which contain statements or restatements of the need for appellate respect for the advantages of trial judges, especially where decision might be affected by the judge's impression about the credibility of witnesses. Their Honours said (at 127 [26]) of Jones v Hyde (1989) 63 ALJR 349 at 351-2, Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482-483:- The decisions were simply a reminder of the limits under which appellate Judges typically operate when compared with Trial Judges. 25 Their Honours said, while not derogating from the obligation to perform the appellate function, that the three decisions remained the instruction of the High Court to appellate decision-making. The instruction included, in Devries v Australian National Railways Commission, the statement by Brennan, Gaudron and McHugh JJ at 479:- More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against – even strongly against – that finding of fact [3. See Brunskill (1985) 59 ALJR 842; 62 ALR 53; Jones v Hyde (1989) 63 ALJR 349; 85 ALR 23; Abalos v Australian Postal Commission (1990) 171 CLR 167]. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge 'has failed to use or has palpably misused his [or her] advantage' [4. SS Hontestroom v SS Sagaporack [1927] AC 37, at 47] or has acted on evidence which was 'inconsistent with facts incontrovertibly established by the evidence' or which was 'glaringly improbable' [5. Brunskill (1985) 59 ALJR, at 844; 62 ALR, at 57]'. 26 In Fox v Percy their Honours also said (128 [28]): However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. [29] That this is so is demonstrated in several recent decisions of this court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. (46 eg, Voulis v Kozary (1975) 180 CLR 177; SRA (1999) 73 ALJR 306; 160 ALR 588; cf Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 349-351.) In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trial is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process. 27 Their Honours went on (at 129 [30] and [31]) to make observations, which in the present context are cautionary, about the force of the assessment of the appearance of witnesses and the danger of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Their Honours said: [30] It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (eg Trawl Industries of Australia Pty Ltd v Effem Foods Pty Ltd (1992) 27 NSWLR 326 at 348, per Samuels JA.). Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):- "... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour." [31] Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances…Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses The issues in the present appeal bring her Honour's observations of witnesses under attention. 28 There are cases where demeanour and a decision to place confidence in the account of one of two or more witnesses who give conflicting evidence is an adequate and satisfactory means of reaching resolution of disputed issues of fact and of explaining the basis of the decision to the parties; but that is not commonly the case where there is a conflict on a matter of opinion between properly qualified experts. Recent case law was reviewed and its effect explained in Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127 at 135 – 139 by Ipp JA. It is usually, indeed almost always necessary to give reasons which go beyond expressing reliance on demeanour when resolving differing views of expert witnesses, by furnishing an analysis of the basis of the findings. In Expectation Pty Limited v PRD Realty Pty Limited (2004) 140 FLR 17 209 ALR 568 at 572 [67], the Full Court of the Federal Court of Australia (Carr, Emmett and Gyles JJ) referred to the difficulties of accepting the ability of judges or anyone else to tell truth from falsehood accurately on the basis of the appearance of witnesses and said:-. Such considerations should encourage trial judges and appellate judges to limit their reliance on the appearance of witnesses and to reach conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events: 29 The differing expert views which were before Judge Gibb for adjudication were not to be resolved by an attempt to tell truth from falsehood, and on a reasonable basis required evaluation of the opinions expressed and the bases for them, including the factual bases. 30 The object which struck the appellant was a wheel cleat, a metal object forming part of the structure of the wheel of a semi-trailer which was travelling in the opposite direction to the vehicle in which the appellant was a passenger; the cleat became separated from the wheel of the semi-trailer, was propelled through the windscreen of the vehicle in which the appellant was travelling and struck him on the head. That a metal object of this kind, said to weigh 350 to 400 grams (and the object itself was not available to go into evidence) should strike a child under five years old and cause a depressed parietal skull fracture is a significant event which must come under consideration as a cause of later disability. Senior counsel for the appellant pointed to various elements in the facts which he said supported on a commonsense view of causation, finding that disabilities which the appellant now has were caused by his head injury. To my mind the ordinary lay interpretation that there could well be a causal connection between the injury and the present disabilities is an available and important line of reasoning, but in a case so full of medical opinion also bearing on causation, it is necessary to look much further. 31 As well as the evidence of Professor Broe a consultant neurologist and of Dr Johnson a paediatrician, the appellant relied on the oral evidence of Dr Buckley a consultant physician in rehabilitative medicine, of Mr Mark Ravagnani a Consulting Psychologist, of Ms Suzanne Ravagnani an Occupational Therapist (and these witnesses were cross-examined) and of seventeen other doctors and medical professional persons who gave evidence in written reports and were not cross-examined; these included a Consultant Neurologist, a Clinical Neuro-psychologist, a Consultant Neuro-physician, Professor Buchanan who dealt with epilepsy, Neuro-Psychologists, Paediatricians, General Practitioners and others. Hospital notes were tendered from Grafton Base Hospital, the Royal Children's Hospital Brisbane and the New Children's Hospital Sydney and there were some treating rehabilitation notes in evidence. The appellant also tendered all school reports which were available up to the time of the trial. The respondent put in evidence the reports and oral evidence of Dr Jones a paediatric neurosurgeon and Professor Werry a psychiatrist; and they were cross-examined. The respondent had available to it evidence from five other medically qualified persons who examined the appellant; but did not serve their reports or call their evidence. These included a Paediatric Neuropsychologist, a Paediatric Psychologist and two Paediatric Psychiatrists. 32 In a passage of the judgment headed "Introduction" (Red 1/29-30) the Trial Judge referred to a number of matters which were not in evidence and said -- "… The case is characterised as much by what it lacks as what it covered." These included that the Trial Judge did not see nor hear evidence from the appellant who was then 12 years of age, nor from his father; that she had not seen a report from a pre-accident treating doctor; that she had not seen a report from any doctor who treated the appellant after the accident which supported the claim that he sustained "... a relevant brain injury as distinct from a head injury"; that she had not seen a single treating doctor or received a comprehensive report from any treating doctor; that she had not seen any preschool reports predating the accident, or any school reports later than mid-year 2001. 33 An array of submissions sought to contend with these statements, but they are all defensible for their simple accuracy. None was irrelevant, and as she saw them as relevant it was appropriate of the Trial Judge to refer to them. Written submissions made a number of other combative or otherwise adverse comments on passages in the Trial Judge's Introduction, but I do not attach any significance to these. Many things which the Trial Judge said attracted adverse comments; it would seem that the submission was framed on the basis that anything in the judgment which did not accord or did not fully accord with the state of facts for which the appellant contended or had ever contended was to attract an adverse comment. Advocacy of this kind was voluminous, but not uniformly useful. 34 Although I discuss the grounds in the Amended Notice of Appeal one by one, they cannot really be considered in isolation from each other and I do not attempt to assign clear boundaries between them. 35 Ground 1 in the Amended Notice of Appeal is : The Trial Judge erred in finding that the appellant's case rested directly and indirectly on his mother's evidence. This ground relates closely to Ground 3 and 10. Ground 3: The Trial Judge erred in rejecting the evidence of the appellant's witnesses as to the appellant's condition before and after the accident. Ground 10: The Trial Judge's findings as to the credit of the appellant's mother were perverse. 36 In a passage in the judgment which is headed "Findings on credit" (Red 1/68) the Trial Judge said, as the opening sentence of a lengthy exposition, "In the end, the plaintiff's case rested directly and indirectly upon the evidence of his mother, Ms Arlene Van Oosten, both as to Daniel's condition before the accident and in respect to the events unfolding thereafter." For reasons which her Honour stated the Judge said (Red 1/68U-I): I…find that Ms Van Oosten was a witness of virtually no credit, upon whom it was impossible to place any reliance." Judge Gibb also said (Red 1/69A):- The opinions of each of the plaintiff's medico-legal specialists rested upon what was told to each of them by Ms Van Oosten. The opinions of the plaintiff's medico-legal specialists rested upon the very unreliable foundation of Ms Van Oosten's history. That shaky foundation undermined their value and impaired their weight." Judge Gibb also said (Red 1/70M):- If the plaintiff's lay witnesses be believed, before the accident, Daniel was a highly developed little boy with an incident free childhood…The sole source for that version of events is Daniel's mother, although various witnesses (such as Daniel's sister), whom I find were dependent upon her for their information, narrated a similar story. 37 Information given by or attributable to Ms Van Oosten about the appellant's condition both before and after his injury is referred to and relied on not only by the appellant's principal medical experts but by many other witnesses; the proofs offered in support of the appellant's case are suffused with information emanating from Ms van Oosten. As later discussed, history traceable to Ms Van Oosten influenced the opinions of the medical experts and the Trial Judge did not accept the opinions of experts on which the appellant relied, and so there is some significance in her Honour's saying that 'in the end' the appellant's case rested directly and indirectly upon the evidence of his mother. I see no error in the Trial Judge having said that the appellant's case rested directly and indirectly on her evidence. 38 Her Honour referred to a number of statements by lay witnesses about the appellant's state of development; mostly by Ms Van Oosten and also by Ms Johanna Van Oosten, Daniel's maternal grandmother, by the appellant's elder sister Krystal and his cousin Mr Aaron Young. The Trial Judge did not find their descriptions of the appellant's pre-accident development credible and did not accept their evidence on that subject; the stated reasons for this conclusion included reference to Professor Broe's statement: "If I assumed that information is accurate that is a highly developed boy;" and the Trial Judge referred to contemporaneous records which in her view showed that the appellant was not a highly developed boy. The Trial Judge referred to indications of the appellant's pre-accident ability in pre-school records, and in later history given by Ms Van Oosten, and to anomalies in the lay witnesses, whom the Trial Judge regarded as unduly affected by communications with Ms Van Oosten – (Red 1/72 W) "…her version of events had demonstrably affected that of each of the family members and Mr Milczarski." The Trial Judge made an extended statement of references to the evidence of lay witnesses which in her view supported this conclusion. 39 In my view the evidence of the lay witnesses to which her Honour referred does not strongly or clearly show that before his injury the appellant had the abilities which Ms Van Oosten's evidence would show that he had; in view of the adverse view which the Trial Judge formed of Ms Van Oosten's credit, for which there were ample grounds, there was a reasonable basis for the Trial Judge to discount any real support from any other lay witnesses. 40 The condition and abilities of the appellant before his injury are obviously of basal importance for findings on whether and to what extent his disabilities were caused by the accident. They are also basal to most relevant medical evidence. The sources are the evidence of Ms Van Oosten, the appellant's mother, the evidence of four lay witnesses who were called in the appellant's case, and some material, extremely sparse, from medical records and records of the pre-school relating to the appellant in the short period of his life from his birth on 2 July 1990 to his injury on 3 March 1995 at the age of four years and eight months. The Trial Judge's rejection of the credibility of Ms Van Oosten was comprehensive; the reasons were stated at great length and the rejection has implications for fact finding at many different points. From the terms of the judgment overall it must be understood that the rejection of Ms Van Oosten's evidence has a number of bases. The tone as well as the terms of her Honour's observations show that a strongly adverse view of Ms Van Oosten's demeanour as a witness was a prominent part, and there are many passages where the Trial Judge's observations on passages of Ms Van Oosten's evidence show anomalies and improbabilities and inconsistencies in many ways. These findings expressly were significantly affected by a view about the credibility of Ms Van Oosten which the Trial Judge had advantages over an appellate Court in forming, and no matters were referred to which I regard as supporting credibility with incontrovertible facts or as making the Trial Judge's conclusions very improbable or contrary to compelling inferences. It remains for me on appeal, whilst remembering the special advantages of the Trial Judge and applying appellate restraint, to come to a view on Ms Van Oosten's credibility, as on other factual matters; see Fox v Percy at 127-128 [25] to [29]. 41 Ms Van Oosten gave an account of the appellant's pre-accident condition in her evidence-in-chief which, as described by the Trial Judge, was so serene and flawless as itself to excite scepticism (Black 2/365-366). In that account the appellant was happy, forward in development, quick to learn, quick to pass developmental milestones, never in trouble, well behaved, attentive, tidy, even in mood, happy, and never presented any hyperactive behaviour or anything un-natural. In the Trial Judge's finding this was a rather romantic version of the appellant's pre-accident development. (Red 1/72U). 42 It was contended that the Trial Judge had not paid proper regard to corroboration in contemporaneous records of the evidence of lay witnesses. In support of this proposition the written submission referred to a number of records which relate to observations of the appellant made later than his injury. In fact there are very few records from earlier times, and the Trial Judge dealt with them in a careful way. (Red 1/100-104). Ms Van Oosten herself maintained a written record of his development, referred to as a personal health record. The names of treating doctors were listed in this record. The medical records from this period which are in evidence, as reviewed by her Honour, did not appear to show anything of great significance. Most records relate to attendances on general practitioners, principally Dr Thakur; some relate to hospitals or to the Grafton Community Health Service. There was a hospital attendance in February 1995 when the appellant drank some turpentine from a bottle at his father's home; this does not seem to have had any severe adverse consequence. Dr Thakur's notes, and evidence about an enquiry of him by Professor Broe, show, in relation to a visit on 25 November 1991, that Dr Thakur was then given a history that the appellant was off food, and Dr Thakur's note (with emphasis that he was an active child) that his mother reported a personality change. Ms Van Oosten also spoke in evidence of concerns about the effects of food colourings, preservatives and artificial flavourings, particularly red dye in cough medication. There were other minor ailments and attendances on Dr Thakur. There was an attendance at Maclean Hospital on 7 March 1992 after the appellant had ingested a small quantity of local anaesthetic and hospital notes record "some hyperactivity but otherwise normal child." There was no basis for interpreting this note so as to understand what hyperactivity was referred to; the Trial Judge said that this was a matter of real speculation (Red 1/104M). There are some records of his attendance at Yamba Pre-school where he was enrolled on 1 February 1995. There were no records which cast any light on his ability. The contention that contemporaneous records have some bearing on the assessment of the evidence of the lay witnesses, and that the Trial Judge made some error in her treatment of such material, appears to me to have no substance. 43 It was contended that for all the four lay witnesses' observations there were a number of matters of objective corroboration of their observations that the appellant's concentration span had been affected and that he had become inattentive. Many notes and records of school teachers and school counsellors were referred to in support of this submission. Counsel also referred to observations in the reports of occupational therapists, of speech therapists and in records of the Royal Brisbane Children's Hospital. The Trial Judge adverted to these records and dealt specifically with most of them; perhaps with all of them. None of them provide any real corroboration of evidence about the appellant's pre-accident condition; except in respects which the Trial Judge regarded, reasonably, as open to be influenced or as actually influenced by inaccurate history furnished by Ms Van Oosten. 44 The Trial Judge gave extended consideration and carefully stated reasons for the views she took about the significance of the lay witnesses referred to. Her Honour dealt with the evidence of Krystal Van Oosten De Groot, the appellant's elder sister (about three years older than him) (Red 1/73-74). Her Honour said (Red 1/73E):- In some respects her description of Daniel bore an eerie reflection of her mother's words. Krystal was extremely confused about a number of historical events… Her Honour exemplified this statement by extensive reference to evidence. After referring to a number of instances of confusion, her Honour said (Red 1/74 I-J):- Without reflecting upon Krystal's honesty (about which I make no criticism), I am not satisfied that she has any independent recollection of the events. I have not accepted her evidence about Daniel's development and progress either before the accident or in the years following the accident. Her Honour was in a good position to come to this view, and counsel's submissions did not refer to anything which I regard as an objectively clear indication that the finding was not correct. 45 The Trial Judge dealt with the evidence of Ms Johanna Van Oosten, the appellant's maternal grandmother (Red 1/74-76). Her Honour reviewed evidence bearing on Ms Johanna Van Oosten's opportunities to make observations of the appellant, and indications in her evidence of the quality of her recollection of significant events. Her Honour set out passages from Ms Johanna Van Oosten's evidence which illustrate that she had difficulty of recollection even of significant events. She also made observations on Ms Johanna Van Oosten's style in delivering evidence: (Red 1/75 O-Q) [her] evidence was given in a rather recited style, with long pauses as she sought to recall events…her delivery style left me with the strong impression that she lacked any immediate, first hand, relevant knowledge of Daniel's condition in the mid 1990's, and had scant recollection of his development before the accident, other than in a rather idealised recollection of a perfect baby… 46 Her Honour was aware of and referred to what was shown in video film of family gatherings before the accident at which Ms Johanna Van Oosten, the appellant and Mr Young were shown as present. Her Honour gave reasons for not accepting Ms Johanna Van Oosten's evidence. There are findings to the effect that her evidence was reflective of some of Ms Arlena Van Oosten's exaggerations, that she had virtually no independent recollection of events, and that with limited exceptions she was dependent on what she had been told by Ms Van Oosten. In the circumstances there is no basis on which I should conclude that the Trial Judge was in error in the treatment of her evidence. 47 The Trial Judge considered the evidence of Mr Aaron Young, who is the appellant's cousin; Mr Young is about sixteen years older than the appellant. He had opportunities to observe the appellant before the accident, as he lived in or near Yamba for some periods before and also after March 1995. Her Honour commented on limitations on Mr Young's opportunities to make observations of the appellant after the accident, and referred at length to evidence bearing on that matter. Her Honour found (Red 1/78C):- Mr Young had very little independent recollection of Daniel's behaviour before the accident or his condition afterwards. That which he did recall was contradicted by contemporaneous medical records. 48 Her Honour found that Mr Young's evidence about the appellant's development and progress reflected Ms Van Oosten's influence and that there were contradictions with contemporaneous records; which her Honour preferred. Her Honour's findings were based on careful consideration of Mr Young's evidence in circumstances where her Honour was in a position of advantage; no significant observation has been made which could tend to show that the findings were wrong. 49 Mr Robert Milczarski was found by the Trial Judge to be a reliable witness as to details of the accident (Red 1/79K). Her Honour found that his recollections of Daniel before and after the accident were unreliable, vague and heavily influenced by Ms Van Oosten's reports (Red 1/79M). Her Honour found that:- Despite his episodic relationship with Ms Van Oosten, Mr Milczarski maintained a distance from the children…. and did not accept his evidence about Daniel's development and progress. 50 As with other lay witnesses, submissions went no further than rehearsing reasons favouring the acceptance of Mr Milczarski's evidence which were available for consideration by the Trial Judge, and in most cases were considered expressly by her Honour. I see no reason for concluding that the Trial Judge erred in rejecting Mr Milczarski's evidence, to the extent that she did reject it. 51 It was also contended that the Trial Judge was in error in the view which her Honour took of the evidence of the appellant's mother and tutor Ms Arlena Van Oosten. The submission was supported with references to a number of matters in evidence which it was contended supported acceptation of Ms Van Oosten's evidence in various ways. The Trial Judge's consideration of the evidence of Ms Van Oosten, and statements of reason for her adverse view, are very extensive. They are found in many parts of the lengthy judgment. It is not often that so full or so clear a statement is made of the bases for rejecting a witness's evidence. The judgment shows clearly that the rejection was based on detailed addresses to what her Honour regarded as anomalies and improbabilities, and also on indications of the witness's demeanour which the Trial Judge saw as indicating that her evidence was unsatisfactory. I regard such a comprehensive rejection on such clearly stated grounds as beyond all recovery on appeal. 52 In my opinion Grounds 1, 3 and 10 have not been made out. 53 Ground 2: The Trial Judge should have found that the appellant suffered from the traumatic and not the congenital form of ADHD. 54 The terms in which Ground 2 is cast do not appropriately reflect the matter for decision by the Trial Judge, which was whether the appellant's ADD was caused by the injury which he suffered on 3 March 1995. The written submissions in support of Ground 2 included extended attacks on opinions of Dr Jones and Professor Werry which were generally adverse to the appellant's suffering from any continuing disability relating to brain injury. It was for the appellant to establish and obtain a finding that his ADD or any other disability was caused by brain injury. The Trial Judge found (Red 1/229V) "only one matter was ultimately not of controversy in this case: that Daniel had Attention Deficit Disorder….the real issue is what is the source of that Attention Deficit Disorder. Professor Broe attributed the Attention Deficit Disorder to brain injury and described it as one 'secondary' to brain injury, as did Dr Johnson." Her Honour also found (Red 1/232 C-D): Daniel no longer suffers from hyperactivity, although his attentional difficulties continue. He suffers from Attention Deficit Disorder." Her Honour said (Red 1/234L-V) Did Daniel sustain a relevant brain injury in the March accident? Daniel sustained a severe head injury. The real issue is whether he also sustained a significant brain injury, and whether there are any long-term sequelae other than the 6mm scar which various specialists detected on CT scans and MR images … The plaintiff contends that Daniel sustained a significant brain injury, and relied upon the opinions of Professor Broe, Dr Buckley and Dr Johnson. For the various reasons discussed in this judgment, I reject the opinion of each in this respect". Her Honour's consideration, which was extensive, of the effect of the evidence, principally the medical evidence, led to the following dispositive findings (Red 1/246 A-E): Conclusion re injury and disabilities. I find that Daniel sustained a severe head (as distinct from brain) injury in the March 1995 accident. The head injuries were a blow causing some cuts, bruising and a fractured skull. The immediate sequelae included hospitalisation for a week (Grafton Base Hospital and air transfer to The Royal Children's Hospital, Brisbane) and an operation to repair the depressed fracture. The effects included a convalescent period and a period of 3 months when Daniel suffered adversely from the effects of Dilantin intoxication. In addition, Daniel has some small residual scarring, a healed fracture of the skull and a healed scar (gliosis) of some six millimetres on the parietal area of the brain. He also has some minor facial scars. I find that Daniel sustained what various specialists called a mild or trivial brain injury, with minimal resulting permanent damage to the brain, and no relevant sequelae. 55 The Trial Judge's statements of reasons was full and was in terms which show that it was fully considered. It might have been thought to be too long, if one had not heard and read submissions contending that it did not say enough. The reasons included lengthy passages reviewing the evidence of each significant medical witness, the history available to the witness, the use made of the history, and the opportunities of the witness to obtain history and to make observations. Her Honour's disposition of this issue depends on findings on the evidence of Professor Broe and Dr Johnson as least as much as it depends on findings on the evidence of witnesses called by the respondent. 56 Her Honour reviewed the evidence of Dr Stephen Buckley, a consultant physician in rehabilitation medicine, called by the appellant. Her Honour said to the effect (Red 1/214E) that it was Dr Buckley's opinion that "one must assume" that the brain injury caused the appellant's problems, because there had been a head injury. He detected no neurological abnormality on examination and found no evidence on the Magnetic Resonance Image. Observations by her Honour adverse to accepting Dr Buckley's opinion include observations to these effects. There were flaws in Dr Buckley's reasoning in that he had regard to difficulty in dressing or apraxia but he found no apraxia, and in that he had regard to deficits of higher cognitive function and behaviour which he said were not contested, whereas in the Trial Judge's view there was great controversy about them. Dr Buckley had selective inaccurate history and incomplete medical records, in particular he did not have the records from the Royal Brisbane Hospital; and the lack of that material severely impaired the weight of his assessment and opinion. He drew on reports which rested on very inaccurate histories provided by Ms Van Oosten; in the Trial Judge's view that history was inaccurate and incomplete; these views were based on extensive consideration and findings elsewhere in the judgment. The history given to Dr Buckley was crucial to his opinion; her Honour reviewed and quoted extensively from Dr Buckley's evidence when challenged in cross-examination; this review showed the significance of events in the history which Dr Buckley regarded as material but the Judge found elsewhere to be inaccurate. Among other matters, the Judge found that there was no post-traumatic amnesia and found (Red 1/2160): Dr Buckley's examination of Daniel in December 1999 revealed no significant problems: he had a completely normal neurological examination and development consistent with his age of nine to ten years. Dr Buckley had had no further examination or review since December 1999 followed by his report on 31 January 2000. 