New South Wales Supreme Court CITATION : Omar Baghdadi by his tutor Sami Kouri & Ors v P & M Quality Smallgoods Pty Limited; Austec Panel Systems Australia Pty Limited; Vidual Pty Limited; Kaybron (No5); and Kaybron (No5) Pty Ltd v Vidual Pty Ltd; Austec Panel Systems Australia Pty Ltd; P & M Quality Smallgoods Pty Ltd [2008] NSWSC 406 24,25,26,27,28 September 2007 2,3,4,5,8,9,10,11,12,15,16,17,26 October 2007 HEARING DATE(S) : 26,27,28,29,30 November 2007 3,4,5,6,10,11,12,13,14 December 2007 31 January 2008 6,7,8,11,12,13,19 February 2008 JUDGMENT DATE : 7 May 2008 JUDGMENT OF : Patten AJ at 1 DECISION : See paragraph 635 Civil Liability Act 2002 Civil Procedure Act 2005 LEGISLATION CITED : Law Reform (Miscellaneous Provisions) Act 1946. Occupational Health and Safety Regulation 2001 Occupational Health and Safety Act 2000. Workers Compensation Act 1987 Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180 Blundell v Musgrave (1956-7) 96 CLR 73 Diamond v Simpson [2003] NSWCA 67 Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 Fox v Wood 55 ALJR 562 G T Pettersen v Bacha (1995) 21 MVR 71. Hackshaw v Shaw (1984) 155 CLR 614: I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314 Kurrie v Azouri (1998) 28 MVR 406 Manning v State of NSW [2005] NSWSC 958 CASES CITED : Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 Nicholson v Nicholson (1994) 35 NSWLR 308 Olsson v Dyson (1969) 43 ALJR 77. Oxley County Council v MacDonald [1999] NSWCA 126. Roberts v Johnstone & Anor [1998] 3WLR 1247 Rosecrance v Rosecrance (1995) 105 NTR 1. Sharman v Evans (1976-7) 138 CLR 563 State Rail Authority of NSW v Brown [2006] NSWCA 220 Skelton v Collins (1965-66) 39 ALJR 480 Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166 Tolhurst v Associate Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 Weideck v Williams [1999] NSWCA 346 Wilson v McLeahy (1961-62) 35 ALJR 256. Omar Baghdadi by his tutor Sami Kouri - First Plaintiff; Sami Kouri - Second Plaintiff Judith Cohen - Third Plaintiff P & M Quality Smallgoods Pty Ltd - First Defendant Austec Panel Systems Australia Pty Ltd - Second Defendant Vidual Pty Ltd (in Liquidation) - Third Defendant PARTIES : Kaybron (No5) Pty Ltd - Cross Defendant and Kaybron (No5) Pty Ltd - Plaintiff Vidual Pty Ltd (in Liquidation) - First Defendant Austec Panel Systems Australia Pty Ltd - Second Defendant P & M Quality Smallgoods Pty Ltd - Third Defendant FILE NUMBER(S) : SC 20105 of 2005; 13906 of 2007 Mr B Hull with Ms J Lonergan - Plaintiffs (action 20105 of 2005) Mr S Campbell SC with Mr P Perry - P & M Quality Smallgoods Pty Ltd COUNSEL : Mr S Donaldson with Mr D O'Dowd - Austec Panel Systems Australia Pty Ltd Mr P Webb QC with Mr G Hickey - Vidual Pty Ltd Mr C Parker with Mr P Khandhar - Kaybron (No 5) Pty Ltd George Mallos Lawyer - Plaintiffs (action 20105 of 2005) Home Wilkinson Lowry Lawyers - P & M Quality Smallgoods Pty Ltd SOLICITORS : James Tuite & Associates - Austec Panel Systems Australia Pty Ltd Moroney Lawyers - Vidual Pty Ltd Turks Legal - Kaybron (No 5) Pty Ltd LOWER COURT JURISDICTION : IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Patten AJ 7 May 2008 No: 20105 of 2005 Omar Baghdadi by his tutor Sami Kouri First Plaintiff Sami Kouri – Second Plaintiff Judith Cohen – Third Plaintiff v P & M Quality Smallgoods Pty Limited First Defendant Austec Panel Systems Australia Pty Limited Second Defendant Vidual Pty Limited (in Liquidation) Third Defendant Kaybron (No 5) Pty Limited Cross Defendant No: 13906 of 2007 Kaybron (No 5) Pty Ltd - Plaintiff v Vidual Pty Limited (in Liquidation) First Defendant Austec Panel Systems Australia Pty Limited Second Defendant P & M Quality Smallgoods Pty Limited Third Defendant TABLE OF CONTENTS. Paragraph 1. INTRODUCTION 1 2. THE PLEADINGS IN THE EARLIER ACTION 5 3. PLEADINGS IN THE LATER ACTION 17 4. THE ACCIDENT 20 5. P & M 25 6. AUSTEC 65 7. VIDUAL 82 8. EXPERT EVIDENCE 126 9. STATUTORY PROVISIONS 131 10. SUBMISSIONS AS TO LIABILITY 135 11. ATTRIBUTION OF LIABILITY 151 12. APPORTIONMENT OF LIABILITY 161 13. THE EVIDENCE OF MR KOURI 172 14. THE EVIDENCE OF MRS COHEN 213 15. OMAR'S MEDICAL REPORTS 258 16. THE PROVISION OF HOME CARE FOR OMAR 400 17. PROVISION FOR OMAR'S HOUSING 401 18. MEDICAL REPORTS – MR KOURI 405 19. MEDICAL REPORTS – MRS COHEN 413 20. THE DEFENDANTS' MEDICAL EVIDENCE 422 21. OMAR'S ACTION – ISSUES IN CONTENTION 465 22. LIFE EXPECTANCY 466 23. OMAR'S DAMAGES 473 Non Economic Loss 474 Past Loss of Earning 475 "Fox v Wood" 480 Future Diminished Earning Capacity 481 Past Loss of Employer Funded Superannuation 487 Interest of Past Wage Loss 488 Future Loss of Employer Funded Superannuation 489 Loss of Opportunity to Acquire Long Service Leave Entitlement 490 Past Gratuitous Care 491 Future Gratuitous Attendant Care Services 499 Omar's Housing 500 Provision of Spa Pool 508 Air Conditioning and Ceiling Hoist 509 Provision of Motor Vehicle 510 Home Maintenance and Running Costs 514 Future Pharmaceutical Expenses and Expenses for Therapeutic Aids: 515 Computer and Communicative Assistance Devices 518 Additional Vacation Costs 522 Case Manager 526 Future Medical Treatment 528 Future Paramedical Costs 531 Past Out of Pocket Expenses 546 Future General Out of Pocket Expenses 557 Future Attendant Care 560 28. THE ACTION BY KAYBRON 568 29. SUMMARY OF OMAR'S DAMAGES 591 30. THE OPERATION OF SECTION 151 Z OF THE WCA 593 31. ASSESSMENT OF DAMAGES – Mr KOURI 597 32. ASSESSMENT OF DAMAGES – MRS COHEN 620 33. ORDERS AND DECLARATIONS 634 JUDGMENT: INTRODUCTION: 1 The First Plaintiff to whom, in order to avoid confusion and without meaning disrespect, I shall hereafter refer as Omar in action 20105 of 2005 (the earlier action) claims damages in respect of injuries sustained at his place of employment 18 Hume Highway, Chullora (the factory) on 7 August 2002. The Second Plaintiff in the earlier action (Mr Kouri), and the Third Plaintiff (Mrs Cohen), are Omar's parents and sue for mental or nervous shock, arising out of their son's injuries. 2 The Plaintiff (Kaybron) in action 13906 of 2007 (the later action) was Omar's employer at relevant times. It sues under s 151 Z (1) (d) of the Workers Compensation Act (WCA) to recover, by way of indemnity, compensation paid in respect of Omar's injuries. 3 At the hearing Omar, Mr Kouri, and Mrs Cohen were represented by Mr B Hull with Ms J Lonergan. P & M Quality Smallgoods Pty Ltd (P & M) was represented by Mr S Campbell SC with Mr P. Perry; Austec Panel Systems Australia Pty Ltd (Austec) by Mr S Donaldson SC with Mr D O'Dowd; Vidual Pty Ltd (Vidual) by Mr P Webb QC with Mr G Hickey; and Kaybron by Mr G Parker with Mr P Khandhar. 4 The hearing, which concerned both issues of liability and of damages, altogether occupied some 40 days. There were many hundred pages of exhibits. THE PLEADINGS IN THE EARLIER ACTION: 5 The somewhat prolix and complicated pleadings were amended on several occasions, including during the trial. Ultimately, Omar, Mr Kouri and Mrs Cohen relied on their Second Further Amended Statement of Claim dated 26 November 2007, filed in court by leave. I will hereafter simply refer to this document as "the Statement of Claim". 6 In the Statement of Claim, Omar pleaded, as I will briefly attempt to summarise, that at material times he was employed as a general hand at the factory owned and occupied by P & M; that P & M contracted with Austec to carry out certain works in the factory (the works); that the works included the removal of the ceiling above a curing room; that Austec subcontracted part of the works to Vidual; that the ceiling to be removed supported the compressed cement sheet floor of an alcove on a mezzanine floor, open to workers at the factory; that Vidual removed the ceiling thereby leaving the floor of the alcove without support; and that Omar, in the course of his employment, entered the alcove, causing its floor to collapse whereby he fell 4.6 metres to the floor below and suffered catastrophic injury. 7 It was pleaded that each of the three defendants had a duty of care to Omar, which was breached. It is unnecessary to dwell upon the particular breaches asserted except to say that they were comprehensive. A cause of action based upon asserted breaches of the Occupational Health and Safety Regulation (the Regulation) was also pleaded. Again, it is unnecessary to detail the particular breaches relied upon. 8 P & M admitted on the pleadings that it owned and operated the factory where Omar worked as an employee of Kaybron. It also admitted contracting with Austec for the carrying out of the works but put in issue other matters alleged. It denied negligence and breach of statutory duty. It also alleged contributory negligence by Omar and placed reliance upon s 151 Z of the WCA claiming that Kaybron was (in the event of liability by P & M) a joint tort feasor. 9 Mr Kouri and Mrs Cohen both pleaded that they suffered nervous shock as a result of becoming aware of Mr Baghdadi's injuries. P & M put in issue the elements of that claim. 10 Austec put in issue most matters alleged against it but admitted that it contracted with P & M to carry out the works and asserted that part of the works was subcontracted to Vidual. It denied any breach of duty, either statutory or at common law. It also relied on the provisions of the WCA. 11 Vidual denied that it subcontracted with Austec. It asserted that Austec, in fact, subcontracted with a company related to Vidual, namely Special Transformers Pty Ltd (Special Transformers) and that it carried out the relevant work. In any event, Vidual denied breach of duty, either at common law or by statute, and pleaded contributory negligence by Omar. It also pleaded that in the event it is found liable to Omar, it is entitled to contribution from Kaybron as a joint tortfeasor. 12 Omar, Mr Kouri, and Mrs Cohen, in their reply to Vidual's defence, pleaded that it is estopped from asserting that it was not relevantly a subcontractor of Austec and is also estopped from asserting that it did not carry out relevant works at the factory. 13 The three defendants to the earlier action brought various cross claims. P & M cross-claimed against Austec seeking indemnity under the terms of its contract or, alternatively, indemnity or contribution pursuant to section 5 of the Law Reform (Miscellaneous Provisions) Act 1946 (the Law Reform Act). I have treated this as being in issue between P & M and Austec, although I have been unable to locate a formal defence. 14 P & M also cross-claimed against Vidual seeking indemnity or contribution under section 5 of the Law Reform Act. Vidual denied liability in respect of this claim. 15 Austec cross-claimed against P & M, Vidual and Kaybron. Against all three, it sought indemnity or contribution under section 5 of the Law Reform Act. Against Vidual, it claimed a contractual entitlement to indemnity under an implied term. Vidual denied liability in respect of this claim. 16 Vidual cross-claimed against Kaybron pursuant to section 5 of the Law Reform Act. It also, under the same section sought indemnity or contribution against both P & M and Austec. It may be taken that all three put the claims in issue, although the pleadings themselves seem rather confused and extremely confusing. PLEADINGS IN THE LATER ACTION: 17 In the action, Kaybron pleaded against Vidual, Austec and P & M that as at 23 October 2007, it had paid $5,678,991.63 on behalf of Omar under the WCA and was entitled to indemnity under s 151 Z (1) (d). In support of its cause of action it pleaded negligence and breach of statutory duty in similar terms to those pleaded by the plaintiffs in the earlier action. Vidual denied liability as alleged and again asserted, in effect, that any relevant contract was made between Austec and Special Transformers Pty Ltd rather than with Vidual, and that any relevant work was performed by Special Transformers Pty Ltd. Austec admitted its contract with P & M but denied any breach of duty arising by statute or otherwise. It also raised the defence encapsulated by the following 3 paragraphs: "21.3 states that the Plaintiff has made ex gratia payments to or on behalf of the worker that were not made pursuant to the (WCA); 21.4 states that the Plaintiff has made ex gratia payments to or on behalf of third parties that were not made pursuant to the (WCA); and 21.5 states that the Plaintiff has made payments to or on behalf of the Worker for medical or related treatment and domestic assistance that was not reasonably necessary and therefore were not made pursuant to the (WCA)." 18 P & M denied any breach of duty, statutory or otherwise; pleaded the contributory negligence of Omar, and denied that the sum claimed by Kaybron represented "payments" which (Kaybron) was required to pay under the WCA. P & M also pleaded that any right of indemnity which Kaybron may have against it is diminished by the contribution to which P & M is entitled under section 151 Z (2) of the WCA in respect of Kaybron's own breach of duty. 19 Austec, perhaps unnecessarily, cross-claimed against P & M and Vidual for indemnity or contribution pursuant to section 5 of the Law Reform Act. THE ACCIDENT: 20 It was common ground and, as I have indicated, largely admitted on the pleadings that as at 7 August 2002, Omar was employed by Kaybron as a general hand at the factory, where P & M was engaged in the production of smallgoods. 21 It was also common ground that Omar's actual workstation was a "boning" room on the ground floor and that he had free access to an amenities room in another part of the factory. His route from the boning room to the amenities room took him up some nearby stairs along a lengthy corridor running in an east/west direction on the mezzanine floor thence along another short corridor from which descended another set of stairs to the amenities room 22 The southern wall of the long corridor at one point opened into a small vestibule from which a staircase led to the ground floor. A few metres to the west of this vestibule there was another opening in the southern wall of the corridor. At the mouth of the opening was a metal plated step 670mm high to which was attached a two step metal ladder. Beyond the step was, what was described in evidence, and which I will hereafter call an alcove, about 1200mm long and about 800mm wide. At the end of the alcove was a door, numbered 427 on plans, which opened inwards towards the alcove. Beyond the door was a large area between the ceiling of the ground floor rooms and the pitched factory roof. The area, provided with walkways, was used for the housing of factory machinery. The alcove and door were obviously designed to provide access to such machinery. There were similar points of access to the ceiling area in other parts of the factory. 23 At about 1.30pm on 7 August 2002, Omar was found by Mr Steven Lindner and Mr Roger Timms, lying unconscious on the concrete floor immediately underneath the alcove. Pieces of the pressed cement board which previously constituted the flooring of the alcove were near him. A gaping hole appeared in the floor of the alcove above him. 24 Although no one saw Omar fall, it is to be inferred that he entered the alcove and that the floor gave way under him. He fell a distance of 4.6 metres on to concrete. He has since been unable to speak or otherwise provide any explanation of what occurred. P & M: 25 It is convenient to commence a review of the evidence in this somewhat complex case by referring to the testimony given by other workers for P & M at the factory who were called by Mr Hull. 26 The most senior of them was Mr Tony Stills, now General Manager Projects. To a large extent his evidence in chief was constituted by the admission into evidence as exhibit AR of a Record of Interview conducted on 9 September 2003 with Mr David Singh, a WorkCover inspector, supplemented by some additional written information subsequently sent to Mr Singh. The Record of Interview and the supplementary information, after some debate, were, with insignificant exceptions, admitted as evidence against all defendants. 27 Mr Stills was actually employed by another company in what might be described as the P & M Group, Homebush Unit Trust Pty Ltd, but his role as at 7 August 2002 was Project Manager for P & M, which traded as Primo Smallgoods. Kaybron is another company in the group. He was responsible for P & M's large capital works projects at various plants and abattoirs. He reported to the Managing Director and the General Manager of Plants and Abattoirs. He had been with P & M since about October 1999. 28 The boning room where Omar worked was, he said, 50–70 metres from where he fell into an area then known as the "Laboratory Area". This became, following completion of the works in progress at the time of the fall, the "New Salami Processing Area". 29 Mr Stills described the place from which the Plaintiff fell as "a raised alcove off the corridor (which) provides for service and maintenance access to the ceiling space above the factory". He said that the ceiling space was also known as the "Suspended Ceiling Area". He said that the corridor was used by workers "as transit from the amenities to the production area". 30 At the time of the fall, according to Mr Stills, Austec, under contract, was constructing five new salami rooms involving "demolition of wall and ceiling panels, concrete curbing (sic) and construction of new panel and curbing (sic) and associated services". He said that it was classified as a "minor" project and that he had no direct involvement. He said that Mr Livio Versi, whom he described as "Chief Engineer", would have been responsible. Mr Versi reported to General Manager, Mr Peter Treneman. 31 After the accident, Mr Stills said that access to the alcove from the corridor was blocked with a plywood sheet. I interpolate that it appears this was done within hours if not minutes of Omar's fall 32 In earlier records of interview on 8 and 12 August 2002, Mr Stills said that he had been aware of the progress of the works, "I have stuck my head in there about three or four times", and had noticed that the ceiling had been removed. 33 As to the implication of the ceiling in the works, there were these questions and answers: "A. Originally I did not expect the ceiling to be removed. However, it became apparent that equipment that was to sit above the "Salami Curing Rooms" in the ceiling void would create a conflict between the rafters and the existing ceiling. The equipment would not fit in the ceiling void. It was known before the works were started that the ceiling was required to be removed. Q. Why was the ceiling removed? A. The ceiling was required to be lowered to accommodate the process equipment that is to sit on top of the ceiling in the ceiling space. Q. What type of ceiling was above the "Salami Curing Rooms"? A. It was an insulated sandwich panel suspended from the roof and trafficable as per the rest of the factory. …………………………………….. Q. Prior to the incident did you consider that the removal of the ceiling would have any effect on the integrity or support of the flooring of the alcove from which Omar Baghdadi fell? A. The decision was driven by the need to fit the machinery in the ceiling void. ………………………………….. Q. Prior to the incident did you have any concerns that the removal of the ceiling would have any effect on the integrity or support of the flooring of the alcove from which Omar Baghdadi fell? A. No. I was not involved or consulted so I did not turn my mind to issues of the alcove or ceiling. The original plan I had drawn up was on the basis the ceiling would not be removed. One would have reasonably assumed that the contractor who was responsible for removal of the old and installation of the new would have identified a problem area and drawn it to someone's attention or provided temporary support if a problem area was identified. Q. Did you see any risks arising out of the removal of the ceiling so far as the alcove was concerned? A. The risk I saw was that someone might go out through the door from the walkway that formerly led to the ceiling space onto open space. Q. Was that risk addressed in any manner? A. Red and white safety tape was placed across the entrance to the alcove, a sign was placed there but I cannot recall what it said and the door was locked. Q. Do you know who took the measures that you just described? A. I was told by someone it was the contractor. Q. Prior to the incident did you consider that the alcove was properly supported after the ceiling had been removed? A. Before the incident I did not turn my mind to it. However, when I was there inspecting the alcove with Livio from the walkway, before the incident, I would have contemplated that the alcove was part of the walkway structure. Q. What does that mean in terms of support to the alcove? A, The walkway is a hanging structure hanging off the roof structure and so the alcove is part of that. 34 In cross-examination by Mr Perry, Mr Stills said that "as built" plans of the factory, handed over by the original builder, were used in connection with the construction of the new salami rooms and that an architect was not engaged to draw up plans for the new work. 35 Mr Stills expressed to Mr Donaldson his understanding of the support for the floor of the alcove: "Q. When you looked at this alcove, with your knowledge of the building, you thought the alcove and the corridor structure was all solid and discrete? A. And part of the walkway, yes. Q. Indeed, there was signage warning people about weight restrictions on the other side of the door, on the alcove, wasn't there? A. On the walkway side of the doors, yes. Q. But there was signage which indicated that there were weight restrictions in the ceiling space that needed to be observed? A. Yes, there were. Q. And there was no signage to suggest that there were weight restrictions associated with the alcove floor? A. Correct. Q. Which would only go to reinforce your view that the alcove floor was part of the corridor structure? A. Correct." 36 Later, he agreed with Mr Donaldson that the construction of the new salami rooms was initiated by those on the production side of P & M who had indicated that additional salami production capacity was required. It was as a consequence that he and Mr Versi became involved. 37 As to whether there was any plan of the works, he told Mr Donaldson that one would have been prepared "looking down so it wouldn't have dealt with height as such ……it would have been together with Livio, pen or pencil lines to denote rooms of a particular width and a particular length and a particular area of the building". There was then this exchange with Mr Donaldson: "Q. The width and length and height of these salami rooms is something that is dictated by the tasks that they have to perform, correct? A. And by the equipment. Q. And by the equipment that is going to be used? A. Mmm. Q. These are salami curing rooms, correct? A. Correct. Q. So the salami curing process, can we assume, is a process which is driven in part by, or is produced in part by the maintenance of a particular environment in the room in which the salami is curing? A. Correct. Q. As to temperature and humidity? A. Correct. Q. And these Travaglini machines that we have heard about are machines that are used to produce that environment? A. Correct. Q. And would I be right in assuming that the capacity of the machine that you use will dictate the dimensions of the salami room that it can service? A. Correct. And the quantity of salami that's in the room too. Q. And this working group involved people who were expert and experienced in the salami production, correct? A. Treneman is the manager of the factory and is the production man. Livio, chief engineer, understands salami rooms and the equipment that goes with it. Q. And was the decision of the working group simply that these salami rooms should be built to the same design as the existing salami rooms? A. My recollection is that is correct. " 38 Mr Parker asked Mr Stills whether any of the original plans revealed the "support structure" for the alcove. He received this answer: "A. Not specifically the alcove. We hunted through high and low, as was requested by various parties, and there are clearly details of the hanging support structure for the walkway, as such, but it didn't get into the detail or, indeed, an adequate cross-section, to identify support of the alcove floor. " 39 Mr Webb questioned Mr Stills about his early involvement in the new salami rooms: "Q. You were involved, at least in the beginning of the decision, as to where to place these newly acquired salami rooms. That's true, isn't it? A. Can I have that question again? Just the latter part of it. Q. You looked at the as-built plans in order to determine where these new rooms could best be built within the existing structure. That's correct, isn't it? A. I think I was probably led to where they wanted to put the rooms, rather than somebody said to me: Now, Tony, where can we put these rooms in this big facility? I think other parties that knew more about production had decided where the optimum location was, and whether it was a case of being able to fit them, pull out an as-built architectural drawing that showed that particular area and, together with others, draw lines on to show a number of rooms. Q. Correct me if I am wrong, but, whether or not you were involved in the original decision, you certainly had something to do with, I think you referred this morning to, making marks on the as-built plans? A. Yes. Q. You certainly were personally involved in that process, weren't you? A. Yes. Q. Whether that was independently, on your own, or whether that was with Mr Versi, or whether that was in the course of these meetings by the working party? A. Yes. " 40 Mr Stills agreed with Mr Webb that he continued to have some involvement with the works, in that he recalled that on one occasion from the ceiling side of the alcove he observed that the door to the alcove was barricaded and unable to be opened. His recollection was that this was before any works were commenced. 41 He also recalled an occasion when he and Mr Versi went to the alcove together and Mr Versi tried unsuccessfully to open the door. He could not recall whether there were two separate inspections or whether they were carried out on the same occasion. Nor could he recall whether Mr Versi tried to open the door standing on top of the metal plated step or from within the alcove itself. So far as he could remember, there was no tape across the entrance to the alcove at the time of his inspection. He did, however, see tape across the opening on more that one occasion. He agreed with Mr Webb that the corridor is busy and that he had occasion to pass along it from time to time. 42 Referring to the stairs located close to the alcove, Mr Stills said that these were removed as part of the salami room works, possibly by P & M maintenance staff, and that before Omar's accident the opening in the corridor was blocked off with plywood. 43 Asked whether it would have been simple and inexpensive to block off the opening to the alcove with plywood, Mr Stills said "if you had decided that that was a risk". 44 Mr Livio Versi said that like Mr Stills, he was employed by Homebush Unit Trust Pty Ltd as Chief Engineer. He said he worked at relevant times for P & M and had technical qualifications pertaining to food machinery. His work involved him in the engagement of contractors. 45 Mr Versi's records of interview with Mr Singh, respectively dated 13 June 2003 and 1 August 2003, and his statement dated 13 June 2007 were admitted as exhibit X and largely constituted his evidence in chief. He said that he reported to Mr Treneman and in conjunction with him and Mr Stills organised the salami room works. He said that Austec quoted for the job and this was followed by a written order. There was no other written contract. 46 In his statement Mr Versi explained his involvement with the new salami rooms: "Some time in the early part of 2002, I became involved in a working group that was looking at the provision of more rooms for the production of salami at the Chullora site. The group consisted of Peter Treneman, the General Manager, David Newman, the Factory Manager (Production Manager), Tony Stills, the Project Manager and myself. From time to time other employees were consulted about particular issues in relation to the work. I cannot now recall how many meetings of the group were held, but ultimately it was resolved that five additional salami rooms would be constructed in the area then occupied by the laboratory. The laboratory consisted of a number of adjoining rooms including an office, storeroom, and more than one laboratory room. I have referred to salami rooms, and I have seen documentation that refers to salami curing rooms. I should say, strictly that these rooms were referred to as Travaglini Rooms after the brand of meat processing machine operated in them. The production of salami was not their only function, but it was their largest. At the time there were twenty-nine Travaglini Rooms, twenty-six of which were used for the production of salami and three for other purposes. The decision to add an additional five Travaglini rooms was not seen as a major project. In the scheme of things at the Chullora plant, it was a renovation or modification on a relatively small scale. The total renovation consisted of 180 square metres in a 20,000 square metre building. The Travaglini machines were part of my responsibility. For this reason, and because no plans for the renovation had been drawn up, I was asked to speak to the proposed builder. The proposed builder was Austec Panel Systems Australia Pty Ltd. Austec was at that time engaged in a project on behalf of Primo at the Scone plant. I understood that other providers would be involved in the project, such as fire-sprinkler people, electricians, plumbers and concreters. But responsibility for the work of demolishing the existing lab and constructing the new rooms would fall to the builder. This was to maintain an access corridor for the other rooms. But no structural design of any kind was performed by Primo. Nor did Primo have any hand in the demolition or the construction work. I arranged to meet Joe Zadro of Austec Panel Systems on site. To the best of my recollection this was between 2 days and a week prior to the submission of Austec's quote on 22 May 2002. When I met Mr Zadro, I conducted him on an inspection of the existing laboratory, the site of the proposed renovation. I provided him with a copy of the relevant page of the original drawings for the construction of the Chullora plant. While in the laboratory, I said to Mr Zadro the following: "This wall is a starting point for the new rooms" As I said that I indicated the wall which is described on a plan subsequently prepared by Austec as "existing wall to remain". I then took him to an adjoining Travaglini room. He produced a retractable tape measure and measured the internal dimensions of the room. He did this in my presence, but without my assistance. His tape measure was operable by one person. I saw him record the dimensions on a piece of paper. I saw him appear to check what he had recorded against the information contained on the "as built drawings" I had provided him with. My meeting with Mr Zadro took only about ten minutes." 47 In a record of interview Mr Versi said he only provided Austec with the dimensions of the salami rooms to be constructed as no building plans or working drawings had been prepared. He also said that Mr Zadro inspected the site "a couple of times" before the work commenced, including an occasion when he, Mr Versi, took Mr Zadro into the ceiling space and showed him the areas of ceiling which needed to be removed. 48 By letter dated 22 May 2002, Austec quoted a lump sum price of $99,589.60 for "Demolition of Panel Work", "Concrete Plinth – Demolition and 5 "New Salami Curing Rooms". 49 On 23 May 2002 Austec quoted a further sum of $40,235.80 for "new laboratory". 50 Subsequently, by order No 30611 (which seems to be undated), addressed to Austec, P & M placed an order for: "Demolition of Panel Work and Concrete Plinths $ Construction of New Salami Rooms $90,536 Panel Construction for New Lab $36,578 Per quote $139,825.40 The order was signed by Mr Treneman. 51 Mr Versi said that he was aware that other contractors would need to be involved, including Fire Control, in relation to the fire protection service; Bass Electrical in relation to electrical work; British Paving for the construction of concrete plinths; and Eveready Plumbing for drainage work. 52 Mr Versi saw his role, in effect, as the person responsible for organising the work and the contractors and ensuring that factory production was not interrupted. 53 Before Austec embarked upon performance of its contract, there was evidence that Bass Electrical removed and isolated electrical fittings in the old laboratory area (the site of the new salami rooms); Fire Control disconnected five sprinklers in the area; and L & A Joinery removed furniture and fittings. Mr Versi said that P & M maintenance workers removed the stairs near the alcove and barricaded the opening from the corridor with ply board. 54 As all the above mentioned work needed to be performed before Austec commenced to fulfil its contract, Mr Versi remained in contact with Mr Zadro as to when Austec's men could start on site. The demolition actually commenced on Saturday, 22 June. As Mr Versi explained: "The first part of the work was in an area which was different from the area where the new salami rooms were to be constructed. This work involved the dismantling and removal of existing panelling. Primo then relocated salami production equipment. This meant that there was an interval of approximately 2 weeks, and maybe a little more after the first dismantling work was done by Austec, and before the main part of the work, which was the dismantling and subsequent rebuilding of the salami rooms commenced." 55 When, as it seems, men returned to the site between early and mid July for the demolition of the existing laboratory, Mr Versi met a man who introduced himself as "Steve" and was, I infer, Mr Steven Lindner. He said "from time to time Steve spoke to me concerning his requirements for matters such as rubbish removal, power to the area, access for forklifts, access for material etc." 56 According to Mr Versi, Austec's operations were then confined to an area sealed off from the rest of the factory and only he entered on behalf of P & M. 57 Mr Versi's statement continued: "I recall being asked by Steve, soon after he commenced work to inspect some work that he had performed in the ceiling area. I accompanied Steve into the ceiling space by a door some distance away from the alcove, which was subsequently the site of Mr Baghdadi's accident. When we went into the ceiling, Steve showed me a door, and told me that he had secured the door to prevent people from using it when the ceiling was removed. (The alcove through which Mr Baghdadi later fell was behind this door.) I saw that the door had been barricaded by the use of both horizontal and diagonal tape. I also saw that a metal bar had been taped in a horizontal position completely across the face of the alcove where it protruded into the ceiling space. This horizontal bar was at the level of the door handle. The door handle was, I saw securely taped to the bar. I was standing beside Steve and approximately three or four metres away from the door. The area was lit by fluorescent overhead work lights. I did not go into the area between me and the door, as it had been barricaded off by Steve, I understood in preparation for the removal of the ceiling. I am unsure whether at that stage any part of the ceiling had been removed. This meeting took place at the end of the day, Steve showed me, by indicating with his hand and by some verbal description both the barricading of the door and also the securing of the perimeter of the area where the ceiling was to be removed. This all took approximately 5 minutes. The circumstances which led to this viewing were as follows: I was otherwise engaged when I was approached by Steve. Steve said to me: "Livio, I need to show you something. OH&S says I have to have you see what I've done to secure the work area." I am aware that my WorkCover record of interview dated 12 August 2002 might suggest that the ceiling had already been removed at the time of this inspection. I am not sure that was the case. It was not my intention to suggest that. I understood references to the removal of the ceiling to be references to the area where the ceiling was to be removed. Steven Lindner was most insistent on showing me the OH&S steps he had taken before any demolition work was to take place. After leaving the ceiling area, Steve said to me: "Now, I want to show you what I've done on the other side". We left the ceiling and walked to the corridor side of the alcove. I saw that the entry to the alcove from the corridor had been taped off with strips of blue adhesive tape. The upper points of this tape were approximately 2.5 metres above the corridor floor. The lower part of the tape was only just above the corridor floor. In my WorkCover record of interview dated 9 August 2002, I provided a diagram which showed how the tapes had been placed by Mr Lindner across the alcove. There was a sign on cardboard placed where the tapes intersected. I no longer remember what the sign said but in some way it warned people not to enter. I remember physically checking the doorway handle to see that the door could not be opened. I am told that by letter from Edwards Michael Moroney Lawyers dated 26 September 2006, it has been alleged that I instructed Mr Lindner that he was not to put any marks on the outer wall of the corridor saying words to the following effect "you cannot put any holes or screws in the walls to board the doorway off", and that I informed Mr Lindner he was to use tape to secure a barrier in front of the door and that I, in fact, provided him with blue electrical tape. I totally deny those allegations. I did not say to Mr Lindner that he could not put holes or screws into the walls to board the doorway off. I had no such concern. I did not tell him to use tape. I did not provide him with the blue tape that he had used. When I attended with Mr Lindner to inspect the alcove the tape was already there. After this there were a couple of times when walking along the corridor, I noticed that the tapes had partly fallen down or had been torn away. On those occasions I reattached the tapes to the side walls of the alcove. In order to do so, I may have stood on the metal steps or on the metal threshold to the alcove floor. I did not stand on the alcove floor. It would have been difficult to reattach the tapes standing there. When I first saw the blue tape fixed across the entry to the alcove, I was aware that the door to which the alcove gave access had been securely barred from the ceiling side. I knew for the reasons recorded in paragraph 37 of this statement, that the door could not be opened. The handle could not be depressed, and a secure bar prevented the door from opening. I also knew that the reason for securing the door in this fashion was that it was intended that the ceiling beyond the door be removed, creating a void immediately on the other side of the door. When I observed the blue taping, I assumed that its purpose was to deter persons from entering the alcove to attempt to open the door. I did not regard the blue tape as guarding against any danger, as I knew that the door could not be opened even if someone entered the alcove. I had no idea that the floor of the alcove itself would be dangerous. I had not been so informed by Austec, by Mr Lindner, or by any other person. When I saw that the blue tape had fallen from its position, I replaced it, but did not for the reasons I have stated above, consider any further step was necessary." 58 The work of demolition of the laboratory walls, partitions, and ceiling extended over some days. The demolition workmen, including Mr Lindner, then left the site for "a week or so" while British Paving came on to the job and installed concrete plinths on what was to be the floor surface of the new salami rooms. 59 At about 1.30pm on 7 August 2002, Mr Versi was told of Omar's fall. He went to assist and telephoned triple O for an ambulance. He observed the hole in the floor of the alcove. 60 Mr Versi estimated that about 250 workers in the factory used the corridor up to 4 or 5 times a day. 61 Mr Roger Timms was employed as a fitter at the factory, reporting to Mr Versi, and was present in the factory at the time of Omar's fall, being in a stairwell about 25 to 30 feet away when he heard a loud crashing noise. He went to investigate and found Mr Baghdadi lying on the floor. He checked his pulse and breath and arranged for an ambulance to be called. 62 He looked up and saw the hole in the alcove floor. He then went to the alcove to investigate and said there was nothing barring entrance to it, although there were remnants of blue tape attached to the sides of the opening from the corridor. He had noticed blue tape there when he passed on previous occasions. Mr Timms said he was familiar with the area between the ceiling and roof of the factory as he frequently had reason to enter it in the course of his work. 63 On one occasion, Mr Timms said that after the ceiling had been removed but before Mr Baghdadi's fall, he went into the alcove, opened the door into the roof space and tried unsuccessfully to reach and repair a leaking valve. This piece of evidence was in such conflict with other evidence, which I accept, as to the securing of the door before the ceiling was removed that I think Mr Timms was mistaken as to the occasion. I reject this part of his evidence, which was not, in any event, of particular importance. 64 Another witness, Mr Steven Bertram, was also employed by Homebush Unit Trust Pty Ltd in August 2002. He was the Human Resources Manager responsible for all employees who worked for P & M at Chullora. He said that there were in all about 20 employer companies. Kaybron employed about 50 workers out of a total of about 900 who worked at the factory. He described Kaybron as a "service company designed to employ some members of the employees, certain groups of employees that worked in the factory at Chullora". He agreed that he was referring to those who worked in the boning room AUSTEC: 65 The only employee of Austec who gave evidence was Mr Zadro. As with P & M workers, he was called in the Plaintiff's case, although an affidavit sworn by him on 2 October 2007 was filed by Austec. 66 Mr Zadro, a plumber by trade, said that he first had contact with the former owners of Austec when he performed plumbing contracts for them. Later, he became manager of the Austec business and he and his wife acquired the company about 1993. He said that Austec manufactures "sandwich panels" used as wall and ceiling panels in a variety of industrial applications, including the construction of cool rooms. It contracts for the supply and installation of the panels it manufactures and also for associated work such as the dismantling and disposal of existing panelling. However, it subcontracts all installation and dismantling work. 67 His first association with P & M related to a project it had at Scone, in respect of which he dealt with Mr Stills. In connection with the Scone contract, Mr Steven Lindner introduced himself and according to Mr Zadro's affidavit said: "I used to work for James Hardie doing the building work for their panelling projects. I have built a number of large cold stores and have a lot of experience with panel installations. I have just returned from South Africa where I have been contracting and I am setting up a contracting business here. If you need a contractor for your panelling projects I would be interested." 68 Mr Zadro said that he subcontracted with Mr Lindner for the installation at the Scone job. He told Mr Stills that Mr Lindner was his installation subcontractor. He was satisfied with Mr Lindner's performance. 69 In relation to the Chullora project, Mr Zadro's affidavit states: "In or about May 2002, I was approached by Tony Stills and asked to quote jobs for Austec to perform at Primo's premises at Chullora NSW. There were 2 jobs involved: the demolition of panel walls and concrete plinths and the construction of new salami rooms (the salami room works); and the panel construction for a new laboratory in the premises (the laboratory works)." I attended Primo's premises at Chullora in or about early May 2002 to inspect the area where the jobs were to be performed. I recall that Livio Versi (Livio) was with me at the time of the inspection. Tony might also have been present. During my attendance at the premises either Livio or Tony provided me with a ground floor plan of the area in which Austec was to perform the works and showed me where the wall and ceiling panels were to be removed and where they were to be installed. They also informed me when the works would need to be commenced and when the works would need to be completed. Either Livio or Tony said to me words to the effect: "We want five sandwich panel rooms in this area. We are going to use them as salami rooms". He then indicated the location of the proposed salami rooms, which extended across the existing laboratories and extended out into the existing salami production area for a further distance of a little less than four metres. Tony or Livio showed me an existing panel wall and said words to the following effect. "This is where you will start the salami rooms. The rooms need to be build out from here". They then showed me a number of walls in the existing laboratory and said words to the following effect: "The side walls of the laboratory need to be removed and so does the panelling around the staircase. The dividing walls in the laboratory have to come out as well". They said: "When you build the salami rooms we need sliding doors, the aluminium extrusions are to be powder coated white, all the rivets need to be sealed and the internal joints of the panels need to be over sealed." They gave me the proposed dimensions of the rooms and I may also have made some measurements to confirm them. I recorded the measurements on the plan they had given me. Either Livio or Tony also said words to the following effect: "The ceiling height for the salami rooms needs to be the same height as the ceiling in the laboratory. The ceiling will extend at that height right across the new salami rooms" I then measured the ceiling height of the laboratory, which was about 3.5 metres, and recorded the measurement on the plan. I also recorded the ceiling height in the existing rooms, which was about 4.5 metres. At one point when we were standing in the existing ceiling space they pointed to the area of the sandwich panel ceiling where the ceiling height would be reduced and either Tony or Livio said words to the effect: "This section of the existing ceiling has to be removed so we have space to fit our equipment for the new salami rooms. The equipment will sit just above the new salami room ceiling which will be below this level." I did not discuss any particular terms and conditions of the contract that Primo wanted Austec to perform with Tony or Livio. We simply discussed the scope of the salami room works and the time restraints for performing the works so that Austec could quote its price to do the job. In the course of our discussions, Tony or Livio said words to the effect: "We will remove all of the services and fittings from the laboratories and the stairs. We want you to remove the panelling and demolish the hobs. We will want you to remove the partition wall between the salami room and the research and development room and put a plastic screen around your work area before you start removing the panelling. We can then move our salami production away from your work area. You should get in touch with British Paving to price the demolition of the hobs and the construction of the new hobs." In the course of the inspection Tony or Livio also pointed out the equipment, power cables, various items of plant and water services in the laboratories and in the ceiling space above and said words to the effect: "We will be removing all this before you remove the panelling." I do not recall whether there was any discussion regarding the identity of the panelling contractor, but I do recall that Tony Stills said words to the effect: "There will be a delay between stages 1 and 2 of Scone and this job should fit nicely into that." Austec used the plan that Primo had provided to it to create a plan of the area identifying where the work was to be performed and sections showing the dimensions of the new salami rooms and the detail of the new plinths. Shortly after Austec was approached by Primo to perform the salami room works, I contacted Steve Lindner and said words to the effect: "I have another job for Primo at Chullora that you may be interested in." I understood at that time, through my dealings with Vidual in connection with the Scone works that Vidual was the company through which Steve carried on his contracting activities and Vidual would undertake the work at Chullora. I also contacted Paul O'Neil from British Paving and asked him to give a quote for the concreting work required for the salami room works. I attended Primo's Chullora premises with Paul whilst he was inspecting the area to prepare the quote. On 17 May 2002, Austec received a quote from British Paving Company Pty Ltd (British Paving) to demolish and construct the concrete hobs in the salami rooms. I do not believe that I obtained a quote from Vidual at that time. However, I was aware of the hourly rates that Vidual was likely to charge Austec to do the work and that Austec would pay, and I was able to estimate fairly accurately the number of man hours that the salami room works were likely to take. I was therefore able to factor the cost of subcontracting the work to Vidual or another contractor into the quote that Austec provided to Primo. After Austec had received British Paving's quote I forwarded a letter to Primo to the attention of Livio quoting to perform the salami room works. On or about 23 May I forwarded a letter to Primo to the attention of Tony Stills quoting to perform the laboratory works. Shortly before Austec instructed its contractors to commence work at the site Tony had informed me verbally that Primo had accepted Austec's quotation dated 22 May 2002 and instructed me to commence the salami room works. I cannot recall the precise date of that conversation, however, I do recall that there was only about a week between Tony's instruction to proceed and the day that the work had to be commenced. I cannot recall the precise words that Tony used however it was to the following effect: "I am giving Austec the job; be sure to be on site on the days required without fail." I was not told at that time that Primo wanted to impose any particular terms and conditions on Austec to perform the salami room works. At around that time I spoke to Steve Lindner and said words to the following effect: "We had been awarded the contract to do the salami room works at Primo's Chullora premises and we want Vidual to do the work." I recall attending Primo's Chullora premises with Steve Lindner to show Steve the works that Austec wanted to subcontract. I cannot recall whether that happened before or just after Austec had been contracted to the salami rooms works. I do recall that I introduced Steve to Livio Versi in words to the following effect: "This is Steve Lindner, the contractor for the panel removal and installation." Either on that day or within a short period afterwards I had a conversation with Steve, who I believed was negotiating on behalf of vidual, which was to the following effect: Me: "I have allowed $18,000 plus GST to do the salami room works." Steve: "We will do the job for that sum." Steve and I did not discuss any other terms of the contract though I did say that the work had to be completed according to Primo's requirements. We also discussed the time that Primo had allowed for the work to be completed. During my attendances at the Chullora premises with Livio, Tony, and with Steve we walked in the ceiling space immediately above the area where the new salami rooms were to be constructed. I think that we used the alcove from which Omar Baghdadi is said to have fallen to enter the ceiling space. No one informed me on those occasions, or at any other time before Mr Baghdadi's accident, that the alcove floor was in any way reliant on the ceiling panels for its structural support. There was nothing in the plan that Livio or Tony gave to me that suggested that the alcove floor was dependent on the sandwich panel ceiling for its structural support. At the time of my attendances at the site before the salami room works commenced it was not possible to see the underside of the floor of the alcove. The underside of the alcove could only be seen after the ceiling panels in that area had been removed. Vidual and British Paving started the new salami room works on Saturday 22 June 2002. That commencement date had been specified by Primo as the date that the salami room works were to commence. Austec's dealings with Vidual in connection with the project at Chullora were no different to its dealings with subcontractors on all such jobs. It was agreed with Lindner that Austec would supply scaffolding, a scissor lift and black plastic sheeting which Primo had asked to be installed on the ground level. Austec also supplied all of the insulated panels and panel related material such as brackets and doors that were required for the job. Vidual provided all necessary tools and labour to perform the work, and co-ordinated its activities with Primo on site. Vidual had complete discretion as to how it would perform the work. It determined who worked on the job and what tools and equipment were appropriate to perform the job. It was responsible for determining the rate of supply of materials required from Austec, though I did monitor the progress of the work to assess when panels would be required. I did not give any directions or instructions to Steve Lindner and his workers as to how the job was to be performed. As was customary with Austec projects, I attended the site on an approximately weekly basis to check the progress of the work and to speak to the customer to ensure that they were satisfied with the quality of the work. Most of my site visits were of about an hour's duration. The work that Vidual performed on 22 June 2002 involved removing half of a partition wall in a production area adjacent to the proposed new salami rooms. This was necessary to allow Primo to continue production whilst the remainder of the new salami room works were being completed. British Paving was also on site to demolish the concrete hobs in that area. That part of the salami room works was completed in a day." 70 Mr Zadro said that he received a tax invoice from Vidual dated 25 June 2002 for the work performed on 22 June. He approved it for payment as part of the $18,000 plus GST agreed with Mr Lindner for the whole job. 71 Work resumed in early in July, according to Mr Zadro, shortly after he was requested to recommence either by Mr Stills or Mr Versi. 72 On 4th July, Austec sent an order to "Special Transformers & Install" for the attention of Mr Lindner. The body of the document which contained an authorisation by, and apparently, the signature of Mr Ham Kyung read: "Project: New Salami Curing Room including demolition all kind of patchwork Build new Salami Rooms 3m x 25 days = 600 hrs @30 $18,000 plus GST" 73 Mr Ham Kyung, who was described by Mr Zadro as his "estimator", did not give evidence. Mr Zadro explained the order in his affidavit: "That document was created by Ham Kyung. I did not send that document and I do not know why it was created. At that time I knew that Steve's wife and father-in-law operated a company known as Special Transformers Pty Ltd. I understood that that company manufactured transformers. I do not know what, if any, agreements existed between Vidual and Special Transformers in relation to the performance of the salami room works." 74 As to the progress of the works, Mr Zadro's affidavit stated: "By 18 July 2002 most if not all of the old sandwich panels, including ceiling panels, had been removed. Around that time Lindner had left the Chullora premises pending Austec's direction to return to site to construct the new salami rooms. Before the new salami room walls and ceilings could be installed it was necessary for British Paving to construct the new concrete hobs that would form the bases of the new walls and other concreting work." 75 On or about 18 July, Austec received an invoice from "Special Transformers Pty Ltd, trading as "Special Transformers and Installations". The invoice for $7,000 referred to "Primo strip out of existing panels for new salami curing room". The invoice of $7,000 plus $700 GST was paid. 76 Mr Zadro said, in effect, that before Omar's accident, he noticed nothing unusual about the floor of the alcove and saw nothing to suggest to him that the stability of any upstairs area, including the corridor and the alcove, would be "jeopardised by the removal of wall ceiling panels downstairs". 77 In cross-examination by Mr Donaldson, Mr Zadro said that when he walked through the alcove with Mr Lindner and then into the roof space, he noticed that the walls of the alcove were sitting on the ceiling below but the floor of the alcove was higher than the ceiling outside and therefore appeared to be attached to the walls of the alcove. 78 He agreed with Mr Donaldson that Austec, Mr Lindner, and P & M were prosecuted in the Industrial Relations Commission and that Austec, on advice, pleaded guilty to the charge that contrary to section 8 of the Occupational Health and Safety Act, it being an employer failed to ensure "that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work". 79 Mr Zadro told Mr Campbell that when he quoted for the works in May 2002, he did not carry out a "risk assessment". 80 He also told Mr Campbell that he did not see a tape barrier or a warning sign at the opening to the alcove, although he could see "where it had been". He said that he did not tell either Mr Lindner or Mr Versi that the barrier had been removed. He agreed that he was aware that Mr Lindner had put up the tapes as part of his subcontract, although he qualified that answer by saying "it was never an item stated". 81 In answer to Mr Campbell's questions about his conclusion that the alcove floor was attached to the walls, Mr Zadro agreed that he made no further inquiries upon the subject and that he drew his conclusion on the basis of his experience in panelex construction. He said that he did not turn his mind to the possibility that the flooring was supported by what are known as "top hats" which, in turn, rested on the ceiling. Having looked at photograph 84, in exhibit AT, he agreed that the height differential between the ceiling and the floor of the alcove could have been bridged by "top hats". VIDUAL: 82 Mr Webb called Mr Steven Lindner. He said that he first commenced to erect insulated panels as part of the construction of refrigerated rooms as an employee of James Hardie in 1994. The company provided him with training. 83 He continued to work as an employee until 1996 when he went into business on his own account as a contractor in the same field. In 1999, he began to work under contract for Austec. 84 The first contract with Austec related to P & M's work at Scone and for that he prepared a written quotation. For subsequent jobs, he agreed orally on a price with Mr Zadro or with Mr Ham. Once he established a relationship with Austec, it had enough work to keep him busy. He said that the panels manufactured by Austec were similar to the panels manufactured by James Hardie and there was little difference between the work he performed for Austec and the work he had been used to with James Hardie. 85 His arrangement was that Austec provided all materials and plant. He provided labour, his own and that of his employees, and tools of trade. He estimated his charges by reference to an hourly rate and his calculation of the time a particular job would take. 86 He said that he and his wife were the directors of Vidual. She worked in the office and used a computer to produce letterheads on stationary, invoices etc. She also carried out banking and attended to other administrative tasks. 87 He testified that in mid 2002, he had a conversation with Mr Zadro or Mr Ham relating to work to be performed for P & M at Chullora. He went to the factory to inspect the site and spoke to Mr Versi. He knew Mr Stills from the job at Scone. 88 He could not remember when he started work at Chullora but said his first job there was to repair a faulty door. He also could not remember when he started the main work but said he would have had an employee, Mr Jim Haigh, with him. 89 Mr Lindner said he was present at the factory when the stairs near the alcove were dismantled. At Mr Versi's request, although he had played no part in the dismantling of the stairs, he had blocked off the opening in the wall of the corridor with a piece of the panelling supplied by Austec. 90 Over objection, because the matter had not been put to Mr Versi, I permitted Mr Webb to adduce evidence from Mr Lindner that he, at one point, spoke to Mr Versi about blocking off the alcove in a way similar to the blocking of the opening to the stairs, which had been removed. He said that he was told not to, for the reason that, as I understand the evidence, it was intended that the alcove would continue to be put to use as a means of access to the ceiling space. As the ceiling was being lowered this would have necessitated the construction of stairs on the ceiling side of door 427. As the alcove was effectively blocked immediately after the accident and as the alleged conversation was not put to Mr Versi, I am not satisfied that it occurred. 91 Mr Versi did, however, tell him to tape up and secure by that means the opening to the alcove from the corridor. He provided some tape and a sign for the purpose. Mr Lindner said that he then, from the ceiling side, with an iron bar, prevented the door from being opened and he also placed blue tape across the opening and attached a cardboard sign with a warning message. 92 This means of restricting access to the alcove, if that were the purpose, was obviously ineffective, as it is clear from the evidence that the tape dropped off or was pulled off by passing workers. I am satisfied that by the time of Omar's fall there was no tape across the opening and it is unlikely that the sign was attached as it could not be located afterwards. 93 It is also plain that the intention of both Mr Versi and Mr Lindner was focused on door 427 and not on the floor of the alcove. It is difficult to understand why they thought it desirable to discourage people, even in such a half hearted fashion, from entering the alcove when the door at the end of it, which, if opened gave rise to obvious danger, was effectively barred. 94 In any event, I accept Mr Lindner's evidence on the subject. I am satisfied he did exactly what he said he did. 95 Mr Lindner said that he removed the walls and ceiling of the existing rooms underneath where Omar fell, with the aid of a forklift or scissors lift brought in for the purpose. He said that he had a recollection of removing the ceiling in the vicinity of the alcove. Asked whether there was anything else there, he replied, "I didn't see anything which shouldn't have been there". 96 After removing the ceiling and the walls of the rooms to be demolished, he went to another job for about 3 weeks, returning a day or so before the accident. According to his testimony, other tradesmen had been there in the meantime; refrigerator pipes, fire pipes and electrical wiring having been taken away. I should say that I do not accept this part of his evidence, which is inconsistent with other evidence, and what I regard as the probabilities, that the pipes and wiring were removed before Austec started work under its contract to dismantle the existing laboratory walls and ceiling. More significantly, the concrete plinths had been constructed and the area was ready for him to erect the panelling for the 5 new salami rooms. 97 During his time at the factory, Mr Lindner said he saw Mr Versi every day as he would routinely inspect progress of the work. He would also organise any work required to be done by P & M's own maintenance staff. He gave evidence of an occasion when he and Mr Versi were standing in the area where the new rooms were to be constructed when they looked up and saw from the ceiling side (the ceiling having been removed) the handle of door 427 being turned. Mr Lindner called out and went upstairs to investigate. He found that the blue tape he had placed across the entrance to the alcove had fallen down. He said that he reattached it and replaced the warning sign. 98 Mr Lindner identified from records produced by Department of Fair Trading, an application for registration of the business name "Special Transformers & Installations" in his wife's handwriting. The application was dated 20 June 2002 and showed that the application was made on behalf of Special Transformers, the proposed business was "Construction of Cold Storage Units", the proposed date of commencement of business was 1 July 2002 and principal place of business was stated to be 1 Argyle Street, Arncliffe NSW. According to Mr Lindner, he and his wife Lesle were the directors of Special Transformers. 99 Mr Lindner identified an invoice exhibit 3D-25 addressed to Austec dated 26 July 2002 on the letterhead of Special Transformers & Installations. The invoice related to work at Orange. There was this exchange with Mr Webb: "Q. What happened at 1 Argyle Street, Arncliffe, Mr Lindner? A. That was where we manufactured transformers and I run the construction company out of, Vidual as well. Q. Who worked there in the office? A. My wife worked the office. Q. Mr Lindner, at some stage in 2002 was the letterhead which you have in front of you at the moment used in relation to work done for Austec? A. Yes. Q. Do you remember what that time was? A. No. Q. After the letterhead commenced to be used for Special Transformers and Installation was any Vidual letterhead used? A. Not that I can remember." 100 During cross-examination by Mr Donaldson, Mr Lindner accepted that the price of $18,000 plus GST he had agreed with Mr Versi was a lump sum price against which he made progress claims at various stages of the work. 101 Mr Donaldson cross-examined Mr Lindner regarding his removal of the ceilings: "Q. And was there a specified procedure that you always adopted in relation to the removal of the ceiling panels? A. Yes, there is. Q. And as you understood it, that was a procedure directed to making sure the job was done safely? A. Safely, that is correct. Q. Had you written that down yourself for the purpose of this specific job, that sort of procedure? A. At that time, no. No, we didn't have that system in place. Q. How well did you understand the procedures that needed to be adopted for the safe removal of the ceiling panel? A. Myself, I understood it very clear. Q. Would it have made any difference to you to have had them written down at that time, do you say? A. No, because at that stage I had trained the people that were working with me, my casual labourers, the guys, to adopt it this way, and why we had it, and I did take time with them to explain why and that. ……………………………………. Q. Was there any procedure that you uniformly adopted in relation to foreign matter associated with the support of other parts of a structure when you were removing ceiling or wall panels? A. I've seen nothing to bring my attention to that. Q. I'm just asking you about your practices at the time you did this job. You told you had, that in relation to the removal of panels, wall panels, you had routine practices to do the job safely? A. That is correct. Q. What practices did you have, if any, in relation to foreign matter, if I can put it that way, associated with the part of the structure other than the panels that you were removing; what was your practice? A. If I found foreign matter, then I would investigate it and find out why, but it, I did not come across anything and it was all coming out in the normal way that we would take something down, then the job to me was still progressing as it should. Q. But your practice was that if you removed foreign matter which seemed to be associated with supporting another part of the structure, you would investigate what that foreign matter had been doing? A. Yes. Q. Before you interfered with it, is that what you say? A. Yes, that is correct. Q. Now in relation to the support of the floor, what foreign matter would you anticipate might be encountered in the course of your work? A. It might be bracing that's connected to the panel. It could be removing pipe work that could be there, like, for another reason, you know. There's lots of different things to why you would investigate that. But, again, I didn't see anything like that, so-- Q. So-- A. I wasn't visual - vigilant, is it? Like looking at it to say yes, this has got something to do with that. Q. When you say you were not vigilant, do you mean you were not careful, or do you mean you were not put on notice? A. I didn't see anything to make me say there's something here. Q. Now I've forgotten the expression - you used the expression "bracing" a moment ago? A. Yes. Q. Does that encompass elements that might be used to hold up a floor panel? A. Yes. Bracing can be used to hold up a lot of different things. Q. And in the course of your experience in the building industry, have you come across something that might be described as a top hat? Is that something you're familiar with? A. Yes. I've used thousands of metres of top hat. Q. And that's a material that's frequently used to support floor structures? A. Yes. And roofing and side walling and cladding and so many different things. Q. And it falls within the category of foreign matter in the way you use that expression? A. Yes, it would. Q. And was it part of your standard procedures at the time you did this job, if you were removing a ceiling panel and found hop hats on top of it, to investigate the significance of what you'd removed? A. Yes, it would be. But I didn't see anything like that. ……………………………………… Q. You're aware of the location of the floor panel through which Mr Baghdadi fell? A. Yes, I am. Q. Are you able to say whether or not you were personally involved in removing the ceiling panel from beneath that area of floor? A. The ceiling would have run under there somewhere, yes. Q. But are you able to say whether you personally were - I'll ask another question. A. All right. Q. Were you present on the site when that ceiling panel was removed, that is the ceiling panel beneath the area? A. Yes, I would have been. Q. And you say you would have been. How do you know you would have been? A. Because I pulled out all the panels that had to be removed from that area and made sure that no foreign matter come with it. And it was just a maze of pipe work up there. You've got to realise what you're looking at. Q. Okay, let's take it one question at a time. You say you pulled out the pipe work? A. Not pipe work-- Q. You pulled out the panel work in that area? A. Yes. Q. Did you do that with assistance? A. Yes, I did. Q. What was your role that you documented in connection with pulling out that panel work? A. I physically went up there on every movement and took it down. Q. Is that going up in the scissor lift? A. Up in a scissor lift. There was a man on the scissor lift this side (indicated), and I was on this side (indicated), and we would take the panel out. Then we would bring the panel to the ground. Then the panel would be checked. Right? If a panel didn't want to move out of the position, because it usually just clicks out, we'd have to ask ourselves: Why? And then we would go up and investigate, and we'd say there's a pipe bracket attached to it. Then we would have to say we have to secure the pipe, you know, we have to do this, we have to do that, before we can remove it. Q. And that was all just plain standard safety practices as far as you were concerned? A. Yes. Q. And something that you say you instructed your labour force in? A. Most definitely. When you're six metres of off a floor with a panel, you can see everything that's going on, and you can, and you can tell what is going on, and you can communicate with that man, and if he gets something he will say that to you. HIS HONOUR Q. I take it that instructions of the kind you've been talking about would have been on the outer side of the ceiling panel from where you were working? A. Yes. When we took the ceiling down, you realise that you're looking at a maze of pipe work and electric cables and bracing, and there's just so much up there, and you look and it's - if you took this roof down you could see what was in the roof. There's just so much up there to be looked at, you know. But when we come back after we pulled the panel out, and it's all clear, the other services come in and they re-route the services and they put things where they should be and everything goes back together. And then up we come with the panel and we re-clad it. DONALDSON Q. Now you've told us that it's part of basic safety practice to investigate foreign matter, including foreign matter in the nature of top hats, when you're removing ceiling panels, correct? A. Yes. Q. And you've said I think that you would investigate further in the event that you discovered something like that? A. That is correct. Q. And what would that investigation involve? A. It would mean I have to go and look at it and make a decision on what to do. Q. And top hats were something that you recognised as being frequently used as a purlin, if you like, something to support a floor structure? A. Yes. If I seen purlin, if I seen top hats hanging down and that, I would say "why" to myself, "why?" Q. And if it appeared that purlins or top hats had been removed from underneath a floor panel, that would suggest to you that something that had been supporting the floor panel had been removed, wouldn't it? A. That is correct, and I would then have rectified the problem. Q. By providing reinforcement? A. Reinforcement, whatever I had to do to make sure, that is correct. Q. And that's also part of standard safe practice on a building site? A. Yes. Q. And it's something that you were well familiar with at the time of this job? A. I was well familiar and I still am today. " 102 Mr Lindner told Mr Donaldson that his alleged conversation with Mr Versi about sealing door 427 and restricting access to the alcove occurred after the ceiling had been removed and he was about to leave the site. He said to Mr Versi, "I would like to show you all the measures I've put in around the hole". 