57 Her Honour reviewed (Red 1/217-218), and obviously regarded as unsatisfactory, evidence of Dr Buckley about the interpretation of Dr Mullen's report of the Magnetic Resonance Image dated 27 November 2000. Dr Buckley gave an interpretation of that MRI scan in January 2001 including: The changes observed are minimal. I do not think that the MRI scan provides significant confirmatory evidence for the traumatic brain injury. However, in a report in June 2002 Dr Buckley spoke to a different effect: Acute changes, consistent with oedema on the early CT scan performed at the time of injury, have resolved, leaving atrophy and scarring when viewed on the MRI, strongly suggesting the occurrence of acute brain injury, distant from the site of impact, in the initial incident. 58 Her Honour described this as a volte-face and commented that in this as elsewhere in his evidence, Dr Buckley tended towards advocacy in his testimony; she set out passages in the evidence which support the description "volte-face". Her Honour also stated the effect of Dr Jones' opinion about the interpretation of the early CT scan and the MRI scan; Dr Jones disagreed comprehensively with all aspects of Dr Buckley's interpretation which might have supported a conclusion that there was a brain injury. The Trial Judge preferred Dr Jones' evidence to that of Dr Buckley where they were in conflict. In my view there were sound grounds for her doing so. 59 It was said that the Trial Judge misinterpreted the effects of Dr Buckley's evidence in that the judgment did not mention that Dr Buckley in oral evidence explained that he leaves testing for cognitive abnormalities to neuro-psychological assessment and for behavioural assessment to those who see the patient in a longitudinal context particularly teachers and others (Black 9/1661K-R). The passages which Judge Gibb quoted from Dr Buckley's reports of 31 January 2000 and June 2002 are correctly quoted and plainly inconsistent. Judge Gibb made a review of Dr Buckley's opinions on information which became available to him later than 31 January 2000, particularly a report on an MRI of 27 November 2000 and Dr Buckley's views on Dr Jones' report on that MRI. After a review of evidence of Dr Buckley and Dr Jones about the significance and interpretation of the MRI scan the Trial Judge concluded (Red 1/218L):- I prefer Dr Jones' evidence to that of Dr Buckley where they were in conflict. This conclusion was based on consideration and analysis of evidence which to my reading was not deficient, and shows that the Trial Judge had a reasonable basis for preferring Dr Jones' evidence. The circumstance that Dr Buckley leaves some testing and assessment to others has no real impact on this conclusion. 60 It was submitted that the Trial Judge's finding (at Red 1/215D) relating to Dr Buckley was in error. The passage commences:- The history given to Dr Buckley was crucial to his opinion. He has the benefit of no radiological confirmation. It was contended that this was an error of fact in that Dr Buckley regarded it as a fact that there was contusion in the underlying brain; this was the sum of his interpretation of the CT scan of 3 March 1995 which he regarded as showing swelling in the brain; I refer elsewhere to the dispute whether the CT scan in fact showed swelling in the brain. The Trial Judge's statement: "He has the benefit of no radiological confirmation" was not produced by any misunderstanding of the facts, but reflects a finding against Dr Buckley's evidence of what the CT scan showed. 61 Counsel referred to the Trial Judge's finding (at Red 1/217L):- Dr Buckley's report was dated 31 January 2000, when upon normal neurological and developmental examination Daniel was seen to be completely normal, and Daniel's development was consistent with his then age of 9 to 10 years. Counsel made contentions (Orange 49/1.16) against the Trial Judge's finding (Red 1/235T):- At its highest the only symptoms identified are those that are characteristic of attention deficit disorder. This submission was supported by an array of considerations, most of them calling for consideration under other grounds of appeal, which were said all to have aided a differential diagnosis of head injury rather than congenital ADD/ADHD. It may well be that they do, but that does not show any error in the Trial Judge's finding that the identified symptoms are characteristic of attention deficit disorder. At this point, as at many other points, the submission and arguments in support of it can be clearly seen as showing that findings of fact different to those made by the Trial Judge were available; but this is not a showing that the facts which the Trial Judge found were found wrongly and should be corrected on appeal. 62 Written submissions also reviewed a number of passages from the evidence of treating doctors in support of a contention that the Trial Judge showed misunderstanding when she found (Red 1/31H): Unlike Daniel's treating doctors, Dr Buckley says that Daniel sustained a relevant brain injury. This written submission was followed by five quotations from reports of treating doctors none of which is a positive statement that the appellant sustained relevant brain injury. The submission was misdirected and unhelpful. 63 There were similar contentions about other expressions of the Trial Judge dealing with Dr Buckley's evidence, but those expressions have not been shown to be erroneous. 64 The Trial Judge considered extensively the evidence of Professor G. A. (Tony) Broe, whom she found to be "a highly skilled consulting neurologist, geriatrician and consultant in rehabilitation." Her Honour set out some significant facts relating to Professor Broe's career which show that he was very highly qualified in neurosciences and rehabilitation medicine, in relation to children and young adults early in his career, although for many years, from 1985 onwards, in geriatric medicine. Her Honour found (Red 1/218N):- He was a rather strange choice of expert for a child plaintiff who has been diagnosed with Attention Deficit Disorder, whatever its cause. He does not treat children with Attention Deficit Disorder. 65 Professor Broe expressed his conclusions (Blue 2/338-339):- Conclusions Daniel De Groot suffered significant and permanent brain injury in the motor vehicle accident on the 3rd of March 1995 when he was struck in the right parietal area by a metal cleat travelling at significant speed. He has sustained a focal right parietal cortical injury, however he has also undoubtedly sustained more widespread or diffuse brain injury as a result of the impact and pressure waves through what is semi-fluid brain substance contained in a rigid box with numerous internal protuberances, particularly in the inferior frontal region above the orbits and in the anterior temporal regions in the middle cranial fossie. In my opinion the frontal systems impairments (outlined in the body of this report) can be explained on a combination of his right parietal focal defect and more diffuse involvement of brain networks observing frontal systems functions of attention concentration, planning, speed of information processing, initiation and motivation and behavioural control as well as frontal memory. The persistent deficits outlined in the neurological history taken form his mother and in the school reports are in my opinion the result of traumatic brain damage as outlined in the neuropsychological assessments. There is no good history of significant preceding developmental delay or true attention deficit hyperactivity disorder. There is no history suggesting to me significantly poor parenting or frontal systems disorder due to social or emotional disadvantage. Importantly, as outlined by Jacqueline Boon, further development delay is likely with advancing years in the presence of traumatic brain damage at four to five years of age. Good initial frontal systems function is important for future brain development even with minimal frontal systems function. The neuropsychological assessments indicate much more than minimal deficits and Daniel De Groot's developmental milestones are likely to be further delayed between the ages of eleven and fifteen years. It is extremely important that Daniel De Groot receives every assistance in terms of schooling and learning in this developing period between eleven and fifteen years of age. Furthermore it is my opinion that we will not be able to make a prediction of the ultimate outcome in terms of employability or the need for home support systems until Daniel De Groot has completed his schooling and has attempted to enter the workforce or live independently. However based on the current clinical picture, I would predict that he will be essentially unemployable due to frontal system impairments and that he may well require an ongoing case manager and support in personal care and instrumental activities of daily living. This will be considerably more likely if his current school and developmental needs are neglected. 66 Professor Broe in his oral evidence (Black 8/1451) referred to the "minor low attenuation scar," which was referred to in the Report of the CT scan carried out at Royal Brisbane Hospital on 25 May 1995, part of exhibit K in these terms:- Minor bony irregularity at the site of the previous fracture. No residual depression. Minor low attenuation scar. Ventricle normal. No other focal intracranial abnormalities seen. Professor Broe said to the effect that the reference to the minor lower attenuation scar meant brain damage. Underlying the point where the fractured skull occurred Professor Broe said:- "…that scar is in an area of the brain known as the right parietal area" (1451) and "I believe this boy has had a more diffuse injury, but I also believe that his right parietal injury is very significant to the outcome." (1454). 67 Professor Broe treated the neuropsychological assessments as part of the basis for his conclusion that the appellant had suffered a brain injury; after referring to the Reports of Sue Packer and Jacqueline Boon (Blue 2/335-336) and much other material Professor Broe reached the conclusion (at Blue 2/338-9) which I have set out. However Professor Broe also said (at Blue 2/338) in a context which shows its importance:- There is no good history of significant preceding developmental delay or true attention deficit hyperactivity disorder." Professor Broe also referred to the neuropsychological testing in his oral evidence (Black 8/1422, 1423, 1429, 1432). 68 His conclusions set out by her Honour (at Red 1/219) included conclusions to the effect that there was: Clinical evidence of more diffuse and permanent brain damage which is causing marked cognitive and behavioural difficulty six years post-trauma. Daniel De Groot manifests cognitive and behavioural symptoms at home and in school that have been persistent or unremitting over a period of six years with marked deterioration in his developmental milestones immediately post-trauma, which has persisted up until the present day. Her Honour found (Red 1/219J):- Professor Broe rested much of his opinion upon a very uncertain and inaccurate history provided to him by Ms Van Oosten. 69 As the case was presented on appeal, the evidence of Professor Broe was said to have a claim to attention and an importance which outweighed the evidence of any witness on behalf of the respondent because of the importance for the appellant's case of an interpretation of the radiological and neuropsychological evidence by a competent neurologist; it was said to the effect that Professor Broe was the only and essential source of such an interpretation, the respondent having called the evidence of no neurologist (although the respondent had had the appellant examined by a neurologist). 70 Her Honour observed on aspects of the history given to Professor Broe which she found elsewhere to be inaccurate, and on extensive aspects of the appellant's actual history and experiences which Professor Broe was not given as history. His evidence showed at least contemplation that poor parenting may have had adverse effects on frontal lobe development; he accepted that family disturbances can cause frontal lobe problems but regarded the history which he was given as showing that the appellant had been treated with good parenting skills. This was inconsistent with findings in the judgment which led her Honour to find (Red 1/222P): Professor Broe's history of the family and domestic relationships was inaccurate to the point of grossly misleading in the context of Ms Van Oosten's lengthy complaints about Mr Rick De Groot, his absences from the home during the marriage, domestic violence and his influence upon Daniel. 71 Insofar as the appellant's case rested on the evidence of Professor Broe it did not rest directly upon the evidence of Ms Arlena Van Oosten. History narrated by Ms Arlena Van Oosten was an important source for Professor Broe's conclusions, but it was not the only source, and Professor Broe also had other and significant reasons for his views; these included results of neuropsychological testing, which the Trial Judge did not accept for reasons with which I deal elsewhere. At other points there were bases for views expressed by Professor Broe which could not be said to rest indirectly on the evidence of Ms Arlena Van Oosten. 72 The Trial Judge regarded Professor Broe as having been given inadequate history and as having paid inadequate regard to adverse elements in parenting, family and domestic relations; her Honour's reasons for seeing matters that way were stated extensively (Red 1/222-224). Professor Broe was given a history of the events of 3 March 1995 which the Trial Judge also found was inaccurate in significant respects, in particular that the appellant did not lose consciousness or suffer fits before he reached Grafton Base Hospital (Red 1/224F); that he was not delusional at the Royal Children's Hospital, Brisbane (Red 1/224U); and found that history furnished to Professor Broe was inaccurate in other respects. 73 Her Honour's conclusions included these (Red 1/225B-K): Professor Broe postulated damage to Daniel's frontal lobes. He identified no such damage by examination or radiology. Dr Jones….found no directly relevant abnormality (or damage) to the frontal lobes…I have preferred the evidence of Professor Werry to that of Professor Broe in respect of Attention Deficit Disorder and Dr Jones to that of Professor Broe in respect of paediatric neurology. 74 Professor Broe's observations based on the neuropsychological testing and reports greatly enhance the importance of the issue relating to the Trial Judge's treatment of them; see Ground 4 below. There was also evidence from Dr Jones and Professor Werry supporting the view that the CT did not show swelling or oedema (Black 10/1956N); this interpretation was challenged in cross-examination. Professor Werry said in his Preliminary Psychiatric Report of 10 February 2002 (Blue 6/1379P):- There is no evidence to support generalized or frontal area injury except the psychological tests and his behaviour - neither of which is specific enough to diagnose head injury (ADHD is a better diagnosis). His oral evidence said that the psychological test provided weak evidence of generalised or left side brain damage (Black 13/2536B). This material further shows the importance of the neuropsychological testing. 75 Related to an earlier contention was a contention (Orange 46) relating to the Trial Judge's finding (at Red 1/219W):- Professor Broe was not told about the matrimonial and domestic stresses during Daniel's childhood. Counsel observed to the effect that various of the domestic circumstances were put to Professor Broe in cross-examination and his opinion remained that the appellant's cognitive difficulties could not be caused by such factors, and that behavioural problems may be exacerbated by but not caused by such factors. However the Trial Judge's finding last quoted was correct, and it was relevant to the matter the Judge was considering that Professor Broe formed his opinion without being told of the matrimonial and domestic stresses. It was appropriate for the Trial Judge to refer to this matter in an exposition of reasons for not accepting the opinions of Professor Broe. From the point of view not of an expert witness but of a person finding facts on the basis of an appraisal of the evidence, the domestic and emotional circumstances of the appellant have a simple and obvious claim to be brought under attention and addressed, in much the same way as the fact that the appellant suffered a depressed skull fracture when stuck by a heavy flying object calls for consideration; the way in which an expert witness deals with facts which have claims on attention like that obviously calls for consideration when finding the facts. It would not be appropriate to allow a non-expert person's sense of the significance of factors like that to outweigh the views and evidence of experts; but the Trial Judge is not to be criticised for treating the subject as important. 76 The appellant also called the evidence of Dr Sandra Johnson who examined the appellant in March 2002, after the commencement of the trial; the Trial Judge regarded the contemporaneity of her report as valuable (Red 1/225L). Dr Sandra Johnson is a consultant developmental paediatrician. Her Report dated 10 April 2002 (Blue 5/1269) shows in its terms that Dr Johnson had many sources of history, including copies of 34 Reports relating to the appellant. Her report opens (Blue 5/1271-72) with an extensive history obtained from Ms Van Oosten. In the consideration of her diagnosis that the appellant "…has significant learning difficulties and attention deficit hyperactivity disorder (ADHD) of the combined type, secondary to the head injury sustained 3 March 1995" (Blue 5/1276 see C & D) Dr Johnson said, in the context of studies which suggested that developmental ADHD was a hereditary disorder: "There is no family history of learning difficulties or attention problems in Daniel's family" followed by comments based on reading school reports of Mr Rick De Groot, the appellant's father. This does not dispose of the overall significance of history given by Ms Arlena Van Oosten. This is far from being the only source on which Dr Johnson relied, and she relied on many reports and also on her own observations and knowledge. The favourable account of the appellant's pre-accident development and behaviour given in that history was plainly important for Dr Johnson's conclusions. In oral evidence-in-chief Dr Johnson was asked to comment on the statement by Professor Werry that: "There must be objective demonstration of injury through examination, organ imaging and neurological deficits" and said (Black 10/1746M): "Well, in my opinion, the objective demonstration of injury through examination is supported by the neuropsychological tests that show that Daniel has information processing problems and short-term memory problems, which in my opinion is secondary to his injury." She also referred to the initial CT scan and to "the fact that he had a seizure within the first 24 hours following the injury" as showing some neurological deficit. This answer does not show the basis of Dr Johnson's conclusion that ADHD was secondary to the traumatic injury. In re-examination (Black 10/1891) Dr Johnson agreed that there was material in neuropsychological reports which indicated that the appellant had slowness of information processing; and she also referred to tests which she had carried out herself. Counsel for the appellant referred to some other material, but none of it shows that Dr Johnson's conclusions do not rest on the basis of the history given to her by Ms Van Oosten. 77 The Trial Judge accepted Dr Johnson's opinion that the appellant suffered from Attention Deficit Disorder, a finding also supported by Professor Werry's evidence. It was Dr Johnson's view that the Attention Deficit Disorder was secondary to brain injury; this differed from the view of Professor Werry that the Attention Deficit Disorder was congenital. The Trial Judge reviewed extensively the evidence dealing with this. Her Honour referred to the views of each as a thesis, which indicates their bases in interpretation rather than objective observation. In the Trial Judge's finding Dr Johnson's opinion proceeded on very inaccurate history: (Red 1/30Y):- On the basis of the very inadequate and inaccurate history given to her, Dr Johnson concluded that Daniel's attention deficit disorder was secondary to a traumatic brain injury. For the reasons discussed elsewhere I do not accept Dr Johnson's conclusion as to the genesis of Daniel's attention deficit disorder, but I accept her diagnosis of the existence of the condition. Her Honour also referred to some factual errors arising from review of documents and minor mistakes on examination. Her Honour commented (Red 1/226J): The history upon which Dr Johnson proceeded was flawed and incomplete, and she had not had access to all the relevant medical and case work material….Dr Johnson was taken by surprise by much of the information about Daniel's history which was put to her in cross-examination…. Extensive passages from cross-examination were set out in the judgment and illustrated that this was so. In a passage which followed indications, supported by evidence but known to Dr Johnson for the first time from the questions in cross-examination, that the appellant had a rather turbulent family background, she acknowledged (in evidence quoted at Red 1/228G): Emotional maladjustment can certainly present with many of the behavioural features that we see in Attention Deficit Disorder, and consequently they would need to be taken into account. Dr Johnson also accepted (Red 1/228S-T) that the conflict over Christmas 1995 was significant for the development of Enuresis, and was more likely than not the explanation for its development. A misreading of a description of the appellant's seizures at the Grafton Base Hospital caused Dr Johnson to postulate a contrecoup injury on which she rested certain conclusions, which the Trial Judge rejected, correctly (Red 1/229N). The Trial Judge regarded this as having significant consequences for Dr Johnson's attribution of Attention Deficit Disorder to brain injury. This was a reasonable view to take. The Trial Judge's conclusion was (Red 1/229U): Dr Johnson['s] reasons for attributing Daniel's problems to the head injury sustained in the accident are demonstrably based upon misapprehensions and an inaccurate history. 78 The appellant's counsel made contentions (Orange 14/1.14) to the effect that the Trial Judge was wrong to find (at Red 1/229N) that Dr Johnson had postulated a contrecoup injury on the basis of a misreading of a description of the appellant's seizures at the Grafton Base Hospital, and was wrong to reject the interpretation that there had been a contrecoup injury. Cross–examination obtained Dr Johnson's agreement that if (as seems clear) the appellant had a focal left arm seizure, that would indicate a lesser likelihood of a contrecoup injury to the left side of the brain opposite the side of the fracture, although it would not necessarily indicate that there was no contrecoup injury to the left side. In my view the Trial Judge expressed a reasonable basis for rejecting the analysis that there had been a contrecoup injury. The Trial Judge's basis for not accepting the views of Dr Johnson appears at Red 1/229; the conclusion was based not only on a finding that the appellant did not have the contrecoup injury postulated but also on a finding that Dr Johnson's opinions were based on history which was not accurate. The inaccuracy of the history was a large subject, which her Honour had determined elsewhere. On the basis of that determination, the reasons given for not accepting Dr Johnson's opinions appear to me to be quite reasonable; the Trial Judge's conclusion has not been shown to be wrong. 79 A related body of submissions (Orange 47-49/1.15) dealt with several matters relating to the appellant's father Rick De Groot which it was suggested to Dr Johnson in cross-examination showed that there was a family history of learning difficulties or attention problems, a necessary element in Dr Johnson's view for there to be developmental ADHD, a hereditary disorder; it was suggested that on the whole of the evidence the supposed facts relating to Mr Rick De Groot which were put in this cross-examination were not established. Dr Johnson did not accept, on the basis of those suggested facts, (whether or not they were true) that there was a genetic basis for the appellant's ADHD. In my opinion the correctness of the supposed facts about Mr Rick De Groot and the validity of the Trial Judge's findings about reliance on Dr Johnson's evidence are not interdependent; always remembering that the onus of proof was on the appellant, the fact (if it is a fact) that some cross-examination was ultimately ineffective is not a demonstration that the Judge's decision against accepting Dr Johnson's evidence was incorrect. 80 The Trial Judge dealt (commencing at Red 1/234) with the question whether the appellant sustained a relevant brain injury in the accident of 2 March 1995. The Trial Judge referred, correctly, to the fact that none of the treating doctors observed any radiological indications of significant brain injury. (Red 1/234M). Her Honour said that the appellant relied on the opinions of Professor Broe, Dr Buckley and Dr Johnson, and that (Red 1/234U): For the various reasons discussed in this judgment, I reject the opinion of each in this respect. 81 In the following passage the Trial Judge again referred to the evidence of Dr Buckley and the evidence of Dr Jones; Dr Jones gave evidence to the effect that loss of consciousness is an essential ingredient for diffuse axonal injury; that there were other forms of diffuse brain injury; that axonal brain injury does not show up on MRIs per se in the acute phase but that in the chronic phase, some months or years after the injury, diffuse axonal injury will show up on MRI as areas of increased signal. (Red 1/235H-Q). Her Honour commented: None was detected on the MRI image taken in November 2000 more than five years after the accident. 82 Her Honour referred to the fact, found elsewhere, that the appellant suffered no traumatic amnesia, that his lowest Glascow Coma Scale reading was 13 and only fleetingly so, that there was no radiological confirmation of any brain injury or of diffuse axonal brain injury and made the finding that, at its highest, (Red 1/235T): The only symptoms identified are those that are characteristic of Attention Deficit Disorder. 83 Her Honour reviewed the opinions of Professor Broe, and also Dr Jones and Professor Werry, to the effect that the appellant did not suffer secondary brain injury after the initial injury (Dr Jones) or that the appellant has a healed brain injury (Professor Werry) (Red 1/236N-P). The Trial Judge went on to refer at some length again to evidence of Dr Jones, Dr Johnson and Professor Werry on the subject in terms which show that she accepted Dr Jones and Professor Werry. However, this reference does not take the form which the terms of Ground 2 of the Notice of Appeal might suggest, that the Trial Judge departed from consideration of the case on the basis that the appellant bore the onus of proof. Favourably impressed though her Honour plainly was by the views of Professor Werry and Dr Jones, her conclusion rested on her not accepting the evidence for the appellant, on whom the onus of proof rested. 84 Written submissions in support of Ground 2 went in detail through the grounds on which it could be urged that the evidence of Dr Jones and of Professor Werry bearing on whether or not the appellant suffered from the traumatic form of ADD (or ADHD) should not be accepted. There was a considerable body of factual material adverse to acceptance of their evidence, but it is plain that the Trial Judge was not convinced by it. She expressed positive findings upholding the views of Dr Jones and Professor Werry on this matter, although not indeed on all matters. Written submissions reviewed what were said to be credit issues relating to Dr Jones. There were several matters significant to his credit. One was that when, in the course of examination-in-chief he was shown an example of a wheel cleat, he made a comment which seems to mean that he doubted whether the appellant's injury had been caused by his being struck by a wheel cleat of that kind - (Black 10/1947). Dr Jones said to the effect that his comment on the photographs was that the windshield of the van seems to have been indented but not completely ruptured, but when referred to a photograph he said that there was a hole at the bottom of a saucer shape depression in the windscreen, and he also said: The object was quite large and the laceration on the child's scalp…was 2cm long which is very – ¾" in the old scheme – and it is very small when one considers the size of that cleat. (Black 10/1947U-X). 