103 Mr Campbell cross-examined Mr Lindner about the position of Special Transformers Pty Ltd: "Q. When you answered one of those previous questions you mentioned the name Vidual? A. Yes. Q. And why did you mention that name? A. Because Vidual was my company. I worked for Vidual. I operated Vidual as my company and it was me. Q. Now in that regard Mr Webb showed you some documents with the special transformer's name on it? A. Yes. Q. I think you said that you hadn't seen the purchase order in Mr Ham's handwriting of July 2002, is that right? You hadn't seen it before? A. I hadn't seen it but I have seen it through other people. Q. You don't remember seeing it at the time I think, is that correct? A. No. Q. And you were shown today and you have probably seen on other occasions some invoices that were issued in respect of that work that you performed dismantling or stripping the old laboratory on an invoice that had the name special transformers on it? A. Yes. Q. Firstly, do you know how that document came into existence? A. Me and my wife wanted to bring our company to one GST and one BAS and one of everything instead of running two businesses. We were starting to look to bring my expertise and what she was doing together but I still worked at Vidual, like doing my jobs. Q. Are you saying this, that it may be that for financial reasons of the type you have just described to us that that invoice was issued in the name of special transformers, is that right? A. Yes. Q. But so far as the work you were performing as a subcontractor for Austec was concerned, it was Vidual who performed the work? A. Yes, it was. Q. And in that regard are you saying that it was just business as usual between you and Mr Zadro? A. Yes. Q. And when you gave that evidence a little while ago that you received a small wage from Vidual was that for doing the work involved in the insulated panel dismantling and construction? A. Yes. " 104 Mr Campbell turned to question Mr Lindner upon his evidence as to what other contractors had done while he was away from the job for about 3 weeks following the dismantling. It was put to him that all services were removed before the dismantling commenced. He agreed that the services would have been disconnected but would not agree, as I understand it, that they had been removed. 105 When Mr Campbell returned to the subject of the alcove floor, Mr Lindner said that after the ceiling was removed he could not clearly see the underside of the floor because of "services hanging up there". He was challenged about this evidence: "Q. See, when you were standing on the floor after you had demolished your ceiling and you looked up you could clearly see the underside of the alcove floor, couldn't you? A. But if there was something there I wouldn't have, no, I don't agree with that. Q. There wasn't anything there, is my point? A. There is a service running the side of it if you look clearly. Q. If there is a conduit, that is one conduit, it wouldn't obstruct your view of the whole thing, would it? A. No, no. Q. That's right, isn't it? A. Yes. Q. Do you remember that when you took the ceiling down that there was a conduit there you had to watch out for? A. I can't remember. Q. If there had been an electrical conduit there you might have had to disconnect that before you actually lowered the ceiling, that would be right, wouldn't it? A. That would be right." 106 Mr Campbell asked Mr Lindner about top hats visible in photographs of the alcove: "Q. You can see that those top hats in the subfloor area are clearly visible from the ground floor, aren't they? A. Yes, I can. Q. Those top hats there must have been visible to you from the time that you took down the ceiling and the wall; that's right, isn't it? A. Yeah, I would have seen them, yes. Q. Do you remember seeing them? A. Yes. Q. Did you see any other top hats when you looked up from the ground floor after you'd taken away the ceiling and the wall? A. No. Q. Is it true that all you could see if you looked up from beneath the alcove flooring was the underside of the fibre cement sheet that subsequently fell? A. I would have seen that, yes. Q. Do you remember seeing it? A. Yes. Q. After you'd taken down the ceiling and the wall? A. Yes. Q. When you saw that after you'd taken down the ceiling and the wall you didn't see any top hats attached to that fibre cement sheeting, did you? A. No, no. Q. Indeed, you couldn't see any screw holes in the fibre cement sheeting when you were looking up, could you? A. No. I got bad sight at the best of times. Q. Did it occur to you after you'd taken down the ceiling and the wall to ask yourself what's holding up that fibre cement floor sheet? A. No, it didn't come to me, no. Q. You never what, gave it a moment's thought? A. Huh?" 107 Mr Lindner told Mr Campbell that dismantled panelling was promptly removed by a contractor as it was brought down. He said that any top hats which also came down would have been similarly removed, although he continued to deny that he saw any top hats. 108 Later in the cross-examination, Mr Lindner agreed with Mr Campbell that if the floor of the alcove was resting on top hats to which it was not screwed "the first you would know of the existence of the top hats is as you start to bring the ceiling down". 109 There was then this exchange: "Q. If you assume for a moment for me that the top hats are either riveted or screwed at one end to the ceiling and at the other end they are riveted to a piece of tile that's been put against that little wall we were talking about - can you assume that for me? A. I can assume that for you, no worries. Q. If that was the situation that confronted you as you took down the ceiling, then as the ceiling was coming down, some steps would have to be taken to disconnect the top hats from the wall at the other end. That's right, isn't it? A. If you're building the way you're saying, yes. Q. You would say, wouldn't you, that that could be done fairly easily, is that right? A. Yes. Q. You would just need to prise them off in some way, is that right? A. Yes. Q. That's the type of thing that you would come across from time to time in the nature of the work you used to do? A. Yes. Q. Indeed having to deal well that type of situation when you were dismantling a ceiling would not be an unusual thing for you to have to deal with, would it? A. It would not be hard for me to deal with at all. " 110 Mr Lindner agreed with Mr Campbell that he pleaded guilty before the Industrial Relations Commission of NSW to the charge that on 7 August 2002 he failed to: "ensure that the alcove and the alcove floor located off the corridor on the first floor of the premises were adequately sealed off or barricaded from the corridor whilst demolition and construction works were being undertaken in that vicinity". 111 The agreed Statement of Facts placed before the court included that Mr Lindner was, at material times, a director and employee of Vidual, which contravened section 8 (2) of the Occupational Health and Safety Act 2000. 112 Asked about what he said in a record of interview with Mr Singh, Mr Lindner conceded that he omitted to mention his claim that Mr Versi directed him not to put a panel over the opening to the alcove, despite being given an opportunity to do so, nor did he raise that circumstance in the litigation before the Commission. 113 Mr Lindner told Mr Hull that when he worked at Chullora for P & M in June, July and August 2002, his work car had a magnetic sign that read "Vidual" and that he wore a shirt with a Vidual logo, as did his employees. Later in the cross-examination by Mr Hull, there was this exchange: "Q. You will see the document I have just handed you purports to be a statement made by you on 16 August 2002. Could I read it to you. Paragraph 5: "I am currently self-employed. My company name is Vidual Pty Ltd. My ABN is 33089208097. I sub-contract to Austec Panelling Pty Ltd. I am a carpenter. I specialise in insulated panelling. I was operating as Horizon Cold Storage Construction from about 1989 to 1997. From 1997 to the present I have operated as Vidual Pty Ltd. I have been subcontracting for Austec for 2 years." Was all of that true? A. Yes. Q. Was the next paragraph: "I employ about 4 people usually. I have 4 workers at the moment", true? A. That's true. Q. "Presently I am working on the Salami rooms and the new laboratory at the Primo Smallgoods factory at 18 Hume Highway Chullora. I have been working on the job for 3 weeks"; that is true? A. That is true. " 114 Mr Hull took him to a letter on the letterhead of Vidual of August 2002 to Mr Singh, the first 2 paragraphs of which read: "Vidual Pty Ltd subcontracts to Austec Panel Systems. Vidual supplies labour only. Attached are copies of previous invoices for other jobs undertaken by Vidual for Austec Panel systems. At the time of the accident Vidual employed three people, namely Steven Lindner, Casey McInnes and Jim Haigh. Steven Lindner is the owner of Vidual. Casey McInnes is employed on a permanent part time basis and Jim Haigh was on a casual part time basis. Jim Haigh has since found himself a permanent position in another company." 115 Mr Lindner said the contents of the letter were true. He was also taken to a Record of Interview with Mr Singh of 2 January 2003, in which the following questions and answers appear: "Q. Who employed you on 7 August 2002? A. Vidual Pty Ltd. Q. What is your position with Vidual Pty Ltd? A. I'm the manager. Q. Does this company have a trading name? A. Yes, Vidual. ………………………. Q. What is the nature of business conducted by Vidual Pty Ltd? A. Construction of insulated panels. Q. Were you at work on 7 August 2002 A. Yes. ……………………………. Q. What was the contractual relationship between Vidual Pty Ltd and Austec Panel Systems Australia Pty Ltd? A. Vidual subcontracts labour only to Austec. Q. Who gives direction for the type of work that was carried out by Vidual Pty Ltd on 7 August 2002? A. Joe Zadro gives me direction and I direct the labour. Q. How many employees were working for Vidual Pty Ltd at Primo Smallgoods site? A. 2." 116 In a subsequent Record of Interview with Mr Singh on 7 August 2003, he gave answers to similar effect and he repeated the substance of those answers in an affidavit sworn 12 August 2005 for the purposes of the proceedings in the Industrial Relations Commission. The affidavit makes specific reference to Special Transformers Pty Ltd: "At the time GST started I acquired a company known as Vidual Pty Ltd from my father for the sum of $25 000, which amount I am still paying off. Vidual assisted Lesle financially in acquiring her business (Special Transformers). Special Transformers was not a money making business and in fact constituted a loss. Because I could not come-up with all the money for the purchase of Special Transformers, I arranged in-house finance with Graeme Jackson, the ultimate purchaser of Special Transformers from Lesle and myself. My financial obligations included the repayment of the loan to my father of which there is approximately still $19,000 outstanding, the loan from Graeme Jackson of $50,000 used for the balance of the purchase price of Special Transformers which I paid back over two years. Vidual ceased trading approximately one month after the accident in question (during or about September 2002) and was liquidated approximately one year later. At that stage we still had Special Transformers for whom I worked together with Lesle until the business of Special Transformers was sold to Star Delta in 2003." 117 It is convenient to deal at this stage with Vidual's defence that another entity, viz Special Transformers Pty Ltd, was vicariously liable for any tortious acts of Mr Lindner at the factory in June, July, and August 2002. 118 Mr Webb had admitted into evidence many documents, which he relied upon as indicating that after the end of June 2002 the business, hitherto conducted by Vidual, was assumed by Special Transformers. Among those documents are agreements dated post 30 June 2002 purporting to be between Austec and Special Transformers & Installations and invoices dated after 30 June 2002 on the letterhead of Special Transformers & Installations addressed to Austec in respect of work at the factory as well as at Scone and Orange. There were banking records to show that the amounts paid on the invoices were credited to a bank account in the name of Special Transformers & Installations, apart from the payment banked on 25 July 2002 of Vidual's invoice dated 25 June 2002, which was credited to a bank account in the name of Vidual. Mr Webb also relied heavily on Austec's order dated 4 July 2002, already referred to. 119 The material upon which Mr Webb based his submissions constituted a reasonable, if not compelling, case that after 30 June 2002 Austec contracted with Special Transformers trading as Special Transformers & Installations, rather than Vidual. However, as it seems to me, there are difficulties in Mr Webb's submission that such a contractual relationship applied to this case. 120 I am satisfied that the oral contract made in May 2002 between Mr Zadro and Mr Lindner was so made on behalf of Austec and Vidual respectively. I am also satisfied that it was an entire contract for the subcontracting of the labour component of the contract entered into between P & M and Austec. I have no doubt that the charge of $1,125 made by Vidual for the work performed at the factory on 22 June 2002 formed part of the contract price of $18,000 agreed between Mr Zadro and Mr Lindner and was treated as such by both Austec and Vidual. 121 Therefore, in my view, what Mr Webb is asserting (as he recognised) is that there was a novation of the contract, the burden of it being incapable of assignment without the consent of Austec, as to which there was no evidence (Tolhurst v Associated Portland Cement Manufacturers (1900) Ltd [1902] 2 KB 660 per Collins MR at 668). 122 Novation would have involved a new contract to which Austec, Vidual, and Special Transformers Pty Ltd were parties. Although such an agreement may be inferred from the circumstances, the inference should, in my view, be less readily drawn in cases where, as here, the contract has been partly performed before the novation is alleged to have occurred. In my opinion, in this case, the inference could be equally available that Vidual has subcontracted part of its contract, or, for convenience, has given a revocable mandate to Special Transformers to invoice and collect debts due to it. See the discussion by Windeyer J concerning revocable mandates and novation in Olsson v Dyson 43 ALJR 77. 123 Nor do I regard the order of 4 July 2002 from Austec addressed to "Special Transformers & Install" as of contractual significance. There already was a substantially performed contract in existence between Austec and Vidual. The reason for the document mystified Mr Zadro and, neither Mr Ham, nor anyone from Vidual, gave evidence as to why it came into existence. In particular, there was no explanation for the absence of Mr Lindner's wife from the witness box. I would have expected Vidual to call her and in her absence I infer that her evidence would not have assisted Vidual's case. Moreover, Mr Lindner himself was not asked about it. 124 As Windeyer J pointed out in Olsson, the question is one of fact. The matters relied upon by Mr Webb, virtually exclusively documentary records, are to be balanced against the very explicit statements and evidence of Mr Lindner, the alter ego of Vidual, and such unchallenged circumstances as the name Vidual on Mr Lindner's vehicle and shirt. In the result, I am not persuaded, on the balance of probabilities, that a novation of the agreement was proved. I leave aside the question whether in any event there was consideration to support a novation. 125 I am satisfied that at all material times, Mr Lindner performed work at Chullora for P & M under a contact between Austec and Vidual and that Vidual is vicariously liable for his negligence. EXPERT EVIDENCE: 126 I remain unpersuaded that there was much benefit to be gained from expert evidence as to any causal connection in law between Omar's accident and a breach of duty of care by one or more of the defendants, although there was a considerable amount of such evidence and it was of assistance in seeking to understand the mechanics of what occurred. During the trial, experts Dr Ross Trethewy, Specialist Engineer retained by Omar, Mr Hugh Cowling, Specialist Consulting Engineer, and Dr John Cooke, Consultant Architect retained by Vidual, were directed by me to meet and thereafter list the matters upon which they were in agreement and those upon which they were not in agreement. The statement prepared following the meeting, exhibit AY, indicated that they were not in disagreement on any matter. The 11 matters upon which they agreed were as follows: "1. A conventional and straightforward method for building small intermediate floors within a large industrial, steel framed building is for the floor structure to comprise steel members suspended from the steel roof beams by means of steel hangers. Other mezzanine floors within the subject building (factory premises located at 18 Hume Highway, Chullora) are depicted on the subpoenaed drawings as comprising steel members suspended from the roof beams bay steel hangers. The structure of the subject floor at door 427 is not shown in detail in any drawings. 2. The subject floor was a 19mm thick fibre cement sheet laid on steel top hat sections (purlins). The purlins were 60mm high. The sheet was not fixed to the purlins. The top surface of the sheet was covered with vinyl flooring (1mm thick), with black PVC covered skirtings adhesive-fixed to the side walls of the alcove. At one end (the corridor end) the metal angle (Photo 10 in exhibit N) has been drilled as though to receive pop rivets at a spacing which matches the width of each purlin. This may mean that the purlins were pop riveted to the angle or were not pop riveted. The purlins are not available for inspection. Therefore the method of fixing, if any, remains in doubt. If the purlins were not fixed to the metal angle, when someone stood on the floor the purlins and the floor sheet would have fallen to the floor if the purlins were not supported at the other end. If the purlins were fixed to the metal angle and not supported at the other end, when someone stood on the floor the purlins would have been bent down allowing the sheet to drop to the floor below and the purlins would have either remained attached to the metal angle or the metal angle would show evidence of some or all of the purlins tearing away. There is no evidence of such tearing away having occurred. 3. The finished floor level of the alcove was 85mm above the top surface of the cool room ceiling panels, which means that the bottom of the purlins was 5mm above the top surface of the cool room ceiling panels. The cutouts visible at the base of the side walls of the alcove (in Photo 5 in exhibit N) were probably made to accommodate a service conduit or pipe. 4. The supports for the floor sheet must have been removed some time during the works. Once the supports for the floor sheet were removed, the floor sheet could not have been held in place by the adhesive alone (the adhesive shown in Photo 65 in Appendix N) but the floor sheet could have been held in place if the purlins had remained in position, sandwiched between the bottom leg of the angle bracket at the corridor end and metal threshold (seen in Photo 65), even if the support for the far end of the purlins had been removed (that is, with the purlins cantilevered from the corridor end). In that state the floor would have supported its own dead load but could not have supported the weight of a person standing on the floor, that is, the floor sheet would have collapsed when someone stood on it if it had been supported by cantilevered purlins. 5. After the support for the alcove floor was removed, the floor did not provide safe access as required under s.10 of the Occupation Health and Safety Act 2000, did not comply with the structural design provisions in the Building Code of Australia (BCA) Part B, and did not comply with reg. 39 of the Occupational Health and Safety Regulation 2001. 6. The documents indicate that Austec was contracted by P & M to demolish existing cool rooms and build new ones; and Vidual was subcontracted by Austec to erect insulated panelling (walls and ceiling) for the new cool rooms and to demolish the old insulated panelling. Other trades were involved in carrying out work within the same period. 7. The alteration work to the factory premises, which included work to the cool rooms (the works), was "construction work" within the meaning of Chapter 8 of the Occupational Health and Safety Regulation 2001. The cool room alteration work was high risk construction work by virtue of the fact that it involved demolition work and work over a height above 3 metres. (Occupation Health and Safety Regulation 2001 reg. 209). It is not clear whether or not a principal contractor was appointed as required under Occupation Health and Safety Regulation 2001 reg. 210 for the works. 8. The principal contractor in control of the construction work was responsible for the safety of the works and for ensuring that the works did not adversely affect the safety of the workplace. The principal contractor was responsible for ensuring the preparation, review and monitoring the implementation of safe work method statements by all contractors and subcontractors (Occupation Health and Safety Regulation 2001 reg.227). The principal contractor as controller of the works was also required to do a risk assessment under Part 4.2 of the Occupational Health and Safety Regulation 2001. 9. The cool room is plant under the Occupational Health and Safety Regulation 2001. 10. Door 427 served no useful purpose at the commencement of the works. The only effective control over access to the alcove and doorway was to cover the alcove entrance at the corridor with a full height sheet of plywood or the like (as shown in Photo 33 in exhibit N) or permanently sheet the alcove as is shown in Photo 40 in exhibit N. Simply locking the door would not have been a reliable safety measure as the floor that collapsed was between the door and the corridor. Taping off the alcove entrance (at the corridor) was not an adequate safety measure because it could easily be removed or fall off or be brushed off and was not a physical barrier. 11. Ultimately it was up to the principal contractor to ensure that all work was performed by reference to safe work method statements. Any impact of those works on the safety of the premises was the responsibility of the principal contractor." 127 When I admitted exhibit AY, I ruled that it is evidence only for what it purports to be, namely, the matters upon which the experts are agreed. It does not constitute evidence of opinions, otherwise ruled inadmissible. 128 The three experts gave oral evidence and were comprehensively cross-examined. I am satisfied on the probabilities that the compressed cement sheeting comprising the flooring of the alcove was directly supported by steel top hat sections properly called purlins. The evidence does not enable me to conclude how the purlins themselves were fixed, although possibilities were suggested by the experts. It is, however, probable, and I so find that support for the purlins was removed during the works. I also find that this occurred when Mr Lindner removed the ceiling panels of the old laboratory. If it be true, as was suggested, that the alcove floor had been partly supported by a narrow service conduit or pipe, then I am satisfied, on the probabilities, that such pipe was removed in accordance with the evidence of Mr Versi before Mr Lindner dismantled the ceiling. 129 In any event, it was, or should have been, apparent to Mr Lindner when the ceiling panels were removed that the floor of the alcove had either wholly lost its means of support, or that such support had been dangerously compromised. 130 I should add that before the dismantling of the ceiling below the alcove floor, it was not possible by visual inspection to determine the means by which the alcove floor was supported. STATUTORY PROVISIONS: 131 Omar included as particulars of negligence in the Statement of Claim alleged breaches by all defendants of the Regulation. 132 The building of the 5 new salami rooms, in my view, constituted "construction work" within clause 3 of the regulation. It was also "high risk construction work" within clause 209, as the removal of the existing ceiling and the installation of new ceiling panels involved work at a height above 3 metres. P & M was the controller of the factory, in my opinion, within clause 33 and was required to identify, assess and eliminate foreseeable hazards by virtue of clauses 34, 35 and 36. 133 There was no evidence, in my opinion, to warrant a finding that P & M, as owner of the factory, appointed a principal contractor within clause 210 and therefore was, itself, taken to be the principal contractor under clause 210 (6). 134 In my view, while there was no evidence that P & M was an employer, there was evidence that both Austec and Vidual were employers within clause 234, to which the provisions of the clause applied viz, "234 (1) An employer must ensure that any danger to persons arising from the collapse of a building during a temporary state of weakness or instability before its construction is completed is controlled by the use of adequate temporary guys, stays, supports and fixings or other measures. (2) An employer must ensure that, if construction work is likely to reduce the stability of an existing building or a building in the course of construction so as to endanger a person, shoring is used or the appropriate measures are taken to prevent the collapse of the building." SUBMISSIONS AS TO LIABILITY: 135 All counsel provided written and eloquent oral submissions on liability. Mr Campbell submitted that P & M was not shown to have breached the duty imposed upon occupiers of premises by the High Court in Australian Safeway Stores Pty Ltd v Zaluzna (1987) 61 ALJR 180. He pointed out that the risk that Omar would fall through the floor of the alcove did not exist prior to commencement by Austec of its contractual obligations and that, as a general rule, there is no duty to prevent a third party from harming another. 136 He submitted that an occupier is under no duty to inspect its premises for the purpose of discovering unknown and unsuspected defects. 137 In Mr Campbell's submission P & M was not in control of the performance of the work contracted to Austec and was not responsible for what it or its subcontractor did in performance of the contract. He contended that Austec and Vidual were in a different position, in that they had the capacity to fully consider the ramifications of the work they undertook. 138 P & M, so Mr Campbell submitted, in effect, was entitled to rely on the performance of its contract by Austec, a highly experienced contractor in the field and that, on the authorities, this was not a case where P & M had a non delegable duty. 139 In any event, according to Mr Campbell's submissions there was no breach of duty by P & M, in that Omar had no need to use the alcove in the course of his work and should have been aware of the warning sign placed by Mr Lindner. P & M had no reason to know that the alcove floor presented a danger. 140 As to asserted breach of statutory duty, Mr Campbell pointed to the change, comparatively recent, in the nature of occupational health and safety legislation from an emphasis on specific regulation to one where more general standards or systems are prescribed. He referred to Mutton Bros v Howard Haulage Pty Ltd [2007] NSWCA 340 where the court discussed whether breach of the regulation gave rise to a private cause of action but did not need to decide the question. 141 In any event, so Mr Campbell submitted, there was no evidence that P & M was an employer to whom the Occupational Health and Safety Regulation applied, there being no evidence that it had any employees. 142 Mr Donaldson submitted that Omar has not identified any relationship which imposed upon Austec a duty to protect him, nor has he identified any negligent act or omission on Austec's part. So Mr Donaldson contended, sole responsibility for what occurred rests with Vidual, which controlled the manner in which the relevant work was performed. 143 In relation to breach of statutory duty, Mr Donaldson submitted that the regulation did not impose any obligation upon Austec and breach of the regulation did not, in any event, give rise to a private cause of action. In his submission, the obligation to comply with the regulation fell upon P & M as controller of the premises and Kaybron as Omar's employer. 144 Austec had no entitlement, let alone an obligation, so Mr Donaldson submitted, to prevent access to the alcove before commencing work under its contract. It was for Mr Lindner to take such steps during the course of the work as were necessary to avoid the creation of a dangerous situation. 145 Mr Webb devoted much of his submissions to the issue whether Vidual or Special Transformers Pty Ltd contracted with Austec, a matter upon which I have already ruled against his client. 146 In respect of other aspects of liability, he contended that P & M owed a duty to Omar, as owner and occupier of the building where he worked, as designer and controller of the works, and as a de facto employer of Omar. He pointed out that although workers at the factory were employed by various entities, all manufacturing and trading, so far as the evidence revealed, was conducted by P & M and that apparently only one letterhead was employed for all companies in the group, that of Primo Smallgoods, which was the trading name of P & M. 147 In Mr Webb's submission the alcove should have been effectively blockaded from the corridor by P & M before any work commenced and that, whatever the position of Vidual, the overwhelming responsibility for what occurred was that of P & M. 148 Mr Parker submitted that the works created a dangerous situation, which gave rise to a non delegable duty of care on the part of P & M, which it should have discharged by barricading the alcove from the corridor. 149 Mr Hull, after referring to section 5B of the Civil Liability Act submitted: "The structural support for the alcove floor could not be determined without a detailed inspection of the sub-floor surface, it could not be ascertained by a visual inspection. If a detailed inspection was not carried out, which was not done by any one of the Defendants, then the only way to adequately safeguard people from placing their weight onto the alcove floor was to barricade the opening to the alcove, which was obviously a simple and cost effective solution to the risk (see Tr. 553/35 – "a very simple job"). The risk ought to have been considered by each of the Defendants. If the risk was not eliminated then serious consequences could ensue if someone did fall 4.612 metres. Given that there were more than 1,000 people movements along the corridor every day, the probability that serious harm would occur if care were not taken was high." 150 He referred to what the High Court said in Zalugna and to its adoption of the statement by Deane J in Hackshaw v Shaw (1984) 155 CLR 614: "... it is not necessary, in an action in negligence against an occupier, to go through the procedure of considering whether either one or other or both of a special duty qua occupier and an ordinary duty of care was owed. All that is necessary is to determine whether, in all the relevant circumstances including the fact of the defendant's occupation of premises and the manner of the plaintiff's entry upon them, the defendant owed a duty of care under the ordinary principles of negligence to the plaintiff. A prerequisite of any such duty is that there be the necessary degree of proximity of relationship. The touchstone of its existence is that there be reasonable foreseeability of a real risk of injury to the visitor or to the class of person of which the visitor is a member. The measure of the discharge of the duty is what a reasonable man would, in the circumstances, do by way of response to the foreseeable risk." ATTRIBUTION OF LIABILITY: 151 In my opinion, the liability of P & M is to be considered in accordance with those principles, that is the ordinary principles of negligence. Omar was effectively employed by it and it was aware that he regularly used the corridor into which the alcove opened. 152 In accordance with ordinary principles, there was the necessary degree of proximity between P & M and Omar. P & M knew that the ceiling to be dismantled lay underneath the alcove floor. Although it did not possess details of the construction of such floor, in my opinion, a reasonable man in its position would have foreseen the possibility that the ceiling provided support for the floor. The reasonable man would also have foreseen the very considerable danger that removal of support for the floor would present to workers in the factory passing along the corridor and for whatever reason diverting into the alcove. 153 An effective remedy was simple to achieve and cheap. In my opinion, a reasonable man in the position of P & M, having weighed the remedy against the magnitude of the risk, would have had little hesitation in barricading the alcove from the corridor before work commenced. 154 In the result, in my opinion, P & M breached the duty of care which the law imposed upon it towards Omar and his fellow workers. It should be held liable for his loss. 155 It becomes unnecessary to consider Mr Campbell's submissions regarding such matters as whether the work was dangerous; whether there was a non delegable duty; vicarious liability; breach of statutory duty; etc. However, I reject his submission that the answer to P & M's liability lay in its contract with Austec. The negligence of P & M was not in the manner the work was carried out by Austec but in its failure to identify the hazards of that work, warn against them and where, as here appropriate, take steps to overcome them. 156 In my opinion, Austec was also negligent. Mr Zadro, for whom Austec is vicariously liable, inspected the site more than once before the contract between P & M and Austec was entered into and regularly during the course of the works. His company contracted for the major part of the works, including the removal of the ceiling and, in my opinion, owed a duty to take reasonable care not to endanger the safety of factory employees of whose presence he was clearly aware. In my opinion, a reasonable man in Mr Zadro's position would have recognised the potential risk to the integrity of the alcove floor. He failed to do so or, indeed, so far as the evidence relates, make any attempt to assess the risks posed by what Austec had contracted to do. 157 Although Austec actually subcontracted the labour component of its contract, this did not, in my opinion, absolve it from a finding of negligence. As in the case of P & M, the negligence was not in the manner of discharging its contract, but in its failure to perceive and overcome the potential impact upon other structures. A reasonable man in the position of Mr Zadro would, in my opinion, have required that the alcove be blocked before work commenced. 158 It is also my view that Vidual, vicariously responsible for the acts of Mr Lindner, was negligent. In one sense, Mr Lindner had a better opportunity than either Mr Zadro or Mr Versi to become aware of the danger to which removal of the ceiling gave rise. It seems plain that once the ceiling of the old laboratory was dismantled it would have been patently obvious to anyone who cared to look that the structural integrity of the floor of the alcove was seriously impaired whether the purlins were still attached or, as seems more likely, had come away with the ceiling, despite not being noticed by Mr Lindner. 159 In relation to both Austec and Vidual, as I have reached a conclusion based on common law principles, it becomes unnecessary to consider whether there was any breach of the regulation and, if so, the consequences thereof. It is noteworthy, however, that both the statute and the regulation emphasise the need to identify and overcome potential risks and hazards in work places. 160 I am satisfied that Omar lawfully entered the alcove. His purpose in doing so, in the absence of a capacity to give evidence, was not identified. He may have been simply curious as he passed along the corridor, or he may, as Mr Hull speculated, have sat down to tie his shoelaces. Although contributory negligence was pleaded, no counsel submitted that in any way he failed to take reasonable care for his own safety. In passing beyond the opening to the alcove, he exposed himself to grave danger contributed to by the negligence of each defendant. Any one of them could have quickly and cheaply negated the danger. APPORTIONMENT OF LIABILITY: 161 As to the distribution of liability between themselves, I have reached the conclusion that each of the three defendants should be held equally liable. In my view, in broad terms, each was equally responsible and each had the same opportunity to identify the danger and act to overcome it. 162 Accordingly for the purposes of section 5 of the Law Reform Act, I would hold it just and equitable to apportion liability equally between the three defendants. However, both P & M and Austec claim the right to a contractual indemnity and it is convenient that I proceed to deal with that aspect of the matter. 163 So far as P & M is concerned, Mr Versi in his statement, part of exhibit X, said that within a few days after receiving the two quotations from Austec earlier referred to, he prepared the order addressed to Austec on P & M's order form, number 30611. The order form has endorsed upon it "subject to the conditions endorsed on the reverse hereof". However, Mr Versi's evidence was that he faxed a photocopy of the order form itself, but not the reverse side to Austec. 164 His evidence as to how he drew the reverse side of the order form to the attention of Austec was confined to the statement: "At some later stage I detached Annexure "D" (the order form) from the book and handed it to someone, I cannot recall when that person was on the premises of Primo Smallgoods." 165 Clause 14 of the conditions on the reverse side of the order form relevantly provided: "Clause 14. In the case of work performed on the purchaser's premises …. (c) Indemnity – vendor shall indemnify, defend and hold purchaser harmless in all claims, liabilities and damages arising from the work performed." 166 Mr Zadro, in his affidavit sworn 2 October 2007 denied ever receiving the original order form. So far as the evidence reveals, no one from Austec other than Mr Zadro was ever on site. Moreover, Mr Versi said that he could not recall ever seeing Mr Zadro on site. 167 Given the state of the evidence, I am not satisfied that P & M proved that conditions containing the indemnity were ever drawn to the attention of Austec and accordingly it becomes unnecessary to consider whether the terms of the indemnity are sufficiently wide to encompass P & M's liability. The claim for contractual indemnity was alternatively put on the basis of an implied term in the contract, reliance being placed upon Florida Hotels Pty Ltd v Mayo (1965) 113 CLR 588 and Oxley County Council v MacDonald [1999] NSWCA 126. 168 Whilst I have no difficulty in light of those cases and other authority upon the implication of contractual terms, in implying into the contract between P & M and Austec, a term that the work contracted for would be performed in a good and workmanlike manner and with materials suitable to the task, the rest of the argument, as it seems to me, has difficulties. 169 Austec's contractual obligation was that it would, in a good and workmanlike manner, dismantle existing structures and erect new ones in their place using appropriate materials. Unlike the situation in both Florida Hotels and Oxley County Council, Omar's injuries were not, in my view, causally connected to a breach of that obligation. Rather, they arose from a breach of Austec's common law duty of care, unrelated, except in the broadest sense, to its contract. 170 In the circumstances, I would not imply a contractual obligation that Austec indemnify P & M in respect of Omar's action and I dismiss P & M's claim for contractual indemnity. 171 For the same reason Austec's claim for indemnity against Vidual, based entirely upon the implication of a term into their contractual obligations, should suffer a similar fate. Vidual contracted to perform the labour component of Austec's contract with P & M. There was, as I understand the evidence, no breach of its contractual obligations. Rather, there was, as I have found, a breach of its common law duty of care. Austec's contractual claim for indemnity against Vidual should be dismissed. MR KOURI: 172 Mr Kouri was born in Lebanon on 2 November 1946. He had 13 siblings. His father died when he was five and at eight he was obliged to leave school and work. He was employed in a carpentry shop near his home and since then his employment and his hobbies have involved woodwork. 173 He met and formed a relationship with Judith Cohen, an American citizen, in the United States. Omar, a child of that relationship, was born there on 2 September 1980. He married Judith Cohen when Omar was about 3½ but the marriage was dissolved a few years later. After this he continued for a time to live in the same state, Florida, as his former wife. Omar resided with her but Mr Kouri saw him frequently and contributed to his upbringing. 174 In 1992, while visiting his brother in Western Australia, he met a woman, Nina, with whom he kept in touch following his return to America. They married subsequently and, in the result, Mr Kouri in 1998 migrated to Australia with Omar to live there with his new wife. Both he and Omar acquired permanent residency status, although both remain citizens of the United States. 175 Initially, they lived in Perth but Mr Kouri, who had acquired considerable expertise as a builder of timber stairs, was unable to find suitable employment. During the short period of about 2 months, he remained in Perth, Omar enrolled in a TAFE college. 176 In search of employment, in early November 1998, he travelled to Sydney by truck and was followed about 2 weeks later by his wife and Omar. He immediately found employment with A W Tod, Stair & Joinery Co Pty Ltd, builders of timber stairs. He established a home in a rented flat at Ryde. As I understand the evidence, Omar was undecided as to what he wanted to do in life, but had periods of temporary employment, including about 7 months when he worked with his father. Mr Kouri's wife worked in an aged care facility. 177 For a time Omar returned to live with his mother who had remarried and was living at Savannah in Georgia. He came back to Australia, however, about July 2000 when, according to Mr Kouri, "he'd become somehow a different human being, all together as a human man, really become absolutely magnificent". He expressed a wish to work with his uncle, Mr Ray Baghdadi, an employee of P & M, and this came about in October 2001. The job required very early starts, and Omar was usually in bed during the week by 8.30pm. He was very interested in music and had booked to enter and paid for a sound engineering course, which was to commence on 8 August 2002. 178 As to his assessment of Omar's life prior to 7 August 2002, there was the following exchange with Mr Hull: "Q. Prior to 7 August, what was your assessment of Omar's happiness in his life? A. When he came back and we lived together, I would say in all honesty it's the most wonderful year of my life a father can have, a companion, my son as a companion, as a mate for me. It was absolutely magnificent. I mean, it was just as a trademark of a young man of 20 years old and so on. It was just remarkable, the way - well, I could tell you many instances. One time I was - 4 o'clock in the morning, I hear him coughing and getting up ready for work. He was really coughing severely and, remember, Omar born in the tropics and Sydney weather was a bit severe for him in the winter. So I get Omar up - he was ready to go to work. I said, "What's the matter with you? You sound sick." He is really sick. I said, "I'm going to work." I said, "But you are sick." He said, "I can't really disappoint them. They depend on me, and I can't take time." I said, "No, no, you're not going to work", so he called his employer and they gave a week off with pay. Q. The point you're making is that he enjoyed life and enjoyed working? A. He absolutely - I mean, he was focusing on a journey as a young man. He wants to do sound engineering. It's an 18-month course. We talk about it, we discuss this 18-month course, and after that they find him employment and he goes on for higher education in the same business, so, yes, we discussed all that." 179 At that time, Mr Kouri said that he was extremely fit and enjoying his work as a stair maker – "stairs is a very unique business because every stair is like a different challenge". 180 At about 2pm on 7 August, his nephew, "Mo", telephoned him at work and said "Be ready for me, I'm going to pick you up in about 15 minutes". From the tone of his voice Mr Kouri gathered something was wrong: "He comes in and pick me up, I get in the car, and two or three minutes later on I said, "What's going on? What happened?" He said, "Omar have an accident." I didn't make too much of it. In business I have seen a lot of people injured, cut fingers, you know. My boss have two fingers. So I didn't make too much of it - could be broken legs, missing fingers, whatever. I didn't - on the way to Liverpool Hospital - he said he's in Liverpool Hospital. On the way to Liverpool Hospital I picked the phone - I never have mobile phone before that point, before my son's accident, because I'm from the old school, perhaps - anyway, so I took his mobile phone and called my brother Ray. He was at the hospital." 181 In the telephone conversation, Mr Ray Baghdadi told him "it's serous". Asked how he felt then, he replied: "Well it's extremely hit home. I mean, he didn't explain to me he fell on his head or anything like that, because by then we're very close by Liverpool Hospital when he said it's serious, and he didn't go into detail. I went into shock. I got it from his mouth, "It's serious." So how serious could it be." 182 When they arrived at Liverpool Hospital, he ran into the hospital foyer and was escorted by relatives to the Intensive Care Unit where he saw Omar lying on a mattress: "and his face, it's not recognisable because the blood was everywhere - ears and mouth and nose and everywhere else, and it's been a long time coming. It's been a long time. It's been a long time, so it was a shock. It was a shock, and I don't know how long I stayed there. I drop on the floor and I was weeping, you know, I was crying. I think Dr McKechnie came in very shortly after that, if I could recall that, and he said the whole family - by then all my family was there, my brother flew in from Brisbane, my other brother flew in from Perth. But Dr McKechnie came in and said to me, "Look, we need to do this, and that and the other. That's what we need, to cut a flap and release the pressure off the brain, otherwise, you know, it's a matter of life or death. That's what we need to do." And then one of my brothers who was here, I think, I can't recall who it is, tried to ask the doctor questions. I said, "Excuse me", I told my brother, I said, "Dr McKechnie, please do what you can. I don't want to waste your time" and then that's what he did, took Omar in and cut the flap off and brought him back to - put him on the mattress in an isolated room in the IC unit, glass room, due to fact that it was for people with severe - so they don't get any infection or anything like that. Q. What did you notice about his head when the flap was cut - is that the right word, cut? A. Cut? Q. The flap? A. Yes, they cut the bone off. That become soft tissue in here. Q. What did you see then? A. I begin to see sagging skin with a fluid in it and so on and - I think the first two or three nights I really I was kind of - I still in my work clothes, obviously. I wasn't going nowhere. I was synchronised breathing with him. Q. Sorry, I didn't catch what you said then? A. I said I would synchronise breathing with him, throughout basically day and time, I'd take a break and then synchronise breathing with him. I could smell the flesh and I could smell everything, and whisper in his ears. But, no, it's - so he was pretty much three days, they're trying to stable him physically. They can't touch him. They can't turn him. He was very much on the mattress not being moved, not being touched. Q. Did you go home at all? A. No. I was still in my clothes. I pretty much beginning to stink, you know, I'm sorry, for this. I was in my work clothes, my work has glue on my clothes, and everything else." 183 He telephoned Omar's mother on the night of the accident and she arrived 3 days later, by which time Mr Kouri had still not returned to his home. Asked how he felt in that period, he replied: "How I felt? I felt hopeless. I felt - I can't express to you how I felt as far as emotion, you know. I mean, he's your son, your loved one. It's just you see him that way. I wouldn't wish that on anyone. I wouldn't want anyone to see that or go through that. I mean, if my son would have been, let's say, passed away, then my life now would have been, you know, perhaps back to normal because, I mean, we all lose loved ones, but to see that, you know, and to live through it is pretty shocking. It's the worst scenario human beings could go through probably is this one here." 184 After Mrs Cohen arrived, he went with her to Omar's room, "she was weeping" and after about ½ an hour he left the hospital for the first time since arriving. He went to his brother's house at Yagoona, where he had a shower and changed his clothes. 185 Omar was in the Intensive Care Unit for 3 weeks, during which Mr Kouri spent most of the time with him, sleeping on a chair in his hospital room. Once he overheard a doctor saying that Omar's chances of survival were very low, "it was just, it was just like somebody stabbed you in your heart". 186 Omar was moved from the Intensive Care Unit to the brain injury recovery ward on 13 September 2002. Mr Kouri was not permitted to stay there beyond 8pm but he would return before 7am the following day. He would then sit with him throughout the day, trying to talk to him, massaging his feet etc. He said that he found it very hard to leave at 8pm. 187 At night, he returned to the flat at Ryde where he had been living with Omar. He was there alone, as before the accident his wife Nina had separated from him. He said that he drank himself to sleep every night with vodka. 188 On 28 October 2002 Omar was discharged from Liverpool Hospital and transferred to Ryde Rehabilitation Centre. However, on 13 November he was returned to Liverpool Hospital for various surgical procedures. By then, he had developed an egg sized odorous hole from dead tissue in his sacrum area, which concerned Mr Kouri to such an extent that on one occasion he started screaming in a loud voice in the hospital corridor. He feared his son was dying. However, the wound responded to treatment and eventually healed over a lengthy period. 189 By January 2003, Mr Kouri said that Omar's face had resumed its pre accident shape. He had not returned to his employment but was being paid workers compensation for a previous shoulder injury. He returned to work during 2003, but did not work a full day. 190 In the meantime, in September 2002, he consulted his general practitioner, Dr Peter Cook who prescribed medication, including Prozac (a drug he said he had never previously taken) and recommended that he consult a specialist. He consulted Dr Karima Soliman at Auburn, "a couple of times". Afterwards he consulted Dr Sue Adams from time to time. He took medication as prescribed, which helped, particularly Prozac. For a while he continued to drink alcohol to excess. Since September 2005, he has regularly consulted Dr Helen Clarke, a general practitioner who specialises in counselling (cognitive behaviour) and family therapy. 191 Mr Kouri who continued to visit Omar every day in the rehabilitation unit at Liverpool Hospital at one point became concerned that Omar was being left alone for long periods, "strapped to a table with his head slumped and drooling from the mouth". He made representations to "the insurance" about this and a nurse was provided day and night to be with Omar. This had a calming impact: "That's when I began to somehow ease off a little bit, you know, the stress and the booze and things like that, beginning to focus a bit more." 192 Even after he resumed work, he went to the hospital every day and tried to help with Omar's showering, an assistance, which some nurses welcomed and others did not. He would leave the hospital about 9am then, five days a week, go to work for several hours before returning to the hospital. At weekends, he would basically stay with Omar all day. 193 He initiated the discharge of his son from hospital, convincing doctors that he could provide at home what was being provided in hospital. A number of people were involved in this, apparently led by Dr Adeline Hodgkinson. Among other things a suitable home at Ryde was located for him to rent and it was to this home that Omar was discharged from hospital in October 2003. Omar has continued to live in the house with his father. In addition Omar has always had at least 2 carers, 24 hours a day working 12 hour shifts. 194 Mr Kouri continued to work for A W Tod, but before leaving for work, he prepared Omar's breakfast and lunch from provisions he had bought. When he returned from work about 3.30pm he prepared Omar's evening meal and spent the rest of the day with him until Omar went to sleep about 8pm. As there were always carers present, Mr Kouri established what he called his "private space" in the garage. He would also wake Omar in the mornings and for about two hours talk to him and give him stretching exercises. 195 Notwithstanding the presence of the carer's, Mr Kouri said that he, quite often during the night, attended Omar "just to see how he's doing, temperature, cold, hot, warm……. I always make sure if he's hot, I make sure he's cool, if he's warm – all these things". He also assisted the carers in showering Omar. 196 Mr Kouri's employment with A W Tod was terminated in October 2005. After this, he adopted what he described as a "hands on" role in caring for his son. Previously he had only on one occasion interrupted his constant attention to Omar by going to Melbourne in early 2005 to watch his nephew Marcos Baghdatis play in the Australian Tennis Open in Melbourne. Although he reached the final, Mr Kouri telephoned him and said "I hate to miss your final with Roger Federer but I really can't stay here any longer because I miss my son. I have to go home". 197 In or about June 2006, he arranged to be put on the pay roll of Global Advantage (Global), which was providing and continues to provide Omar's carers. He said he found the physical demands of a carer very difficult: "The difficulty with it really is it's just too much for me to be there with him 12 hours as a worker and to be able to stand on my feet by the end of the day. My back's been shot, my span of attention is gone and I just couldn't do it." 198 Cross-examined by Mr Campbell, Mr Kouri agreed that Omar's job with P & M was the longest job he had since leaving school and his first regular employment. He told Mr Campbell that his other son Michael (not by Mrs Cohen but the product of an earlier marriage) lives in Canada and that he sees him infrequently. He agreed that of all the relationships in his life, Omar has been the one constant for whom he has always felt and cared most about. He agreed that even with 2 carers in the house, he assists with Omar's physical comfort whenever he thinks it appropriate. Mr Kouri said that Omar is visited regularly by a physiotherapist, Mr Philip Wheen and by a speech therapist, Ms Margie Logan, twice a week. He said that a Mercedes Sprinter van was provided by the Workers Compensation insurer for Omar's use about two years ago, previously, when required, a taxi for the disabled was hired. Omar is taken on regular outings by motor vehicle to movies, shopping centres, parks etc. 199 Mr Kouri denied Mr Campbell's proposition that Omar presently receives care at a higher level than he needs. He agreed with Mr Donaldson in cross-examination that since May 2002, he has had serious work related problems with his shoulder and was working under some physical restraint. He had refused to have surgery and had found physiotherapy painful. As at August 2002, he was unable to lift more than 5 kilos with his left arm and unable to use it above shoulder height. He was still seeing doctors about the injury in March 2005. 200 He told Mr Donaldson that his marriage with Nina ended early in 2002. As a consequence, he was depressed and consulted his general practitioner, Dr Peter Cook. He could not recall whether he was referred to a psychiatrist, nor whether Prozac was prescribed, but conceded he might have been taking Prozac in the period prior to the accident. Mr Webb, during his cross-examination of Mr Kouri, had admitted into evidence as exhibit 3D –3, a statement made by Mr Kouri before Omar's accident as to his duties with A W Tod. He agreed the document was accurate except in so far as it stated that his duties included loading stairs on to a truck. He agreed that before the accident his normal work hours were 7am to 3pm, although he said there was some flexibility in them. He was paid $35 per hour for a 38 hour week. 201 Mr Kouri told Mr Webb that at the time of giving evidence he had no disability or pain in his left shoulder. Demonstrating, he lifted his left arm into the air and rotated it. However, he claimed that it was still painful in May 2003. He agreed with Mr Webb that he continued to obtain from Dr Cook certificates as to his unfitness for work due to an injured left shoulder until January 2003, when he returned to work. He admitted that in the period from August 2002 to January 2003 he was not wholly unfit for work as in that period he was fit for the selected duties, which he was performing on the day of Omar's accident. 202 He told Mr Webb that while employed as Omar's carer by Global, he earned about $60,000 per annum, working 12 hour shifts. His taxable income from A W Tod in the period after the accident was respectively, 2003 - $48,000, 2004 - $44,000 and 2005 - $43,000. 203 In the period between leaving A W Tod in October 2005 and going on the payroll of Global about June 2006, he told Mr Webb that he spent virtually all day, every day, in assisting with Omar's care, despite the fact that he also had 2 carers. 204 It emerged during Mr Webb's cross-examination that during the period of about a year he was employed by Global, he injured his back while turning Omar in the shower. He said that he had never injured his back previously throughout his working career and that as a consequence, he took time off work with Global and received workers compensation payments for about 6 weeks. He also had physiotherapy and was provided with a waist belt to aid lifting 205 He said by the time he returned to work with Global, his back was better and he denied that it was the reason he gave up his employment with Global, he explained: "Working with Omar 12 hours a day is very difficult work and, like I said, I was a worker, I have a co-worker who worked with me, and I would not have a chance to take a break like I used to. I have to be there for him 12 hours a day, besides cooking and shopping and lifting and showering and all these things. At the end of the day, I physically, total - my total physical very, very, very tiring, not just my back. Physically was more, probably - it was physically more tiring than anything else, you know. I was tired. I can't - I can't be there 12 hours. It's just too, too hard for me." 206 Mr Kouri said that in addition to working 12 hour shifts for Global, he continued to provide care for Omar beyond that for which he was being paid, such as shopping, food preparation and cooking and the training of new carers. 207 At the time he gave evidence at the end of September 2007, Mr Kouri said that he had not looked for work since resigning from Global. Asked the reason, he replied: "Because whether I get paid or not, I want to be looking after my son until I be able to settle my son and have the right people and the right carers and the right environment and perhaps have someone or two, I could train them and enlighten them on Omar's taste in food and so on. I haven't felt comfortable yet to be able to leave my son." 208 Later, he added: "The physical toll I have, I don't think I am capable of going back to my heavy lumber lifting, all that stuff, because my back become a bit - like I said, my back get hurt by just walking around and helping my son, so I could imagine, if I'm going to be lifting stairs and wood and all that stuff, it would be impossible for my back to handle that." 209 Asked whether he could see himself performing light sedentary work, he replied, "I could see myself managing my son's affairs". He said that he could not see himself having the capacity to work for somebody else in a sedentary capacity. 210 In relation to his 2007 tax return, Mr Kouri was cross-examined by Mr Webb about his claim for a deduction of "travel for job $1,528". Asked to explain the deduction, Mr Kouri gave the unconvincing explanation: "A. I don't have no idea. Maybe perhaps I'm using my vehicle to get his grocery, not his vehicle - I don't know. I used my vehicle to buy his grocery and everything else, because his vehicle's too big to go to shopping centre and places like that. Q. But that wasn't part of your job. That was something you had done for him from the time he came home from hospital - you had bought his food? A. Yes. In my vehicle. Q. That wasn't part of your job for Global Advantage, was it? A. I don't understand the question, really, specific - what do you mean by-- Q. What's the basis of that claim for deduction, Mr Kouri? A. The accounting must ask me, "You use your vehicle to buy grocery for your son?" I must have said, "Yes". Q. Are you telling us seriously that that is what Mr Harris said to you, or are you just saying that? Are you just inventing that? A. Well, I haven't - I didn't - if I'm not entitled to travel in job - because this was - I was working for people, so I can't claim any benefit or anything at all on that, other than the fact - just like an individual tax return. So $1,528, he must have thought, or - I mean, I didn't tell him to deduct that or claim that, other than the fact he must ask me, "You use your car to go buy food for your son?", whatever, which I do all the time. I don't claim gas on my vehicle to go shopping for my son. I didn't ask anybody to pay - I pay out of my pocket. I don't know if that would be the case in here. I don't know. Q. Let me get this clear: are you suggesting that that is the discussion that had you with Mr Harris? A. I don't specifically discuss - I don't remember how specifically I discussed - this is-- Q. This is what might have happened; is that what you are saying? A. Could have been. I'm not quite sure." 211 It also appeared that in his 2007 tax return, in respect of a period while he was working for Global, he claimed depreciation for his carpentry tools. 212 Mr Kouri was not a particularly satisfactory witness as many of his answers were unresponsive to the questions. However, I assume that English was not his first language and that may explain the problem. Moreover, it is, of course, impossible not to feel enormous sympathy for Mr Kouri and, in general terms, I accept his evidence, which, to a large extent was not in issue. His credibility was, however, somewhat undermined by cross-examination, revealing apparently doubtful claims for workers compensation payments and very questionable income taxation deductions. In the result, in my view, to the very limited extent where his evidence is contentious, it requires careful scrutiny. In making that observation, I do not seek to question the undoubted dedication of Mr Kouri to his son and the very considerable contribution he has made and continues to make to his well-being. THE EVIDENCE OF MRS COHEN: 213 Judith Renee Cohen was born on 21 December 1957 in Florida USA. She is the mother of Omar and married his father a few years after Omar's birth. They were divorced in 1986. Following the divorce, Omar lived with her and his father lived about 5 hours drive away. When Omar was about 16, she moved to Leesburg, Florida, about an hours driving time further away from where Mr Kouri lived. Nonetheless, he continued to have frequent contact with Omar. 214 In 1998, she met Mr Steve Cohen and they married the following year, establishing a home in Savannah, Georgia. At about that time Omar went to Australia to live with his father, "I didn't want him to go but I didn't want to stop him from growing". 215 He returned to the USA for a short time, but then, having attained residential status went permanently to Australia in July 2000. She maintained contact with him through weekly telephone calls. 216 With a science qualification, she worked as a data processor in medical rooms and in a pathological laboratory until she moved to Savannah. There she worked full time as a transcriptionist at a hospital within St Joseph Candler Health Pathology Laboratory until October 2000, when she changed her employment to the Memorial Health University Medical Centre. She worked again full time as a transcriptionist at the Curtis and Elizabeth Anderson Cancer Centre within that organisation. That was her employment at the time of Omar's accident. 217 At about 4.30am on 7 August 2002, she received a telephone call from Mr Kouri, the burden of which was that Omar had been hurt, "that it didn't look good" and that she should go to Australia as soon as she could. 218 Her reaction was "panic and fright. It was the worst, something you really don't want to hear has happened to your children and your children are so far away". 219 She speedily arranged to travel to Australia. As her passport had expired, the intervention of a congressman was required for an expedited renewal. She arrived in Australia on Saturday 10 August and was met by Mr Kouri's brother and taken straight to Liverpool Hospital where her former husband was waiting for her. 220 She then went to the Intensive Care Unit to see Omar. He was extensively bandaged and swollen. She was given some information as to the treatment which he had undergone. 221 She remained at the hospital, which provided her with accommodation until she returned home on 27 August. With short breaks, she remained at Omar's side. He was unconscious but she talked to him, read to him and held his hand. All her expenses were paid by the Workers Compensation insurer. 222 Altogether up to the trial, she visited Australia 12 times. The expenses of all but the first and the last visit, which was for the purposes of the trial, (with the possible exception of a visit in September 2003) were met by herself. 223 During the first visit she was given a prognoses by Omar's treating doctors, "It was quite upsetting. You know you really at that point there is not much, there is not much hope from what they think and from what they see and to be face to face with that, I wouldn't wish it on anybody". 224 Regarding her return home on the first occasion, there was this exchange with Mr Hull: "Q. How did you feel about having to go back to the United States on 27 August 2002? A. I didn't want to. I was so scared and I didn't - the nurses were coming in and they are bringing me boxes of tissues and they are talking to me and they are waiting and they are soothing you. They want you to expect the worst, because it might happen. Q. Because of your habit, did you say? A. Because it might happen, the worst might happen, and I didn't know, if Omar died, I didn't know how I would make it back home, so I went back home when I thought I could. I just wasn't thinking right. It's just so unbelievable. " 225 After she returned home, she telephoned Omar, virtually daily, requesting Mr Kouri or a nurse to put the telephone against Omar's ear. She has continued to make daily telephone calls whenever she is away from Australia. 226 Asked how she was feeling after her return home, she replied: "I'm not good without Omar over there. It's very tough, a very hopeless feeling, very depressed feeling, to know he's over here, the way he is, and I wasn't here with him. " Nonetheless, she retuned to work and "did the best that I could". 227 On 24 October 2002, she returned to Australia. By then, Omar was on the 4th floor of the hospital in the brain injury ward and was breathing on his own. Again she talked to him and held his hand, although there was little apparent change in his condition: "I don't know if he knew that I was his mother but he knew that I loved him; that I was there with him; that he wasn't alone. That was most important. " 228 Asked whether her presence with Omar helped her, she replied: "A. Yes, it did. Sad as it was, and as hard as it is, being there with him, yes, it did. I mean, it's hard to see. There's no doubt about that. Hard to go through what you're going through, but it's easier than being on the other side of the world, wondering what's going on. " 229 On her trips to Australia Mrs Cohen left not only her husband behind but also her mother, aged 78, in ill health with pancreatic cancer, two brothers and a sister. 230 Asked why she returned home from the first trip after 3 weeks, she replied: "A. Well, I need - Steve and I are - it's a lot of money to be over here. I have to keep working over there. Go back to work. I was trying to keep my job. I was trying to keep - I guess I felt a lot of pressure. I tried to keep my job, to keep some income coming in, to be able to come back and forth, to be able to take care of expenses back home. I've not - I don't work, and couldn't work, while I was over here. It's the guilt of being away from - trying to be there for everybody. " 231 In the United States, she consulted her general practitioner, Dr Paul Bradley, on 15 November 2002 and was referred by him to a psychologist, Dr Gayle Rozantine. Since November 2002 she has seen Dr Rozantine weekly and sometimes twice a week. She intends to continue doing so. 232 Some of her medical expenses were paid by her husband's health fund but she claims the difference in her action. 233 She next arrived in Australia on 28 December 2002 and remained until 11 January 2003. Again she stayed at the hospital where Omar remained a patient. She again felt "bad" about returning home but was able to resume her employment. 234 At the end of 2003, her employment was terminated, "Used 24 weeks of leave of absence within 12 month period of time. No job available when she returned". 235 In the meantime during 2003, she had visited Australia again from 1 April to 30 April; 19 July to 2 August; and 18 September to 4 December. She was in Australia in October 2003 when Omar was discharged from hospital to the house at Ryde. She participated in discussions as to the arrangements put in place for his care. 236 Prior to Omar's discharge from hospital, she always stayed in accommodation at the hospital. She said she spent 95% of her time by his side and 5% in her room. 237 In the period from January to October 2003, she noticed a change in Omar in that he became able to raise a thumb when she spoke to him. He was able to provide "yes/no" response to her questions. She believed that he recognised her. 238 Not only did she continue to telephone daily after Omar's discharge from hospital but before this from early in 2003, she frequently sent him faxes with short messages. 