85 The views which underlay this were explored at painful length in cross-examination, although what Dr Jones said on this subject was not part of the respondent's case, which did not dispute the appellant's injury or in broad terms how it happened, although there was much address to matters of detail. Written submissions also referred to evidence in cross-examination which showed limits on Dr Jones' knowledge of ADHD and which showed weaknesses in his view that the appellant suffered a congenital abnormality, or that congenital abnormalities were responsible for his symptoms. The cross-examination could reasonably be seen as having achieved considerable success, so that it would be difficult to obtain or to sustain positive findings on the basis of Dr Jones' evidence that the appellant's disabilities were caused by a congenital abnormality; a high point being (Black 11/2213 G-J) this passage:- Q. You have made it clear, have you not, in your evidence today that you're not prepared to take the step of suggesting that there's any basis upon which any of these developmental features that you've referred to should be regarded as the cause of the symptoms from which this child has suffered since the accident? A. That is correct, yes. 86 It was then contended that it was a serious error of the Trial Judge to accept Dr Jones' opinion over that of Professor Broe. The Trial Judge's review of Dr Jones' evidence on whether there were indications of congenital abnormalities (Red 1/202-204) shows that her Honour grasped fully that Dr Jones was not claiming certitude but said that at least two indications of congenital abnormality were discernible on the CT scan and the MRI scan. Her Honour then said (Red 1/204R-T): Both Dr Jones and Professor Broe are eminent in their respective fields. Ultimately I prefer the opinion of Dr Jones. I found him to be a more considered and impartial witness, who demonstrated greater preparedness to countenance alternative views and review his opinion in the light of possible error or omissions. He had the opportunity to review the radiology and report upon it in some detail, whereas Professor Broe proceeded on a gross inaccurate history. I have preferred the opinion of Dr Jones, and accept that opinion. 87 These findings were made after a careful review and with the advantage of unusually full opportunities to observe Professor Broe and Dr Jones giving evidence for extended periods and to come to a conclusion about the confidence to be placed in their opinions. It is clear that there was room for a different conclusion on the facts, but I see no reason why it should be decided on appeal that her Honour's conclusion was wrong. 88 Written submissions in support of Ground 2 also dealt extensively with the Trial Judge's reliance on the evidence of Professor Werry. Written submissions referred extensively to the circumstances in which Professor Werry was engaged and with the instructions he was given about the subject matter of the litigation and what the respondent's solicitors wished him to consider. It was contended that those instructions were the genesis of the respondent's theory that ADHD accounted for the appellant's symptoms. Professor Werry was first contacted by the respondent's solicitors almost three years before he examined the appellant. It seems plain enough, and the Trial Judge's observations show that she was fully aware, that Professor Werry's views expressed in various places in reports and in evidence do not furnish a strong basis for a conclusion that the appellant's disabilities have a genetic or pre-natal origin and that brain damage can be excluded as their cause. Professor Werry's reasoning includes what the Trial Judge referred to as a probabilistic argument – that the things which the appellant has are common and are overwhelmingly not due to head injury, and that this reasoning is weakened by the fact that the appellant actually had a head injury. The Trial Judge gave no weight to Professor Werry's reasoning that "common things happen commonly": (see Red 1/213 O). It was also a view expressed by Professor Werry that the appellant had an inherited learning disorder and that he would expect to see evidence of that disorder as well as ADHD in one or both parents. The Trial Judge's acceptance of Professor Werry's views was not full or unqualified. Professor Werry's diagnosis was of Attention Deficit Hyperactivity Disorder (ADHD); the Trial Judge accepted Dr Johnson's view, based on an examination of the appellant about a month after Professor Werry's examination, that the appellant suffers from Attention Deficit Disorder but not, at the time of the examinations, from hyperactivity (Red 1/206N). The Trial Judge attributed Professor Werry's assessment about hyperactivity to his being unduly influenced by his acceptance of Ms Van Oosten's description of the appellant's behaviour. The Trial Judge found that Professor Werry's deference to maternal reports about history undermined the value of his report. (Red 1/207 O-P). The Trial Judge also addressed Professor Werry's devastatingly frank acknowledgement and his correction of an initial opinion that it was not possible for a patient to get diffuse axonal injury from mild head injuries; Professor Werry acknowledged that this view was wrong. Extremely severe criticisms of Professor Werry were offered in the course of cross-examination and submissions. There were several observations in the judgment which could be viewed as adverse to Professor Werry in some way: (see Red 1/209-213). The Trial Judge concluded (Red 1/211I): Nonetheless, I found Professor Werry to be a capable and confident expert who maintained his profession[al] distance and discharged his duty to the court. 89 Communications between the respondent's solicitors and Professor Werry, which went into great detail and commenced long before Professor Werry saw the appellant, were examined closely for their influence of the views which Professor Werry ultimately expressed. The Trial Judge did not accept the whole of Professor Werry's views and she did not, as it were, surrender the fact-finding process to his expertise; her Honour gave appropriate consideration to factors (of which there were a number) adverse to accepting the views of Professor Werry, and gave his evidence and opinions appropriately close examination before reaching conclusions. 90 The Trial Judge's treatment of the evidence of Professor Werry returns at many points to qualification and at some points rejections of his opinions. The principal influences of Professor Werry's evidence on the outcome appear to be (Red 1/226A) her Honour's acceptance of Professor Werry's diagnosis when concluding that the appellant suffers from Attention Deficit Disorder and has a learning disorder; and her Honour's conclusion that the Attention Deficit Disorder is not secondary to brain injury. Her Honour found that it was congenital, and this was Professor Werry's thesis; (Red 1/226 A-C). The Trial Judge's conclusions cannot be said to be founded on acceptance of Professor Werry; however, extensively qualified as they were, the Trial Judge's appraisals of Professor Werry's evidence formed some part of the basis of the general conclusion against brain injury as the cause of the appellant's disabilities. 91 A concluding observation in the Written Submissions on Ground 2, which I take to express the underlying basis of that ground, was "there was no plausible alternative hypothesis to brain injury causing the appellant's symptoms, either from Dr Jones or from Professor Werry". It is clear that in the finding of the Trial Judge there was a plausible alternative hypothesis. The Trial Judge found that the hypothesis was correct: (Red 1/249H): "I find that the defendant has demonstrated its thesis that Daniel suffers from a learning disorder and Attention Deficit Disorder, each of which is genetic or congenital in origin and not causally related to the motor vehicle accident." That finding was based on detailed appraisal of the evidence in support of that hypothesis. The issue was not one on which the respondent bore the burden of proof, and the finding which I have set out was a finding which it was open to the Trial Judge to make. 92 There were incidental assertions that the Trial Judge had misunderstood the basis of Professor Broe's opinion, which (Blue 2/335 K-N) was expressed in terms of damage to the frontal systems network, not to the frontal lobes; whereas Dr Jones' evidence spoke in terms of the existence of abnormality or damage to the frontal lobes. In the course of cross-examination Professor Broe adhered firmly to his terminology of the focal right parietal cortical injury directly involved in direct combination with diffuse frontal systems involvement; Professor Broe stated firmly that he did not call the condition frontal lobe involvement but frontal systems involvement. Generally he was careful not to describe the condition as frontal lobe injury, although occasionally he erred in that matter. If these differences have any real significance, I have not been referred to any evidence which exposes what it is, and I do not accept that the Trial Judge misunderstood Professor Broe's opinion, or that she quoted an irrelevant passage from Dr Jones' evidence in that context. 93 The Trial Judge said (Red 1/213 Q):- The plaintiff's medico-legal specialists completed their reports and entered the witness box under the handicap of not having had the opportunity to review all the available historical material, and uninformed about the extensive history of domestic turmoil in Grafton in 1996-1998 or the access disputes. 94 Her Honour accepted a submission to the effect that the appellant's medico-legal specialists had in all cases had access to only part of the relevant history. The appellant's counsel submitted (Orange 44):- Nowhere in her judgment did the Trial Judge explain how domestic turmoil could cause the appellant's cognitive difficulties, as opposed to behavioural difficulties… The Trial Judge however, without saying so and without indicating any basis, accepted that domestic turmoil could have caused the appellant's impairments. 95 It was contended that the Trial Judge had not dealt appropriately – it was said that she does not seem to have grasped – that the appellant's medical witnesses in substance had adhered to their opinions when further facts which were not in the history given to them were made known to them by respondent's counsel in cross-examination. In my opinion, from the point of view of a person finding facts and acting reasonably, the influence of references to history which (as other findings established) were incomplete or inaccurate would not necessarily be overcome by a process in which further facts were made known in cross-examination and the earlier opinion was adhered to. A view that the process was adverse to reliance on the witness's opinion is a reasonable view. 96 The submission went on to contend that the respondent's medical experts did not rely on domestic stresses as causing the cognitive impairments. In my view it was a relevant matter that the appellant's medico-legal specialists were uninformed about the history of domestic turmoil, and her Honour was not in error in treating that as relevant when considering the force of their evidence. The competing expert opinion on behalf of the respondent was to the effect that the cause of the attention deficit disorder was probably a congenital abnormality of the brain rather than diffuse brain injury (Dr Jones, Black 8/1703 at 1704) or that the source of the appellant's problems were genetic (Professor Werry, Black 7/1634G at 1643A). The appellant's domestic stresses were not prominent in the opinion of either. There was no body of evidence which supported attribution of the appellant's disabilities solely or principally to domestic stresses, but in my view domestic stresses were a relevant matter, particularly to the behavioural disabilities which the appellant alleged were caused by his injury, and the view that the appellant's medico-legal specialists were handicapped as her Honour thought was a reasonably available view. Professor Broe accepted in cross-examination that sources of domestic stress could exacerbate bad behaviour but said that they were not causal of the appellant's behavioural problems (Black 8/1502-1506). Dr Johnson said to the effect that factors in results of neuropsychological testing by Ms McMahon enabled her to exclude that the appellant's symptoms were referable to the emotional background. 97 It was contended that the Trial Judge's acceptance of the evidence of Dr Jones and Professor Werry was on a demeanour basis, that the Trial Judge said that they were impressive to her, and that this did not meet the requirement, where there is conflict of medical evidence, to give reasons which address and resolve the conflict. 98 It is quite clear that observations of demeanour and the conclusion that the witnesses were impressive was part of the reasoning which led to the acceptance which her Honour gave to evidence (not indeed all the evidence) of Dr Jones and Professor Werry. This however is far from being the whole or sole basis of her Honour's acceptation; there was a wealth of exposition of reasons which went far more deeply into the evidence and issues than a demeanour-based preference for one body of evidence. Demeanour and the fact-finder's impression of witnesses have a proper place in appraisal by a tribunal of fact of expert evidence, as of other evidence. The conduct of the trial gave demeanour and impression great prominence. In the adduction of evidence and in advocacy at the trial the personal standing and indeed the honesty of expert witnesses were treated as very prominent considerations, there were whole-hearted attacks on the expertise, personal standing and character of expert witnesses. Her Honour considered these attacks and gave her resolution of them; she could hardly have done otherwise. The Trial Judge said (Red 1/210G):- The evidence of each of the expert witnesses [was] obviously subject to principles of Makita (Australia) Pty Ltd v Sprowles. I have disregarded the evidence of any expert witness to the extent that that evidence traversed outside of the witness' area of expertise. I have, of course, had regard to that evidence for the purpose of ascertaining the credibility and, given the plaintiff's allegations, the honesty of the respective witnesses. The plaintiff made grave allegations of dishonesty, misconduct and bias against the defendant's experts and others. The plaintiff made this submission about the defendant's conduct of the case: The big end of town has expended an enormous amount of money in trying to crush this plaintiff, and in the result, what sort of a case has the defendant put before the court? Two stumbling, dishonest, deceptive, ageing, so-called medical experts stepping outside their expertise. One gentleman whose report we [tendered] – not the defendant, but who had been engaged by the defendant – Dr Sweatman, in a distant sense they were responsible for that piece of evidence becoming available, but they didn't call him in the end. They decided they'd abandon him. Where is the case which one might have expected this defendant to put before this court, if this has been a genuine and honest attempt to fight this case? 99 After referring to an answering submission on behalf of the respondent her Honour went on:- There is no basis for any allegations such as are made by the plaintiff in submissions. I find no basis for any allegation of dishonesty made by the plaintiff, nor do I find any basis for the various other allegations levelled (charlatan, prostitute, etc). I found each of Dr Jones and Professor Werry to be honest and dispassionate witnesses, each of whom was fiercely independent and professional in his approach, analysis, reporting, and testimony. I find the plaintiff's allegations to be completely without foundation. There is no basis for any such allegation that the defendant's conduct of this case has not been genuine and honest. 100 Other instances where expert witnesses were very roughly handled in cross-examination appear from passages which the Trial Judge set out. Her Honour set out the following passage from cross-examination by Senior counsel for the appellant of Dr Jones, for whom Dr Buckley, a witness called by the appellant, had expressed the utmost respect. The passage was (Red 1/211T):- Q. I want to ask you this question: do you understand what's meant by the word "prostitution" in its pure sense? A. I understand it's something for sale, sir. Q. That's what you were doing, selling yourself, weren't you? POULOS: I object to the question, your Honour. A. That is incorrect. ……. Q. Doctor, how many specialties do you have? A. I'm a paediatric neurosurgeon, sir, Q. That's all? A. I am a paediatric neurosurgeon with a longstanding interest in radiology which is central to the conduct of neurosurgery. Q. Could you be properly described as a jack of all trades prepared to take on any task that may be useful in litigation in which you have been retained? A. No. 101 As there had been cross-examination in these terms, her Honour could not reasonably have refrained from expressing a view about Dr Jones, as she did in the very next passage in her judgment (Red1/212C):- As noted, I found Dr Jones to be a very impressive witness on matters medical, his analysis and evidence was precise, reasoned, and measured, including in the face of some provocation. 102 There are a number of instances of remarkable frankness and of free and unguarded expressions by Professor Werry. In dealing with the evidence of Professor Werry the Trial Judge also quoted a passage from cross-examination. In the immediately preceding passage the Trial Judge had quoted a passage from the evidence of Professor Werry in which Professor Werry had used some immoderate expressions. (Red 1/213A-K):- Professor Werry's final observation was somewhat intemperate, but hardly unprovoked. It came at the latter part of a lengthy and personalised cross-examination, in which he was repeatedly called a "charlatan", insults were thrown at him, and sometimes "withdrawn" only to be foreshadowed as submissions. For example, in cross-examination of Professor Werry, the plaintiff's senior counsel addressed himself to Professor Werry's expertise and competence thus: Q. Look, you're not a brain injury specialist, are you? A. I am a brain injury specialist. Q. Are you, really? A. Yes. Q. Are you a neurologist, too? POULOS: Your Honour, we've been through all of that -- A. Look, we've been through all this. I mean, I've spent -- SHAND: Just a minute, please. I'm entitled to ask these questions. A. I've spent 40 years working in this area. SHAND: Q. You think maybe you've stayed there too long, professor? POULOS: I object to that. It applies to just about everybody, I suppose. A. Your Honour, I think some of these gratuitous insults are -- HER HONOUR: Gentlemen. I think Mr Shand might withdraw that remark. SHAND: I'll make it an address instead, your Honour. I'll withdraw it. The point having been made, I note my findings and observations. Professor Werry was an expert in full possession of his faculties, possessed of an incisive and analytical mind and an acidic turn of phrase, and a rather dry sense of humour. Professor Werry's occasional surrenders to, and venting of, exasperation during cross-examination did not detract from his credibility. As I noted earlier, I found Professor Werry was a very impressive witness, whose evidence I accept in the main. 103 Her Honour went on to indicate some opinions of Professor Werry which she did not accept. 104 In suggesting that Professor Werry had stayed working in his area too long Mr Shand QC, who was admitted to the Bar on 12 February 1954, was venturing on very thin ice. He was not alone in using his opportunity to cross-examine a medical witness in a strikingly and inappropriately confrontational way: her Honour quoted the following passage on the cross-examination by Mr Poulos QC of Dr Buckley (Red 1/216L-N):- Q. Let the world know that Dr Buckley says that neurological registrars have never heard of the condition of post-traumatic amnesia. Is that what you're saying? A. Many neurological registrars don't know about post-traumatic amnesia. Q. I suppose you'd be upset if I said that was garbage, would you? A. It is absolutely correct, Mr Poulos. 105 Senior counsel referred, apparently with the view to showing that the Trial Judge had misunderstood an important matter, to the following sentence (Red 1/225J):- I have preferred the evidence of Professor Werry to that of Professor Broe in respect of attention deficit disorder and Dr Jones to that of Professor Broe in respect of paediatric neurology. The underlying point appears to have been that Dr Jones is a paediatric neurosurgeon, not a paediatric neurologist. Her Honour understood entirely clearly that Dr Jones is a neurosurgeon; this appears from her statement (Red 1/211J):- Dr Jones is a very impressive neurosurgeon, who retired from surgery some years ago but remains in consulting practice. His clinical and medical analytical skills are patently impressive, as was his presentation in the witness box under somewhat testing circumstances. The exact nature of his specialty cannot have escaped attention as it was given emphasis by cross-examination of Dr Jones in annoyingly offensive terms, in a passage to which I refer elsewhere (Red 1/211-212). 106 I do not accept contentions on appeal to the effect that the Trial Judge decided medical issues on demeanour and impression: there was analysis and exposition of her Honour's reasons for non-acceptation of the appellant's case and of his witnesses, and demeanour and impression played parts in the expressed reasons also, as was appropriate. Advocacy on the part of the appellant, and also of the respondent, treated the professional standing and demeanour of medical witnesses as subjects of very prominent importance, and, in view of the way in which the case was advocated on each side, her Honour could hardly have failed to express conclusions on demeanour and impression. 107 It was contended to the effect that overall, the appellant's medical evidence was so overwhelmingly strong and the respondent's medical evidence was so severely impugned that it was an error not to accept the appellant's case. Observations I have made earlier show that I do not accept this contention. 108 In my opinion the Court should not uphold Ground 2. 109 Ground 4: The Trial Judge erred in rejecting the evidence of the appellant's neuropsychologists. 110 Conclusions about neuropsychological testing are important because the view that the appellant's case is established by a body of scientifically-based evidence which does not derive from history narrated by Ms Van Oosten depends on the tests and their claimed significance. Senior counsel for the appellant said that rejection of the evidence of neuropsychologists and their testing was a major complaint in the appeal. It was contended that the condition of the appellant when neuropsychologically tested showed cognitive deficits of a kind consistent with the type of brain damage the appellant was contending for: that on the post-accident tests the neuropsychologists were able to say that the appellant's current condition is worse than it would have been if he had not been injured, having regard to his pre-morbid state. It was contended that (Orange 45S):- The Trial Judge….appears to have misunderstood the nature of neuropsychological assessment [and this] precluded her from properly determining the cause of the appellant's cognitive impairments. This submission was made in relation to the Trial Judge's finding (Red 1/214N):- Dr Buckley's opinions drew upon the reports by Ms Packer and Ms Boon, and thus rested upon the very inaccurate histories provided to them as well as to him by Ms Van Oosten. It was contended to the effect that the Trial Judge did not in this passage have regard to evidence of Professor Broe explaining the work of neuro-psychologists which includes taking a history but also performing tests which produce objective findings, which are listed separately from the history (Black 8/1425 A-G). 111 The appellant put the reports of three neuropsychologists into evidence. Sue Packer, a clinical neuropsychologist of the North Coast Head Injury Service, saw the appellant for assessment on 17 June 1996 on a referral by Jan Patterson, a school counsellor. Sue Packer did not give oral evidence and was not cross-examined. Sue Packer made a report on 26 August 1996 (Blue 2/264). She had a clinical interview with the appellant and Ms Van Oosten. She saw the appellant at his home and made observations of his elder sister Krystal. She stated that the tests she administered were clinical interview, wide range assessment of memory and learning (WRAML), the differential ability scales (DAS) skill-administration and freehand drawing. She reported on the results of her testing and stated widely ranging observations and impressions of the appellant and conclusions on his ability in various ways, and her impressions show considerable variations in his abilities in different respects, high in some respects and lower than average in others, with significant memory difficulties. She made recommendations for his management which showed her view that the appellant would benefit from structure and one-to-one supervision when completing tasks. There are statements in her report about the history of his injury and treatment. Except in the context of history furnished by Ms Van Oosten, Sue Packer does not attribute any aspect of the appellant's disabilities to adverse effects of his injury. Sue Packer's report could not, in my opinion, be regarded as a proper basis for a finding that the appellant has suffered any deficits in his ability compared with pre-accident ability. 112 The Trial Judge gave close attention to Sue Packer's assessment and report. (Red 1/141-147, 151-152). The Trial Judge referred to there being several versions of Ms Packer's report in evidence, all bearing date 28 August 1996 but containing significantly different, but, in her Honour's words, equally incorrect medical history. Her Honour said (Red 1/142D):- To the extent that Ms Packer purported to offer any medical or clinical diagnoses, I reject her report. To the extent that it reflects and is rested upon an incomplete and inaccurate history, her report is of no assistance to me. 113 The Trial Judge examined in detail many matters of history given in Sue Packer's report and addressed the implications of other sources of information in evidence about a number of matters of history. Her Honour expressly rejected an observation under the heading "Impressions" in which Sue Packer said (Blue 2/268 I-J):- In addition, Daniel exhibited significant memory difficulties revealing a pattern of performance below his estimated pre-injury level of ability. Her Honour said:- I do not accept that Ms Packer was in a position to reach such conclusion. In my judgment this conclusion was correct, but should be accompanied by the observation that the context shows that Sue Packer was not offering her professional opinion about the appellant's estimated pre-injury level of ability, but was stating an impression which reflected what she had been told by Ms Van Oosten about the pre-injury level of ability. 114 Her Honour reviewed evidence of Professor Werry about the value of the tests administered by Ms Packer; while Professor Werry did not have a high opinion of the tests administered, he was of the view that the findings on tests did not detract from the overall normality of the test results (Red 1/146G). Her Honour said (Red 1/147M):- It is for the neuropsychologist to administer the tests, and for the appropriate medical specialist to opine on matters diagnostic. With no disrespect to Ms Packer, I prefer Professor Werry's opinion about relevant matters causal to that of Ms Packer. In my opinion these conclusions are correct; but in any event there is no substantial material in Ms Packer's report which gave a substantial basis for a finding that anything adverse in the appellant's abilities was caused by his injury. 115 Some later notes and a progress report by Ms Packer of 24 July 1997 were also in evidence, and material in them was the subject of extensive cross-examination of Ms Van Oosten. The Trial Judge dealt with this later material. (Red 1/165). This material has not been treated as containing opinions about diagnosis. 116 The appellant also tendered the report of Dr Jacqueline Boon, a clinical neuropsychologist, made on 20 July 1997 after an examination and clinical interview at Lismore on 27 June 1997 which was arranged by the appellant's solicitors for medico-legal purposes, not specifically for treatment. Dr Boon's report (Blue 2/227) shows that she administered select sub-tests of the Wechler Intelligence Scale for children – III (WISC-III). She said (Blue 2/272R-T);- Based on Daniel's reported neuro-development; pre-school performance and performance on select sub-tests of the Wechler Intelligence Scale for children – III (WISC – iii), Daniel's pre-morbid IQ is estimated to be in the average range. This was used as a benchmark to compare levels of functioning. After reporting on a number of test scores and observations related to the wide range assessment of memory and learning (WRAML) Dr Boon reported (Blue 2/274D):- Overall, Daniel's general learning abilities were low-average which is below expected pre-morbid abilities. She said of a number of aspects of his abilities (Blue 2/275B):- These reported difficulties were considered persistent sequelae to an acquired brain injury and were not present prior to the accident. She also said (Blue 2/275G-H):- Persistent attentional impairment; impulsivity and psychomotor slowing are considered neuropsychological sequelae of an acquired brain injury probably sustained on 03/03/95. 