239 In relation to the job she lost at the end of 2003, she said: "A. I really loved that job. I loved everything about it. It was such a great - I'd still be there, but my concentration level just wasn't there any more." 240 During 2004, Mrs Cohen worked for an employment agency performing general office and other work when required. In that year she did some transcription work for CSCM, a radiology group and some work for Red Wing Brands of America. She was unable to find suitable full time work. 241 After Omar went to the house at Ryde, Mrs Cohen stayed there in a spare bedroom whenever she visited Australia. Her relationship with her former husband living under the same roof, she said, was very stressful. Once for a time she moved to an apartment elsewhere but said that this was paid for her by someone else and that otherwise she cannot afford to stay, other than in the Ryde house. Fortunately with the passage of time, she has found that living in the same house as Mr Kouri's has become less stressful. 242 Mrs Cohen unsurprisingly said that Omar's accident has had an impact upon her marriage" "We - um, Steve is very supportive. It's been hard how he's kept on with it, you know. I just - I am grateful for that. It has changed a lot. I am not a wife any more. I - I waited - it was my choice but I waited until Omar was out of school and on his own and grown before I decided to pursue anything like this on my own, another marriage, because I was - it was very important to me to raise Omar and it still is, so I decided - I met Steve and I decided that since Omar was gone I would let this get farther and Steve is a wonderful man. He loves and cares for me a lot and maybe that's - but I'm not - I'm not the wife that I would like to be for him. I'm not - I'm not a decision-maker. I'm not - it's just really turning into an empty marriage and I am sorry for him - to him for that. My priority comes first for my son and how long he understands that and accepts it, I don't know. It's been a big strain, of course. " 243 Presently, she takes prescribed medication, including Hyzaar for high blood pressure and Lexapro for depression. 244 Before the accident, Mrs Cohen said she had always been in good health apart from occasional common ailments. Her only prescribed medication was for blood pressure. 245 As to the future, there was this exchange with Mr Hull: "Q. And since the accident, you have told us about the work that you have done. How do you feel about your capacity to work now? A. I've lost my ability to focus and concentrate on things like I used to. Every kind of work that I have done has always required a fair amount of that ability because of the positions I took on and I just - my work suffers from it, from the - what life has brought me right now." 246 When she is with Omar these days she said that she prepares his meals; has breakfast with him; sits with him during his meals; reads to him; watches television with him; and goes through a family photograph album. Asked by Mr Hull about Omar's sense of humour, she replied: "I don't know if he thinks I've just lost my mind or am just crazy but every day - it doesn't matter what I can do to make him laugh, he laughs, and then he must be thinking, oh, my gosh, don't do that in public. Just - we had this - there was this picture I took out of a magazine. A paper. It's this cat and it's supposed to be this cute, loveable cat that's been raised in a zoo, and they are showing it for the first time, and it is just sitting there, and he was doing it too. It's really silly. We just did funny faces, made this cat-like face, and he copies me with what I'll do. He'll try. His humour - we can watch TV together and you can look at his face and watch his face and see him smile. He knows what's going on when you see it. He's just got a wonderful sense of humour. His ability is now just touching the surface. Being able to move with it all. He is just a happy person." 247 She believes there has been an improvement in Omar's physical capacity, particularly under a new physiotherapy and occupational therapy program. He has acquired the ability to move his arm and can respond to her request to breathe easy and relax. She gives him a lot of verbal encouragement, particularly if he seems to have done something new. She believes that carers are no substitute for the support and encouragement she, as Omar's mother, can give him. 248 Mrs Cohen produced a Father's Day card, which she said Omar selected and wrote the word "Dad" on. She said he was able to hold the pen in his right hand and write the word while she supported his elbow. 249 Finally, in evidence in chief, Mrs Cohen said that Omar is her only child and that she had hopes that he would marry and have children. She herself intended to work to retirement at age 65. 250 Mrs Cohen agreed with Mr Campbell in cross-examination that she had had bilateral carpal tunnel problems and had surgery to both her wrists. As to the suggestion that this might have affected her typing skills, she said that since the surgery she had not done much typing work and had not been able to put her wrists to the test. 251 She also agreed with Mr Campbell that the notice terminating her employment made no mention of dissatisfaction with her work performance. She said that if there had been no determination she did not think in December 2003 she would have been able to continue in the employment. 252 She did not agree that Omar had difficulty learning new things but added, "you have to be very patient". She conceded that he has a lot of restriction on his ability to communicate and that his memory is impaired. However she said, "I can talk to him". 253 Her evidence to Mr Campbell was that Omar has no difficulty understanding anything she says to him and that he communicates with her in a way she find reliable, although she recognises that he has brain injury. According to her testimony: "A. I've noticed that whereas he might remember things from the past where we lived in the United States and growing up, he remembers those things, whereas he would not remember - he doesn't remember things that have happened - it's very scattered in his memory. He might not remember - you have to remind him the day every day we are in Ryde and not in Savannah. His long-term memory, things in the past he remembers. It's a difficulty with remembering just bits and pieces since the accident." 254 She agreed that she relied on Omar's ability to communicate 'yes' or 'no' by putting his thumb up or down, and that necessarily any conversation needed to be initiated by her. However, she was optimistic that he will be able to progress in the use of a computer with the aid of DynaVox and that this will enable him to initiate conversation. She said she had researched the software and her optimism was based on more than her confidence as a mother. 255 In relation to the Father's Day card she agreed that she had put the pen in Omar's hand but said that was to help him out, as he is capable of picking it up himself, as he can pick up a spoon. 256 As to her feelings about the injuries to Omar, there were these questions by Mr Campbell and her answers: "Q. Is this right, that every day that you see Omar you are reminded of what he was once like; is that right? A. Yes. Q. So that your sadness about your loss of the boy you once knew is renewed on a daily basis almost. Is that right? A. I am aware of it, yes. Q. It is that type of grief that we have been talking about, is it not, a profound and powerful thing; would you agree with that? A. I miss a lot of things. I am sorry we won't experience them as we should have. Q. I guess in terms of the loss of, say, any loved one, then as the years go by one will always feel that regret about the things that can no longer be enjoyed together and done together; would you agree with that? A. I'm hoping that as time goes by that - I don't know that I would agree with that. I'm hoping as time goes by that there will always be good improvement with Omar, things will be as they are going to be. I don't know how to answer that for you, I'm sorry. I have got away from the question. Q. I am asking you about how you feel. I am not asking you at the moment about Omar's difficulties or what hope there might be for Omar, I am just asking you about how you feel about things, Mrs Cohen. Do you understand that? A. Yes. Q. The way you feel about Omar is the way that one feels about somebody you love who you have lost. Is that a fair assessment? A. Yes. Well, sorry, the way I-- Q. Did you want to add something? A. The way I feel about Omar? Q. The way you feel in yourself about Omar's injuries are a form of sadness, are they not? A. Yes. Q. All I am asking you is this. It's the sort of sadness or grief that you would feel, according to your experience of life, if you had lost someone you loved who was close to you? A. It's much deeper with Omar. Q. He's your son, of course? A. Yes. Q. I suppose there can be no deeper love than the love between a mother and a child. Is that how you feel about it, Mrs Cohen? A. Yes. " 257 I found Mrs Cohen to be a very impressive witness whose evidence was unchallenged and which I accept without qualification. The conflicts in her personal life which she has steadfastly faced and attempted to manage since Omar's accident are enormous. OMAR'S MEDICAL REPORTS: 258 Reports from medical practitioners and medical professionals comprising many hundreds of pages were tendered in Omar's case. It is unnecessary to refer to all of them. I commence with a reference to the opinions of Dr Anthony Lowy, a consultant physician in Occupational Medicine who provided a number of reports and gave oral evidence. His first report dated 11 December 2002 recorded his finding on examination that day: "Although Omar's eyes are open they are not seeing or focused and the ocular muscles are not coordinated; his level of awareness and consciousness is minimal to absent which is consistent with the generic diagnosis of "coma". His GCS remains low at 5/15; one cannot rouse him or gain his attention in any meaningful way. Omar is tall at 195cm and very thin at 72kg (was 95 on 7/8/02); his muscles are wasted with lack of use and immobility and his whole person musculature is minimal. He is almost totally immobile with no voluntary movements of his body or limbs; flexion contractures of all four limbs exist and whilst they are very stiff they are not (yet) fixed in flexion; frequent mobilisation by others is undertaken during the course of each day. Omar is unable to mobilise himself and requires whole person turning by others on a regular basis; he lies on an air mattress. However following four months of immobilisation he has developed a very deep and unsightly pressure ulcer over his sacrum (2cm wide and 2cm deep) Omar is unable to swallow any liquid or food (inhalation would result) and he is fed by a permanent PEG tube, the dietician formulating the correct mix of nutrients using the "Jevity" mixture; all nutrients, fluid and medications are fed through the PEG tube although some antibiotics are given intravenously through his insitu left wrist cannular; skin care is undertaken on a frequent and regular basis together with local treatment for his pressure ulcer (irrigations etc). (Today he developed a temperature 38 degrees centigrade which may represent infection in the pressure ulcer requiring intravenous antibiotics together with Panadol via the PEG tube." 259 Other paragraphs in the report included: "Diagnosis and Opinion: Omar Baghdadi is experiencing major neurological consequences of very severe TBI sustained in a 4.00 fall at work on 7/8/02. Massive brain injury and considerable intracranial haemorrhaging occurred and whist there has been some reduction in his ICP, the brain injury continues and Omar remains in a coma. His GCS is 5/15 and he remains unresponsive and immobile requiring turning by others on a frequent and regular basis. He has no active use of any limb or any part of his body and Omar's visual status requires ophthalmological examination. At this stage, other than saliva, he is unable to swallow (and certainly not speak) and all feeding is via a PEG tube on the prescription of the dietician (Jevity). Omar urinates into an adjacent bottle suitably placed 24 hours a day (noting he is immobile); defecation is into the bed and instantly cleaned by the nursing staff currently one of the two "special" nurses who have been in attendance the last three or so weeks (12 hour shifts). " 260 In all some 24 reports of Dr Lowy were tendered into evidence as part of exhibit C. Subsequent reports reviewing Omar's progress and treatment were addressed to P & M's solicitors but copied to the Workers Compensation insurer. 261 On 30 January 2003 he said: "Clinical Status I am pleased to report that there is marginal improvement in Omar's awareness which I confirmed with MUM Alison Cassidy who considers Omar's GCS is now in the vicinity of 8/15 or possibly 9/15. On examination of Omar today (29/1/03) for the first time I was able to gain the attention of his eyes principally the left eye although this was brief; I note that he has poor control over his right eye with lateral deviation and I wonder about the visual acuity of his eyes particularly the right eye; I examined Omar's right eye which I considered "normal" in the sense that there was no conjunctival redness or injection, the cornea appeared clean and smooth (no visible ulceration without staining) nor any foreign body or other lesion about which Mrs Cohen was concerned and rang me; I note Omar is in receipt of eye drops and ointment on a regular basis although I await formal report by ophthalmologist which I will mention to Dr Veersbangsa during our next telephone conversation. Left eye appears normal and both pupils react to light. Pressure Ulcer On 29/1/03 I was able to examine Omar's lower back and did not take down the "fresh dressing" which appeared clean and minimal drain residue exists compared to the previous days/weeks, which pleases Mr Kouri; in other words closure and healing is progressing and it seems that surgical skin graft is no longer anticipated (which I confirmed with Dr Williams by telephone). Contractures I remain concerned about the status of Omar's flexion contractures of all limbs; I understand that there is regular mobilisation of all four limbs by the physiotherapist and others during the course of every day which I discussed; I prefer even more frequent mobilisation at this stage although understandably this is limited by the need to protect the surgical sacral wound which is still vulnerable to local trauma; I discussed this with Dr Williams who will ensure correct instructions in terms of mobilisation procedures. Swallowing Omar is able to swallow his own secretions/saliva and is now ready for formal testing of his swallowing capacity and the initiation of oral feeding by hospital staff (a very gradual process over weeks); it is necessary to commence with Omar being more upright towards a sitting position, initially approaching 60 degrees; this is usually achieved by the patient being progressively tilted using a "tilt table" with progressive elevation in order to facilitate swallowing; this tilting is delayed at this point of time because of Omar's surgical wound; nevertheless it is anticipated that tilt table use will commence soon" 262 On 17 February 2003, Dr Lowy noted that Dr Hodgkinson of the Liverpool Brain Injury Unit was satisfied that Omar's Glasgow Coma Scale had risen to "more than 8 or 9" and " he is slowly awakening". 263 On 26 March 2003 he was able to report some improvement: "At this stage the rehabilitation team is pleased with Omar's progress in terms of: Responsiveness to commands (move your thumb..hand..look at me) Eye tracking (moves both eyes although his visual status is not yet known) Swallowing a few spoons of puree (not water) Results of Botox injections to right elbow muscles by Dr Veersbangsa (far less contraction of the joint). Gaining almost full extension of large joints with progressive increase ROM of four limbs including knees, allowing full slow passive extension of legs permitting Omar to "stand" upright whilst strapped to the tilt table; the straps are three placed across his body to ensure no injury as at this stage there is no physical capacity for Omar to actually weight- bear" 264 The report of 8 April 2003 confirmed further improvement: "The general feeling of the meeting was that at 28 weeks post-injury, slow progress is still occurring in Omar's general physical condition and to some extent his awareness; his weight is increasing (intentionally) and he is now 77kg." 265 In June 2003, Dr Lowy said: "Clinical Status Omar is definitely making progress in aspects of his whole person physical function; this is as follows: Increasing awareness of surroundings and communication with people; this includes the health professional staff (to some extent) and certainly his father and even his mother when communication occurs by telephone, something which has been observed by others on a number of occasions. When stimulated he tries to mouth some words as well as some spontaneous movements of his right arm. Swallowing He is gradually increasing his swallowing capacity and taking modified pureed food; this is now three times per day and it is regarded by the speech pathologist that Omar's swallowing is functional and gradually his PEG feeding will be cut back and probably removed; (this is still several weeks). Omar's brain injury includes the brain stem/bulbar region which is demonstrating slow and late recovery of some basic functions including swallowing." 266 In July 2003, Dr Lowy reported, "small but definite movements of Omar's wrist and hands" and that Omar "had a greater level of awareness of surroundings and communication". He observed Omar eat a solid meal entirely fed by his carer and said that his swallowing capacity is "substantial". His weight had increased to 80 kg. 267 On 3 September 2002, Dr Lowy reported that Dr Simon McKechnie, neurosurgeon, had inserted two titanium plates to cover the craniotomy deficits in Omar's skull. The operation was successful in neurological terms but there was some regression as Omar: "…..became tired for a few day; his attention became more difficult to obtain and he became unable to swallow the pureed food which before the neurosurgery on 8/8/03 was within Omar's physical swallowing capacity." 268 A report of 17 November 2003 followed Omar's discharge to the home at Ryde recorded that "teething problems" were being successfully addressed. This report raised the question about which there was a good deal of evidence regarding nocturnal urine control: "Uredome: There has been some discussion about the use of incontinence pads and/or Uredome; it seems that a parental decision has been made that neither is preferable on a constant 24 hour use (because of latex problems) and a bottle is placed near Omar's penis, but this does spill from time to time, necessitating complete bed change which may disrupt Omar's sleep and requires two carers on each occasion; this could be a problem in the long-term and a Uredome seems to me to be the preferred option in this case (for discussion). 269 Dr Lowy conducted a comprehensive review on 25 November 2003. He noted further improvement in Omar's awareness of his surroundings. The report contained further passages: "In general terms I observed an increase in Omar's interaction with his environment; he relates optimally to his mother whose nurturing is exceptional; (this also applied to his father, Sam Kouri, who was at work during my three-hour visit today). Limb contractures Spontaneous flexion occurs in all four limbs especially his left side; the carers note that his limbs tend to relax and extend while asleep. However, on awakening and with stimulation, gradual involuntary limb flexion occurs (which may be painful). On arrival today I noted full tight flexion of all four limbs; slowly and with force, these were manually extended by his carers. Omar has frequent body and limb massage by his carers plus prescribed regular physiotherapy. Sacral Pressure Area It is emphasised that two carers are required to undertake each and every transfer and lift Omar when in his bed and when transferred to his wheelchair; he is 195cm and now weights 80kg and extreme caution regarding his sacral pressure area is undertaken at all times. This remains a vulnerable area, about 6cm x 5cm in circumference; great care and attention is given to his sacral area throughout each and every twenty-four hours, especially with bathing, bed-changing, all shifting and transfers and when sitting on the Roho cushion in his wheelchair. The skin has remained intact. Speech Pathologist – Margie Logan (0412 318028) Margie Logan explained her role to Omar, to Judith, me, and both carers, which is to facilitate the process of communication and the process of swallowing. Fortuitously I witnessed the 60 minute interaction between Omar and Margie as well as her involvement with the carers in terms of instructions re ongoing communication with Omar. I wish to comment that Margie Logan demonstrated exceptional professional skills with Omar as well as to the others by way of rapport, enthusiasm, interaction, advice and teaching. Her professional role with Omar is twofold; first the process of communication and second the process of swallowing. Process of swallowing Omar's chewing and swallowing mechanism is very slow and necessitated considerable patience by his carers. He is limited to pureed foods (water is dangerous in terms of aspiration, etc.) His feeding via a PEG is likely to be lifelong (as is total dependence and twenty–four hour care and inability to stand or walk independently). His weight is steady at 80kg and in order to maintain correct nutrition (as prescribed by his dietician) Omar is fed by his PEG; this is 500ml of "Jevity" three times a day plus water. Omar's hydration His daily water intake is also via PEG and is titrated (visually) by his carers against the colour and output of his urine (yesterday 1120ml)" 270 On 29 March 2005, there was a further review by Dr Lowy. He noted that Omar's daily program is "routine but very demanding" and required 2 carers 24 hours a day on 12 hour shifts. "Omar remained 100% dependant in all aspects of personal care and body management. This situation had not progressed but his awareness had, quite significantly. He remained incapable of speech, there were no pressure areas but his limb contractures remained." 271 The last of Dr Lowy's reports in exhibit C was dated 21 July 2006. It contained these passages: "I note Omar is able to flex his neck and hold more of his head weight than last year, which facilitates his keyboard use and similar manual activities; the physiotherapist and carers have been working on his neck muscles front and back to minimise fixed neck extension. This is also likely to improve over time. I also note some reduction in his limb contractures following the Botox injections. One mechanical suction device is by the bed and another nearby Omar at all times, which is clearly of considerable benefit in the minute to minute care of Omar throughout each and every day; in fact this is essential as Omar's swallowing mechanism is permanently impaired due to his brain stem injury. Omar still cannot drink water, but he is able to manage small quantities of pureed food within his mouth, tongue and throat, in a more skilled fashion than in 2005. Also he can swallow very small amounts of soft food such as fruit, each piece must be carefully inserted and visualised by the care/feeder, as asphyxiation is the main risk here, noting Omar's cough reflex is strong and he would be, and is able to expel small amounts of liquid and recalling his lungs have been free of infection for years. Correctly, a sucker is always nearby. There is a new 2005 purpose built van, a Mercedes "sprinter" which is tall and spacious with mechanical lifting devices and other necessary equipment to suit Omar's needs. However noting Omar's huge body size, stabilisation is likely to be problematic in a moving vehicle; Sam is aware of and attending to this. Examination of Omar is impressive; he is what one would call "wide awake" and visibly interested in all going on around him in the room, maintaining eye contact on attempt of communication and tracking with his eyes the activities in the room that are of interest to him. This includes a particular television show at 6pm on each weeknight, which he anticipates by looking at the wall clock in the minutes before 6pm and reacts very positively. His vision appears very functional referring to his previously abnormal right eye. In other ways whilst Omar remains 100% dependant in all aspect of personal care and ADLs, he demonstrates a substantial awareness of his surroundings which was not the case until 2006. Also one can say that communication with him is direct and can be described as responsive and even two-way, although he cannot speak, he maintains good eye contact and some facial expressions; he demonstrates some gross movements of his right hand in terms of clenching his fist and making signals with one or more of his fingers. In addition he can hold utensil but not yet really feed himself". 272 In oral evidence Dr Lowy said that he has been practising medicine in Sydney for over 40 years. Occupational rehabilitation was the primary focus of his practice for about 20 years before he became involved in the assessment of seriously or catastrophically injured people and writing reports. 273 Asked about the care regime provided for Omar, he said: "A. Well, I've now been involved on a regular basis with Omar and the family care and the whole care of him since 2005 (sic 2002). That included his hospital care and his home care. Omar is an extraordinary young man and he has very serious brain injury with whole person incapacity and he has been and remains totally unable to undertake any personal care or any ADLs. This has been the case from the start and remains to the present time. He overcame the first couple of years, which are usually the most hazardous and dangerous in terms of risk activity and life expectancy in terms of survival. Having done that with optimal medical and allied health treatments he came to live at home in a large suitable home with a high level of care by a number of professionals including medical, nursing, allied health professionals and regular carers of varying qualifications. I have been singularly impressed by the high level of commitment, the involvement of the family, particularly his father Sam, and the truly dedicated attention to detail in every aspect of the physical care and the wellbeing of Omar. Whilst his physical status has been relatively stable there has been progressive but marginal improvement in his demeanour, in his ability to recognise people, to communicate in his fashion with people and even to the point where in 2006 and 2007 he has undertaken some things which I thought really were quite impossible. That is, he has the ability to place his right hand on a computer keyboard and press a yes/no button, which is appropriate, which is an extraordinary response and outcome. Going back to his daily care, this is about the truly first class care and maintenance of an immobile body that is highly vulnerable in various parts of his body. Of course any person who is bed bound, the most vulnerable components are his skin, which is how I became involved in the first place because his skin had broken down very badly at the beginning and gradually that healed. Nevertheless skin care has been and remains the number one priority in terms of the daily maintenance of Omar's wellbeing and his health, because in terms of vulnerability that is the most vulnerable part of his body and would then be a component of a reduction in any life expectancy were he to have any skin infection. I could talk about that more later. So therefore I have observed in the five years, and certainly since he's been home the last three years, the highest level of skin care that one can possibly undertake in a person who has no voluntary movements. And I'm talking about every part of his body from the top of his 184 centimetres to the very bottom of his feet and heels, which of course are always vulnerable themselves. In order to maintain his skin health he has to be treated literally with skin gloves. So the transfer and handling of a large person such as Omar is a delicate matter on each and every occasion which is why he needs at least two carers for every transfer which most often actually involves another person such as his father Sam or his mother Judith. So there is a high level of responsibility in the maintenance of his skin and I think that is of utmost importance. That has been the case since I've known him, since he's been home anyway, and I expect that whenever I go there it is truly pristine and there is no significant pressure areas, or likely, other than his sacral area which thank goodness is in tact. That's the first part of the answer if you like. All of the care and attention of the body of Omar is of that high standard. He's got carers there every day all day. It is vital that he maintains some mobility of all parts of his body which is undertaken on a frequent and regular basis throughout each and every day by numbers of people, the carers of course and his father and mother and anybody else that comes. So his mobility aspect is also a vital component of the maintenance of his mobility and his wellbeing because he is aware that he has right-hand arm movements which is his main communication with the outside world. There is a physiotherapist involved, which is also necessary on a regular basis to ensure that the carers, who may not be medically qualified, are taught the correct method of body movements without injuring or stressing any component of Omar's body because he has contractual flexures in his limbs. So all this activity by his carers must be supervised by a physiotherapist on a regular basis to teach the carers and to inspect his body on a regular basis to ensure there are no new injuries or parts of the body that may be more vulnerable than they were previously. A professional physiotherapist is an important person in something like this because that ensures a specific professional continuity of the body of Omar. Apart from the continuity of parental love and involvement, there is some changing of the guard so to speak, and a professional physiotherapist would have the base line well and truly entrenched in the physiotherapist's mind to ensure the maintenance of correct body movements. I can stop there if you like, but it goes on and on." 274 Apart from skin breakdowns, Dr Lowy identified other hazards as choking and aspiration. He noted, however, that he has strong cough reflex "which is a life saving thing for him". He said he is also theoretically at risk of respiratory disease and infection. 275 Having regard to what he described as "the extraordinary nature and commitment of the carers and his pristine body condition" he estimated 20% as maximum loss of life expectancy. He described Omar's situation "remarkable, it is truly unique". 276 Dr Lowy, who in an early report said that Omar should be turned two hourly, agreed that four hourly would suffice nocturnally. He said that physiotherapy should continue indefinitely. He though it reasonable to decide not to insert a supra pubic catheter for nocturnal urine collection because of the added risk of infection it carries. Asked whether he supported the appointment of a case manager, he replied: "Oh, well, now we're talking. Look, if I may just digress, the problem with modern medicine in general is lack of a case manager. That's a really - it's a universal problem, I think, in all aspects of treatment today. Too many players, not enough supervisors. Now, look, Omar's whole person management is a complex thing. It's wonderfully managed, in essence, by his parents, particularly Sam. However, much - as much as Sam loves him, there are professional components that he is not always aware of and professional treatments that can facilitate some shift in Omar's well-being and maintenance of his health. That requires coordination of the numbers of people involved. Whilst there is a logistic coordination by Sam, there is necessity for a health professional case manager who has overview of the whole picture, the progress of the whole picture, the current involvement of the various health professionals, including the medical people, the surgical people, the allied health professionals and the carers. It is not really possible for any one of the immediate treating health professionals to maintain an overview such as that of a case manager and it applies, I'm saying, to most medical conditions, certainly most chronic medical conditions and, therefore, I have propagated the idea from the very beginning that there should be a case manager and to me the continuity of a case manager is of vital importance and I have been a bit disappointed that the case managers have changed over the years for one reason or another, but I guess my expectation is unrealistic, but, nevertheless, a case manager and the relevant continuity that that person can provide, I think - I did consider was vital, is vital and will be vital for the rest of Omar's life." 277 Finally, in evidence in chief, Dr Lowy maintained his enthusiasm for the continued involvement of the speech pathologist, Ms Margie Logan: "Absolutely. I have written in my reports, I know - I am so impressed by the movement and the shift that - all I can say is the loving care and attention of Margie Logan is truly exceptional and not even a family member. I regard her as a magic woman. She does extraordinary things and she has gained his affection, which I witnessed, instant pleasure and recognition of Margie Logan by Omar and I have seen that on two separate occasions more than a year apart and her involvement now in the last couple of years is vital and I would continue that indefinitely so long as she can continue to do it. Marginal as the improvements might be, she is an active, positive influence in Omar's well-being and his survival." 278 Dr Lowy agreed with Mr Campbell that his involvement with Omar commenced when he was contacted by his solicitor and that initially his role was as a "facilitator" between Omar's family and the hospital. He said he was an advocate for Omar. 279 He told Mr Campbell that he did not agree with the proposition made in a recently published text edited by Zasler Katz and Zafonte that the quality of care does not have any effect upon the life expectancy of a person with traumatic brain injury. 280 He was cross-examined upon the subject of Omar's urine control over night. He said that, as far as he was aware, the present method of placing a bottle between his legs was working satisfactorily. However, he agreed that a uridome could be more satisfactory but having examined Omar said there might be problems with attachment. The third option suggested, the insertion of a supra pubic catheter, Dr Lowy said carries a risk of infection, albeit the same risk as the other devices inserted in his body. However, he conceded that a catheter could reduce the amount of care Omar needs at night and agreed that every time he is turned when the bed is wet, his skin is placed at risk. 281 Asked by Mr Campbell whether he would have expected that any real improvement in cognitive function would occur within the first 2 years, he replied, "in the major functions, correct". 282 He agreed with Mr Donaldson that taking account of Omar's height, 6 feet, 5 inches and weight over 80kg, the level of his spasticity and the need to protect his sacral pressure area, it would be safe for two carers to transfer him between his bed and his wheel chair. He suggested that at least one of the carers should be a strong man and that both should be properly trained. 283 Mr Parker, in his cross-examination of Dr Lowy, focussed on the characteristics of the treatment which had been provided. There was this exchange: "Q. And the treatment has been, in your view, beneficial for Omar? A. Optimal. Q. Optimal? A. Yes. Q. Not maximal, optimal. Is that right? A. What's the difference? Q. Well, perhaps if I put this to you, what do you understand optimal to mean, doctor? A. As good as it gets. Q. Is it your view that the treatment that you have described as optimal for Omar has been appropriate medical treatment? A. Very much so. Q. And reasonably necessary for his care? A. Survival. Q. Well, can I include care in that? A. Yes " 284 A second specialist in rehabilitation medicine called in Omar's case was Dr Robert Adler. He assessed him on 5 June 2007 and again on 27 July 2007, in conjunction with Ms Logan. 