117 At a later point (Blue 2/275B) Dr Boon referred to Ms Van Oosten as the source of a history that some difficulties which she named were not evident prior to the motor vehicle accident and said (Blue 2/275Q):- It is more probable than not that these diffuse residual deficits can be attributed to the effects of a penetrating head injury sustained on 03/03/95 as a result of a motor vehicle accident. She went on to say:- In penetrating head injuries, the object usually causes focal injury but is also known to cause more diffuse brain damage through the result of pressure effects (e.g. contusions) and shock waves with high velocity causing the greater damage. and to point to consequences of such damage. Overall her report shows that it was her view that the appellant had disabilities arising from an acquired brain injury. Again she did not give oral evidence and was not cross-examined. 118 The Trial Judge dealt at length with Dr Boon's report (Red 1/156-161). The Trial Judge accepted Professor Werry's opinion that the Wechsler test is an unreliable tool on which to estimate the appellant's pre-accident IQ levels (Red 1/158F). In my opinion the Trial Judge could hardly have found otherwise, as Dr Boon's evidence did not give any exposition of how it was that her testing put her in a position to know the appellant's pre-morbid intelligence, and references throughout her report show that as well as the testing, history given to her was influential in the formulation of her views. It could not be regarded as unreasonable or incorrect of her Honour to accept Professor Werry's view. In the Trial Judge's interpretation Dr Boon had in effect assumed that there had been a relevant brain injury and used that assumption to prove that variations in the test results were attributable to the accident; and the Trial Judge accepted a critique of this reasoning given by Professor Werry (Red 1/159 O-W). The Trial Judge said, in comprehensive ways (Red 1/160-161) that she did not accept Dr Boon's opinion about causation or "that purported diagnosis" relating to brain injury. There may have been a little overstatement in referring to what Dr Boon said as a diagnosis. However the rejection of Dr Boon's evidence was fully considered, well explained, evidence-based, has not been shown to be erroneous, and there is no occasion for any appellate intervention. 119 The appellant also tendered a neuropsychology report of Genevieve McMahon, a clinical neuropsychologist, who saw the appellant on 26 July 1999 and reported soon afterwards. There are several forms of the report in evidence, with significant variations in what they say. (See Blue 2/319, 2/325A). The form at page 323 contains significant additional material not appearing in the corresponding page following page 325A. Genevieve McMahon saw and referred to earlier reports by Sue Packer and Dr Boon. She made an assessment of the appellant at his school, then at Bright, Victoria, in two sessions of about one and a half hours each, and administered a number of tests. She reported extensively on results of the tests, referred to various of the appellant's difficulties and said (Blue 2/323):- As has been noted previously, the types of difficulties observed on the current assessment are consistent with the patterns of deficits often observed following brain injury …. 120 The passage found in one form of the report but not in others goes on to say:- …although of course they may also be consistent with other conditions such as Attention Deficit Disorder. The passage goes on to refer to the influence of maternal reports about the appellant's earlier development and behavioural changes following the accident in 1995, and the passage concludes:- …It is not unreasonable to suggest that Daniel's current cognitive deficits are most likely to be consistent with the on-going effects of the traumatic brain injury that he sustained in 1995. 121 Ms McMahon's report could not reasonably be regarded as furnishing strong support for a finding, on the balance of probabilities, that the appellant suffered significant disabilities which have been caused by brain injury. Overall, Ms McMahon's report indicates no more than a view that what she observed is consistent with there having been deficits in ability caused by brain injury, and there is no basis offered for this statement which shows a claim to relevant expertise. 122 The Trial Judge dealt with Ms McMahon's report (Red 1/192) and considered extensively evidence of Ms Van Oosten about the circumstances in which there came to be several versions of the report. The Trial Judge said (Red 1/194B):- All versions of Ms McMahon's report recorded her starting point as being by the histories she was given and her instructions that others had concluded that Daniel's symptoms were attributable to the March 1995 accident. That was her starting point, not her conclusion. This is correct. 123 Her Honour considered the significance of the passage which appears in one version but not in the other and observed on the need for an explanation, which the evidence did not give, why the discussion of Attention Deficit Disorder was included in the revised report but not elsewhere. The Trial Judge said that she had approached Ms McMahon's report with some caution (Red 1/195J). She also said, (Red 1/196D):- As before, I note that it is not for a neuropsychologist (clinical or otherwise) to proffer a medical diagnosis. To that extent, I do not accept Ms McMahon's report. and went on to make adverse observations on the accuracy of the history given to Ms McMahon. 124 In my opinion the Trial Judge's reasons show that there was a reasonable basis for not adopting or acting on any opinion of Ms McMahon that bore on diagnosis or causation, and no error has been shown. 125 Evidence showed that the respondent obtained a medico-legal report relating to the appellant from Dr Vicki Anderson, a very highly qualified neuropsychologist, but did not serve the report on the appellant's solicitors or tender it in evidence. In a submission which is also relevant to Ground 5, the appellant's Senior Counsel dwelt on these circumstances, and it is of course correct that they provide a reasonable basis for inferring that Dr Vicki Anderson's report would not have advanced the respondent's case. However, in view of the effect which the neuropsychological reports which were in evidence produced upon the Trial Judge's considerations, this observation is of no high importance. 126 Professor Broe's report of 3 September 2001 (Blue 2/326) is lengthy – 14 pages, and contains a full and careful review of information including earlier reports available to Professor Broe and a careful statement of Professor Broe's opinions and the bases of them. He saw the appellant on 27 August 2001 when the appellant was eleven years of age, and independently interviewed Ms Van Oosten. After referring in detail to his interview with Ms Van Oosten, reports from the Grafton Base Hospital and the Royal Children's Hospital, Brisbane and medical staff there, and after giving the history known to him, including much history derived from Ms Van Oosten, his observations on interview and his assessment of the appellant, Professor Broe gave this summary (Blue 2/335):- Summary Based on the neurological and developmental history taken from Ms Van Oosten (Daniel's mother) and on the Hospital notes including x-ray reports, Daniel De Groot was a boy of above-average developmental milestones when, at the age of four years and eight months, he sustained a head injury in a motor vehicle accident of the 3rd March 1995 in which he was struck a direct blow by a heavy metal object travelling at significant speed. The vehicle from which the object (a wheel cleat) was dislodged was a semi trailer travelling at around 60km per hour and the vehicle struck was reported to be travelling at around 40km per hour. The metal object penetrated what is described in Dr Robert Jones' report as a laminated windscreen prior to striking Daniel De Groot in the right parietal skull region. While the velocity at which the cleat was travelling cannot be determined, it was sufficient to cause a depressed skull fracture and focal contusion at the focal site of injury with clinical evidence of more diffuse and permanent brain damage which is causing marked cognitive and behavioural difficulty six years post-trauma. Daniel De Groot manifests cognitive and behavioural symptoms at home and in school that have been persistent or unremitting over a period of six years with marked deterioration in his developmental milestones immediately post-trauma, which has persisted up until the present day. The pattern of symptoms is most consistent with damage to the frontal systems network as well as or including damage to the right partial cortex and are far more marked than could be attributed to a small cortical lesion. The frontal pattern of symptoms includes a marked disorder of initiation and motivation, a degree of rigidity with impaired ability to change set or refocus activities, markedly impaired attention and concentration, impaired behavioural control but not constituting a severe disorder of behavioural control in terms of temper and language, impaired organisation and planning abilities and impaired functional memory and new learning. The cerebral contusion was associated with focal and generalised epilepsy with a reported Jacksonian march of symptoms. There is however no ongoing post-traumatic seizure disorder. 127 The report then went on to review information available from the neuropsychological reports. Professor Broe expressed his conclusions (Blue 2/338-9) at length: I set these out earlier. 128 Professor Broe's consideration of the neuropsychological reports is set out between the summary and the conclusions. This passage does not contain an exposition of how it is that neuropsychological testing and reports made at dates later than injury can found or support a conclusion that the neurological deficits which in Professor Broe's opinion existed were not present before injury, or would not have been present if there had been no injury; although on a fair understanding of Professor Broe's report overall, it was his view that they did give such support. Where Professor Broe did not rely on a neuropsychological report he said so and gave reasons, and from this, and from the tone of his references to them generally, it should be understood that he regarded them as showing material on which he could and should rely. 129 The general form and the terms of Professor Broe's report show that to a very substantial extent his opinions were dependent on history furnished by Ms Van Oosten. His significant comments on neuropsychological reports include these (Blue 2/335U):- The neuropsychological assessment itself by Sue Packer (an experienced neuropsychologist in the area of head injury) showed general ability at the high average to higher range, which I would have expected considering his high developmental performance pre-trauma. The assessment went on to show what Sue Packer describes as " generalised effects of his (head) injuries including significant attention difficulties and slow speed of information processing". It also showed significant memory difficulties and limited attentional capacity and immediate memory span, particularly when overloaded with too much information. He was sensitive to interference on memory tasks. His self-monitoring was also reduced suggesting significant frontal lobe involvement. 130 Professor Broe (Blue 2/336) also made observations about the report of Dr Boon, quoting Dr Boon's opinions and not specifically referring to the results of any neuropsychological testing by Dr Boon except to say (Blue 2/336P):- She noted both focal difficulties and evidence of more diffuse abnormality on neuropsychological assessment. Professor Broe said (at Blue 2/336F-L):- Jacqueline Boon made the comment that overall Daniel's general learning abilities were below average which is below pre-morbid abilities (as previously noted by myself). Jacqueline Boon's major findings included: · reduced processing of tactile and appropriate receptive inputs; · significant difficulty with visual sequential memory; · significant attentional difficulty; · slow speed of processing information; · hyperactivity; · impulsivity and difficulty and regulating and monitoring his behaviour. Jacqueline Boon noted that these reported difficulties were considered persistent sequelae of an acquired brain injury. 131 Professor Broe also referred to the report of Sue McMahon; he did not accept part of her conclusions and said (Blue 2/337):- Thirdly Ms McMahon on 10/03/1995 detected articulation abnormalities which she considered to pre-date the accident. I noted the report of Sandra McMahon dated the 10th of March 1995 and her comments in that report. It is my opinion that Sandra McMahon is incorrect in this interpretation and that the articulation errors she noted were most likely the result of acquired brain injury with a more widespread immediate injury than the focal right parietal defect noted on the CT scan. 132 References to neurological testing and assessment are indirect; Professor Broe did not express himself to have formed his opinion on the basis of the results of neuropsychological testing, and did not in so many words accept the assessments of the neuropsychologists. It is not possible to refer to any evidence of Professor Broe for an understanding of how or to what extent neuropsychological testing and assessment are able to indicate that deficits which are now present in the appellant would not have been present if he had not been injured. 133 Overall the references by Professor Broe to testing show that he regarded testing as a basis for relevant conclusions, but he did not give any exposition of why this was so; in substance, the reliability of the testing was never taken further by Professor Broe's evidence than his own expressions of opinion that it was reliable. This being so, there is no force in the observation made by senior counsel for the appellant to the effect that in cross-examination of Professor Broe it was not put to him that neuropsychologists are unable to deduce the level of the subject pre-morbid cognitive functioning. Professor Broe did, in the course of cross-examination, make some references to the testing. Professor Broe said, (Black 8/1422A) not (to my reading) responsively to the question:- Q. Which are the ones that you say could not possibly relate to ADDHD? A. Okay, both Jacqueline Boon and Sue Packer, the two neuropsychologists who examined this boy – Sue Packer at 16 months post trauma and Jacqueline Boon at two years and three months post trauma – are experienced clinical psychologists – clinic[al] neuropsychologists in the area of head injury. They, on testing, have shown that this boy's average IQ was likely to have been higher and his performances should have been better piror to their testing. Now, that is contemporaneous testing that adduces that you had a prior level of higher intelligence. Q. Assists by what means? A. There are a number of tests – neuropsychological tests that are HOLD tests, such as information and comprehension. The whole HOLD – h-o-l-d – tests, they don't deteriorate secondary to brain damage and you can give these tests and you can – I can't get the word, not adduce – you can deduct that the person had a higher – an IQ of a certain level. They have both done that. The IQs that he came out with are around 95 and 97 from my memory. Now, he then is given a series of tests on which he performed at a level which is much lower than he should have performed if that was his premorbid, that is, before testing IQ, not premorbid in the sense of any injury, just I'm testing him now. This boy was previously of a higher intelligence than he appears to be now. So that's the first thing. The second thing is he had significant – on both testing – slowing of information testing. That is most typically due to brain damage. Q. But can it be due to ADDHD, doctor? A. Anything can be due to anything. 134 As the cross-examination continued Professor Broe made several other references to testing as reliable and, when referred to statements in Sue Packer's report about the significance of history to the effect that the appellant did not have memory difficulties before the injury, said (Black 8/1429A-H):- Q. So those are very powerful pieces of information that lead to the impressions given by the neuropsychologist. A. Yes, but these are not global impressions. These impressions are based on detailed testing which she outlines in a page-and-a-half of results outlining where the deficits lie and giving you percentiles, how much he differs from what one would have expected him to obtain. Q. Based upon the history. A. No, no, no. Based on the testing, not based on the history. What I'm saying is this is not the neuropsychological testing of a boy just with ADHD. It is the testing of a boy who has ADHD symptoms but who has deficits which are over and above those of brain damage. That is my opinion on looking at the testing and that takes into account the fact that the testing is done by a brain injury person working in a clinical neuropsychological assisting in a brain injury unit. 135 There were further references in the following passages, but cross-examination did not take Professor Broe to and he did not give a comprehensive account of the basis in science or in experience for drawing conclusions from neuropsychological testing about pre-accident ability. In re-examination and by leave over objection Professor Broe was again taken to the tests and said (Black 9/1543B-C):- The tests do determine that this is a damaged boy, and they do assist in determining the areas in which this boy's brain is damaged. Re-examination dealt with this further; her Honour's expressions show that she found this difficult to follow, and this was not surprising. In answer to questions from the Trial Judge Professor Broe said (Black 9/1544):- Q. You say these reveal his pre-accident performance. A. Correct, your Honour. Q. They also quite clearly reveal his post-accident performance. A. Yes, your Honour, but that level of performance – you're quite right, your Honour, but the interpretation of those tests, made both by myself and by the people who have given the tests, is that that is reflective of pre-accident performance. To achieve those sorts of IQ levels and to achieve them across both a verbal and performance -- Q. But, Prof Broe, he actually achieves them after the accident. A. But if he – they're based on learning – they're based on learning and education to a large degree, your Honour. That's what -- Q. Are you saying that, if he was given an IQ test tomorrow, he'd get a different score? A. If he was given an IQ tests when he was four, he would have got the same score. If was given an IQ test tomorrow, he would be likely to get a similar score. He got one two years and three months after the accident. So the assumption is, and it is a reasonable assumption and it is a very common assumption, that you can test areas of the brain to see how they have developed during life; and that is down with your verbal IQ, your performance IQ and your total IQ. And these have been discredited as tests for telling how you will do in education, because they're based on education and previous learning. So you achieve those tests based on your previous level of learning, and my contention is he wouldn't have achieved those test levels when he was 16 months post-trauma if he hadn't had good learning skills previously. 136 Counsel referred to other passages in the medical reports which appear to show readiness to rely on neuropsychological testing and assessment. 137 When under cross-examination (Black 8/1426) Professor Broe said:- Q. Are we able to continue? What degree of misclassification or error could we expect from these tests? A. I think we'd probably say their sensitivity – around about 70 per cent sensitive. Q. There's around about 30 per cent misdiagnoses? A. You don't only give one test, you give a whole series of tests and on all tests they have their in-built error rate. They have a standard deviation and to show an abnormality you have to have two standard deviations from the mean, so there is an in-built test of reliability in the test itself. You're talking about pretty gross deviations from the norm and in all of these tests where she says that there is an abnormality, she would have done that and compared it to the normal of his pre-morbid intelligence as she assessed it. It's not that you make a misdiagnosis, it's that the test itself is either reliable or not and then you add up the tests and determine what you think it is most likely to be due to. 138 Dr Buckley said during a remarkably extended voire dire examination following an objection on the basis that he did not have qualifications to interpret CT scans (Black 9/1638 O):- The purpose of a neuropsychological assessment is to perform specific tests of brain function, and determine whether those tests are normal or abnormal. and (Black 9/1638 T):- My understanding of the testing that I have seen in relation to Attention Deficit Disorder is that it is all dependent entirely upon the report of the parent; that neuropsychological tests asks the child himself to perform specific activities which are researched activities to demonstrate specific brain functions. That is the difference I am aware of. 139 Dr Buckley's evidence does not tend to establish the availability of neuropsychological testing to demonstrate pre-accident ability. Dr Johnson said (Black 10/1750 Q-U) to the effect that psychologists use standardised tests with standardised norms which are tested for specificity and reliability before they are used as a standardised test; but otherwise did not give evidence which would establish that such tests can indicate pre-injury abilities. 140 When specifically asked Senior counsel for the appellant was unable to point to evidence which gives an exegesis of why and how neuropsychological testing is reliable, but referred again to evidence which, in the case of every witness who dealt with the matter except Professor Werry, shows that they are relied on in medical practice. 141 It was contended that the course taken by the respondent, in which the reports of the appellant's neuropsychologists were allowed to go into evidence without objection, the neuropsychologists were not required for cross-examination and the respondent did not make any use of the report of the neuropsychologist who had examined the appellant on its behalf, meant that the appellant and the Trial Judge were entitled to assume that there was no neuropsychological issue. I do not accept that this is correct. These circumstances did not disqualify the respondent from asking the Trial Judge to make the kind of critique which she did make of the material which was tendered, or make it in any way wrong or unfair for the Trial Judge to go through the considerations which she did set out before deciding whether or not she would act on this part of the appellant's evidence. I do not see that the procedures followed were in any way unfair. In any event, there was considerable debate during the hearing in the course of Professor Werry's evidence about the value of the reports of neuropsychologists and the use which could be made of them. 142 The appellant's counsel made a number of submissions to the effect that, in various ways, the Trial Judge had taken wrong views of the significance of the neuropsychologist's reports and of references to them and to neuropsychological testing in the evidence of Dr Jones, Professor Broe and Dr Johnson. It was contended that the Trial Judge should have rejected Professor Werry's view that there is a very serious deficiency in neuropsychology as eccentric and out of step with all other experts in relation to neuropsychology. To my reading the Trial Judge's analysis and disposition of issues relating to the neuropsychologists' reports did not adopt or depend on such a sweeping view of neuropsychology, but were based on numerous relevant matters of detail relating to the acceptability of the reports themselves, including views on the the relative expertise of neuropsychologists and medical experts which were not reasonably contestable. 143 References in Professor Broe's evidence to the neuropsychological testing did not, in the Trial Judge's mind or in my mind dispel the influence of history traceable to Ms Van Oosten on Professor Broe's opinions on evidence. While it should be said that it was open to her Honour to accept Professor Broe's views, I see no reason to conclude that there was any error open to correction on appeal in her Honour's deciding to act on a different body of evidence. 144 Senior counsel for the appellant pointed out, that on the face of the clinical psychologists' reports what they were reporting on, including the performance of tests and their reliance on them, was a routine exercise of part of their discipline. This seems to be correct, but it does not take the place of an exposition of the basis on which their testing and assessment should have been regarded as reliable. Professor Werry's evidence, the effect of which was accepted and showed that the tests were not reliable, was sought to be disposed of by counsel by observing that Professor Werry was so far out of step with everybody else who gave evidence, that his opinion, and his evidence generally should not be accepted. I do not regard this as disposing of his evidence, or as showing that the Trial Judge committed some error in accepting it. 145 In my opinion the Court should not uphold Ground 4. 146 Ground 5: The Trial Judge failed to attach any or any appropriate weight to the failure of the respondent to serve reports from a large number of medical experts who examined the appellant. 147 The Trial Judge (Red 1/205J) referred to experts who examined the appellant on behalf of the respondent from whom the respondent did not tender any report. Her Honour specifically mentioned by name Dr Vicki Anderson, paediatric neurologist, two paediatric psychiatrists and a paediatric psychologist; she also mentioned a radiologist who did not examine the appellant but of whom it was known that he had made a report, and a firm of forensic engineers. Her Honour said that she inferred that those experts were able to say nothing that would assist the respondent. Her Honour referred to Jones v Dunkel (1959) 101 CLR 298. It was submitted (Orange 176C):- There is nothing in the judgment to indicate that anything more than mere lip service was paid to the Jones v Dunkel principle. 148 Jones v Dunkel is invoked very frequently, and not always accurately. In Jones v Dunkel a widow claimed damages arising from the death of her husband in a collision between two vehicles; the only persons present were the drivers of the vehicles, one of whom, Mr Hegedus survived the collision and was the second defendant in the litigation. He was injured and while in hospital he made a brief written statement to police which did next to nothing to explain how the collision happened; see 101 CLR at 303. The facts available for observation after the collision were very difficult to interpret when seeking to infer from them how the collision had occurred. Mr Hegedus did not give evidence and his absence was not explained by evidence. A juryman asked the judge directly, as well he might, whether he was entitled to regard it as a weakness in the defendant's case that Mr Hegedus could have come to Court and given evidence, and the judge responded in a way which did not answer the question in substance (see 311). The High Court majority (Kitto, Menzies and Windeyer JJ) thought that the inference of negligence was available on the evidence and that the jury should have been given directions about the effect of Mr Hegedus' not giving evidence. Menzies J said at 312:- In my opinion a proper direction in the circumstances should have made three things clear: (i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence; (ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence; (iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference. 149 See Kitto J at 308 and Windeyer J at 320-322. The minority (Dixon CJ and Taylor J) thought that the inference of negligence was not available. This difference of view about whether an inference of negligence was available at all illustrates, in a way, the central importance of the process of drawing inferences from what evidence there actually was. It was reasonable to suppose that Mr Hegedus, a person of central importance in the case as a defendant and the only surviving person present at the event, was in a position to give evidence about how the collision occurred, especially about which side of the road's surface it occurred on and how the vehicles came to be in the positions and state in which they were later found; or to give evidence showing why he could not explain those matters. Notwithstanding his centrality, his absence meant nothing unless an adverse inference was available on such evidence as there was. The Trial Judge's application of the reasoning associated with Jones v Dunkel was correct and sufficient. 150 The burden of counsel's submissions in support of ground 5 is not well indicated by the terms of the ground. Submissions in support of Ground 5 were not clearly directed to the drawing of inferences from facts in evidence, and were principally directed to what the evidence of the appellant's neuropsychiatrists showed and could show about whether the appellant suffered any disability which was caused by his injury, and in relation thereto, what his pre-injury abilities were. The Trial Judge really said everything that could reasonably be said about the absence of evidence from the experts she named when her Honour said that she inferred that they were able to say nothing that would assist the respondent. The burden of submissions related to the fairness of the trial process was to the effect that the appellant's representatives were entitled to believe that the opinions in the reports of the neuropsychologists Dr Boon, Sue Packer and Genevieve McMahon were not in issue because the respondent obtained an examination report of Dr Vicki Anderson, a paediatric neuropsychologist of considerable eminence, and did not tender her report. It was then complained that the Trial Judge embarked on an exercise of investigating the role of a neuropsychologist with only the assistance of Professor Werry who himself was not a neuropsychologist, thus placing the appellant at an unfair and serious disadvantage. It was put as enhancing this complaint that the judge referred to Dr Vicki Anderson as a paediatric neurologist not as a paediatric neuropsychologist, and that the respondent had not tendered reports of experts in paediatric psychiatry who had examined the appellant, but had only called Professor Werry. Counsel referred to there being no criticism of the neuropsychological evidence in the written reports of Professor Werry which were served and to the respondent's having elicited no criticism of the appellant's neuropsychologist's evidence in Professor Werry's evidence-in-chief and not having acquired the neuropsychologist for cross-examination; Professor Werry's evidence on the subject emerged in the course of his being cross-examined. 151 The appellant bore the burden of establishing the opinions of the neuropsychologists, and of showing that the use which they made of tests showed the causation of the disabilities which they observed. Causation is not, to my reading, dealt with convincingly or comprehensively in the reports themselves, although they offer opinions on the subject. The Trial Judge's approach to the evidence of Professor Werry shows clear advertence to shortcomings of Professor Werry's evidence in a number of ways. However it was that his evidence adverse to reliance on the opinion of paediatric neuropsychologists emerged, it was appropriate for her Honour to have regard to it, and to accord weight to Professor Werry's qualifications and experience in doing so. In my opinion those representing the appellant should not have been taken by surprise when this issue came to seem and to be important in the course of Professor Werry's evidence. The Trial Judge's not relying on the evidence of the paediatric neuropsychologists is at least as attributable to the influence on their opinions of history which the Trial Judge found was traceable to Ms Van Oosten and was inaccurate as it is to the Trial Judge's acceptance of significant aspects of Professor Werry's evidence. 152 It was contended (Orange 47/1.13) that this finding of the Trial Judge (Red 1/229L) shows error: That theoretical tool is of no assistance in this case, either by its application or by its absence. Context (at Red 1/229A) shows that the reference was to "…tests which differentiate between congenital attention deficit disorder and that which is secondary to brain injury;" of which her Honour said: "However, in the circumstances they are of no assistance." The submission was based on misreading of the passage and a contention that the Trial Judge meant that no neuro-psychological testing or assessment of information processing had been carried out. This is not what the Judge said, nor what the evidence showed had happened. For reasons which the Judge gave elsewhere, she found that the tests should not be relied on. 153 In my opinion Ground 5 has not been made out. 154 Ground 6: The Trial Judge erred in not accepting that the cause of the appellant's disabilities was the head injury sustained in the accident. 155 The matter raised under Ground 6 begins with Professor Broe's opinion, expressing the conclusions in his report earlier set out and for convenience now repeated (Blue 2/338-339):- Daniel De Groot suffered significant and permanent brain injury in the motor vehicle accident on 3rd of March 1995 when he was struck in the right parietal area by a metal cleat travelling at significant speed. He has sustained a focal right parietal cortical injury, however he has also undoubtedly sustained more widespread or diffuse brain injury as a result of the impact and pressure waves through what is semi-fluid substance contained in a rigid box with numerous internal protuberances, particularly in the inferior frontal region above the orbits and in the anterior temporal regions in the middle cranial fossae. In my opinion the frontal systems impairments (outlined in the body of this report) can be explained on a combination of his right parietal focal defect and more diffuse involvement of brain networks observing frontal systems functions of attention concentration, planning, speed of information processing, initiation and motivation and behavioural control as well as frontal memory. The persistent deficits outlined in the neurological history taken from his mother and in the school reports are in my opinion the result of traumatic brain damage as outlined in the neuropsychological assessments. There is no good history of significant preceding developmental delay or true attention deficit hyperactivity disorder. There is no history suggesting to me significantly poor parenting or frontal systems disorder due to social or emotional disadvantage. Importantly, as outlined by Jacqueline Boon, further development delay is likely with advancing years in the presence of traumatic brain damage at four to five years of age…. However based on the current clinical picture, I would predict that he will be essentially unemployable due to frontal system impairments and that he may well require an ongoing case manager and support in personal care and instrumental activities of daily living…. The report said to the effect that the appellant did not have true Attention Deficit Disorder, referring, as explained by Professor Broe, to Inherited Congenital Attention Deficit Disorder. 156 The Trial Judge reviewed Professor Broe's evidence at length before stating the conclusion (Red 1/225K:- I have preferred the evidence of Professor Werry to that of Professor Broe in respect of Attention Deficit Disorder and Dr Jones to that of Professor Broe in respect paediatric neurology. 157 Significant findings in the course of her Honour's review include findings to these effects:- Professor Broe is a rather strange choice of expert for a child plaintiff who has been diagnosed with Attention Deficit Disorder…he does not treat children with Attention Deficit Disorder (Red 1/218 N-O). Professor Broe's experience with children in recent years is particularly limited (218U). Professor Broe rested much of his opinion on a very uncertain and inaccurate history provided him by Ms Van Oosten.(219J). Although Professor Broe's report did not say so, he was of opinion that the appellant exhibited the symptoms of Attention Deficit Disorder (220B). 158 Her Honour set out at length passages in cross-examination of Professor Broe dealing with these subjects. Her Honour also set out cross-examination of Professor Broe on his reference to poor parenting, of which he had said in his report that there was no history suggesting significantly poor parenting. Her Honour found (Red 1/222P):- Professor Broe's history of the family and domestic relationship was inaccurate to the point of grossly misleading in the context of Ms Van Oosten's lengthy complaints about Mr Rick De Groot, his absences from the home during the marriage, domestic violence and his influence upon Daniel. Professor Broe knew nothing of the rather complex and turbulent circumstances of Daniel's childhood……the history of matrimonial difficulty…. Although Professor Broe's evidence also showed that in his view emotional disadvantage could have a bearing upon the development of Attention Deficit Disorder (Red 1/222W, 224K) the Trial Judge found:- Professor Broe did not address himself to Daniel's particular position or family environment with any degree of analysis (Red 1/224K). 159 It was found that Professor Broe was given a history of events relating to the appellant's condition at and following his injury which was inconsistent with contemporaneous reports which her Honour preferred to Ms Van Oosten's testimony. In particular the history given was inaccurate in that the appellant did not lose consciousness or suffer fits before he reached Grafton Base Hospital. (Red 1/224 N-S). It was found that the history given to Professor Broe was inaccurate with respect to the appellant's being delusional in the Royal Children's Hospital, Brisbane. (Red 1/224 U). The Trial Judge found (Red 1/225D-E):- There were numerous and significant errors and omissions in the information upon which Professor Broe rested his analysis. I have not accepted his opinion. The Trial Judge found (Red 1/225 E-F):- Professor Broe postulated damage to Daniel's frontal lobes. He identified no such damage by examination or radiology. 160 In written submissions for the appellant it was contended that a number of matters which were the subject of cross-examination of Professor Broe had raised issues which were not important for acceptation of his opinion. One was whether Professor Broe had tested the appellant for motor skills; his evidence showed that he had. The Trial Judge reasons for not accepting Professor Broe's evidence were not related to this subject. 161 It was submitted that Professor Broe's opinion was not tied to his concluding that there had been fits or seizures on the way to hospital, and that his oral evidence showed this. In my opinion, it is clear that Professor Broe regarded the information that there had been fits or seizures as important information that he would need to assess. (Black 8/1380 U). Although he also said (Black 1/1382 X):- Now, by the time I got to my opinion I did not use that evidence in my opinion. the Trial Judge was correct to treat the inaccuracy of history (and she found it to be inaccurate) as relevant to her consideration whether she should accept Professor Broe's evidence. 162 Professor Broe was cross-examined at length as to the significance of enuresis and its onset, which he attributed to the accident. The Trial Judge found (Red 1/197) to the effect that the appellant did not suffer from episodic nocturnal enuresis from 11 March 1995 but that this condition started after the Christmas 1995 vacation. Enuresis and cross-examination of Professor Broe on the subject did not have a significant part in her Honour's reasons for not accepting Professor Broe's evidence; I cannot see that her Honour mentioned the subject in that context at all. 163 Written submissions referred to several other aspects of cross-examination of Professor Broe which appear to me not to have significance. It was contended that it was in some way inaccurate that her Honour found that the appellant presented to Grafton Base Hospital with a Glasgow coma scale score of 15/15. Her Honour's finding exactly represents what appears in Grafton Base Hospital records about his condition on arrival; no less so because there were references to scores of 14 and 13, obviously at other times, elsewhere. It was submitted to the effect that it was wrong for the Trial Judge to rely on notes in the physiotherapist's report in the records of Royal Brisbane Hospital showing an assessment on 9 March 1995 which says among other things (Blue 1/109J):- [Patient] alert and co-operative. Main problem is short attention span & distractability which parents say were present prior to accident. As the Trial Judge was aware, the appellant's father could not have been a source of this statement. The reference to "parents" cannot have been completely correct, and the Trial Judge inferred that the reference was to Ms Van Oosten accompanied by Mr Milczarski. Counsel's submissions pointed to various respects in which the record could conceivably be inaccurate, but in my view the Trial Judge acted reasonably in adopting it in preference to history furnished by Ms Van Oosten. 164 It was submitted that the Trial Judge was in error in several other respects. The Trial Judge was entirely correct in saying, on the basis of the notes of the Royal Children's Hospital, Brisbane, that the appellant made a remarkably rapid recovery there. The notes show that clearly. The Trial Judge was taking a reasonable view when she found that the pattern of increasing concentration problems at school pointed to ADHD. The Trial Judge gave extensive grounds for finding that the reported on-set of behavioural and cognitive difficulties dating from the injury was not substantiated. The Trial Judge made a number of observations about incompleteness of the medical history available to medical witnesses called by the appellant. These observations had a clear factual basis, no less so because the Trial Judge did not carry them to an entirely complete exposition. The Trial Judge was criticised for having found that Professor Broe was an odd choice of expert for a child plaintiff who had been diagnosed with ADHD. The Trial Judge gave a clear statement of reasons for this finding, which related to Professor Broe's experience over the last twenty years or so of his professional practice. The Trial Judge was criticised for having accepted Dr Jones' opinion that the appellant did not suffer severe head injury but only a mild one, in preference to Professor Broe's view. This acceptation was based on a careful and full statement of the grounds on which Dr Jones' evidence was preferred. There were aspects of the evidence of Professor Broe, Dr Jones and Dr Johnson to which the Trial Judge did not expressly refer in this context, but counsel did not refer to any matters which were of such importance as to subvert the conclusion. 165 In my opinion Ground 6 should not be upheld. 166 Ground 7 is dealt with at a later point in association with Ground 19. 167 Ground 8: The Trial Judge erred in finding that the plaintiff did not suffer from post-traumatic amnesia. 168 The Trial Judge disposed of the question of post traumatic amnesia in these words (Red 1/216N-P):- There is no evidence of any post-traumatic amnesia, and I find that there was none. The evidence is consistently to the contrary. Dr Buckley's examination of Daniel in December 1999 revealed no significant problems: he had a completely normal neurological examination and development consistent with his age of nine to ten years. 169 The opening submissions on Ground 8 claimed that the Trial Judge (Red 1/110V), on the basis of a cryptic note, inferred that the appellant recalled that he had been in an accident. This is not what the judge there found. She set out the passage, which is indeed cryptic, from nursing notes of the Royal Children's Hospital, Brisbane, and said (Red 110W-X):- There is no record or indication of any post-traumatic amnesia. Given the circumstances of this accident I am satisfied that that would have been recorded had it been present. I accept the silence for what it is: a record of the absence of something – in this case amnesia. Her Honour also said (Red 1/111A):- …I do not infer that he knew very much about the accident in the first place. It was submitted:- At its highest it can be said that as no testing for post-traumatic amnesia had been done, a positive finding could not be made. 170 Her Honour's conclusion about what is indicated by the admitting notes was a reasonably available inference. There was no record or evidence of specific testing for post-traumatic amnesia during the appellant's hospital treatment. Professor Broe's opinion was that there was an indication of post-traumatic amnesia in the presence of confusion. (Report Blue 2/330H). Ms Van Oosten stated that the appellant appeared confused during this period in hospital and "did not know what was going on around him". There were several references in the report to there being no available accurate measures of post-traumatic amnesia, and in cross-examination (Black 8/1441) there were references to confusion in the context of post-traumatic amnesia. I have not found and I have not been referred to any evidence in which Professor Broe says that there was, must have been or should have been post-traumatic amnesia. The closest approach which the passages I have been referred to take me is in passages (at 8/1441 and 8/1442) referring to confusion as an indication of amnesia, and to the strength of the indications that there was confusion. Bearing in mind that the appellant bore the onus of proof, the finding that there was no post-traumatic amnesia was well open to the Trial Judge. 171 The Trial Judge dealt (Red 1/111-113) with the subject "Did Daniel suffer hallucinations while at the Royal Children's Hospital, Brisbane?" The source and, so far as references to evidence given to me goes, the only source of the idea that the appellant suffered hallucinations or was confused while at the Royal Children's Hospital, Brisbane is in evidence of Ms Van Oosten that (Red 1/112C):- …When he was in intensive care unit, he told me that his dad had come in to visit him with presents and a card from Krystal. 172 Ms Van Oosten also said to the effect that Mr Rick De Groot did not go to visit the appellant in hospital, and was at home while the appellant was in hospital (Red 1/113P-R). This can only have been based on hearsay or inference on her part. The Trial Judge gave extended consideration to this subject, revolving around a reference in a nursing note which says, in a note made at 6.15am on Saturday 4 March: "Family arrived 05.15" or "Family around 05.15". Her Honour addressed the evidence and the probabilities about whether any "family" (and she inferred that the reference was to Mr Rick De Groot) did or could have visited the appellant at 05.15 on 4 March. It is not clear to me why her Honour's attention was directed to 4 March as Ms Van Oosten's evidence was that the appellant told her on the second day after he came out of the operation, that is on 5 March, that his dad had come in to visit him with presents and a card. In my opinion the view that what the appellant told Ms Van Oosten about Mr Rick De Groot visiting him was a product of confusion depended first on acceptation of Ms Van Oosten's evidence (and the Trial Judge did not accept it), and secondly upon there being substantial evidence that Mr Rick De Groot had not visited the appellant at any material time. There was no substantial evidence on that subject. The Trial Judge inferred that Mr Rick De Groot visited his son in the Royal Children's Hospital, Brisbane early on the Saturday morning after his surgery before Ms Van Oosten arrived in Brisbane (Red 1/113U); her Honour recognised that this was somewhat speculative and that the inference may be wrong and also found "…the story that Ms Van Oosten now tells of Daniel reporting a visit from his father is false." (Red 1/113V). Given the Trial Judge's unreadiness to believe Ms Van Oosten, and given that there was not substantial evidence that Mr Rick De Groot did not make a visit at some significant time, the subject deserved less attention than it has received. It seems inherently likely that if the appellant gave any indications of confusion there would be some record of this in the hospital notes at some point; but even if Ms Van Oosten's evidence on this subject had been accepted, there was no real basis for a finding that the appellant exhibited signs of confusion. 173 In the course of cross-examination of Professor Broe on this subject Mr Poulos QC, cross-examining, intervened when the witness interrupted a question by saying "You know that's rude and barbaric don't you?" (Black 8/1438V). Mr Shand QC felt prompted then to address Mr Poulos as "Third rate clown". (Black 1438Y). Her Honour received this with forbearance which I find remarkable; Mr Poulos' observation was excessive and completely inappropriate, and Mr Shand's observation could well have been treated as indicating that he had given up the idea of taking any further part in the proceedings. This is far from being the most excessive piece of behaviour by Mr Shand recorded in the transcript. Occasional indications of intensity of feeling on her Honour's part in the transcript and in the judgment should be understood as reflecting the intensity of the conflict which her Honour was engaged in resolving. 174 In my opinion the appellant did not prove that he suffered from post-traumatic amnesia, and ground 8 has not been made out. The appellant's suffering from post-traumatic amnesia would in any event have been only a factor in the wider decision her Honour was called on to make. 175 Ground 9:- The Trial Judge erred in finding that the contemporaneous records did not support that the appellant's symptoms were continuous from the accident. This ground relates to the following finding (Red 1/241X – 242C):- The plaintiff submitted that as to the continuity of symptoms it is submitted that this has been demonstrated by virtue of the various contemporaneous records in 1995 and the first half of 1996 referred to above together with the evidence of lay witnesses. I find that the contemporaneous record[s] demonstrate the contrary. Their silence is deafening. The plaintiff's submission that the link between the injuries sustained in the accident and Daniel's attention deficit disorder founders on the complete silence in the medical records between 26 May 1995 and May 1996, which silence is interrupted only by Ms Van Oosten's presentation for counselling in April 1996, Professor Werry's postulation of the sick role and emotional reactions founders on the same gap. 176 The point appears to have been that non-continuity of symptoms was adverse to the appellant's case of brain injury, because brain injury would have brought prompt and continuous symptoms. Submissions referred to several records up to 25 May 1995, relating to events earlier than the "complete silence" to which her Honour referred. The material referred to in the written submissions between 25 May 1995 and May 1996 is a statement by Ms Van Oosten to a solicitor Mr Mansel Laidler on 3 July 1995 about adverse affects of Dilantin medication, a statement in a report relating to attendance at Royal Children's Hospital, Brisbane on 25 May 1995: "May need [psychological] assessments in future," notations in records of a Pre-school to which the appellant returned in July 1995 about limitations on his then state of ability, short concentration span and poor concentration and a Report by a school principal (Blue 2/344) of 4 December 1996 referring to the appellant during the school year from enrolment on 31 January 1996, which referred to his condition on enrolment as quiet and withdrawn, vague and in need of constant reminders, and with other short-comings, to some progress through the year. None of this material intercepts with the Trial Judge's observations which relate to "complete silence in the medical reports between 26 May 1995 and May 1996". The submission went on to refer to a number of records later in 1996 which could reasonably be seen as indicating continuity of symptoms; but this is not in conflict with the finding complained of. Ground 9 has not been made out. 177 Ground 10 has already been dealt with in conjunction with Grounds 1 and 3. 178 Ground 11:- The Trial Judge erred in finding that the appellant did not suffer from apraxia (which is not a symptom of congenital ADHD). As used in evidence in this case "apraxia" refers to inability or difficulty in putting on clothes. 179 Professor Neil Buchanan, whose specialty is clinical epileptology, saw the appellant on 7 October 1997, not it would seem for medico-legal purposes, and made a report (Blue 2/282) in which Professor Buchanan doubted that behaviour observed was epileptic in origin and said: "I would think that they are more likely to be a post-head injury phenomenon". Ms Van Oosten gave to Professor Buchanan history which included some examples of things that the appellant could not do correctly: he would often put his shirt on back to front and was not able to button it up. Professor Buchanan observed (Blue 2/283J):- His gross motor skills seemed normal and he was able to put on his jacket, trousers, shoes and socks with no difficulty." 180 Dr Buckley, who saw the appellant on 10 December 1999 and reported on 31 January 2000 (Blue 2/301) was given a history by Ms Van Oosten which included (Blue 2/303 O):- When dressing he puts on clothes inside out and back to front. He has difficulty with buttons, and recently put on all his clothes inside out. Dr Buckley said (Blue 2/307K): Difficulty in dressing (apraxia) is a particular neurological symptom referable to the part of the brain immediately underlying the region of the fracture." In oral evidence (Black 9/1670M) Dr Buckley said to the effect that apraxia could not occur without damage to the brain, and "apraxia is not a symptom of ADHD". 181 Among her findings the Trial Judge found (Red 1/214J):- Dr Buckley's reasoning is flawed by the obvious: he found no apraxia, and there is great controversy as to whether Daniel has deficits of higher cognitive function and behaviour. The Trial Judge found (Red 1/246G):- No medical practitioner detected apraxia. I find that Daniel suffered none, although I note that various neuropsychological reports contained reports from Ms Van Oosten about this. 182 In contending that this finding was in error a written submission referred to reports of neuropsychologists, and to evidence by Dr Buckley to the effect that apraxia is normally picked up, not by a doctor but by neuropsychologists on the basis of detailed neuropsychological testing for that condition. Dr Buckley's report referred across to a passage in the report of Sue Packer, neuropsychologist, which said (Blue 2/305 I):- Developmental delays in the praxis (eg movement involving dressing) have been noted and are being addressed by the occupational therapist at Grafton Hospital. This is not a statement that Sue Packer had noted apraxia relating to dressing, or had picked it up on the basis of detailed neuropsychological testing. Dr Buckley also referred (Blue 2/306 O) to a passage in the report of Jacqueline Boon which said:- In addition, Daniel also experiences persistent focal difficulties such as dressing, dyspraxia and [temporal] disorganisation (difficulty with comprehension of order). Neither neuropsychologist's report claims to deal with apraxia on the basis of actual observation or testing; the persons on whose observations of the appellant statements about apraxia are based are not named and the inference that they are attributable to Ms Van Oosten is by far the most probable. 183 No error has been shown in the Trial Judge's finding or its basis. Ground 11 is not made out. 184 Ground 12 - The Trial Judge erred in finding that there was no radiological confirmation of brain injury. 185 Some submissions bearing on Ground 12 were put forward in relation to Ground 1, with which their connection is somewhat oblique. It was there contended (Orange 42) that it was erroneous for the Trial Judge to find (Red 1/110F):- "The opinion of Dr Jones should be preferred to Dr Buckley in relation to whether the CT scan showed oedema or vasodilation. 186 Dr Buckley's interpretation of the CT scan taken on 3 March 1995 was in evidence (Blue 6/1425). His interpretation included: "There is swelling in much of the R parietal and temporal lobes, especially noticeable in the region of the insula with Sylvian fissure easily visible in the L, not on the R." In oral evidence he ascribed the swelling to oedema. Dr Jones gave a different interpretation of what the CT showed; his first interpretation was that it showed a rotational effect as if the child had moved; after seeing the scans the view which he first gave in evidence was that the child had moved; but later when recalled he gave the view that the swelling was not oedema but vasodilation. The Trial Judge addressed this conflict in the judgment (Red 1/109-110) and found that she preferred Dr Jones' analysis, for reasons which were carefully stated. Clearly enough there was a basis on which there could have been a factual finding which upheld Dr Buckley's view, but no clear ground has been put forward on which I should conclude that the Trial Judge's finding was wrong. 187 The Trial Judge's finding to this effect was made on the basis of preference for the opinion of Dr Jones. Written submissions in support of Ground 12 soon diverted to an assertion that:- The Trial Judge however did not accept that there was any brain injury at all, and fell into error. This is quite unlike what the Trial Judge found; at Red 1/236 I her Honour quoted a passage from Dr Jones' report of 6 November 2001, which said in its last sentence:- In Daniel's case he had a significant injury to the skull with a minimal injury to the brain which subsequently seems to have resolved. I accept that opinion. Her Honour also found (Red 1/236N):- His head injury was attended to appropriately on the evening of 3 March/4 March. There was no evidence to suggest that he suffered from secondary brain injury after the initial injury. I accept that opinion, as I do Professor Werry's conclusion that Daniel has a healed brain injury. 