285 He provided this summary: "Present situation Communication and Cognition Expressive Omar does not vocalise. He does not initiate communication. He can extend and flex the right hand thumb to indicate "yes and "no". He does use moaning noises to indicate likes or dislikes. He closes his eye for 'yes' and eyes kept open 'no'. His is also able to answer 'yes' or 'no' questions, using a computer software (Dynavox) right hand button. The software is run on a laptop computer and acts as a communication device by providing symbols and the opportunity to type words. He can scan an alphabet board to spell, and can spell words, and create a sentence although with poor syntax. Simple basic sentence responses are possible but not multiple sentences. He wrote "I am going to "Sydney Stadium". He can spell Australia. He can point to yes/no picture symbols and can initiate request for attention by using picture symbols. Since my first assessment two months ago, his ability to use the right hand pinch grip, to press a pad button, has improved since undergoing Botox injections. Receptive language Omar can respond to a two step command, such as, look to your mother, and then look to your father. He cannot manage a three step command. His main method of communication is using Dynavox software, a communication augmentation device which I observed Ms Logan, speech therapist, and Omar using at the time of my second visit. He is able to spell words and responds appropriately to basic questions. Mental fatigue occurs after about 30 minutes of this activity and then interferes with performance. Self care: Omar is dependent in self-care activities including personal hygiene, nutrition and toileting, being doubly incontinent, bathing perineal hygiene, and grooming. Omar can assist with feeding by holding a spoon in the right hand and is able to bend the elbow to bring it to his mouth. Bowels are emptied every second day by suppository. Mobility: Omar is immobile in bed and requires a hoist transfer off the bed. He requires two carers to roll him to avoid pressure areas. He is unable to stand, and standing transfers require a hoist, at least two assistants and often three. He has an electric wheelchair with custom made back rest, and high neck support. He is wheelchair dependent, and has a basic still unreliable capacity for navigating the electric wheel chair although this is slowly improving. He is able to grasp the operating stick of the electric chair and can depress the button with his thumb. He can navigate the wheelchair for short periods but is not reliable as yet and must be supervised. Feeding: He has a gastrostomy by which fluids are administered but nutrition is also via pureed food which he swallows, carefully supervised by an assistant to ensure there is no aspiration. His father usually prepares the pureed meals. Omar has only just begun to manage holding a spoon, and feeding himself although this is only for brief periods and requires careful supervision to ensure there is no aspiration. Leisure Omar can watch TV, and does so often for an hour at a time and appears to have an ability to understand the basic plot of the show. He has referred to the content of a TV show through the computer communication program. He can play simple computer Playstation games, pressing the button to make objects in the screen move. He has a software program that allows him to use a mouse to select objects on the screen. He enjoys playing basic computer games on the computer, and using the computer software to respond to questions. He does not initiate requests for specific leisure activities as yet. Community living skills: There is no capacity to manage any executive decision making and thus is unable to manage any financial responsibilities such as paying bills, handling cash, or managing a budget. He would not be able to be involved in organising shopping, or managing purchases. Any interaction with others will be extremely limited. Transportation involves his being transferred to an electric wheelchair, then escorted by a carer to the van or a disabled taxi, and then the carer taking over the chair controls completely to navigate and assist Omar in negotiating any outdoor travel in his wheelchair." 286 Dr Adler recorded that Omar has 2 professional carers present at any time, "managing transfers, bathing, dressing, pressure area care, changing of bed linen and transport". He noted that Omar is turned every 4 hours and that uridomes have been unsuccessful as they fall off. 287 He said that Mr Kouri and Mrs Cohen, when she is in Australia, prepare meals and assist with bathing, shaving and shopping. 288 Under the heading "Treatment", Dr Adler said: "Tegretol and Keppra are required for epilepsy prophylaxis included, Baclofen is via a spinal pump. Metamucil is taken. Vitamin supplements. The spasticity is reduced due to the combined effects of the Baclofen pump increased dose, and Botox injections. I have witnessed the change from a severe level of spasticity making it difficult to achieve passive movement of the lower limb joints at the time of my first assessment two months ago, with the effect of the Baclofen pump increased dose making it now possible to more easily move the lower limb joints, the Botox injections have released the right arm's active movement. A speech therapist attends twice a week, the occupational therapist once a week and physiotherapist once a week. Omar sees a dietician once a year." 289 Expanding upon what he had said earlier in the report regarding Omar's mental state, he said that he is awake for periods of an hour and a half at a time, that he has a sense of humour and can laugh at situations that occurred during the week. He thought his capacity for comprehension was probably underestimated due to his very poor capacity to express himself. 290 Passages in Dr Adler's report under the heading "Opinion" included: Diagnosis: Mr Baghdadi suffered an extended period of coma, and then depressed conscious state of many months, with a Post Traumatic Amnesia period that he may only just be emerging from if at all, and intracranial pathology on radiology. This places the closed head injury in the extremely severe category. This category is usually associated with permanent disability that interferes with a person's independence. The Post Traumatic Epilepsy is found commonly in the severe head injury categories. The hydrocephalus further impairs brain functioning. His recovery was complicated by Post Traumatic Epilepsy, a severe spastic quadriparesis and a slowly healing sacral pressure ulcer. The severe spasticity has been managed using a spinal Baclofen pump, and an indwelling ventriculo-peritoneal shunt has not prevented the development of hydrocephalus although this may be secondary to the effects of brain atrophy due to the trauma. A PEG gastrostomy tube is used to allow appropriate nutrition and a tracheostomy was required with earlier supportive ventilation. There is a global impairment in cognitive functioning. Memory, language, mental concentration and executive functioning, as for instance in relation to planning or problem solving are all severely impaired. He is now alert for electric wheel chair control for brief periods only, and can feed himself for short periods using a spoon in the right hand." 291 In relation to future treatment and rehabilitation needs, Dr Adler said that the V/P shunt and spinal pump will require periodic revision and possible replacement. He said that regular half yearly rehabilitation specialist reviews are needed and that he will require regular injections of Botox, which he regards as the key to the function of his right hand grip, his only means of communication. 292 He said that he will also require a general practitioner's visit monthly to monitor and manage chest infections, small pressure sores, bowel regime and anti epileptic drug levels and yearly review by a neurologist for supervision of epilepsy drug management. 293 Dr Adler estimated that Omar's neurological recovery would not likely plateau for a further three years. 294 He identified the need for a dietician, an occupational therapist and a speech therapist. As to the last mentioned, he said that Omar's capacity to initiate communication will be a critical milestone, which he predicted would be achieved over the next 18 months. He said a speech therapist would also maximise his swallowing ability. 295 Under the heading "Leisure and Community Outing", Dr Adler said: "With any further cognitive improvement, Mr Baghdadi will become more prone to boredom and will have to have a more structured program of stimulation, and leisure. He will always be severely physically incapacitated, and therefore opportunities need to be made available to him. The speech therapist and occupational therapist would already contribute to his leisure activities, and the attendant carer in community outings. A leisure therapist would ensure adequate stimulation and recreational activities. This would be essential if there is some further improvement, to maintain a satisfactory quality of life at this relatively young age. This may involve between 2 to 4 hours a week of leisure therapist involvement." 296 As to Omar's personal care needs, Dr Adler said: "24 hour care is needed as Omar is immobile in bed, and will require assistance of all personal care needs. Also feeding him and monitoring his fluid needs, food intake, the environmental temperature is required. He will need the taking of observations such as temperature, and pulse, due to the risk of medical complications such as chest infection and the impaired autonomic function seen in brain damage of this severity. Night care is needed for management of the above and also bladder urinal changing twice a night, and turning him twice in the night. Two people will always be needed when he is moved or transferred from bed to hoist or wheelchair, because of his size and height, as when bed linen is changed, or bed skin pressure area care is provided. This is required from an occupational health and safety point of view for the staff as well as in respect of his own safety and physical care needs. The second carer is also required to act as a driver, to assist with shopping, cooking and some domestic chores A nurse is needed for dispensing the anticonvulsants and I would suggest to achieve a sufficient standard of daily supervision of his suctioning, swallowing, bladder and bowel regimes and procedures as well as to deal with sudden emergencies such as fits or aspiration. There are other procedures that require a higher level of care, such as the serial casting that is provided after any Botox injection, or the supervision of splinting and skin pressure care. Thus I would suggest that a nurse and an attendant for the 12 hour day shift and two attendants of the 12 hour night shift are required. This assessment of his personal care needs does not assume that his parents are available." 297 As to Omar's other requirements of daily living, Dr Adler said that a computer is important; he should have an electric powered wheelchair capable of being controlled by Omar or an attendant; at a house with appropriate wheelchair access; a light weight wheelchair; a modified van or car; hydraulic lifts for the wheelchair; a lifting hoist in his home; a special hydraulic mattress; a commode chair; an internal feeding pump; suction equipment and incontinence pads. He also said that a house with environmental temperature control is essential 298 As to life expectancy, Dr Adler opined that Omar's life expectancy is approximately 75% to 80% of normal, depending on the level of care provided. 299 Mr Campbell cross-examined Dr Adler regarding his opinion as to Omar's life expectancy and put to him apparently conflicting views in learned publications based on epidemiological studies, including Shavelle and Strauss in the USA and a publication edited by Zasler Katz and Zafonte, published in 2007. 300 As I understand his evidence, Dr Adler, notwithstanding the studies and very close and detailed cross-examination by Mr Campbell, preferred his own opinion of Omar's life expectancy to that which may derive from the studies. 301 On the subject of nocturnal urine control, Dr Adler maintained strong opposition to the insertion of a supra pubic catheter which he described as a "last resort": "Q. Well, do you say a last resort in respect of the latter because of the risk of infection? A. Risk of infection. It's an invasive procedure, it has risks just putting it in and there are long-term risks, one of which is infection. There are other complications too. It is a serious decision to move onto a supra pubic catheter. It is an option, but not one that you would make hastily only because there was some bed wetting in the absence of other complications such as pressure sores actually developing as a consequence of that. Q. Certainly avoiding bed-wetting would have the added advantage of it reducing the risk of bedsores, say, wouldn't it, or skin breakdown generally? A. Well, I would have thought there would be some reduction in risk although it is quite interesting that over - I think it's three years now - this problem really hasn't arisen. Q. Well, that is not to say that he doesn't have, from time to time, some trouble with his skin, is it? A. Well, my understanding is there have been no episodes of any sort of skin breakdown over the last three years and in theory there is increased risk. All I am saying is in actuality the practice hasn't actually - you would have thought by now if this practice was going to lead to problems it would have and it hasn't. That's all I'm saying. " 302 Dr Adler agreed that his evidence was based on what he had been told about the absence of skin breakdowns. He also agreed that the lower sacral area where Omar had a lengthy period of pressure sore development and poor healing was vulnerable and would always be vulnerable, thereby putting him at increased risk. He agreed, after some evidence of Ms Goldthorpe was read to him and he was shown notes of Royal Rehabilitation Centre Sydney compiled from early July to the end of September 2007, that control of urine spillage was a very significant issue and that the use of a uridome should be reconsidered. He maintained his view, however, that the insertion of a supra pubic catheter would be inappropriate. 303 Dr Adler said that the reason Omar needs 2 carers at night is because with urine spillage he may have to be moved. He said that there are, however, other reasons: "Reducing chest infection risk and also if there's any medical complication such as a fit." 304 He also said that Omar has, or has had, a Nimbus variable pressure bed which automatically changes the area which is subject to the pressure of lying still while asleep and that such beds reduce the need for a patient to be turned at night. However, he added that it would not necessarily follow that 2 carers would not be needed: "See, I don't see a Nimbus bed being superior to side-lying in a person with a sacral pressure area problem. There is no evidence that shows, despite the manufacturer's marketing claims, that it is a - it will ensure against development of a pressure area. They may claim that you can leave someone lying on this for eight hours and there is no problem, but there is really no proof certainly that it is really at the end superior to the approach that's been taken and there are, I would suggest, given that lack of evidence, one would need to be quite cautious, because I would be quite nervous about him being left on his back given the history of that sacral pressure area. I think that would be taking an excessive risk. I've also got to take into account not just the theoretical considerations, but given that an approach has been used and we know the outcome in terms of the rate of - of skin - sacral skin breakdown problems that I would consider it still to be relatively successful all told. So you're talking about one changing the regime of taking a risk and then, you know, all told I would not be recommending that we experiment with use of a variable pressure bed and accept that he can lie down on his back the entire night, given the history of this sacral pressure, sacral ulcer and my concern would be that that - that area is really quite vulnerable. It's had four operations, it's had a lengthy period of secondary infection healing; it's going to be fragile. It's remarkable that they haven't had more problems with it so far. So, no, I wouldn't agree with the idea of, you know, leaving management in the hands of the variable pressure bed and hoping that that will - that would be sufficient. I wouldn't see that as being - being appropriate in this situation. It is for many other high dependency patients, it's very appropriate, but this person has an area of - of high risk sacral pressure - sacral skin problems that can lead to development of pressure ulcers and that's got to be taken into account." 305 Asked by Mr Campbell about the care requirements suggested by Ms Debbie Sharp, an occupational therapist, in July 2003, Dr Adler said that in his view, her suggested regime was not reasonable. 306 As to the need for continuing speech therapy, there was this exchange with Mr Campbell: Q. There must, do you not agree, come a time when one would expect that he has reached the maximal point of improvement? A. Yes, there will come a time when he will certainly plateau and there will be less opportunity to teach him anything new. Q. In the ordinary course of events that point will have well and truly been reached five years after a closed head injury. That's so, isn't it? A. In an epidemiological sense, but there are a lot of subgroups. Q. Well, you see, the normal understanding is that you don't get any improvement in cognitive function after two years. That's right, isn't it? A. Not really, no. In terms of the category that a person is in you won't see them necessarily jumping between categories. In fact cognitive improvement goes on for a long time. In the severely head injured group you often do see delayed improvement. The magnitude of the improvement is often from, say, three or four years on, small. It's small. So their level of care need, their disability level doesn't change, but to say that there is no cognitive improvement I don't think would be accurate. To say that there's no - the amount of improvement is not such as to - not of a magnitude as to change their sort of category of intellect or severity, that's true. But some small improvements have, you know, significant implications in terms of quality of life for the person. Q. Having regard to the intervention he has had for five years for speech therapy it's been very intensive, has it not? A. Yes. Q. For the whole of that time? A. He has had adequate speech therapy. Q. The only time he hasn't had speech therapy is if the speech therapist hasn't been available to attend him, that's right, isn't it, on the history you got? Do you know that or not? A. No, I wouldn't know that as a fact. I'm sure that's reasonable to say. Q. And it's just extremely unlikely, isn't it, that he will, at this stage of time after the injury, develop the capacity to initiate communication? A. Well, that's right. The word's communication, not speech. So Omar can't speak. There's no point really looking at improving his speaking ability at this point. Q. That will never happen? A. Right. So we're looking at communication. We're looking at alternative means of communication. What do you need to do that? You need some ability to interact with a device that will produce language and you need enough intellect to be able to handle it. So what has happened though is that his ability to use his right arm, in my opinion, is better. He has only recently had exposure to a communication augmentation device, the Dynavox, and the computer. That has not been going for - my understanding is maybe it's been going on for, you know, a few months and there has been a lot of trial and error and experimentation to get that successful. To communicate you're only as good as the weakest link. Now his arm has improved. Its functioning is improving. His ability to use a switch. His ability therefore to operate - to interface with a computer device is now more efficient, more practical. It's still laboriously slow, but he is able to communicate. I have seen that. So to say that, well, it's been a long time, I think we'll just give up now and call it quits, well, no, he now has the opportunity to in fact develop a real ability to communicate with others. I would disagree with what you're saying. Once that's completed, once he's learned how to use a communication augmentation device then I would agree with you that there would be not be a need for further intensive speech therapy. Usually what is recommended is that there is periodic review and short periods of intensive therapy. So although I have expressed in my report I haven't tried to quantify it, I've just sort of given it a pro rata number of hours per week over a year, but in fact it's likely that would be the most efficient way of using a speech therapist; to maybe have a periodic review but then when the opportunity arose for a speech therapist to capitalise on some improvement, whether it's improvement in intellect, improvement in physical functioning, improvement in his ability to sit, all of these factors dictate his capacity to use these sort of devices. But I agree fundamentally with what you're saying in that there will come a plateau. I don't think it's right through now. There will come a time when he will not need extensive speech therapy. I am not proposing that this is required ad infinitum. I would suggest though that people's needs change as they get older. Communication devices are rapidly improving over time. He's developing head control. There may be opportunities to allow him to use his head control if that improves a bit more to operate devices, so there's a bit - it's a bit of a dynamic area with Omar, both in terms of improvements with technology, subtle improvements with Omar. Even though they're small they can have big implications in terms of his ability to use communication devices." 307 Mr Campbell questioned Dr Adler concerning a report of Associate Professor Wayne Reid, to which I will make reference later in these reasons. In light of Professor Reid's findings, Dr Adler was asked whether "it seems very unlikely indeed …….that he'd ever get to the stage where he could initiate communication in the manner .. you have described", he replied: "My answer - I would say it is possible, it is possible. Based on what I have seen, less so on that neuropsychological report which is a partial assessment as can only be conducted on a severely head-injured person. There is possibility of simple initiation, of simple requests, nothing complex. No, I don't think I - he'd be able to use an air conditioner, but a light switch, possible, a request for water, possible." 308 There was further cross-examination upon the neuropsychological testing performed by Professor Reid: "Q. And we know from Professor Reid's test that three times he couldn't learn one of seven words, the fourth time he did learn one of the seven words, but on the fifth trial he was again unable to learn any of the seven words; that's right, isn't it? A. I accept that. I'm not surprised. Q. And these tests that the neuro-psychologists apply are tests which are recognised in their profession to extract information on a normative basis; that's right, isn't it? A. Sure. Q. It's not a matter of the neuro-psychologist not having the patience to persist, is it? A. Yes, it is, in the sense that - look, if you shine a weak light into a dark room you're not going to see a lot. Now the neuropsychological testing is not a full battery of testing that we apply to a mild or moderately intellectually disabled person. There is a problem with a severe - severely head-injured person. We don't really have - we can only use a very limited test to try and assess their mental faculties. It is very important to actually assess them based on what they actually do. You don't - I think it is wrong to give too much emphasis to a neuropsychological test when you actually see that their functional ability disagrees with the results of the test. I would give more credence to what I observed the person doing and I would use the neuropsychological tests as a way of clarifying their strengths and weakness and their cognitive reasoning ability. One of the tests used is the Raven's Progressive Matrices test. I mean, that's an abstract test. I mean, that's not easy - there's a hammer in a box. How does that compare to a sandwich in a, what, car, bag, et cetera. So it's analogies, it's abstract thinking. I'm just pointing out that some of the tests used he's going to do extremely poorly because they're looking for his ability to operate at quite a high level. We know that he doesn't. I'm not surprised that he would fail miserably at any test of abstraction, but he does have a learning ability. That's been proven. Mr Reid has to limit his - probably does have to limit his conclusions to the tests that he applies. You know, but it doesn't mean that the tests should be valued more than what we actually observe the person to be doing." 309 In re-examination, Dr Adler told Mr Hull that Botox resistance occurs in a significant number of people and that Botox may not be something which can be maintained indefinitely. 310 Yet another rehabilitation specialist, Associate Professor John Yeo, gave evidence in the Plaintiff's case. His reports were dated 4 June and 20 November 2007. For the purposes of the earlier report, he saw Omar on 31 May 2007 at the Head Injury Unit of Royal Rehabilitation Sydney. 311 Professor Yeo recorded: "Since his discharge from hospital he has not required re-admission for any serious complications associated with his traumatic brain injury. The patient remains with a profound loss of cognitive function and spastic tetraparesis with the spasticity modified to a degree in both lower limbs as a result of the intrathecal Baclofen pump. He continues however to require medication to control his susceptibility to epilepsy. The patient has had an intensive course of physiotherapy, occupational therapy and speech therapy." 312 And also: "His father confirmed that over the past twelve months his son, Omar had experienced an improvement in self-awareness and was able to have limited use of his right hand with movements to assist with feeding and was aware of his environment and appreciated his father's presence. He has been in training to develop some keyboard skills using appropriate splintage and special technology. He has still been unable to speak any words and only utters some sounds. He identifies "yes" or "no" in reply to questions by moving the thumb of his right hand. The patient remains incontinent of urine and faeces. He has pureed food by mouth given by an informed and careful carer and fluid is given through the gastrostomy tube (PEG). The patient continues with medication to help control his susceptibility to convulsions. His last seizure was approximately one week ago." 313 Professor Yeo's findings on examination were: The clinical examination on the 31.5.07 confirmed that the patient has a permanent tetraplegia with spasticity mainly demonstrated in both paralysed upper limbs. He has less tone in the paralysed muscles of both lower limbs due to the affects of Baclofen delivered by the subcutaneous intrathecal pump. The patient has severe cognitive loss resulting in absence of speech and difficulty with concentration and vision. He demonstrated recognition of his father and his limited ability to respond was appropriate to questions he was asked during this consultation. The patient has a persistent divergent squint and appears to have some partial hearing loss. Both his ability to hear and his vision were difficult to assess due to his severe difficulties and poor balance. He has very limited facial expressions. I did not identify any presence of nystagmus and the fundi were not visualised. The patient wears pads to help control incontinence and the PEG is permanently in place to assist with nutrition, particularly fluids. On examination of the upper limbs, the patient had some faint movement of extension and flexion of the right elbow and wrist with limitations due to generalised spasticity in this upper limb. He was able to voluntarily move his right thumb in slight flexion and extension to assist with communication (yes or no). There was increased spasticity in both upper limbs and he appeared to have intact sensation. On examination of the left upper limb, there was no useful voluntary movements demonstrated and in this limb there was again marked spasticity with difficulty in maintaining full range of passive movements due to this complication. In the lower limbs, no useful voluntary movements were demonstrated in either lower limb. There was generally diminished tone in the muscle groups of both lower limbs and the patient appeared to have useful pain and proprioception in both lower limbs. He has poor balance and needs full support whilst sitting upright in his wheelchair. The patient required the assistance of two carers during the consultation." 314 Under the heading "Discussion and Conclusion", Professor Yeo said: "Mr Baghdadi has suffered serious head injuries in the work related accident of 7.8.02. He remains with a permanent and profound cognitive loss and functional tetraplegia with spared sensation. He has a permanent neurogenic bladder and bowel and remains prone to the complications of convulsions (at presently reasonably controlled by medication), increased risk of respiratory tract infection, urinary tract infection and trophic skin ulceration. The patient has very limited ability to communicate his needs due to this cognitive loss. He does however, appreciate the presence of his father and demonstrates a level of awareness of his environment." 315 He continued that Omar has benefited from "an appropriate intense rehabilitation program" and suggested that it should continue. He said that he requires a personal carer 24 hours a day and noted that 2 carers are required for dressing and undressing and for management of bowel bladder and skin. He also noted that Omar requires "appropriate nutrition given by informed and dedicated carers and that he is prone to regurgitation with reflux and possible inhalation. He endorsed the regime proposed by Ms Jan Van Groningen of 2 carers available from 7am to 9pm followed by a single "sleep over " carer from 9pm to 7am. In addition, he recommended domestic assistance, regular review by a physiotherapist and an occupation therapist and regular review by a general medical practitioner and by a neurologist. 316 Upon the important question of life expectancy, Professor Yeo said: "I have calculated Mr Baghdadi's life expectancy to be 62% of the years that now remain. This calculation is based on the assessment of his permanent tetraplegia (77%) with a further reduction of 5% for his susceptibility to post-traumatic convulsions with a further 5% reduction because of poor posture and lack of ability to regurgitation during feeding. Mr Baghdadi's severe and permanent disabilities are the direct result of injuries, which he sustained in the work related fall on the 7.8.02. No further significant recovery will occur." 317 Professor Yeo reviewed Omar at his home on 15 November 2007 and subsequently reported to his solicitors. He confirmed his previous findings but noted: "The patient is unable to utter any spoken words and has a widely divergent gaze. He indicates a "yes" or "no" by movement of the right thumb and has slight movement in the right forefinger. He can manage to place some food in his mouth with the assistance of a splint but requires, for his safety and well being, a full-time carer" 318 In this later report, Professor Yeo revised his previous estimate of life expectancy upwards to 67% of the years that now remain because of the absence of regurgitation during feeding. He also modified his opinion as to the extent of overnight care required, expressing the opinion that 2 carers are required 24 hours a day. 319 In this second report Professor Yeo also suggested that Omar would benefit from the provision of a small heated spa pool, which would allow him to achieve some degree of movement. 320 Questioned about a chapter entitled "Life Expectancy" in a book, Brain Injury Medicine Principles and Practice, contributed by Shavell and others, he, in effect, preferred his own analysis of Omar's life expectancy broadly, as I understand it, because the chapter, which was a statistical survey, did not permit a close enough analysis of the care provided to the members of the groups within the survey. 321 In oral evidence, Professor Yeo told Mr Hull that although generally speaking after 2 years post injury, a patient has plateaued, in Omar's case because of the Botox injections, he is showing improved functioning after 5 years. He said that he is "still learning". As to how long Botox should be considered and how long speech therapy should continue in a head injured person, he said that Botox has only been widely used for 2 or 3 years. I interpolate that according to Dr Lowy, Botox injections were administered to Omar as long ago as 2003. 322 The subject of whether it is appropriate for Omar to continue living in his own home was raised by Mr Hull. There was this exchange: "Q. Can I ask you just two questions about that topic. First of all you have now had the opportunity of seeing him in his own home rather than in the hospital. Did you form any views about his insight and therefore the appropriateness of him living in his own residence as distinct from some form of institutional care? A. Mr Baghdadi has recovered from his severe cognitive loss as a result of brain damage a good deal of awareness. He responds to his father and mother. He responds to his carers. He responds to a visitor, be it a professional visitor such as myself or others. He has a means of communication which is essentially one of moving a thumb and forefinger to verify or deny whatever suggestion has been put to him in conversation. Therefore it was my interpretation that he had an understanding and an appreciation of his environment. For that reason medically I would not recommend that he would be nursed in the future in an institution. I would recommend for his - the limited enjoyment of life, very limited enjoyment of life which he now has, that has got to be experienced in his own home where there will be, on the balance of probabilities, an adequate level of physical care, an appropriate level of professional advice and the input of love and affection from those who are near and dear to him. Now if I'm, as a medical doctor, meant to prescribe for someone a situation that should be reached that is as close as we can get to what would have been his experience had he not had this accident then I cannot prescribe for him any other situation but a home situation with an appropriate level of attendant care. " 323 Professor Yeo told Mr Campbell in cross-examination that he understood that while Omar was at the Royal Rehabilitation Centre where he saw him, urine collection was achieved with a uridome. There was then this exchange: Q. Now, from your point of view, is the use of a uridome superior to using a urinal bottle? A. It very much depends on the patient's anatomy. Obviously if the penis has shrunk and is very difficult to find it is very hard to put on the attachment. Even if you put it on, it falls off in the middle of the night and it is embarrassing to the patient. If you can in fact position the patient with a bottle, at least in the main, while the bottle is inconvenient, it can, given correct posturing, manage to collect the urine and, therefore, prevent the patient from, in the main, being incontinent or at least wetting the bed. Q. On your understanding that whilst he was at the rehabilitation centre a uridome was being utilised to manage his urine at times, there is no reason why that could not be used in the home, is there? A. Well, when we discussed that in the home situation in the second visit in November of this year, his father and the carers indicated to me that it was not practical to apply the uridome in the home situation because of the difficulty in maintaining the attachment of the uridome and, therefore, the bottle was the practical way of dealing with the problem. Q. If it was able to be done at the Royal Rehabilitation Centre, it ought to have been able to be done at home, surely? A. Well, not necessarily. I mean, if, with the passage of years, things change in size and shape, which unfortunately they do for all of us, whether we are disabled or not, I think you just have to accept that as an anatomical fact. The thing is that we have had so many patients in the years where, with disuse, if I can use that term, organs atrophy and the penis is no exception. So that the fact that he might have had it in hospital, for whatever period, and I cannot give you the period of time, or the percentage of time, that he had a uridome on there, because I have not recorded that, but the fact that it was now necessary for him to have a different method at home does not surprise me. It would be our clinical experience." 324 In dealing with further questions by Mr Campbell, Professor Yeo elaborated upon his reasons for recommending, in his second report, that there be 2 carers 24 hours a day: "The point was then also made why then not introduce him to a system where he would be interrupted less at night by turns, for example, and the answer to that was fairly clear; that the patient himself would prefer to be turned, not just to avoid trophic skin ulceration but because, as paralysed people with normal sensation are, and this is one of Mr Baghdadi's problems as against the spinal injured, who do not normally have sensation, the head injured patient often has increased sensation and is uncomfortable in the turning process, apart from the trophic skin ulceration. It gives some comfort because of the repositioning of paralysed limbs. I accepted that, and I accepted the fact that the patient had made such a definite point through his father to me, that he would prefer to use the bottle and not any catheter device, and hence the increase in my overnight prescription. …………………………………… Q. From what you are telling me, is this the situation? If one assumes that there is a recurrent problem, then catheterization is medically indicated. If it is not a recurrent problem, then the patient's wishes should be taken into account in relation to catheterization? A. Yes, I agree with that. Q. Just speaking about the patient's wishes, have I got the right impression, if I can put it that way, that a lot of what you understand to be the wishes of Mr Baghdadi about these matters has been derived from what Mr Kouri has told you about what Mr Baghdadi feels? A. Yes." 325 In answer to Mr Donaldson's questions regarding Professor Yeo's change of heart as to the desirability of providing a spa pool for Omar, Professor Yeo said he based this on photographs of Omar in the pool apparently enjoying himself. He did not have any information as to the number of times Omar went into the pool or as to whether he performed any exercises. 326 It is convenient to refer next to the evidence of Ms Joanna Goldthorpe who qualified as an enrolled nurse in England in 1989. She worked there as a nurse and came to Australia in January 2005 to take up a position with Global, where she became involved with the care of Omar. Her role is to coordinate the rosters for and the work of the carers and to liaise with Global. She also liaises with Omar's therapists and with his parents. In certain respects, she said, she regards herself as a case manager but Omar's parents also perform that role. 327 She said that the therapists in regular attendance upon Omar are Ms Margie Logan, speech therapist; Mr Phillip Wheen, physiotherapist; and a podiatrist. 328 Normally 2 carers are in attendance but a third person comes in every second day for 2 hours between 9am and 11am. This third carer helps to shower Omar, the evidence being that he has an enema and a shower every second day. 329 Ms Goldthorpe said that she personally, with the assistance of only one other person, had bathed Omar on the bath table in the laundry and found it very difficult because of his size. He has to be held on his side while his back is washed and this is very difficult for one person when he is wet and slippery. Originally, the third person assistance was provided by Mr Kouri but since he hurt his back, Global has provided a third person each second day. 330 Ms Goldthorpe outlined the carers responsibilities as including giving Omar his medication; eye drops every 4 hours during the day; feeding him with meals prepared by Mr Kouri and Mrs Cohen, a long and difficult process; supplementing his nutrition; and giving him water via the gastrostomy or PEG tube. 331 She said that between 7pm and 8pm Omar goes to bed for his night's sleep, being transferred from his wheelchair. She washes him, arranges him on his side and positions a urinal bottle between his legs, which is checked every 20 minutes, or more frequently if he coughs. At 11pm he is repositioned on his other side and the urine bottle is also repositioned. The same procedure occurs again at 3am. At 11pm when he is turned he is given Tegretol via the PEG and fluid. At 3am he is given fluid only. Omar wakes between 5.30am and 6am, when his face and hands are washed and he is given a drink. 332 She said that she has been on duty when the urine bottle has moved, causing urine to spill and necessitating the bed linen being changed around Omar, a task which requires two people. According to Ms Goldthorpe, the urine bottle can spill up to several times a night but some nights there is no problem. I note that to some extent in relation to nocturnal urine problems, Ms Goldthorpe's evidence conflicts with the evidence of another carer, Mr Robert Messitt, to whom I will make reference hereafter. 333 There is a constant worry that Omar will develop bedsores and therefore any handling of him must be extremely tender particularly in the area of his lower back. She testified that the medication, which he takes regularly, namely Tegretol and Kevtar, is designed to combat seizures which last several minutes and comprise the violent shaking of his limbs. During the night one of the 2 carers observes him all the time. The other performs household chores, laundry, ironing, equipment washing, recharging batteries etc. The carers usually take turns on an hourly basis. 334 In relation to nocturnal urine control, there was this exchange with Mr Hull: "Q. I know you have dealt with the night time use of the bottle between his legs, but is there a reason you don't use the nappies and pads overnight? A. Because they are more likely to leak, because he is on his side. The nappies and pads provide a nice moist environment for bacteria and things to grow in. So giving Omar's skin a break from that overnight is beneficial, as well they also produce creases and wrinkles, which again can lead to pressure breakdown. Q. There is a device that is called a Uridome, which is like a condom that's placed over the penis. Is there a reason why that's unsuitable for Omar? A. It's unsuitable for Omar as his penis is quite retracted, so the fitting - it wouldn't fit. It has been tried. Q. In the period that you have been involved, has he ever had a urinary tract infection? A. No. " 335 Ms Goldthorpe said that one of the duties of the carers is to monitor the PEG, which is a potential source of infection. The balloon which holds the tube in Omar's stomach deflated at 11.30pm some months ago and the tube fell out. This necessitated Omar being taken by ambulance to hospital. The fact that the tube remains in place has to be constantly checked. In any event, Dr Nielson changes it at about 3 monthly intervals. 336 On alternate days when Omar is not showered, he is given a full wash in bed before being dressed for the day. Each afternoon there is normally some therapy, Omar sits at his computer and he may have an outing or simply sit in the garden. The program is unregimented but everyday he is exercised by his carers who also attempt some speech therapy and splint his legs to prevent his muscle contraction. Asked how long is it appropriate for Omar to sit in a chair, she replied that it is about three and a half hours, "enough time for him to go to the movies and come back". 337 Normally he has his evening meal about 5.30pm and he watches "The Simpsons" on television at 6pm. 338 Asked by Mr Hull whether she had noticed any change in Omar's insight since January 2005, she replied: "A. Um, Omar is a lot more responsive, and even though you - what you see is just question and no answers if you speak to Omar you can tell a lot more in emotion in Omar he's - and he is freer with his emotions so he will laugh appropriately and you can see distress more. If you were to have a conversation with him he picks up on the, on any, on the environmental constraints around him so if there's a little bit of conflict, or there is, or even if you are not feeling too good, if the staff aren't feeling too good Omar will let you know, but that he will ask you if you are okay. " 339 When Omar watches television or a film, she said that he laughs in appropriate places. She was present when he went into the swimming pool during the 2006/07 summer, "he had a huge smile the whole time that he was in the pool". She identified the photographs depicting him in the pool with a smile on his face and with his thumb up. 340 In December 2006, Omar was taken on holiday to Nelson Bay. He was accompanied by his father and 3 carers working in shifts. She said that number was inadequate for Omar's needs as it required each carer, in effect, to work for 16 hours at a time. 341 According to Ms Goldthorpe, there has been noticeable improvement in the function of Omar's right arm since the Botox injections commenced. She said that he is being encouraged to feed himself and, with assistance, he brings 2 or 3 spoonfuls of food to his mouth each meal. 342 She agreed with Mr Donaldson that a more suitable commode chair than the one now available to Omar would obviate the need for a third carer to assist with showering. He could be transferred from his bed into a suitable commode chair with the available hoist. 343 I next make reference to the evidence of Ms Michelle French, an occupational therapist by profession, who has conducted her own practice since 1992, primarily dealing with children and adults with severe and multiple disabilities and impairments. 344 She assessed Omar at his home on 13 April 2007 and recorded his presentation in these terms: "Omar presented as a severely and multiple disabled man in his mid twenties, with limited voluntary movement. He was lying in his bed with attendant care support upon our arrival, and was assisted in all bed mobility, personal care routines, and transfers by his attendant care workers. Omar engaged readily in the interview and assessment process by listening and responding with facial gestures, a 'thumbs up' that was consistent when his right arm was positioned in a variety of ways, and with eye gaze and tracking. He fatigued through the interview and assessment process but maintained his communication systems throughout. Omar communicated basic likes and dislikes as well as responding appropriately to more complex questions and communications (I.e. multiple stage commands, abstract concepts and humour). Whilst no formal assessment of cognition was undertaken at the time of this assessment, Omar demonstrated a capacity to participate in the communication between his carers, father and the assessors and to understand and follow novel instructions, namely participating with 100% accuracy in a switch activated cause/effect and visual tracking computer game. Omar was able to visually track people and objects in the environment, although his ability to interact at this level was limited by his spasticity (i.e. limiting head and neck movement) and also by his fluctuating levels of arousal and alertness towards the end of the assessment when he was fatigued. Whilst delayed at this time, he continued to be able to track people and objects in his environment." 345 In a very lengthy and detailed report, Ms French provided opinions as to Omar's needs, with costings, in virtually every aspect of his life. Her recommendations included the provision of: Various types of splints. Bed controls, switch mounting systems and an environmental control unit which coupled with an intensive switching program would maximise Omar's potential to gain functional independence. A gym mat, a height adjustable plinth, a height adjustable stool. Slings A motorised wheelchair with attendant controls for use outside his home. A manual wheelchair for use in the home. A lounge chair. A Roto high profile pressure cushion. A custom built home. A laptop or notebook computer with docking station. A variety of software packages. Alternative access systems for use with some of the software applications. A multi function printer. An electronically height and angle adjustable desk. A therapeutic bath. An electric shaver Assessment by an incontinence specialist. A set of 48 neckerchiefs annually. A fully adjustable bed such as the "Volker" bed. Incontinence covers for his pressure mattress. Domestic assistance, home maintenance assistance and garden maintenance assistance. A wheelchair accessible van such as the van he currently uses. A set of Decpac portable access ramps for accessing the community. Visits to his mother in the United States: 4 weeks of holidays annually. Regular occupational therapy. Case management services. A tilt table. Various positioning rolls and wedges. A gel pad. An annual allowance of $500 to provide appropriate equipment items associated with daily hand care routine. A wax hand bath. Wax replacements. Hand towels, rubber gloves and cream. A weekly massage. A mobile hoist. A ceiling hoist" 346 Ms French estimated the annual cost of the home equipment she suggested at $46,450 ($893 per week). She also costed occupational therapy and case management services on an annual basis at $14,840 ($285 per week), plus one off items totalling $75,314; and her recommendation for domestic assistance, home maintenance assistance, and gardening assistance at $13,137 per annum ($252 per week). Finally, she costed, according to four different scenarios, the provision of attendant care such costing ranging from $463,733 per annum ($8,918 per week) to $673,888 per annum ($12,960 per week). 347 In her report and in oral evidence, Ms French said that she regarded the present system of showering Omar on a shower trolley as unsatisfactory. In her view, a shower commode chair or a hydro-bath would be preferable, as posing less risk of damage to his already vulnerable sacral region. 348 Upon the subject of a hoist, she gave this evidence to Mr Hull: "Q. And can you just explain the advantages to his Honour of the hoist ceiling system in relation to his mobility? A. Yes. At the moment Omar has been - all his transfers, so from bed to chair, chair to bed, chair to shower trolley, are being completed by use of a mobile hoist. That's the hoist on wheels. The sling is placed under him and he is hoisted up. It is a cumbersome way to transfer him and it is when you talk to people who are being transferred using a mobile hoist they actually don't feel very secure in that way. What I have recommended is a fixed track ceiling hoist, so we install a fixed track along the ceiling and there's a hoist bar that comes down from that. We attach the sling to that. The advantages of using a fixed track ceiling hoist is that with two carers you have one carer walking with Omar and then turning him around and if you were transferring him into his wheelchair you would have one person at the back of the hoist sling pulling Omar back into position using the hoist sling and one at the front positioning him to make sure he is seated and positioned in his wheelchair correctly and comfortably the first time. Similarly with a fixed track ceiling hoist, you run the fixed track directly into the bathroom and over the bath so it is a direct transfer from bed straight into bath and it is the only time the hoist sling is usually left in place is underneath the client while they are in the bath. Q. I think you've seen on the current regime in the bathing process he is dried on the shower trolley. How does the hoist system change that? A. I've also recommended a change table so that he gets transferred straight from the bath or a shower commode chair on to a dry change table. It is basically a height adjustable change table padded and fitted with safety rails so you can dry him in the bathroom in the same place, then you would use the fixed track ceiling hoist for that transfer as well and then from being dried and dressed on a change table into his wheelchair and/or bed or recliner chair, wherever he is going. Q. I mentioned earlier we choose whether we have a bath or a shower. Have you got any opinion about his ability to indicate his preference in that regard? A. When I went up and assessed Omar he was quite reliable in indicating yes or no with thumbs up thumbs down and also his eye gaze, so I think when people's ability to make decisions and have control over their life is so compromised by the impairments that they have sustained, any opportunity to provide them with a choice should be maximised so that they can exert some choice and control over their life. " 349 A little later in the examination, Mr Hull asked Ms French, in effect, about Omar's computer expertise. There was this exchange: "Q. Do you have any views about the adequacy of the current switching mechanisms available to him? A. To Omar? Q. To him, yes? A. At the time I assessed Omar, he had a modified joystick that he was attempting to use. I thought this was very inappropriate for him and had my laptop with me with a little switch that we use in some specialised switches which was on my laptop. I set that up with Omar and put the switch between his first finger and his thumb, used some what we call switch response software with him so something appears on the screen, he has to hit the switch as soon as it appears on the screen. He was a hundred per cent reliable a hundred per cent of the time and then I used a general visual scanning programme where a space ship comes across the screen. When it gets to the circle, he had to press the switch to basically blow the space ship up. And again he was a hundred per cent reliable in his use of the switch visual scanning and hitting the switch at the appropriate time to operate the programme. So his switch, or his modified joy stick that he was attempting to use at the time I assessed him, in my opinion and experience, was totally inappropriate for him and he could have been using just a single switch with a reliable movement that he had. HIS HONOUR Q. Were you able to communicate with him? A. Not verbally, I mean but in terms of asking Omar questions, he has the thumb up for yes and then he started using his eyes up for yes so, yes, we were able to - he was reliable and consistent in those forms of communication so asking him yes/no questions. Q. How did he learn when to press the button? A. I told him. I said, "When it comes across, you have got to wait until the space ship gets to the circle. When it hits the circle, you have to hit the switch". Q. Did you demonstrate or tell him? A. No, I told him because he had the switch so - and we had done the switch response programme prior to that so he knew that if I hit this switch, I can control something on the screen. OBJECTION (CAMPBELL) CAMPBELL: I object to that last answer, your Honour. "He knew". What he knew about what he could control. HIS HONOUR Q. I am not quite clear. When you say you told him, you told him verbally, did you? A. Yes. Q. And he thereafter pressed the button at the appropriate time? A. Yes, that was after with the scanning programme. With the first one, I demonstrated, "You hit the switch, this will happen on the screen". So put the switch in between his forefinger and his thumb and I said, "When it comes on to the screen, hit your switch", so it's - it's a process of anticipation and being able to perform the motor movement at that - at the correct time, which he was able to demonstrate very clearly." 350 Ms French told Mr Campbell that she had not seen the report as to cognitive functioning by Associate Professor Reid. She agreed she would have given weight to his findings if he had relevant experience and was given the opportunity to read his report. 351 She then agreed with Mr Campbell that her observations were inconsistent with a finding that Omar showed very minimal new learning of verbal material skills. There later followed these questions and answers: "Q. See, your expertise, can I suggest to you, Ms French, is really in the area of assessing his motor functioning and needs. Would you agree with that? A. In part, yes. Q. And that the assessment of what are really his cognitive abilities or disabilities really is a matter which is within the proper field of expertise of neurosurgeons and neuropsychologists. That's right, isn't it? A. In some instances, yes. Q. I am asking you in this instance it is properly within the field of neurosurgeons and neuropsychologists, is it not? A. Primarily, yes, but I wouldn't say solely. I mean with this level of impairment it's usually a team approach because of the complexity of and the difficulty in conducting pure assessment. …………………………………….. Q. Things like communication, comprehension, memory and reasoning are all cognitive functions? A. That's correct. Q. And they are all cognitive functions which underscore Mr Baghdadi's ability to communicate with you in the way that you have suggested he can with hand signals and eye contact? A. In some ways, yes. I mean it is not the only function that he needs. Q. It is not the only function he needs, but in terms of his understanding of what you are saying to him, then comprehension, memory and reasoning are all fundamental, aren't they? A. That's correct, yes. Q. Indeed, those three things are fundamental to communication per se, are they not? A. That's right, yes. Q. And a person who had, if you assume for a moment, a massive brain injury may well have very impaired comprehension, memory and reasoning powers. Would you agree with that? A. Yes. They can have very impaired, they can have varying levels of impaired or they can have slowed processing. Q. From the evidence you've given this afternoon about what you perceived Mr Baghdadi's ability was to participate in the computer test with the click switch, he didn't seem to you to show any impairment of his comprehension, memory or reasoning in respect of those matters? A. He was able to complete the programme with verbal instruction. He was able to do what I asked him to do reliably. Q. If that's right, and this is the point of my question, if that's right then you would say he didn't demonstrate to you any impairment whatsoever of his comprehension, memory or reasoning; is that right? A. No, I wouldn't say that and I didn't say that. Q. I am asking the question, you see. A. What I said, he was able to understand a single stage instruction. When this comes on the screen, hit your switch, or two stage instruction, and he did it reliably. Like, he did it. I am not-- Q. That's certainly, as you've told me already, inconsistent with what Dr Reid found, that he had very little new learning of verbal material? A. That's why I am interested to look at the report and see what assessments he used and what tests he used because a lot of the formal assessments that neuropsychs use are inappropriate to be used with this population." 352 After she was given overnight the opportunity to read Professor Reid's reports, Ms French was again questioned about them. In the result, she did not agree with Mr Campbell's proposition that what Professor Reid said about Omar's cognitive difficulties would have an impact upon his need for physiotherapy, for speech therapy, and for some of the equipment she had recommended particularly computer equipment. 353 In relation to her evidence that Omar should be showered in a commode chair, Ms French was cross-examined by Mr Donaldson regarding the commode chair he currently possesses: "A. The back of the chair is far too high for him. It doesn't have a back recline feature. It doesn't have elevating leg rests or position-adjustable foot plates. It does not have appropriate trunk or head support. So, it would be very, very difficult to shower Omar safely in that chair. Q. Certainly, if he was provided with an appropriate commode chair, there would be no difficulty whatever in his shower being undertaken by two people and not three? A. Yes. Two people would be appropriate, yes. Q. If he had an appropriate showering commode chair, the space problems that you spoke about in relation to the bathing area would be resolved, wouldn't they? A. Yes, that would be better. " 354 She agreed with Mr Donaldson that there are studies which suggest that spasticity is not reduced or managed using wax baths (which she had recommended) and that, conventionally, it is a therapy only used for pain relief in patients with arthritis, or where scars need to be softened following surgery. However, she maintained, in effect, that in her clinical work she had found wax baths useful in treating pain associated with spasticity and in promoting a greater range of movement. She also agreed that the Baclofen pump plays a role in pain management. 355 In relation to her recommendations regarding environmental control systems, there was this exchange with Mr Donaldson: "Q. This environmental control system involves controls which enable Omar to do such things as open and close curtains, turn lights on and off? A. That's right. That's correct, yes. Q. To operate appliances? A. Yes. Q. Including the toaster? A. No, you can't operate a toaster with it. Q. I won't go over the ground that Mr Campbell has already gone over but based upon Omar's progress to date, it is unlikely that he is going to achieve a functional level that makes it either necessary or appropriate for him to be controlling those things, isn't it? A. I disagree. I don't think his switching has been fully explored or optimized as yet and all he needs to utilise an environmental control system is the ability to use a single switch. When I assessed him, he demonstrated very clearly that he is able to use a single switch. I think it is more the issue that he hasn't had the opportunity to date to use an environmental control system." 356 In re-examination, she told Mr Hull that her recommendation for the provision of an adjustable change table was predicated on Omar being showered in a commode chair or bathed in a bath. 357 An important issue in the case concerns the extent of Omar's continuing need for speech therapy. The principal witness in his case on this subject was Ms Margie Logan, although I have already made other references to the subject in the evidence, especially of Dr Lowy. 358 Ms Logan, in her report dated 15 February 2007 to Turks Legal, the solicitors for Kaybron, said that she has been treating Omar twice weekly since 31 October 2003. She said that there have been 2 periods of inexplicable deterioration in his functioning, including swallowing and communication abilities, first in September/October 2005, and again in January/February 2007. On both occasions he was hospitalised for investigation of his shunt. 359 She put into 2 categories her treatment of Omar, namely "Swallowing" and "Communications". After reciting early difficulties with swallowing, she noted, "as with all of Mr Baghdadi's treatment, progress was steady but very slow". 360 She said that Omar progressed to being able "to reliably take food from a spoon by closing his lips around it by December 2004". In early 2006, she said he had progressed to a level where, "he was able to take isolated pieces of soft food which he could with some competence move voluntarily from the centre of his tongue to his molars (usually left) and masticate before swallowing". Great care needed to be taken in feeding him due to the danger of choking. 361 In a supplementary report dated 15 November 2007, Ms Logan said under the heading "Swallowing": "Omar was nil by mouth after an undiagnosed deterioration in his swallowing abilities in February 2007 at the time of my report to Turk Legal. Within weeks of this he improved to his previous level and has since been taking an oral diet of pureed foods and thickened fluids. In addition, he has recommenced taking some very small sips of unthickened fluid via a teaspoon or straw dropper. He swallows (sic) remains severely impaired. He required modified fluids and food and full assistance to feed him though he has recently commenced feeding himself with a spoon." 362 In her February 2007 report, Ms Logan commenced the section on communication: "Initially Mr Baghdadi's responsiveness was sporadic due to his limited ability to initiate any voluntary movement so that he was often rendered locked in. Initial assessments were painstakingly slow due to the inordinate amount of time, and amount of assistance it took for Mr Baghdadi to produce a single response. Determination of his linguistic abilities took many months to determine. Nonetheless, it was eventually established that Mr Baghdadi basic auditory comprehension and simple reading were intact. He was able to demonstrate an ability to name objects and answer questions. Mr Baghdadi was highly motivated to verbalize and many months have been spent working on achieving voluntary vocalization and mouth movements. He can now coordinate a forceful exhalation and redirect his air out his mouth rather than nasally to produce an audible exhalation like a whisper. He can produce some voluntary vocalisations when lying flat can reproduce these on instruction in this posture. Only on occasions can he voluntarily produce voice when seated without vocal stimulation (e.g. airway penetration, coughing or hiccough). Mr Baghdadi has had some impressive improvements in his mouth movements though he remains non functional in terms of oral communication. He commenced being able to widely open and close his mouth to command. He can become stuck with his mouth open and have difficulties closing it again. Training has been undertaken to modify these movements and to move towards more purposeful oral mouthing. Mr Baghdadi can now mouth his name on occasions." 363 After explaining that most of Omar's communication training has involved using augmentation to allow him to communicate non verbally, she said: "Various switches were tried that might enable Mr Baghdadi to select items with minimal movement on a device that scans choices (e.g. on screen keyboard). No devices tried at this time were successful due to difficulties with scanning, or limited motor function. In order for Mr Baghdadi to improve sufficiently that he might be able to use a switch for communication purposes he needed something available to him in order that he could mass practice. To this end, a Playstation 2 was purchased to enable him to engage in purposeful and timely activation of a switch for practice purposes. He required assistance and, on occasions, verbal prompting to achieve initiation of switch activation to participate in a game. He could only use part of the console (either the button or joystick but not both) so needed assistance to use any game. He did improve his accuracy and timeliness of switching through use of the Playstation 2. After many months of training, Mr Baghdadi was able to use both thumb up and thumb down to produce both "yes" and "no" response. On occasions, he was still rendered incapable of initiating the movement and an alternative eye gaze system was trained (that is, looking at a Yes or No). Eye gaze was much quicker and easier to initiate on a regular basis. Unfortunately, despite more and more evidence of Mr Baghdadi's capacity for communication, few people actually used augmentative tools to enable him to respond. A Perspex communication board was designed and supplied with the Yes and No fixed to it which improved functional use by others. Mr Baghdadi's improved physical movements (due to reduced spasticity) following insertion of the Baclofen pump led to an increase in the amount of functional gestures he could use. Training proved difficult due to memory problems and limited range of volitional movements. He has managed to increase his repertoire to several movements such as "come here" (curling his right index finger)", "yes" and "no" (right thumb up and down), pointing to others and himself "goodbye" (right wrist up and down) and pointing to various parts of his body. "The Dynavox Speaking Software", enabled Mr Baghdadi to have a limited number of options from which to select an item by pressing the switch. This software allowed for flexibility of the interface so that it could be made more complex as his abilities and familiarity improved." 364 Her report of February 2007 continued: "In addition to the Dynavox software, the computer has Internet and email access, Microsoft word and various games have been supplied for mouse access practice. Mr Baghdadi has also been provided with an ergonomic mouse and a detachable keyboard. He is currently training in the access of the computer and functional communication using all these access modes. He uses the switch or mouse to access the on screen keyboard though these are slow and require assistance. He types with elbow and wrist support slowly. At times he can type sentences reasonably quickly and at other times he is very slow taking up to 0.5 hour to type part of a word. Mr Baghdadi can do some writing with a pen legibly and independently on occasions – for example correctly writing "Wed" when asked what day it was. When he is assisted he answers questions unknown to the assistant". 365 As to his cognition, Ms Logan said: "Cognitively, Mr Baghdadi demonstrates chronic memory and new learning problems. He was disoriented to time and place, however, he does have the capacity to learn with mass repetition, and now recalls where he is and often the day of the week. He recognizes people he has met before and can learn names with mass practice. With his improved capacity for expressive language due to improved use of typing, writing etc. it has become apparent that generation of ideas is somewhat limited for Mr Baghdadi. He finds open ended questions, at times, overwhelming and when questioned indicates that he can't think of a response e.g. "what would you like for lunch?" At times he can't think what to write when composing a card or email to his mother. At other times, though, he answers similarly complex question such as "Who is your best friend?" He types or writes appropriate questions to initiate conversations e.g. "What are you doing at my place?" 366 In her report of November 2007, she said that a re-assessment of Omar's language abilities had occurred over the previous 3 weeks. She said that he answered verbal "yes/no" questions with his thumb and demonstrated an ability to read and comprehend passages up to 2 sentences. Omar was able to match correctly written words to pictured objects, shapes, numbers, letters, colours, and items around the room and body parts. He was able to recognise words read aloud from a choice of 6. 367 Under the heading "Expression", she included these comments: "All verbal expression had to be written, typed or multiple choice due to Omar's inability to speak. At the time of this testing handwriting was the most independent and quickest form of response so was used for most of the testing purposes. Naming: Omar was able to write the names of simple and moderately difficult items (e.g. helicopter, pelican) from the Boston Naming Test (which requires the subject to name pictured objects). When shown the most difficult items he indicated that he couldn't recall the names (e.g. abacus, protractor, palette) and made only very occasional errors on other harder items (e.g. asparagus=celery; unicorn=horse). Responsive Naming: When given an incomplete sentence about an object Omar scored 6/6. E.g. A list of foods served in a restaurant is called a …………. "menu". Divergent Naming: When required to produce two alternative responses to a question Omar had some more difficulties consistent with his cognitive limitations. For example when asked, "tell me the names of two different things that fizz", he responded "beer" and was unable to think of another response. This was the same for all test items". 368 Commenting on the reports by Professor Reid, Ms Logan said: "Professor Reid notes in his initial report that neuropsychological testing was extremely limited by Omar's communication skills. He saw him over two sessions in April and May 2007. As Professor Reid notes in his report of 13th April 2007, I was present at this assessment. A limited number of modified assessments were administered to Omar. Due to the limited nature of his responsiveness and the difficulties modifying the assessments to such an extent that he could achieve success he avoided responding at all or responded "no" to all items. Professor Reid concluded "Omar displayed marked deficits in capacity to learn new verbal material and in his basic reasoning skills". This is consistent with Omar's presentation. Professor Reid recommended ongoing intensive speech pathology with which I have concurred." 