188 Submissions developed a contention to the effect that the Trial Judge had misunderstood the issue as being whether diffuse axonal injury was present (and her Honour found that it was not) whereas it was the appellant's case, supported by evidence of Professor Broe, that brain damage could be postulated, being widespread or diffuse brain damage as a result of the impact and of pressure waves through the semi-fluid brain substance contained in a rigid box; not being diffuse axonal injury, of which it can be understood from the way it was treated in evidence that diffuse axonal injury may be but will not necessarily be detectable on radiological examination. The basis of her Honour's conclusion, which her Honour explained at length (Red 1/240) is that her Honour accepted and applied evidence from experts other than Professor Broe. Her acceptance of one opinion and not of a conflicting opinion cannot be referred simply to the expression of preference of one body of evidence over another, and was itself an entirely adequate exposition of the reasons upon which this part of the facts was disposed of. Her Honour's exposition of reasons put the case in an altogether different realm to Moylan v Nutrasweet (2000) NSWCA 337 at paras 63-70, and Wiki v Atlantis Relocations (NSW) Pty Limited (2004) 60 NSWLR 127; Professor Broe's opinion was outweighed by other evidence, and her Honour accepted that other evidence for reasons which were stated with care. The whole subject of inadequacy of exposition of grounds for findings has no connection with her Honour's treatment of these findings; her Honour's treatment was unusually detailed. I recognise that there was room for another conclusion; but that recognition is far from a recognition that error has been shown. I do not uphold Ground 12. 189 Ground 13 – The Trial Judge erred in finding that the appellant suffered an inherited learning disorder. 190 The passage in which this finding occurs is (Red 1/206 N-R):- Professor Werry's diagnosis was of attention deficit hyperactivity disorder (ADHD). A month later, Dr Johnson examined Daniel and came to much the same conclusion as Professor Werry – and offered much the same advice. But Dr Johnson concluded that Daniel did not suffer from hyperactivity. I prefer Dr Johnson's diagnosis (attention deficit disorder without hyperactivity) to Professor Werry's opinion which accepted that Daniel also suffered from some degree of hyperactivity. I find that Professor Werry's assessment was unduly influenced by his acceptance of Ms Van Oosten's description of her son's behaviour, which description I find was exaggerated. I accept their respective opinions that Daniel suffers from a learning disorder. However, I do not accept Dr Johnson's opinion as to the cause of Daniel's problems. I prefer Professor Werry's opinion that Daniel's condition is hereditary. 191 It was contended that this was an erroneous finding and that "this was a critical error, because if there was no genetic basis for the appellant's learning difficulties the only alternative explanation was head injury." The form of this submission does not appropriately acknowledge that the burden of proof lay on the appellant. 192 The Trial Judge also found (Red 1/249 H):- I find that the defendant has demonstrated its thesis that Daniel suffers from a learning disorder and Attention Deficit Disorder, each of which is genetic or congenital in origin and not causally related to the motor vehicle accident. Her Honour went on to refer to the test in Purkess v Crittenden (1965) 114 CLR 164 at 169. 193 It was contended that "in fact Dr Johnson did not diagnose a learning disorder…" Dr Johnson said (Blue 5/1276 C):- My diagnosis is that Daniel has significant learning difficulties and Attention Deficit Hyperactivity Disorder (ADHA) of the combined type, secondary to the head injury sustained 3 March 1995. This passage fully justifies the Trial Judge's treating Dr Johnson as of opinion that the appellant suffered from a learning disorder. 194 Written submissions went on to deal with Professor Werry's evidence that there is a genetic basis for a learning disorder. Professor Werry's evidence at one time suggested and then resiled from the view that Ms Van Oosten had a learning disorder on the basis of some spelling errors; he also suggested that Mr Rick De Groot's school reports showed some relevant matter but later acknowledged that he had misinterpreted Mr Rick De Groot's school reports and conceded that the father had not been shown to have a learning disorder, his final position being that there were patterns of strengths and weaknesses (Black 13/2549 Q):- Answer: Well, I stand corrected on the issue of learning disability. I think there are uneven – we discussed all this. I think there are patterns of strengths and weaknesses so I'm – move on. Professor Werry agreed with the passage in a report by Dr Johnson which said:- Examination of Rick De Groot's school reports indicate that he had talents in the areas of art design and construction ability while his performance in language tasks was relatively weaker. 195 At the end, Professor Werry's claim for support in parental history for the view that the appellant's disabilities were congenital in origin was far more modest than it had earlier been, but there continued to be a basis, supported incidentally by Dr Johnson, for the view that there was a relevant pattern of weakness to give a congenital explanation for disabilities suffered by the appellant. The basis for the Trial Judge's finding that the appellant suffers from a learning disorder and an Attention Deficit Disorder each of which is genetic or congenital in origin is not strong. However, it is supported by evidence. I do not think the conclusion has been shown in any clear way to be erroneous, and the onus of proof was such that it was for the appellant to obtain a positive finding in support of his allegation. I would not uphold ground 13. 196 Ground 14 – The Trial Judge erred in finding that there was no causally related need for:- (a) Past and future medical expenses. 197 It should be understood that the Trial Judge found that there was no long term or continuing effect of the injuries – this appears from various references, an example being Red 1/265X-266B. Written submissions related to the claim for reviews by neurologists every third year at $178 per visit. The Trial Judge's reasons (Red 1/255) do not specifically refer to this claim. The reasons referred to how little medical attention the appellant attracts and said (Red 1/255 O): "…he last saw a general practitioner in November 1997". That was more than four and half years before the conclusion of the hearing. Her Honour's statement: "I make no award of damages for future medical treatment" (Red 1/255W) followed a passage in which her Honour considered how little medical treatment the appellant has had and considered Ms Van Oosten's having terminated a trial of stimulant medication. It is also complained that the Trial Judge did not deal with a claim for on-going rehabilitation by a Brain Injury Outreach Team or with some medical care requirements outlined by Dr Buckley, neither of which were claimed in the Amended Statement of Particulars. 198 Although her Honour's expressions are very brief, it should be understood, in my opinion that her Honour was of the view that it was unlikely that expenses of this kind would in fact be incurred. In the setting of her Honour's findings generally this was a reasonable conclusion. 199 Ground 14 - The Trial Judge erred in finding that there was no causally related need for:- (b) Past and future educational assistance. 200 The Trial Judge considered this matter (Red 1/254 G-U). From her Honour's observations it should be understood that she made no such award because of her finding that the appellant's learning disorder and Attention Deficit Disorder were not causally related to the March 1995 motor vehicle accident. This sufficiently explains her not making an award of this kind. 201 Ground 14 – The Trial Judge erred in finding that there was no causally related need for:- (c) Past and future care (d) compensation for loss of earning capacity. In my opinion these claims also failed on the issue of causation. 202 Ground 15 – The Trial Judge erred in her assessment of the severity of the appellant's head injury. 203 This ground is closely related to others which I have already dealt with. I would not uphold Ground 15. 204 Ground 16 – The Trial Judge erred in not accepting that the appellant suffered [a] psychological reaction to the accident. 205 Professor Werry said in his report (Blue 7/1641R to 1642B):- Probable post-traumatic stress syndrome or other anxiety disorder for a year or so after the accident. The whole accident must have been a ghastly experience for Daniel and his mother and sister. The head and brain particularly are endowed with a mystical quality by the lay public which overestimates the vulnerability of the brain and minimizes its recuperative powers. Add to this, it was the time when marital conflict was peaking as Daniel's mother was shifting her affections away from Daniel's dad to Bob and during which Rick was beginning to show jealous and emotional and at times, aggressive behaviour. Daniel had not only had an accident but his father was becoming absent from the family home. I am of course, positing this on logical grounds but I have no way of proving it. 206 The Trial Judge said, while dealing with general damages and s 79 of the Motor Accidents Act 1988 (NSW) (Red 1/252 X):- I am conscious that Daniel was very young when he was injured. His physical recovery was rapid. He may have suffered some shock. Professor Werry posited "on logical grounds" that Daniel may have sustained some post-traumatic stress as a result of what Professor Werry quite rightly called a "ghastly experience" but that is as high as the evidence in that respect rises. No other evidence was referred to in support of this submission. There is no indication of any error. I would not uphold ground 16. 207 Ground 17 - The Trial Judge's assessment of non-economic loss at 14% of a most extreme case was inadequate. 208 It was submitted (Orange 12/217):- …even on the basis of the Trial Judge's findings as to the injury, (depressed fracture), seizures, neurosurgery, Dilantin intoxication and scarring, together with her finding that the injury did not resolve until approximately 15 months after the accident, the assessment of 14% is manifestly inadequate. 209 Having regard to the Trial Judge's findings, I see no error in her assessment at 14%. The appellant's injuries and disabilities caused by the accident, as found by the Trial Judge, are very far removed from a most extreme case. This is a subject on which precision is unattainable, and the legislation leaves a great deal to appraisal and assessment by the Trial Judge. I find the assessment at 14% quite unremarkable, and well within any reasonably available range. 210 Ground 18 – The Learned Judge erred by refusing to admit into evidence: (a) The unexpurgated version of exhibit ZZ2. 211 The appellant put in evidence exhibit ZZ1 - a letter from the respondent's solicitors to Professor Werry of 29 November 2001 which enclosed a copy of many medical reports; and a copy of a letter of 19 March 1999 to Professor Werry. At Black 13/2638 Senior counsel for the appellant tendered a copy of a further message from the defendant's solicitors to Professor Werry dated 26 March 1999; parts of this document had been shown to Professor Werry and referred to during his cross-examination. The respondent's Senior counsel objected to part of the document which had not been mentioned in evidence and which referred to some other person and not to the appellant, and asked it to be excluded on grounds of confidentiality. (Black 13/2640). Although the transcript does not distinctly say so it seems clear that the Trial Judge looked at the document at some stage. The Trial Judge asked that the document be physically edited "to remove the material that would obviously be inappropriate to produce." (Black 13/2640 Q). Senior counsel for the appellant contended that the material objected to was relevant (or said something to that effect) (Black 13/2640 V). The Trial Judge then said:- The cross-examination on that document related to this case. It is obviously inappropriate to tender in this case material related to another case except insofar as it was used in cross-examination. If it was used in cross-examination it will already be in the records. As regard that bit which is tendered, if your solicitor can excise the irrelevant material related to other cases, then I will deal with the tender. 212 When asked to hear a further contention about its relevance the Trial Judge said:- It will either have been put in evidence in the cross-examination, or not. That is it. Counsel then said (Black 13/2641):- SHAND: Does your Honour wish to hear what we say is the relevance of most of the material on the first page? HER HONOUR: It will either have been put in evidence in the cross-examination, or not. That is it. SHAND: It goes directly to a submission we'll be making, your Honour, to the lack of impartiality of Dr Werry. HER HONOUR: Yes, and it will either have been put to Dr Werry quite clearly in the evidence, or it won't. Now that's my ruling. Next documents. SHAND: Your Honour rejects that part then, I – that's the end of that matter. 213 The submission was to the effect that the passage was relevant to Professor Werry's objectivity or credit, and that the Trial Judge refused to hear Senior counsel for the appellant in support of the tender of the document in its original form. 214 As the passage excluded had not been put to Professor Werry in cross-examination, her Honour took a reasonable and correct view in deciding that because of its confidentiality it should be excluded from the tender of a passage the tender of which was based on its actually having been put to the witness. Senior counsel stated the substance of his ground. Although her Honour dealt with the matter very shortly, as is usually appropriate with objections to evidence, there was nothing unfair about the procedure. I am unable to see any underlying substance in the claim that the material should have been admitted. There was no error, and Ground 18(a) should not be upheld. 215 In any event, having considered the additional material in the unexpurgated version of Exhibit ZZ, and particularly bearing in mind that it had not been put to Professor Werry in cross-examination, I can see no basis for concluding that failure to admit the unexpurgated version occasioned some substantial wrong or miscarriage of justice, and accordingly Pt 51 r 23 of the Rules applies. 216 Ground 18. The learned judge erred by refusing to admit into evidence:- (b) evidence from the Appellant's mother as to her conversations with Dr Naidoo on the subject of whether the Appellant has been diagnosed by him with ADHD. 217 This relates to rejection of the following question (Black 2/460):- SHAND: Q. The next question is this, did you at time or times have discussions with Dr Naidoo concerning the extent of his knowledge about brain injury or ADHA? A. Yes, I did… The objection followed and the question was rejected. The Trial Judge made an observation to the effect that Dr Naidoo's expertise would be established in a proper fashion. Senior counsel then said (Black 2/460Y):- SHAND: That is not the issue it goes to your Honour. The issue it goes to is in what circumstances she came to refer to the fact that Daniel had been diagnosed as suffering from either ADD or ADHD and I am seeking to lead conversations from her which underlay conversations she had with the doctor which underlay her statements in these documents [that is, in the Family Court documents] to the effect that Daniel had been diagnosed as suffering from that condition. In other words, what she understood from the doctor which caused her to say that he was suffering from that condition and what he said about his capacity to voice such an opinion. 218 The question under objection was not a question which should directly elicit an explanation of a statement by Ms Van Oosten in the Family Court documents to the effect that the appellant had been diagnosed as suffering from ADD or ADHD. Presumably it was hoped that what Dr Naidoo had stated about the extent of his knowledge would in some way be related to that subject; and the question under objection may well have been seen as preliminary to that matter; but it was not a question which would elicit what information had come to Ms Van Oosten and underlay the statements in the Family Court documents. As not uncommonly happens, debate on the objection and the ruling were not well related to the question itself, but to the general subject matter. The general subject matter of what information Ms Van Oosten had on which to base what she said in the Family Court documents was not the subject of the rejected question, or of any later question. 219 It was contended that the refusal to admit the evidence produced unfairness in that the Trial Judge found (Red 1/162D):- Ms Van Oosten's rejection of the suggestion that Daniel may have Attention Deficit Disorder and medication has nothing to do with any advice from any medical practitioner that there are dangers inherent in the course for Daniel. The question and the ruling did not relate to whether Ms Van Oosten had advice from any medical practitioner that there were dangers inherent in medication. The relevance of evidence showing why Ms Van Oosten was caused to say that the appellant was suffering from ADD or ADHD, and hence the relevance of what Dr Naidoo said about his capacity to give an opinion on the subject, were not explained to the Trial Judge, and if these had any relevance it can only have been slight. In my opinion there is no substance in Ground 18(b). If there were an error in the ruling, Pt 51 r 23 applies because it has not been shown that some substantial wrong or miscarriage of justice was occasioned. 220 Ground 7. The trial judge erred in principle and on the evidence in holding that the Plaintiff had failed to mitigate his own damage. Ground 19 – The learned judge erred in law:- (a) in approaching the question of whether the Appellant had complied with the duty under s 39 of the Motor Accidents Act 1988 by attributing to him the decisions of his mother in relation to his treatment. 221 On 3 March 1995 s 39 of the Motor Accidents Act 1988 was in the form which it took after its amendment by Act No. 47 of 1989, and that form was:- Mitigation of damages 39. (1) In assessing damages in respect of a claim, consideration shall be given to the steps taken by the injured person and to the reasonable steps which could have been or could be taken by the injured person to mitigate those damages by undertaking rehabilitation (including the formulation and undertaking of an appropriate rehabilitation plan) or undergoing medical treatment or pursuing alternative employment opportunities. (2) In any proceedings to enforce a claim, the onus of proving that all reasonable steps to mitigate damages have been taken by the injured person lies with the claimant. (3) In any such proceedings, a written report by a person who provided medical or rehabilitation services to the injured person is admissible as evidence of any such steps taken by that person. Section 39 was significantly amended by Act No. 66 of 1995 which commenced on 1 January 1996, but the amendment does not affect the appellant's claim as a claim was made before that date: see s 2 and Sch 1 [43] (4). 222 In the course of extensive consideration of evidence relating to whether the appellant should have been treated for Attention Deficit Disorder by way of stimulants, at least by way of trial, and relating to how it came about that he had not been, the Trial Judge found (Red 1/270G):- I am satisfied that Daniel should have at the very least been given a trial of stimulant medication. I accept Dr Johnson's recommendation for a trial and Professor Werry's opinion that Daniel should be treated with stimulants. On any view, Daniel has not had appropriate treatment. Her Honour also expressed this conclusion (Red 1/270W):- On any view, Daniel has failed to procure and undergo appropriate treatment in the past. He will continue to do so in the future, whilst his mother rules out the use of stimulants, contrary to the medical advice. 223 The Trial Judge addressed (Red 1/271-273) the implications of the appellant having no control over his own treatment (Red 1/272E):- Should his representatives failure to procure appropriate treatment be a decision treated as his? In addressing this question the Trial Judge referred to the decisions of the Court of Appeal in O'Brien v O'Brien (1995) 35 NSWLR 664, citing Handley JA at 666, and in State Rail Authority of New South Wales v Hammond (1988) 15 NSWLR 395, citing Kirby P at 401. These decisions illustrate that infants enjoy no general immunity from the operation of statutes, including Limitation statutes, and that procedural requirements for a disable person to have a tutor, next friend or guardian at litem do not affect the accrual or suspension of a cause of action of the disable person. Her Honour concluded that the appellant was subject to the duty at law to mitigate (that is, the duty under s 39) notwithstanding his lack of capacity to achieve that end for himself. She then went on to say that she would have reduced the appellant's damages for non-economic loss in respect of any Attention Deficit Disorder by at least 70% as the prospects of success of that treatment, and to observe that there was a strong case for a complete set-off. 224 In Carter v Boan [2001] NSWCA 160, in which there was not a close examination of the terms of section 39, observations of Davies AJA, with which Heydon JA agreed (see [1]) treated the position of the injured person as relevant to the application of section 39. Carter v Boan did not relate to an infant, but to an injured person who was 33 years of age but had a number of adverse personal circumstances including low intellect, referred to by Davies AJA at [7]. Davies AJA said [39]: It was put in written submissions on behalf of the appellant which however were not elaborated on in oral argument, that Mr Boan had failed to mitigate his damages. It is sufficient to note the submission and to say that I am satisfied that Mr Boan did not fail to take any step by way of treatment or otherwise which a reasonable person in his position would have taken. Mr Boan did not fail to take any reasonable step of the type enunciated in section 39 of the Act. 225 The decisions to which her Honour referred do not in my opinion deal with legislation sufficiently analogous with s 39 to be of assistance. In my opinion it is doubtful whether failure of Ms Van Oosten to arrange for stimulant trial or therapy should be attributed to the appellant who was, as her Honour recognised, unable to control his medical treatment. It may be the better view that the reference in s.39 to "… the reasonable steps that could have been or could be taken by the injured person to mitigate … damages" relates to the injured person whose damages are under consideration, not to some hypothetical reasonable person, and that the actual circumstances relating to the opportunity of the injured person to mitigate damages should be taken into account. As the question of mitigation does not affect the outcome of the appeal I will not pursue this to a conclusion. 226 Ground 19 – The learned Judge erred in law:- (b) in holding that s 70A of the [Motor Accidents Act 1988] applied to any award for economic loss. 227 When discussing (Red 1/265) the quantum of damages which would have been awarded if it had been found that there was a causal nexus between the appellant's head injury and his behavioural and learning disorder, or if it had been found that there had been any consequential effect on his educational success, the Trial Judge addressed whether as a result of the accident the appellant had been rendered less capable of earning income, and effects of the injury on his prospects and future earning capacity. The Trial Judge referred in this connection to the threshold set by s 70A of the Motor Accidents Act 1988 (NSW), but did not apply s 70A and allowed no damages for loss of earning capacity. Section 70A of the Motor Accidents Act 1988 does not apply to accidents which occurred before 26 September 1995; see Sch 4 Pt 7 cl 17 (7A) to the Motor Accidents Act 1988. It is not clear to me that the Trial Judge regarded s 70A as having any potential operation in this case. A ruling on Ground 19 would not affect the outcome of the appeal. 228 Ground 19 – The Trial Judge erred in law:- (c) in holding that if the appellant's needs for educational assistance [arise] from the school's limited resources the need is not compensable. 229 Under the heading "Past Education Assistance" the Trial Judge said (Red 1/254J-L):- Putting to one side that I find that Daniel's [learning] disorder and Attention Deficit Disorder is not causally related to the March 1995 motor vehicle accident, was the school assistance required because of Daniel's needs or the respective school's lack of resources? I have no report or expert opinion which would assist me in this respect. 230 Written submissions criticised this statement and used immoderate expressions in doing so. The ground on which no damages were awarded in this respect is that it had been found that the appellant's learning disorder and Attention Deficit Disorder were not causally related to his injuries (Red 1/254 T-U). Further consideration of this submission is not required. 231 Ground 19 – The Learned Judge erred in law:- (d) in giving credit to the respondent for any sums paid pursuant to s 45 of the [Motor Accidents Act 1988] where a corresponding claim had not been made by the appellant. 232 Entitlement to recovery was regarded as arising under s 45 of the Motor Accidents Act 1988 in the form which it took in 1995:- Duty of insurer to try to resolve claim etc. 45. (1) It is the duty of an insurer to endeavour to resolve a claim, by settlement or otherwise, as expeditiously as possible. (2) once liability has been admitted (wholly or in part) or determined (wholly or in part) against the person against whom the claim is made, it is the duty of an insurer to make payments to or on behalf of the claimant in respect of: (a) hospital, medical and pharmaceutical expenses; and (b) rehabilitation expenses, subject to Part 4, as incurred. (2A) The duty of an insurer under subsection (2) to make payments applies only to the extent to which those payments: (a) are reasonable and necessary; and (b) are properly verified; and (c) relate to the injury caused by default of the owner or driver of the motor vehicle to which the third-party policy taken to have been issued by the insurer relates. (3) It is a condition of a third-party insurer's licence that the insurer must comply with this section. (4) Payments made under this section are taken to form part of any damages payable to the claimant. 233 The later subs 45(4) inserted by the Motor Accidents (Amendmen)t Act 1995 No. 66 Sch 1 [20] applies only in relation to motor accidents occurring on or after the commencement of the amendment on 1 January 1996: see Sch 1 [43] (2). The later form of subs 45(4) made a payment under s 45 a defence to proceedings, which seems to require that if s 45(4) is relied on it should be pleaded in the Notice of Grounds of Defence. The respondent's Notice of Grounds of Defence does not refer to subs 45(4). The relevant form of subs.(4) did not make it necessary to raise the subject in a pleading. (It would have been useful and good practice to raise it in a pleading). To give effect to the requirement of the earlier subs 45(4) it would be appropriate to deduct the total of the payments from the damages otherwise determined when deciding on the amount for which judgment should be entered. To give a completely literal answer to Ground 19, the form of subs 45(4) which required the claim to be made (ie pleaded) does not apply to this case. 234 After a claim under the Motor Accidents Act was made on behalf of the appellant, the respondent made an admission of liability, and made payments of kinds referred to in ss 45(2), but withdrew the admission of liability before litigation was commenced. There was no admission of liability in a pleading or otherwise in a formal way in the course of the litigation. The Notice of Grounds of Defence dated 4 February 1999 (Red 1/15) does not raise by way of defence under s 45(4) a claim for credit for payments under s 45. 235 In the orders made by the Trial Judge on 30 September 2002 (Red 1/22F) Order 1 is as follows:- 1. I find the verdict in the plaintiff's favour on the plaintiff's claim as against the defendant and enter judgment for the plaintiff accordingly. Paragraphs 2 and 3 of the orders explain the calculation of damages and Paras 4, 5 and 6 are:- 4. The total damages awarded the plaintiff is the sum of $18,344.45. 5. The defendant has credit for any sums paid pursuant to s 45 of the Motor Accidents Act 1988 (NSW). 6. Damages awarded are to be paid into Court to be paid out to the NSW Public Trustee pursuant to s 4 of the Damages (Infants and Persons of Unsound Mind) Act 1929( NSW), to be held and managed on trust for the plaintiff Daniel Rory De Groot until his 18th birthday, being 2 July 2008. 236 The orders go on deal with other matters. A further step of assessment and allowance for credit remained before final determination of the amount of damages which her Honour intended to award, and for that reason the orders of 30 September 2002 were interlocutory. 237 What these orders said about the award of damages was not stated clearly and was not in terms appropriate to give effect to subs 45(4) in the form it took in 1995. Determination of the amount for which judgment was to be given required payments made under s 45 to be taken as forming part of the damages payable to the appellant: if that meant a reduction of the amount of the damages before judgment for the appellant, there was nothing more for the appellant to recover, and no sum for which the appellant should recover damages. 238 At a later stage the respondent's counsel produced to the Trial Judge, with a submission relating to costs, a list of paid out-of-pocket expenses which totalled $27,786.53 (Black 16/3416-3418). The paid out-of-pocket expenses of $27,786.53 greatly exceeded the out-of-pocket expenses included in the assessment of damages. The orders made on 29 November 2002 include the following (Red 1/2/275D-E):- 8. I do not make any order that any costs be off-set against any judgment sum. I note, however that the judgment sum is less than that which had been paid to the plaintiff by the defendant before the hearing, and note that the defendant has the credit of any such payments. The payments totalling $27,786.53 made before the hearing under s.45 were not literally made to the plaintiff but were paid to persons who rendered him hospital medical and like services. There is no doubt that her Honour was speaking about these payments and the total of $27,786.53. The note in order 8 was made in the context of costs but it means that her Honour regarded the entitlement of the respondent under s 45(4) as having been considered, and regarded it as having been established that the entitlement to credit exceeded the damages assessed. It is not clear whether her Honour regarded the net effect as that the appellant was not entitled to judgment for the recovery of any sum at all: she did not say so, and referred to "the judgment sum" (as distinct from the amount of the damages) being less than the credit. So far as appears neither party took this up with her Honour, and it does not seem either that there was any order that there should be judgment for the plaintiff for $18,344.45; but since the Trial Judge entered judgment for the plaintiff she may have meant that the credit was a set-off against a judgment. The substance is entirely clear, however: the appellant lost completely. 239 The appellant's complaint did not involve whether the credit was before or after ordering a judgment sum. In support of Ground 19(d) the appellant's written submissions said (Orange 127Q):- An amount of some $27,000.00 was paid by the defendant in respect of medical expenses and education assistance and it may be presumed that this was commenced during the currency of the admission in obedience of s 45 of the Motor Accidents Act. Written submissions went on to raise a contention to the effect that as the payments were made under s 45 while an admission was in effect, they ought to be allowed as damages whether they would otherwise be allowable or not; and another contention to the effect that if the withdrawal of the admission of liability should be treated as retrospective, payments would not at the time of decision be subject to s 45 and could not be offset. 240 The respondent's written submissions contended (Orange 180W) to the effect that the respondent was entitled to seek a credit for all payments and the point (meaning, it would seem, any point about s 45) was not raised at the trial. 241 There is no indication that any attention was given in adducing evidence or that there was any argument before her Honour about the significance for payments under s 45 and for the assessment of damages of the dates on which various payments were made, or of their being made at a time when the admission of liability had been made and had not been withdrawn. 242 It appears to me that the significance of payments under s 45 received little attention during the hearing, and that the best explanation for this is that it was regarded by all concerned as obvious that the respondent would get credit for its payments, and the possibility that the damages assessed might be less than the pre-payments was not clearly seen. The matter complained of in Ground 19(d) was susceptible of being dealt with in evidence, as well as in other ways, but was not treated as being in issue at the trial. In my opinion the appellant is not in a position to complain on appeal about the way in which the Trial Judge dealt with this matter. 243 The question of credits under s 45 was mishandled. In my opinion the legal representatives of the parties cannot have misunderstood that the respondent would want credit for its pre-litigation payments: that is an elementary reality, and it was made known by the respondent to the appellant in the Calderbank offer of 5 December 2001 next mentioned, in which the offer included a deduction of $27,786.53. On 30 September 2002 the Trial Judge clearly was of the view that it had been established that the respondent was entitled to credit. If there was anything in issue about whether there actually was an entitlement to credit it should and surely would have been known to the Trial Judge before she reserved judgment. The subject was given consideration in the Trial Judge's first judgment and order, and then brought under consideration and dealt with by the second judgment and orders. If there was something to debate about how s 45 operated it could and should have been debated at first instance, and any evidence relevant to the making and withdrawal of the admission of liability and the making of payments should have been examined then. The Trial Judge's orders and reasons, when all are taken together, show clearly, although less clearly than I would wish, that the damages otherwise assessed are more than offset by payments under s 45 and the appellant recovers nothing. 244 Ground 20 – The learned judge's discretion in relation to costs miscarried in ordering that the tutor pay the Respondent's costs and was not exercised in accordance with the principles outlined in the cases applying the Calderbank principles. Ground 22 – The learned judge should have ordered the Respondent to pay the whole of the Appellant's costs of the proceedings. 245 The orders which accompanied the reasons published on 30 September 2002 included orders as to costs (Red 1/22) which (para 7) confirmed costs orders made during the proceedings and ordered that the respondent pay the appellant's costs in accordance with the District Court Rules. The orders went on to list costs orders made during the course of proceedings which were confirmed. One of these is dealt with in ground 21 with which I deal separately. 246 The respondent then asked for an order for costs on the basis of a Calderbank offer, made on Wednesday 5 December 2001 at 4.27pm, of $150,000.00 plus costs as agreed or assessed, less a deduction of $27,786.53 in respect of payments made by the respondent for or on behalf of the appellant. The offer was open till 4.30pm on Monday 10 December 2001 , but was not accepted. The Trial Judge heard the application for costs on 13 November 2002 and made further orders dealing with costs on 29 November 2002, for reasons then published (Red 1/2/274-308). These varied the orders as to costs made on 30 September 2002. The principal order dealing with costs was Order 4 (Red 1/2/274J-N):- …I order that: · the defendant pay the plaintiff's costs in accordance with the District Court Rules up to the making of the Calderbank offer (4.27pm on Wednesday 5 December 2001); · there be no order as to costs for the period that the Calderbank offer was open (from 4.27pm on Wednesday, 5 December 2001) until the date at which the plaintiff's tutor and legal representatives decided not to accept the offer, identified as being before Court resumed on Thursday 6 December 2001 (albeit that such refusal was not communicated to the defendant); and · as and from the start of the hearing on Thursday, 6 December 2001, the plaintiff's tutor pay the costs of the defendant in the proceedings generally. 247 The Trial Judge went on (order 5) to vacate some costs orders which had been made in the course of the hearing in favour of the appellant but (orders 4 and 6) to confirm costs orders which had been made in the course of the hearing in favour of the respondent. The orders went on (order 7) to deal specifically with several issues relating to costs. The orders dealt with certification for Senior counsel, and an application that the respondent's costs be paid in whole or in part by the appellant's legal representatives. These have not led to any ground of appeal, but there is an application for leave to cross-appeal relating to the claim against legal representatives, with which I deal later. 248 The general orders for costs in order 4 do not refer to the assessment of costs on any special basis, such as the solicitor and client basis or the indemnity basis. The orders impose liability on the appellant's tutor, not on the appellant himself. Orders 8 & 9 are (Red 1/2/275D-F):- 8. I do not make any order that any costs be off-set against any judgment sum. I note, however that the judgment sum is less than that which had been paid to the plaintiff by the defendant before the hearing, and note that the defendant has the credit of any such payments. 9. I direct that the defendant may off-set against any costs payable by the defendant to the plaintiff's tutor the value of any costs payable to the defendant by the plaintiff's tutor. 249 The respondent's application was made by Notice of Motion filed on 28 October 2002 which claimed a variation of the costs order of 30 September 2002 in the following respects (Black 16/3475):- (a) That the order that the defendant pay the plaintiff's costs be vacated. (b) That the defendant's costs from 5 December 2001 be awarded against the tutor in the proceedings, Arlena Van Oosten. (c) That the defendant's costs from 5 December 2001 be paid in whole, or in part, by the plaintiff's legal representatives. (d) That the defendant pay the plaintiff's costs to 5 December 2001. 250 The legal representatives referred to were not identified or made respondents to the Notice of Motion and no grounds for making an order against them were stated. 251 The applications were heard together. Contentions were made, and referred to in the Trial Judge's reasons of 29 November 2002 as follows (Red 1/2/279C):- The defendant's Senior counsel submitted: …..it appears to us that there is no evidence from the tutor and that there is definitely a point where she may come into conflict with the legal advisers and require independent legal advice, that would be our submission. 252 It also appears that the Respondent's counsel referred the Trial Judge to Mifsud v Chemplex Australia Limited [1999] VSCA 175 at paras 40-51. There is no reference to an application by the respondent that the Court should disqualify the appellant's legal representatives from appearing for him on the ground of conflict of interest. As there was no such application I do not find it possible to see why the respondent's counsel raised the question of conflict of interest. The Trial Judge accepted and acted on evidence to the effect that the tutor had given instructions that she did not seek indemnity on her own part from the solicitors who acted for the appellant. Appropriately, the Trial Judge treated this as disposing of the question of conflict of interest. Any question or appearance of conflict was raised by the course chosen by the respondent of making an application adverse to interests of the tutor and an application adverse to the interests of the legal representatives in the same Notice of Motion and presenting the applications to the Court at the same time. This was not an appropriate course. Except, it may be, in some very simple and obvious cases, procedural justice requires that an application for an order that the costs of a party be paid by the legal representatives of another party should be made in an altogether clear way, a suitable way being by Notice of Motion in which the legal representatives against whom orders are sought are named as respondents to the Notice of Motion; such an application should not be joined with an application for costs or other remedy against a party. If an objection to representation on the ground of conflict of interest is made, it should be made in a similarly clear and distinct manner. The prospect that applications like these may give rise to some need to reconsider representation is quite clear. Extemporised procedures are likely to give rise to disruption of representation. I am unable to see why the respondent's counsel raised the matter before the Trial Judge, or what interest the respondent had in the potential conflict of interest, or why the respondent's Senior counsel referred to that subject. 253 Courts should guard themselves against stratagems which include collateral attacks on the legal representatives of the opposing party, whether based on claims for costs, on professional discipline, on supposed conflicts of interest or otherwise. Overbearing the opponent's legal representatives by threats against their personal positions is outside the range of legitimate strategies for conducting litigation. Attacks on bases like that should be made with whole-hearted sincerity and on solid grounds or the subjects should not be raised at all. If anything is to be done, it should be done by making an application to the Court, not by uttering threats. 254 The Trial Judge published reasons relating to costs orders, which dealt with the subject at remarkable length. 255 At the time of the hearing offers of compromise were dealt with by Pt 39A r 25 of the District Court Rules and Practice Note No. 42. The respondent did not at any time make an offer of compromise in accordance with those provisions. The provisions of Pt 39A r 25 tend to work against late delivery of offers of compromise, and against the delivery of offers of compromise at times when they cannot be given mature and careful consideration. A reasonable opportunity for consideration is particularly important where, as here, it is necessary for a tutor to come to a decision about the interests of another person, and to obtain the approval of the Court for any settlement. 256 The hearing of the proceedings began before her Honour Judge Gibb at Sydney on Monday 3 December 2001. The evidence of several witnesses was taken and the proceedings were adjourned so that another judge could deal with a claim for legal professional privilege relating to some subpoenaed documents. After that had been dealt with the hearing before Judge Gibb resumed on Thursday 6 December 2001 and continued on Friday 7 December, Monday 10 December and thereafter for many days. The Trial Judge found that by a letter delivered at about 4.27pm on Wednesday 5 December 2001 the respondent's solicitors conveyed an offer to settle the matter for $150,000.00 plus costs as agreed or assessed; and payments which had been made by the respondent as at that date which totalled $27,786.53 were to be deducted. The offer was expressed to be open until 4.30pm on Monday 10 December 2001. This was a Calderbank offer, that is, it expressed an intention to ask the Court to treat the offer as relevant to the question of costs. The offer was considered by the appellant's counsel and solicitor and tutor, and before the hearing resumed on Friday 7 December the tutor gave instructions, accepting advice, not to accept the offer. The offer was not accepted; it was not responded to and the time in which it was available ran out on Monday 10 December. 257 The Trial Judge's consideration of case law relating to Calderbank offers, and evidence in the proceedings was extensive; her decision appears to turn on this finding (Red 1/2/302C):- Having regard to that which was known to the plaintiff's legal representative and the plaintiff's tutor – or reasonably ought to have been known – at the relevant time, it was plainly unreasonable not to accept the defendant's offer. The Trial Judge examined a large mass of material before enouncing this conclusion, so that it is difficult to identify all its bases; but they included consideration of the opportunity to consider the offer, the opportunity to give receive and consider advice and the terms of the advice, which was that the offer was too low by a wide margin and should not be accepted. 258 Although it could not then be known that the Court would not accept the evidence of Ms Van Oosten and lay witnesses about the appellant's pre-accident condition and his later condition and relevant events, it appears to have been the judge's view that the tutor knew or ought to have known the true facts, and should have brought that knowledge to bear on the decision whether to accept the offer; and further, that on those true facts, the offer was a reasonable one. 259 The Trial Judge also considered events relating to an offer which had been made on behalf of the appellant a year earlier, and the state of preparation of the proceedings, particularly knowledge available of the medical evidence which the respondent proposed to call and the relative strength of the medical evidence available to each side. Her Honour also considered what in her view should have been understood from knowledge available to those representing the appellant of the contents of medical and hospital records and records from many other sources; and of the relative strength of the appellant's case generally. 260 The respondent did not by evidence explain why it chose it make its offer at as late a time as it did or why it did not follow the Offer of Compromise procedure in Pt 39A r 25 of the District Court Rules. Her Honour's finding that it was "plainly unreasonable" not to accept the offer appears to have expressed a perception of unreasonableness of considerable intensity, as it supported a decision to require the tutor to pay the respondent's costs from the time, not of expiry of the offer, but of the decision to reject it. The Trial Judge did not even allow to the tutor the time for consideration which the respondent had extended in the offer itself. Her Honour's reasons show that the Trial Judge did not accommodate her consideration to accessions of strength which the respondent's case received as the hearing progressed. At the time when the offer was available Professor Werry had not yet examined the appellant, and he had not expressed the views on which the Trial Judge's decision not to rely on opinions of neuropsychologists was partly based. It appears to me to be correct, as counsel for the appellant contended, that no indication had been given in any material emanating from the respondent's advisers that the opinions of the neuropsychologists were under challenge. It was quite clear that the tutor was strongly advised by Senior and Junior counsel and by the solicitor acting for the appellant against accepting the offer; it appears to have been her Honour's view that that advice did not have a reasonable basis. It seems plain that it was a prominent consideration to her Honour that the tutor should have known and should have made a decision on the basis that her own account of many matters relating to the appellant's medical and social history was not correct. 261 The last consideration was indeed important, but overall it is my view that the matters before her Honour for consideration did not, when viewed reasonably, justify a decision to impose the respondent's costs on the tutor for the whole of the proceedings from the time of the decision against accepting the advice onwards. By deciding the matter in that way the Trial Judge gave the respondent most, but not all of the advantages which would have accrued to the respondent if it had proceeded under Pt 39A r 25 and made an Offer of Compromise in a formal way so that it was open for consideration, acceptance and rejection over a longer period. It also appears to me that the Trial Judge did not give appropriate consideration to the choice of the opening days of the trial, when attention of legal advisers and the tutor was pre-occupied, for the delivery of an offer with such a short time for consideration. I would not say anything which would offer discouragement to litigants to make offers of settlement at any time, but, in relation to litigation of the complexity of the present case, I do not see any legitimate advantage which would flow from choosing, as the time for delivery of an offer in litigation which had been pending for over three years, the opening days of an extended hearing when there was much else to consider. It is one thing to bring settlement offers into account when exercising a discretion as to costs: it is another thing altogether to endorse a disruptive stratagem , which is how I class throwing down an offer of settlement not before but during the hearing, after years of time which could and should have been used to consider settlement had passed, and severely limiting the time available for its consideration. 262 I cannot endorse the Trial Judge's reasons for treating the Calderbank offer and the lack of response to it as grounds on which the tutor should have been ordered to pay the respondent's costs. The respondent had a far simpler and surer basis for seeking costs: the appellant was not entitled to recover anything and substantially failed. There was no cross-appeal seeking to substitute costs orders more favourable to the respondent than the orders which were made. As the grounds on which the Trial Judge acted were erroneous the Court of Appeal should exercise the discretion as to costs again, and should in my opinion act on the simple and sure basis to which I have referred. On that basis and in the absence of any cross-appeal on this subject, the Trial Judge's orders as to costs should be allowed to stand, without any endorsement of her Honour's reasons. 263 In my opinion the Court should not uphold Grounds 20 and 22. 264 Ground 21 The Learned Trial Judge erred in various orders made during the trial that the appellant should pay the respondent's costs thrown away. 265 Among the orders for costs pronounced on 30 September 2002 and later confirmed was the following (Red 1/22 S-T):- The plaintiff pay the defendant's costs and costs thrown away in respect to Professor Werry's first attendance on 12 June 2002 (including also the costs of his travel to and from New Zealand on that occasion) and the deferral of his cross-examination at the request of the plaintiff's Senior counsel, contrary to the arrangements made after discussion with the plaintiff's Junior counsel on 11 June 2002. 266 The basis of the attack on this order is that the appellant contends that there were no such arrangements and discussion. The appellant's counsel contends that the facts relevant to this ground begin with an event in the trial on Tuesday 11 June 2002, but the respondent's counsel refers to an earlier event with which the narration should begin. 267 On 2 May 2002, the 22nd hearing day, Senior counsel for the appellant told the Judge (Black 6/1064.407) that the appellant had an additional medical report which was in answer to Professor Werry's report, from a new expert named Dr Sandra Johnson, a consultant developmental paediatrician. Senior counsel tendered Dr Johnson's report, which became exhibit UU (Black 6/1064.408). Senior counsel distinctly said that the report was in reply. 268 On the 29th hearing day, Tuesday 11 June 2002 Dr Buckley was about to give evidence in chief. Mr Poulos informed the Trial Judge (Black 9/1573) that Professor Werry had rung and indicated that he was not available in the next week, and that Professor Werry was "on his way and cannot be stopped". Mr Poulos said he wished to interpose Professor Werry's evidence on the Wednesday or Thursday and Friday of the current week. Mr McGuinness was asked his attitude, and he asked for time to inquire about Dr Buckley's availability "beyond the timeframe that we anticipated he'd be required for". Mr McGuinness then informed the Trial Judge that Dr Buckley was not available on the Thursday and Friday of the current week but was available on Monday of the next week. There followed several pages of recorded discussion in the course of which the Judge said: (Black 9/1575E) In that case, it looks like Dr Buckley's back here on the 17th. So here today and resuming on the 17th, subject to Mr [sic] Werry … . There was some discussion of how long Dr Buckley's evidence might take, but Mr McGuinness did not indicate dissent from the position that Professor Werry would be interposed and, subject to how long his evidence to, Dr Buckley would return on the Monday of the following week. 269 At the conclusion of the sitting day on 11 June the Judge asked:- (Black 9/1662A) Right gentlemen, what are we doing to-morrow morning? POULOS: Prof Werry will be here to-morrow your Honour Mr Poulos QC went on to ask that the evidence of Professor Buckley (who was called by the appellant and who had been examined on the Voir Dire on his qualifications to interpret CT scans for most of the day) continue on the following day, and that Professor Werry then be interposed. Senior counsel for the appellant said that this put him in a very difficult position and said (Black 9/1662S):- SHAND: There's more to it than that, your Honour. Our next witness is in fact Sandra Johnson. She is available Friday and Monday. She's available tomorrow, but we would certainly protest about being put in a position where in fact we can't complete her evidence. Now, if Prof Werry is to start up and charge into Thursday-- POULOS: And Friday. SHAND: And Friday – then her time is going to be eaten away and we'll be in a position of losing her as a witness whom we very certainly want to make sure we call. We're in our case now so in our submission we shouldn't be placed in any such situation, as I've just indicated.. 270 This was followed by some discussion. Her Honour seems to have directed (Black 9/1664M) that Professor Werry be called on 12 June but not before 2.00pm. 271 Professor Werry was called to the witness box at 2.21pm on Wednesday 12 June 2002 (Black 9/1704). When Professor Werry's evidence had proceeded very little distance Senior counsel for the appellant asked (Black 9/1706):- SHAND: …that this witness should not be allowed to be called at this stage. and contended that the case could not be presented efficiently and fairly while being interrupted by a witness such as Professor Werry. Her Honour responded (Black 9/1707) to the effect that on the previous day Mr McGuinness, Junior counsel for the appellant, had agreed with this course, or acquiesced in it. The Judge adhered to the arrangement she had directed the previous day. 272 Trial Judge made a statement as follows (Black 9/1732J-Q);- HER HONOUR: In that case, having regard to change in course, Mr Poulos, when I admitted Dr Johnson, she was on the basis of reply. It seems to me however she's in, so she now becomes in chief. Notwithstanding that there is a costs consequence of that, I do not propose to remove her. So tomorrow morning I gather it's Dr Johnson. I appreciate that Mr Shand does not consider that there was acquiescence in this course. However, my understanding of what was discussed yesterday morning – particularly pages [Black 9/1573 to 1576] was an acquiescence in the course of substitution. As of this afternoon, that acquiescence is obviously gone. Mr Shand tells me that he is not in a position to deal with this witness without having first heard Dr Johnson in chief. That being so, at the cost I will permit him to do so. This was followed by exchanges in which Senior counsel for the appellant made his dissatisfaction clear, with lapses of civility. Professor Werry's evidence did not on that occasion go beyond evidence-in-chief and it appears that he returned to New Zealand. The hearing was adjourned to Friday 14 June 2002 because counsel for the appellant wished to go to the evidence of Dr Johnson who was not available till then; no evidence was taken on Thursday 13 June 2002. At the close of proceedings on Wednesday 12 June the Trial Judge indicated that she would make a costs order in respect of costs thrown away by this course. Dr Johnson gave evidence on Friday 14 June and on Monday 17 June 2002 when her evidence was concluded. Professor Werry's evidence resumed on the 39th hearing day, Wednesday 3 July 2002 and was concluded on Friday 5 July. 273 So far as the transcript shows, the Trial Judge was strictly in error to state that Mr McGuinness had agreed to the course directed; it was her Honour's interpretation that he had acquiesced in it, and it was not based on any recorded statement by Mr McGuinness. However, there was a reasonable basis for her Honour's understanding in the pages at Black 9/1573-1576 to which she referred. In my opinion, the Trial Judge could justifiably have understood that Mr McGuinness acquiesced in the interposition of Professor Werry should it be that Dr Buckley had not completed his evidence by the time Professor Werry arrived. Whether or not that be correct, the Trial Judge clearly indicated that Professor Werry could be interposed. At that time there was no question of calling Dr Johnson, the indications given by Senior Counsel for the appellant when Dr Johnson's report was tendered being that her evidence was to be given in reply to Professor Werry's evidence. 274 I accept that it was a surprise to the appellant's counsel that Professor Werry was interposed at the time he was, but the wish to give Dr Johnson's evidence before cross-examining Professor Werry was a departure from the course indicated when Dr Johnson's report was tendered, and the view that costs occasioned by Professor Werry's having to attend twice should be the subject of a special costs order was a view reasonably open to her Honour. I would not uphold Ground 21. 275 Senior counsel for the appellant obtained leave to add Grounds 23 and 24 to the Amended Notice of Appeal by a further amendment. 276 Ground 23 – Her Honour failed to give adequate reasons for her decision. 277 The appellant provided a detailed written submission identifying medical issues as to which it said there was no analysis, or in adequate analysis, by the Trial Judge. The respondent provided a detailed written submission in reply. I do not intend disrespect to the appellant's submissions in saying that in my opinion the Trial Judge's reasons were fully exposed and there is no substance in Ground 23. 278 Ground 24 – Her Honour denied natural justice to the appellant in failing to inform the parties that she proposed to make use (Red 1/126 P-R) of her not having heard any noise made by the appellant outside her courtroom in December 2001. 279 I earlier dealt with her Honour's observation by way of Introduction (Red 1/29-30) about the appellant's not having given evidence or been seen by the Court. At a much later point in the judgment (Red 1/126) the Trial Judge dealt with hyperactivity and among other things said (Red 1/26H):- Dr Johnson says that if Daniel did suffer from hyperactivity or motor difficulties, he no longer does. That is demonstrated by Daniel's conduct when he attended at Court (but not in the courtroom) for the hearing of this matter. 280 The Trial Judge then set out a passage from the evidence of Ms Van Oosten in cross-examination about the appellant's activities during the first days of the hearing, in which Ms Van Oosten said:- A. I'd say he was pretty restless but, yeah, he tried to keep with us most of the time. The Trial Judge then said (Red 1/126 P-R):- Silence prevailed outside my courtroom in December 2001 when Ms Van Oosten says Daniel was outside. The sound proofing of the courtroom in which these proceedings were heard is such that it is rare not to be acutely conscious of the presence of children when they are in the foyer outside the courtroom. But for Ms Van Oosten's evidence about Daniel's attendance, I had no indication of his presence outside the courtroom in December. 281 As far as I can understand the force of these observations, they relate to the subject of the appellant's no longer suffering from hyperactivity or motor difficulties. The Judge's comment was to the effect that, at a time when evidence showed that the appellant was outside the courtroom, no noise emanating from him indicated his presence. I am unable to see that this observation worked adversely to the appellant's case, or that there was any colour for a suggestion of denial of natural justice, or that there was any sufficient basis to bring Ground 24 forward. There could be no question of a denial of natural justice unless the Judge's observation relates to something which was contentious and also important. 282 In my opinion the Court of Appeal should dismiss the appeal with costs. 283 The Summons for leave to cross-appeal in relation to costs was further supported by submissions in support of a proposed cross-appeal against dismissal by the Trial Judge of an application for an order that the opponent's (that is, the plaintiff's) solicitors pay the costs thrown away by reason of the examination of (what ultimately turned out to be) irrelevant medical issues. 284 The Trial Judge's refusal of the application appears to be principally based on her finding (Red 2/308C):- I infer - and find – that the plaintiff's legal representatives acted in accordance with the instructions as and when given, and gave advice as and when required. There is no basis on which I may reach any finding as to the conduct of the legal representatives, about whom no complaint is made by the tutor (Ms Van Oosten) or child plaintiff (Daniel De Groot). The application was based on s 148E of the District Court Act (to which the Trial Judge referred at Red 2/302) and the submissions in support of the application also referred to s 148B of the District Court Act and Pt 39A r 14 of the District Court Rules. The Notice of Motion did not identify the legal representatives against whom the order is sought, and no particular persons were named as prospective respondents in the application for leave to appeal. The submissions in support of the proposed cross-appeal went to great lengths, not extending to naming the persons who were to be affected by the proposed order, but maintaining an argument the principal burden of which was to the effect that the legal practitioners ought to pay costs thrown away in the resolution of medical issues by cross-examining experts on documents which the legal practitioners representing the appellant had not shown to them. There is no proposal to join the legal representatives supposedly affected as parties to the appeal, or to serve any process on them. 285 The Trial Judge considered the power to order a legal practitioner to pay costs in s.148E of the District Court Act 1973. The application for an order that the legal representatives of the appellant pay the costs of the respondent also fell within s 148B(1)(b). (Sections 148B and 148E were repealed by the Civil Procedure Act 2005 and provision to similar effect to s.148E is now made by s 98 of the later Act). Section 148E(1) relevantly provided: (1) The Court may, at any stage of an action, make one or more of the following orders in respect of a legal practitioner whose serious neglect, serious incompetence or serious misconduct delays, or contributes to delaying, the action: (a) disallow the whole or any part of the costs between the legal practitioner and his or her client; (b) direct the legal practitioner to repay to his or her client the whole or any part of the costs which the client has been ordered to pay to any other party; (c) direct the legal practitioner to indemnify any party other than his or her client against the whole or any part of the costs payable by the party indemnified. 286 The Trial Judge's reasons (Red 2/303) show that in her Honour's opinion she had no jurisdiction or power to make any order for costs against the appellant's legal representatives in circumstances where the tutor had been ordered and was liable to pay the respondent's costs by reason of the Calderbank letter, and where the tutor made no application for an order (such as s.148E(1)(b) would authorise) that those legal representatives repay to the appellant costs which the appellant had been ordered to repay to the respondent. With respect, these circumstances show no reason why there was no power to make an indemnity order under section 148E(1)(c). 287 The Trial Judge made further observations (Red 2/303 to 308) which appear to be directed to the way in which the discretion to make such an order should have been exercised if the power had existed. As her Honour had held that the power did not exist, these observations cannot be seen as an exercise of discretion. In these reasons the Trial Judge gave great weight and seems to have treated it as determinative that, as evidence showed, the tutor made no complaint against the legal representatives but said she had no problems with her solicitors and was quite happy with the way they had conducted the case. With respect, the attitude of the tutor could not correctly have been seen as determinative or even as important at all for the exercise of the discretion to make an indemnity order under s.148E(1)(c). 288 In the proposed cross-appeal it would be necessary to make an extremely detailed examination and appraisal of the manner in which the appellant's legal representatives managed the adduction of medical evidence and their communications with and furnishing of information to expert medical witnesses. There are large procedural shortcomings in the process by which the respondent raised this claim. Notwithstanding what I see as shortcomings in the Trial Judge's disposition, this is not a matter on which I regard it as appropriate to grant leave to appeal. 289 In the proposed cross-appeal there would be an overall appraisal of the manner in which the legal representatives of the plaintiff conducted the litigation with respect to the medical evidence (which was a very large part of the whole litigation). The manner in which litigation is conducted by solicitors is a subject for which solicitors are answerable to their clients, but only according to the overall relationship including constraints relating to the availability of funds, time and other resources. The relationship between the solicitor and the client is the primary focus for determining the solicitor's duty. The proposed appeal would relate to costs only, and leave to appeal on costs is not granted readily, and is usually obtained where some question of principle is involved. I do not see the appraisal in detail of a large array of factual matter and conduct over an extended period as a suitable subject for leave to appeal on costs. The Court should be on guard against incorporation of attacks on legal representatives of opponents into the forensic armoury. Even if the procedural difficulties to which I have referred had been attended to and the proposed respondent to the proposed appeal had been identified in some application to the Court of Appeal, the proposed cross-appeal would in my view have few prospects of success. 290 The end result of all the orders made by the Trial Judge is that the appellant has not recovered anything, and as the reasons of Gzell J show that the proposed cross-appeal on liability should not succeed, I am of the view that leave to cross-appeal as to orders for costs should not be granted, the claim in the Summons for leave to cross-appeal dated 11 December 2003 should be allowed so as to grant leave to cross-appeal on liability, but otherwise should be dismissed. The Court should direct that Notice of Cross-appeal be filed and served within 7 days. 291 The Court of Appeal should make these orders: (1) Appeal dismissed with costs; (2) Upon the Summons for leave to cross-appeal, (a) grant leave to cross-appeal with respect to liability, (b) direct that Notice of Cross-Appeal be filed and served within 7 days, (c) save as aforesaid, dismiss the Summons. (3) Dismiss the Cross-appeal, with costs of the application for leave to cross-appeal and of the cross-appeal. 292 GZELL J: These reasons address The Nominal Defendant's summons for leave to cross appeal against the entry of a verdict against it by her Honour Judge Gibb. The application for leave to cross appeal against her Honour's refusal to order the legal representatives of Daniel Rory de Groot to pay costs has been addressed in the reasons for judgment of Bryson JA. 293 Leave is required because the verdict was less than $100,000 (District Court Act 1973, s 127(1)(c)). 294 Daniel was an infant travelling in the front seat of a motor vehicle. A prime mover with trailer passed in the opposite direction. Daniel was struck on the head by a wheel cleat that came off the trailer, penetrated the windscreen of the motor vehicle and struck him on the head. Her Honour awarded Daniel damages of $18,344.45. 295 The application for leave was based upon the high level of costs incurred in the matter. It proceeded before her Honour on 46 days and was recorded in over 3,000 pages of transcript. 296 In my view leave should be granted. The Nominal Defendant has a reasonably arguable case for challenging her Honour's finding of liability. Although the damages assessed by her Honour are modest, a much larger claim was made and high levels of costs were incurred by The Nominal Defendant in meeting that claim. 297 For the reasons that appear below, however, I am of the view that the appeal should be dismissed. 298 A wheel cleat is a cast iron object weighing about 450 grams. It is part of a system securing an inner hub of the outer of the dual wheels of a heavy truck or trailer to the outer rim that carries a tyre. A wheel cleat is roughly triangular in shape and has a hole through it. It is passed over a wheel stud tapped into the hub or "spider". A nut is threaded onto the stud. When the nut is tightened the wheel cleat exerts pressure on the rim thus holding it tight up against the spider. The prime mover and trailer were not identified. 299 Her Honour found that the cleat became detached from a wheel of the trailer. That finding was not challenged by The Nominal Defendant. 300 Her Honour analysed the possible causes for the detachment of the cleat. One possibility was a manufacturing defect in a stud. 301 John Jamieson was a master of engineering science, traffic and transportation from the University of New South Wales. Her Honour noted that Mr Jamieson had conceded that a stud could fracture as a result of a manufacturing error. 302 Mr Jamieson also gave evidence that wheel cleats were secured by a single nut and were thus vulnerable to work loose or come off if the securing nut had not been done up properly. Nuts were vulnerable to work loose if they were insufficiently tightened when installed. Mr Jamieson explained that nuts worked loose, typically, because they were either damaged, stripped through over-tightening or they were insufficiently tightened and were unable to withstand dynamic loads from a rotating wheel on a rough surface. He could not say whether a nut that may have been stripped or a nut that may have been insufficiently tightened was the more likely occurrence. 303 Grant Johnston held a bachelor of civil engineering degree in transport engineering and engineering construction from the University of New South Wales. Her Honour noted that Mr Johnston had, on one occasion, retrieved a cleat and a stud. 304 Mr Johnston also said that cleat detachment could occur in one of two ways. First, by not properly tightening the wheel nut so that it worked loose from the retaining stud. Secondly, the stud could fail in a shear type failure, most likely from fatigue loading, as cleats were generally protected in their inward position from direct impact. 305 Mr Johnston had given other evidence on imputed impact speed and the probability of head injury from such an impact. Her Honour placed little weight on the report and opinions of Mr Johnston. She found him to be an unreliable and intemperate witness of very limited expertise. She completely disregarded any opinion he expressed on matters medical on the basis that he lacked relevant skill and qualification. 306 Dr Peter Sweatman held a doctor of philosophy in mechanical engineering - vehicle dynamics and a bachelor of engineering honours degree from Melbourne University. A report of his was in evidence. 307 Her Honour noted that Dr Sweatman had said that many years of experience in the manufacture and use of the spoke-cleat system had resulted in high reliability in an engineering sense. She noted the submission that stud failure was far less likely a cause than a loose nut. Her Honour said that, nonetheless, stud failure was a real possibility on the evidence before her. 308 Dr Sweatman's report also stated that an intact wheel cleat might come loose because of gross failure correctly to attach the dual wheels. He said the action of all cleats was interdependent and it would be virtually impossible to leave one cleat loose without all or most cleats also being loose or gross misalignment occurring. Another possibility was damage to the cleat. He said this would be obvious during wheel mounting and would make the entire securing process difficult. He said cleats were extremely robust and immune to damage once they were correctly in place. The third possibility was the failure of the attachment stud or thread. He said this would require significant over-tightening during fitment together with over-stress caused in service. Finally he said the cleat attachment nut might work loose. He said this possibility was unlikely because once the attachment nuts were tightened, the cleat acted as a tensioning and locking method. 309 Her Honour then discussed the issue of maintenance. She noted Mr Jamieson's evidence that nuts were vulnerable to work loose if they were insufficiently tightened when installed. She accepted Dr Sweatman's evidence that wheels and tyres should be checked at least weekly including a visual check and checks of the presence and tightness of wheel nuts. Dr Sweatman had said that experience showed that it was possible for wheel nuts to come loose but this normally caused increased vibration that might be noticed by a driver. With respect to this latter opinion, her Honour preferred other evidence. 310 Philip John Scott, an automotive engineer, had been employed in the Australian army engineer corps over a three year period, initially as an operator of heavy vehicles, but subsequently with the responsibility for the maintenance of heavy vehicles including ensuring that drivers maintained their own vehicles properly. Many of the vehicles were fitted with spider wheel systems. Mr Scott then worked for a year at Mount Newman where he was involved in the maintenance of exceptionally heavy road transport vehicles fitted with spider wheel systems working off-road. Mr Scott was then engaged in dealerships at Wagga Wagga and on the central coast of New South Wales. He performed service calls on heavy vehicles fitted with spider wheel systems. Following a nine year period during which he taught at the Department of TAFE, training mechanics in proper maintenance practice in relation to heavy vehicles, he entered a consultancy business involving inspection of heavy vehicles and reviewing failures of vehicle system components. 311 Her Honour accepted the evidence of Mr Scott that, in practice, a driver might not be aware that a cleat was missing. Her Honour also accepted Mr Scott's observation that wheel nuts and cleats might become detached from vehicles despite the best care and standard having been applied. 312 Mr Scott had also said that on many occasions during his service in the army he noticed that cleats were missing. Whilst not a daily occurrence, it was sufficiently frequent to make it necessary to carry a supply of replacement cleats and nuts. In the majority of cases where a cleat was missing, the retaining wheel nut was also missing. On comparatively rare occasions, he estimated one in six, a stud was either fractured or missing. Mr Scott said that whenever a nut was missing, the cleat was also missing. 313 At Mount Newman, Mr Scott said the incidence of vehicles returned to the workshop missing a cleat was somewhat higher than his experience in the army, but the same pattern emerged: in five out of six cases, the stud would be there but the nut and cleat would not. 314 During his subsequent engagement in service calls on heavy vehicles, Mr Scott observed missing cleats and nuts with the occasional missing stud. As a consultant, he said he continued to find a similar incidence of missing cleats, nuts and studs in roughly the same proportions. 315 Her Honour then addressed a truck driver's maintenance obligations. She noted Mr Scott's concession that a driver might not observe a latent defect or an over-tightened nut. She accepted his evidence of the steps a driver should take. 316 Mr Scott had said that proper maintenance of spider wheel systems required wheel studs to be inspected for any visible impact damage to threads and for any bending of studs. The thread of the stud and nut had to be clean. Wheel nuts had to be tensioned to manufacturers' specifications. The design of the wheel nut had to suit the cleat being used on the wheel. When mounting a wheel onto a hub, care had to be taken to ensure that the wheel rim did not impact on the stud. That might result in damage to the thread of the stud and cross threading of the retaining nut. Wheel nuts had to be progressively tightened in the correct sequential order, alternating to opposite sides of the wheel. After each progressive step, the wheel had to be rotated to check for any run-out of the wheel. Wheel nuts had to be re-tensioned after initial use. This usually occurred between approximately 50 kilometres and approximately 350 kilometres. 317 Her Honour accepted Mr Scott's statement that in his experience, vehicles maintained carefully had a significantly lower incidence of missing cleats and nuts and also of stud failure. 318 Mr Scott had also said that on the road, drivers carried a wheel brace and a pipe to fit on the wheel brace to increase pressure when loosening nuts to change a tyre. Nut tightening by a wheel brace was a matter of subjective perception by the driver. Air-driven tension wrenches on which an appropriate torque might be set, were confined to the workshop. Mr Scott said it was possible for a driver to over-tighten or under-tighten a nut on the road without being aware of it. Over-tightening might cause a nut to break. Over time, vibration from a heavy load on a rough road might affect a nut. Mr Scott had the experience of checking the nuts on the wheels of a trailer yet finding a nut and cleat missing when checking again after about 120 to 150 kilometres. 319 If a driver tested a nut and found that it was tight, Mr Scott agreed the driver had no idea if it was over-tightened. It was also possible that a nut might have a manufacturing defect not discoverable by visual inspection. A wheel nut that appeared to be sufficiently tightened, might work loose as the wheels flexed under load and vibration worked the nut loose. It was possible that this might occur if a truck travelled along a section of rough road. 320 Her Honour noted that the relevant section of the roadway where the incident occurred was very rough and the possibilities open by way of explanation of the cleat detachment included the roughness of the road surface. 321 Her Honour then set out the various causes of cleat detachment that might arise: "Even with the exercise of due care, a wheel nut and cleat may come adrift. There are various explanations open: manufacturing error/defect; spontaneous fracture; the condition of the road surface; speed (of which there is no acceptable evidence); failure to correctly tension the nut/stud; over-tightening; a cross threaded nut; metal fatigue due to the age of the stud or nut; a combination of any of these; or an act or omission by someone other than the defendant." 322 Her Honour then asked herself the question whether it was open to her to draw the inference that the detachment of the cleat occurred by reason of some act or omission on the part, either of the driver of the prime mover, or the owner of the trailer. She referred to Nominal Defendant v Haslbauer (1967) 117 CLR 448. That was a res ipsa loquitur case. The plaintiff was a passenger in a stationary vehicle hit from behind by an unregistered vehicle with defective brakes. She received an award of damages from a jury. On appeal she failed in her submission that in the absence of evidence of knowledge by the driver of the defective vehicle of the condition of the brakes, negligence could be inferred from the fact of the collision. Her Honour referred to passages from the judgment of Sir Garfield Barwick including the following, at 452, on the inference that might be drawn: "To make a prima facie case in a claim based on the defendant's negligence, a plaintiff may be content to rely upon such inferences as can be drawn from the fact of the occurrence which he claims to be due to the defendant's negligence. An inference of such negligence may be drawn where, in the ordinary course of human affairs, such an occurrence is unlikely without want of care on the part of a person in the situation of the defendant. In such a case, the occurrence itself may be said to bespeak the lack of care. Or if his pleadings are wide enough, a plaintiff may rely both upon such an inference and upon evidence, beyond that of the occurrence itself, of specific acts or omissions of the defendant indicating a want of care." 323 Her Honour must have been thinking of drawing an inference from acts or omissions of the driver or trailer owner beyond the fact of the occurrence, because she had already noted that the plaintiff did not rely upon res ipsa loquitur and the principle was not open where the cause of an occurrence was determined. Her Honour had quoted that proposition from Schellenberg v Tunnel Holdings Pty Ltd (1999-2000) 200 CLR 121 at [42] to [45]. 324 Her Honour went on to state that she drew the inference that the cleat detached because the nut was not correctly secured, the driver of the prime mover failed properly to check the tensioning of the nut and a proper check would have revealed the deficiency: "Notwithstanding the range of possible explanations for the detachment of the wheel cleat ( sic ) (and therefore the cleat), I draw the inference that this cleat came adrift from the wheel of the approaching semi-trailer because the nut was not correctly secured and tensioned; and that, ultimately, the responsibility for checking the security of the wheel nuts rested with the driver of the vehicle. I infer that the defendant - the driver - failed properly to check and ensure that the nut was properly tensioned; and that had a proper check been made, the deficiency could and would have been identified and rectified." 325 Her Honour did not explain why she reached this conclusion as distinct from other conclusions that were open to her. Her train of thought has not been revealed. 326 It was submitted that her Honour misdirected herself with respect to the evidentiary test in Luxton v Vines (1952) 85 CLR 352 at 358 that in civil proceedings circumstances raising a more probable inference in favour of what is alleged is sufficient. 327 Her Honour was aware of this principle. She set out the passage in her reasons for judgment. And she had regard to the discussion on reliance upon inferential reasoning to prove negligence in a case to which res ipsa loquitur did not apply in Schellenberg. 328 In my view it is a fair reading of her Honour's judgment that what she meant by drawing the inference that the cleat came adrift in the way she specified was that she concluded, on the balance of probabilities, that the cleat coming adrift in the way she specified was the more likely explanation. Mindful of the principles in the authorities which she cited, her Honour must be taken to have concluded that the case was not one of competing causes of equal likelihood. 329 Although her Honour did not reveal her train of thought, and drawing an inference is often not readily susceptible to precise explanation, I consider that her Honour's conclusion was open and, on the evidence, was correct. 330 From the evidence of Dr Sweatman and Mr Scott, there was a high probability that the cleat detached because of loosening of the nut rather than because of stud failure, including failure due to over-tightening the nut. As a broad measure of that probability, Mr Scott's experience was of stud failure as a one in six occurrence. Dr Sweatman's evidence of the general reliability of the system underlined the high probability that the incident occurred because of the loosening of a nut rather than gross failure correctly to attach a wheel. 331 What then had to be taken into account was the probability of negligent failure initially to tighten the nut or, perhaps more significantly, negligent failure to check the tightness of the nut, as distinct from the nut working loose despite initial proper tightening and proper checking, as Mr Scott recognised could happen. This probability was to be assessed in light of Mr Scott's experience that carefully maintained vehicles had a significantly lower incidence of missing cleats and nuts as well as of stud failure. In this respect, it was not only a case of re-tensioning 50 to 350 kilometres after initial tensioning, or after an earlier inspection, as stated by Mr Scott, but also of checking at least weekly as stated by Dr Sweatman and accepted by the Trial Judge. 332 These probabilities must be combined in arriving at the probability that negligence caused Daniel's injury (see Hodgson, The Scales of Justice: Probability and Proof in Legal Fact-finding (1995) 69 ALJ 731 at 746-750). 333 It would be unrealistic to ascribe numbers to the probabilities and, mathematically, compute a probabilistic conclusion. Judicial fact-finding in circumstances such as the present is not a mathematical operation. 334 In my opinion, the evidence established, on the balance of probabilities, that negligence did cause Daniel's injury. If it be a different thing, her Honour was entitled to infer that the cleat became detached because of a loose nut, the tightness of which was not properly checked and rectified. 335 As a check upon the process of inference, an 80% probability of a loose nut rather than some other problem with the attachment of the cleat and a 65% probability of failure in checking would result in a 52% probability of negligence. Numbers of that order appear to me to be warranted on the evidence. 336 In my view The Nominal Defendant has failed to demonstrate that her Honour erred in concluding that the driver of the truck was negligent. 337 I agree with the orders proposed by Bryson JA. I agree with his Honour's reasons save insofar as Giles JA has departed from them. I agree with the reasons of Giles JA and join him in respectfully diverging from the reasons of Bryson JA in the limited circumstances discussed by his Honour. ********** 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.