369 Cross-examined by Mr Campbell as to progress in swallowing since October 2003, the transcript records: "Q. See, at the time that he was discharged from the brain injury rehabilitation unit in October/November 2003 - that's correct, isn't it? A. Yes. Q. - so far as his swallowing is concerned and your involvement with that, the main aim was to get him to be able to take as much of his nourishment as he could via his mouth? A. That's right. Q. At this stage, four years after his discharge, that's been achieved because he has taken most of his nourishment by way of pureed meals that are fed to him via his mouth? A. That's correct. Q. See, at the time that he was discharged from the brain injury unit, this is exhibit E, page 39, he was receiving all of his nutrition through oral intake of a pureed diet. That's right, isn't it? A. I don't have it in front of me. I think, from memory, he was getting some intravenous supplement. I'm not sure. Q. He always has had, during the time you have been involved in his treatment, the PEG device, has he not? A. He has. Q. From time to time, when his medical condition has deteriorated, he has had a situation where he has received most of his nourishment through the PEG? A. That's right. Q. And he has always received most of his hydration through the PEG? A. That's right. Q. Because, notwithstanding the best endeavours of yourself and other therapists, he has never got to the stage where he can swallow sufficiently efficiently to handle thin fluids; is that right? A. No. He does manage some thin fluids. Q. Very little, I think; is that right? A. Very little. Q. He couldn't survive on what he manages by mouth? A. No." ………………………………….. Q. Now, it is fair to say, isn't it, that because of the work you did with him, he fairly soon got to the stage where he was able to have three meals a day pureed; is that right? A. Yes. Q. That's right? A. I can't remember when that was exactly. Q. But it would have been some time within the first 12 months after discharge, wouldn't it? A. Yes, it would have been. Q. It is just hard to say exactly where in that 12 months; is that right? A. Yes, that's right. Q. There is a reference on page 39 to trials with minced food, but he has never acquired the skills to deal with minced food. That's so, isn't it? A. No. He does tolerate minced. Q. How often? A. As long as it is bound with something a bit moist. Q. Does he have that in his pureed feed? A. Yes. It is just a lumpier version of puree, is minced, basically. A bit more textured. Q. He has been having that again within that period of 12 months? A. Probably, yes. Q. That situation with his swallowing is basically the situation as it is today. That is so, isn't it? A. More or less, yes. Q. I know you have said that there have been occasional set backs. That is so, isn't it? A. Yes." 370 In relation to communication, there was this exchange with Mr Campbell: "Q. The next involvement, of course, has been in relation to communication? A. Yes. Q. You have told us, I think, that Mr Baghdadi is pretty reliable in terms of indicating "yes" and "no" by means of a thumb movement? A. That's right. Q. Again, you would agree, wouldn't you, that the reliability of the "yes" function with the thumb was well-established by the time he was first discharged from the brain injury rehabilitation unit at Liverpool hospital? A. No. Q. Could you have a look at page 40 of the discharge summary please, which is in front of you? A. (Witness complied). Q. Do you see the heading "Expressive Language"? A. Uh-huh. Q. About the middle of the paragraph, I think the third sentence says: "Mr Baghdadi indicates 'yes' with the thumbs up. He occasionally indicates 'no' with a slightly inverted thumb." Do you see that? A. Yes. Q. "On most occasions he does not indicate 'no' but if the speaker inverts the question he can answer 'yes'." Do you accept that as an accurate statement as to the progress he made at the time of his discharge? A. When I first saw him he was able to indicate "yes" occasionally - sorry, thumbs up occasionally for "yes", but his responses were really very inconsistent. Q. Certainly there, under the heading "Expressive Language"-- A. Uh-huh. Q. --it sounds like his "yes" was pretty reliable, doesn't it? Reading it? His "yes"? A. I think what she is trying to impress upon you there is a reflection of his comprehension actually when she is talking about inverting the question so that he answers "yes" because of his lack of a "no". Q. There are two things. Firstly, he has to comprehend the question before he can make any response at all. That is so, isn't it? A. True. Q. So that one would expect that, if he didn't comprehend, he would make no response; is that right? A. That's right. Q. From what is said there - is this consistent with your recollection - if asked the question the right way he would reliably indicate "yes" with the thumbs up? A. No. Q. So, you disagree with what is said there at page 40 under "Expressive Language"? A. Not entirely, because he would indicate "yes" sometimes, and it appeared to me to be because he couldn't initiate the movement, rather than a lack of comprehension. Q. When you say "initiate the movement", you mean the functionality of his thumb? A. H'm. Q. That is a "yes", I think? A. Yes. Q. But, of course, you accept, don't you, that, having regard to the severe nature of his brain injury, he has a severe impairment of his comprehension when compared to an uninjured person? A. It depends what your classification of "severe" is. Q. We will start this way. You certainly accept that he has an impairment of his ability to comprehend? A. Yes. Q. Did you accept that he has very significant cognitive impairments all round? A. Yes." 371 Ms Logan agreed with Mr Campbell that apart from using Omar's technique of moving his thumb, she used other methods, including an eye gaze at a Yes/No response on a board. She claimed that she established a "very reliable Yes/No response quite early on". 372 However, she conceded to Mr Campbell that 5 years is about the limit after traumatic brain injury that functional improvement in terms of body movement would be expected. 373 Mr Campbell asked Ms Logan about the techniques which she had been teaching to Omar's carers for 4 years. She told him that she engaged in such teaching less than 10% of her time. She conceded that Omar has, for a very long time, been in a plateau so far as a Yes/No response is concerned and that this situation does not require maintenance from the carers. She also conceded that his swallowing is now in much the same position as it has been for a very long time and that the maintenance of this situation does not require much of her time. 374 She told Mr Campbell that since Omar obtained a computer much of her time has been taken with that. She has also recently spent time working on his facial gestures as a means of communication. Although she has also devoted time to voice production, she conceded the great likelihood is that Omar will never speak again. 375 She said she had been able to achieve the facility of him using a switch "fairly early on" but said "he couldn't use it functionally again because of the inconsistency of the movement". As to Omar's use of the computer, there was this exchange with Mr Campbell: "Q. But otherwise, to make any use of his computer equipment these days anyway, someone really needs to guide his arm to the computer equipment; that is right, isn't it? A. Not if he has got the switch in his hand. Q. Well, I guess if he has got the switch in his hand he can turn it on? A. Yes. Q. What else can he do with the switch in his hand? A. Sorry, the communication system on his computer is set up so that it scans item by item on the computer, so it is purely switch access. Q. So he can just he can sit there and just--? A. He selects. Q. By switching? A. (Witness nodded). Q. Have you seen him use that very frequently? A. Yeah. Q. And what sort of functions does it have on it? A. The current system, it has an on-screen keyboard so that he can type words, and it also has a series of pages of about up to four levels below that contain items, you know, such as care needs, people, I can't think - recreational activities. He selects things on the first screen, which opens up a screen underneath that and then opens up a screen beneath that. Q. Is he always reliable in using it? A. Yes. Q. Does it have any function that enables him to, say, call someone if he wants someone to come to him if they are out of the room? A. No. Q. Would there be any reason why something like that couldn't be provided? A. It could be. The difficulty we have had with Omar having the switch to call people when they're out of the room is because of his spasticity: If something is mounted to his hand, which it would need to be, he can inadvertently hit it because of that movement. Q. So is the protocol that it is only useful to him when someone actually puts it there and engages him in the use of the computer at that time? A. At this stage, yes. Q. And whether it ever got beyond that stage would depend more on the progress of his spasticity and his treatment than otherwise; is that right? A. Certainly. Q. And it is not something which can be very much influenced by your professional skills, Miss Logan? A. No. HIS HONOUR Q. Does this mean he has got some reading ability? A. Yes, your Honour. Yes, he can certainly read words and he can write words; he can spell words using the computer, or even handwriting; and he can answer questions, direct questions, and give you an answer, you know, he can tell you his favourite football team. Q. A written question? A. Yes, a written word, and again he has just progressed now to writing things. Early on in my reports you will see I actually had to provide him quite a lot of physical assistance. I had to hold his wrist and his arm to get any writing down because of the difficulties with the movement. He is now writing. And in the back of that most recent record that you have got, your Honour, the writing that he's done there, predominantly he has had the pen in his arm. Unfortunately he can't move his arm across this way (demonstrated sideways), so had to, when he finished a letter, I had to move the page slightly sideways for him to then do the next letter, but he wrote those completely independently holding a pen. CAMPBELL Q. You agree, don't you, at the cognitive level he shows impaired communication, comprehension, memory, reasoning and motor function? A. Sorry? Q. Do you agree that at the cognitive level he shows impairment of communication, comprehension, memory reasoning and motor function? A. Yes." 376 Despite Professor Reid's report, Ms Logan would not agree that Omar will not progress beyond the level he is at now: "Q. If he has a significant impairment to learn new material, that's going to be a deficit that will stand in his way with acquiring new skills. That's so, isn't it? A. Absolutely. Q. And that that could apply, could it not, to the computer equipment regardless of how sophisticated the computer equipment or programme might be? A. Yes. What it means is that Omar does definitely take considerably longer than someone else to learn things, but he's demonstrated new learning, albeit, you know, after many more repetitions than someone else. Q. You see, there must come a point surely, Miss Logan, where you would have to say, as a professional therapist, that the returns on going on with intensive therapy are not worth it, frankly; is that right? A. Omar wouldn't say that. Q. Well, you have had a situation, haven't you, where, apart from other prior commitments that you might have had over the years, where you have been going there for twice a week for four years. That's right, isn't it? A. That's right. Q. And you wouldn't have many other patients who have had that level of intense intervention, would you? A. One or two. Q. One or two over the course of a career? A. No. Currently. Q. And how long have you been seeing those other two patients, or one or two of them? A. One of them I have been seeing for nine years; the other one I've been seeing for - since 11 years. Q. Well, and what sort of level of disability do they have? A. One is similar to Mr Baghdadi. The other slightly different. Q. You have many more than three patients, of course? A. I do. Q. It is a very unusual thing to have this intensive intervention over such a long period of time, is it not? A. It is not common. Q. Well, it is not common. Would you agree it is very uncommon? A. It is uncommon, yes, at this level of disability. " ……………………………………… Q. At this stage it is completely unknown just what level of communication he will achieve using that computer; that's so, isn't it? A. Yes. Q. And at this late stage of his rehabilitation it would be very unlikely that he would acquire any great extension of his communicative skills; that's right, isn't it? A. Certainly his capacity to learn, which we have already said is limited, requiring him to have a lot more exposure to something and a lot more repetitions, his capacity to expand on his current fairly simplistic system is going to depend on time. Q. Well, only time will tell whether it is worthwhile, I suppose, in terms of achieving results for Mr Baghdadi; is that right? A. Whether we can expand his current communication system? Q. Yes? A. Partially, yes. Q. What I was asking you about was this: in your experience and with your skills, it is very unlikely, having regard to how long after the events of the injury it is, that Mr Baghdadi will achieve any great extension in his communicative skills. That's right, isn't it? A. No. I'm hopeful that he will, with added learning of his current computer system and at his capacity to use that, his capacity to learn and for us to develop that, I think he will be able to, certainly in terms of independence of use of that system. Q. Well, you say you're hopeful, but my question was about what's likely. And, from what you've said about the importance of getting to the fifth anniversary of the trauma, it is unlikely that he will achieve what you hope for him with the computer, isn't it? A. No. I don't think so. Q. You certainly wouldn't see yourself continuing this twice weekly involvement for the rest of Omar's life, would you? A. No. Q. And, indeed, after four years, five years after the accident, there must be a very limited time during which you could reasonably expect to get some improvement from here. That's right, isn't it? A. Sorry, what was the question? Q. The question is this: if you get any further improvement it is going to be sooner rather than later. That's right, isn't it? A. Sooner being? Q. Well, sooner being this, we've gone - I withdraw that. It has been five years already? A. Yes. Q. That's so? A. That's right. Q. The scope for improvement after that time is very limited; that's so, isn't it? A. In terms of restoration of function, yes." 377 Later in the cross-examination, Ms Logan said that she estimated it would be another 4 or 5 years before "we can really reliably develop the system so that Omar can use it with people independently". 378 I have already mentioned Mr Robert Messitt, one of Omar's regular carers since August 2005. He gave evidence as to the activities performed by carers from the time Omar wakes up between 5am and 6am. He was unchallenged upon his testimony that feeding Omar, bathing him, administering an enema every second day, checking his skin, attending to his oral hygiene, laundering towels, linen etc., making his bed, dressing him, performing other household duties, making notes, exercising him, carrying out procedures recommended by the physiotherapist, applying arm splints, assisting Ms Logan when she is in attendance, and carrying out exercises suggested by her when she is not present, keeps both carers fully occupied all day. Sometimes, late in the afternoon, they take Omar into the community, a shopping centre or the cinema, which Omar seems to enjoy. 379 Mr Messitt said that in previous positions he has been involved in the use of a uridome, but so far as he is aware, a uridome has never been trialled on Omar. According to Mr Messitt, Omar's penis " has been retracted a lot and that is why it hasn't been used'. 380 In the week he gave evidence, he said that a piece of equipment called a Mag 7 arm was being trialled, this device being designed to support and aid arm movement. 381 Mr Messitt supported Ms Goldthorpe's evidence as to Omar's typical daily regime and as to the carer's duties. He said that Omar moves a lot during the night with spasms and stretches. With experience, he said he has learned to avoid spillage from the urine bottle, the last one being a year previously. 382 According to Mr Messitt, Omar has one other long term carer, Richard Cresham, apart from Joanna Goldthorpe. They themselves train new carers as part of their responsibilities. 383 In relation to the holiday at Nelson Bay there was this exchange with Mr Hull: "Q. I think you were one of the two carers who went with him on holiday last November? A. Last November. Q. How did it work with only two of you? A. It was extremely difficult. Q. Why was it difficult? A. Lack of sleep. Just working probably 19 hours a day. You would 18, 19 hours a day and sleep for one hour while one person watched him then you'd get up and stay up for one hour and the other person sleeps. That's the way it was done, so." 384 In answer to my question, Mr Messitt said that Omar does not generally watch sport on television, although he told Mr Hull that if his cousin, Marcos Baghdadis, is playing a tennis match he will watch that. 385 He told Mr Campbell that during meals Omar only uses a spoon himself up to six times, not sufficient to sustain his life and, in any event, needs assistance in directing his arm to his mouth. Always his carers need to be vigilant to make sure he swallows safely and at times the use of the suction machine is necessary. 386 Another witness, Ms Alicia Van Groningen, is a registered nurse who has worked since 1988 with people having similar disabilities to Omar. Her present caseload of such patients is about 30. As to the suggestion that Omar might benefit from the use of a Therapeutic ATR bed, she told Mr Hull that she had never seen such a bed in use, nor previously heard of it, although she had heard of other pressure relief beds. She said that if the purchase of such a bed was contemplated, it should first be trialled given the very large purchase price. 387 She said that a system of showering Omar using a commode chair should also be trialled before being decided upon as she regarded the present showering regime as "very effective and comfortable". The transcript records: "Q. What is it about his particular body shape and body control that might influence your views about the commode chair? A. I think the rigidity that he sometimes has and difficulty of positioning him and the fact that he doesn't have the voluntary movement to assist in righting his position in the chair. Q. And in terms of manual assistance in relation to the use of the commode chair what would your expectation be? A. My experience has been that sometimes more manual assistance is required to keep repositioning the client because they fall to one side or they slip and we've also experienced significant pressure problems with the seating used in some commode chairs. " 388 In the earliest of several reports, Ms Van Groningen recommended that a registered nurse should be retained to lead Omar's care team: "This recommendation is based on the fact that Omar has a complex medical history and remains at risk of seizures, blockage of his VP shunt, chest infections and may require complex wound management if his skin breaks down. It has been my experience that if the care team are provided with a competent and enthusiastic registered nurse to lead the team, assist with assessment of complex medical issues, prepare care plans, supervise medication administration and documentation, provide resource material and staff training, monitor rosters, act as a liaison person between staff and the family and be available for out of hours consultation (within reason), that the overall care provided to the client is of a higher standard. This is generally because a registered nurse has a greater theoretical nursing knowledge base from which to draw nursing and medical information and the confidence and experience to apply this information to complex care situations." 389 Ms Van Groningen repeated this recommendation in her most recent report dated 10 October 2007. 390 She was cross-examined by Mr Donaldson as to whether it is a practical possibility to engage carers for short shifts. She said that most agencies require a minimum, being 4 hours for a registered nurse and 2 hours for a personal care assistant. 391 The final medical witness called in Omar's case was Ms Kate Pickering, a registered nurse employed by Drake Medox as manager of its medical division, a position she has held for 5 years. Her employer, as I understand her evidence, acts as an employment agency for nurses and other medical personnel. She attended Omar in his home over a period of 2 hours and observed the care provided to him. She noted and believed it to be necessary that 3 carers were involved in his transfer from his bed to the shower trolley. She thought this necessary, both for the health and safety of the carers, and also to reduce the risk of breaking Omar's skin. Like Ms Van Groningen, she was of the opinion that a registered nurse should be part of Omar's care team. 392 In her present role as manager of NSW, ACT, South Australia, and Northern Territory, she said there are in excess of 25 people with high complex needs on her employer's books who live in the community. She costed Omar's care on an annual basis at $806,766, including an allowance for a registered nurse working 40 hours per week to coordinate his care needs having regard to his complex medical history. 393 Ms Pickering, however, agreed with Mr Campbell that the present system is working well with Mrs Goldthorpe, an enrolled nurse, effectively the care team leader. 394 She was questioned by Mr Campbell as to the difference between the regime she proposed and the regime presently in place: "Q. And can I ask you this question Miss Pickering please, is the regime that you have set out in these schedules effectively the same as the regime that Mr Baghdadi is currently receiving? A. I believe not. Q. Apart from the registered nurse? A. No. No. Q. What are the differences that you identify? A. The difference is the majority of the carers who care for Omar are PCA's, personal carers. Q. So you have upped the anti on the enrolled nurses and the registered nurses, is that right? A. That is correct. Q. So that's the difference? A. That is correct. Q. Otherwise in terms of hours and things it's, you understand, the same? A. That is correct. Q. And is it your understanding that most of the time it's the PCA's who are there at night? A. That is correct. " 395 She agreed with Mr Campbell that medical complications could arise at night or during the weekend when the registered nurse was not on duty but would not concede that a registered nurse should be confined to a monitoring role. 396 In re-examination, Mr Hull took Ms Pickering to the cross-examination regarding her view as to the need for a registered nurse: "Q. You were asked a number of questions about, for example, if I can roll them up into one, whether or not the fact that the registered nurse was only there for 8 hours a day and an aspiration problem could occur half an hour after he's left, that line of questioning then from Mr Campbell. Then from Mr Donaldson you were asked some questions about whether or not a registered nurse could come in and just check on what was going on and go away and you disagreed with all of those propositions but no-one asked you why you disagreed. Can you tell his Honour why you disagree with those propositions? A. The registered nurse component in working with clients who have high complex needs is not just to ensure that whilst there that the care is correctly administered and if anything untoward happens then they will deal with it, but their job also includes doctors' reports; working with the other care staff who are not as trained as they are; to ensure that they're understandings are as explicit as can be. It is one thing to be able to go along and have a short course in becoming an AIN or personal carer. It is another having the theoretical knowledge and background of understanding of what can happen to clients who have complex care needs. Administration of drugs; understanding of why drugs are being administered and side affects of what can happen, these are things that are not understood by carers. Organising doctors' reports; organising appointments; getting on top of things, um, registered nurses can see very quickly generally if a client is, if their client is going downhill and act on it immediately where often a carer will take may be a day or hours to think, oh well, may be we should do something or wait until the next people to come and check and they may not necessarily call in. There are many reasons for registered nurses to be, to be on board." 397 Apart from the medical practitioners and carers who gave oral evidence, a considerable body of medical evidence was contained in reports, the authors of which were not required for cross-examination. The reports included rehabilitation plans and reports; progress reports; treatment reports; investigative reports; and medical reports upon subjects otherwise adequately, in my opinion, covered by the evidence to which I have referred. It will not be necessary to refer to them. 398 I should, however, refer to the 2 reports of clinical psychologist, Professor Wayne Reid, dated 24 May 2007 and 13 August 2007 to which reference has already been made. He examined Omar on 4 April 2007 and 24 May 2007 before preparing his report of that date. Omar was in bed during the first assessment but for the second he was in his wheelchair. Professor Reid administered a number of tests. His summary and assessment included these paragraphs: "He is only able to communicate by raising the thumb of his right hand to answer yes and move his thumb down for an answer No. He is also able to communicate by smiling and laughing and uses eye movements. In recent times he has developed the ability to write single words on a small whiteboard with assistance and it is reported that he is developing some basic responses to stimuli presented on a computer. ………………………….. Detailed neuropsychological assessment was extremely limited by Mr Baghdadi's communication and motor deficits. In order to test his cognitive abilities simple tests were modified and questionnaires were given to his father to assess various aspect of his functioning. On measures of his disability and adaptive skills as assessed by his father he presents with widespread severe disability in all areas of functioning. At a cognitive level he shows impaired communication, comprehension, memory, reasoning and motor functioning. In the context of his history, the deficits Mr Baghdadi shows are all consistent with diffuse severe brain damage from his accident in 2002. Although detailed neuropsychological assessment of Mr Baghdadi's cognitive abilities was not possible, it is clear from the history given by his father that his father is convinced that Mr Baghdadi has made significant gains in his communication and responsiveness to his environment. It is therefore felt that every effort is made to explore a variety of different technologies that may improve the quality of Mr Baghdadi's life. I am of the opinion that without ongoing stimulation of his cognitive and physical functions his condition will deteriorate and he will loose those gains that he had made from the high level of support he has received from his caring family and team of carers who have worked tirelessly to improve his quality of life." 399 Apparently, due to concerns expressed by Mr Kouri, Professor Reid made a further assessment on 8 August 2007. This time to aid communication Ms Logan was present. Under the heading Results, Professor Reid said: "From the assessment Mr Baghdadi showed very minimum new learning of verbal material as was evident on a work-list learning test where 7 words were presented one at a time and the word was read to him twice and he also read the word and he was required to remember it. Each of the 7 words were presented one at a time in this format and after each learning trial Mr Baghdadi was asked to identify the words he had just learnt from a series of distracter words. He was unable to learn any of the 7 words over 3 learning trials and on the 4th learning trial he learnt one of the 7 words but on the 5th learning trial he was again unable to learn any of the 7 words. His reasoning was assessed using the Ravens coloured Progressive Matrices Test and in this test he was required to identify a missing pattern piece from six choices. The reliability of his responses was checked and the test was administered and he was only able to correctly identify 13 correct answers out of 36. Using available normative data he performed on this test at the 50th percentile for children aged between 5 and 6 years. His score was also equivalent to that of a person with an I.Q. between 40 and 50. The Pictures Concept Test from the WISC –IV required him to identify pictures that were similar from rows of pictures the test was explained to him and it seemed he understood what he was required to do. On this test he scored a raw score of 5. Such a score for 16 year olds is equivalent to a scale score of 1 on a range from 1 to 19. Summary and assessment: From my re-examination of Mr Baghdadi in the presence of Ms Margie Logan, Speech Pathologist who assisted in the administration of the testing, I found Mr Baghdadi continued to display marked deficits in his capacity to learn new verbal material and in his basic reasoning skills. It appears he also has problems with dyspraxia, disorientation and being able to initiate." The results of the re-examination confirmed the opinion as expressed in my initial report dated 24.05. 2007. It is recommended that Mr Baghdadi continue to have speech pathology therapy with Ms Logan together with his ongoing 24 hour a day 7 day a week care. Due to his severe amnesia, difficulties with praxis, initiation and communication, he requires sophisticated communication and computer technology to stimulate his cognitive abilities, improve his communication skills and provide him with entertainment." THE PROVISION OF HOME CARE FOR OMAR: 400 Care is presently provided to Omar in his house by Global. The report of Mr Albert McDermott, a director, part of exhibit D, which sets out details of the current charges contains these paragraphs: "At present Omar has 2 staff with him around the clock each day. This care is provided in two 12.5 hour shifts (day and night shifts). There is a 30 minute overlap on all shifts to allow for the handover of information regarding Omar, this time is also used to educate staff on new physio treatment procedures, etc There is also a carer rostered for 2 hours each morning that Omar has a bath as it is unsafe from an OH&S perspective to attempt this without a third staff member being on hand. The day to day care of Omar is coordinated by Joanne Goldthorpe – Joanne is an enrolled nurse in the UK and Australia and has many years experience working in intensive care facilities prior to coming to Australia. Cost of Staffing All day to day staff who work with Omar are trained to be able to carry out the ongoing care of Omar to the highest of standards and are paid the same rate of pay with the exception of Joanne Goldthorpe. Her role is that of a team leader and as such is paid accordingly. Global Advantage has engaged the services of a Nurse consultant on a "needs basis", whose specialist area is wound care and OH&S management. The need has arisen on a number of occasions when the skin on Omar's pressure areas broke down or showed signs of distress The cost for this service over the past 18 months has been $3,900 to date." PROVISIONS FOR OMAR'S HOUSING: 401 As indicated earlier Omar lives with his father in rented accommodation at Ryde. In several respect the house is unsuitable. The main deficiency seems to be that Omar's bedroom is located some distance from the converted laundry where he is showered. The intervening corridors are narrow and difficult to negotiate with a shower trolley. In addition the position of Omar's bedroom at the front of the house gives him little privacy and the house lacks an adequate method of heating, Omar being very sensitive to cold. 402 Part of exhibit D. comprises housing reports by Mr Peter Hardiman, an architect with experience in the design of houses for disabled clients. 403 Mr Hardiman reported on two options, the conversion of an existing home in the Ryde area and the construction of a purpose built home. He suggested the following criteria for an existing house: "a) The house purchased should be conveniently located and within easy distance of shops and community facilities in a quiet and private location. b) The home should be chosen with the garage attached to the home allowing internal level access entry to the home. The garage will need to accommodate Mr Baghdadi vehicle, which may be a van with rear platform and roof racks. Which would require a very large garage, if this is the case, then the garage will require additions and may need replacement to allow for additional height – a van with roof racks require a 2400 clear door opening, with a ceiling height of 2700mm. c) A house that is well oriented to provide natural warmth and light. d) The site should have only minimal slope (maximum 1 in 40). The threshold step between the internal floor and the adjoining ground level will need to be eliminated and any house chosen should be able to accommodate a landing and ramp to each external door and between the garage and the interior of the house. e) A house built with a concrete slab on ground would be preferred. f) The internal corridor should be wide and/or short. The shorter the corridor, the easier movement throughout the house for a person with mobility difficulties. g) Services should be in good condition. h) Large bathroom and kitchen area allow for easier movement in the space." 404 He estimated the cost of converting an existing house at $464,400. In relation to a purpose designed house, he estimated the additional cost above the cost of a "typical 3 bedroom brick veneer hours of 140 sq metres" at approximately $455,600. In each case the costing did not allow for reverse cycle air conditioning and ceiling hoist which Mr Hardiman costed at $13,527. The further cost of a heated spa pool and enclosure he estimated at $67,273. MEDICAL REPORTS – MR KOURI: 405 A number of medical reports were tendered in support of Mr Kouri's claim. Psychiatrist, Dr Andrew Robertson assessed him on 24 January 2005 and as a consequence expressed this opinion: "I think that your client has undoubtedly suffered a post Traumatic Stress Disorder (PTSD) as a result of seeing Omar in Liverpool Hospital in what he described as a horrifying sight. The prelude to this was of realizing that his son had been injured at work, and then realizing that injuries were far from trivial. Your client's reaction to seeing his son at hospital, and the circumstances of this fully satisfy the stressor criteria for PTSD. Subsequently he developed fairly typical symptoms of PTSD, including a sleep disturbance, dreams of seeing his son at the hospital, and flashbacks to the scene at the hospital. There has been phobic anxiety relating to his son's well-being when left alone. He avoids talking about the accident for the most part, and he has become socially withdrawn and has little social life. These are typical symptoms of PTSD. Your client has had some benefit from treatment by his psychologist, but he still has a diagnosable PTSD, although his sleep disturbance has improved, and his dreams and nightmares have lessened. Given that his son's accident occurred some two and a half years ago, his prognosis for his recovery from his PTSD is extremely poor. Research has indicated that those who remain unwell for one year with PTSD rarely recover completely. (See Freedman et al, Predictors of chronic post-traumatic stress disorder, British Journal of Psychiatry [1999], 174,353-359) It is unlikely that any treatment directed at his PTSD would improve his prognosis in the long term (Macfarlane As. Personal communication). He has reported monthly treatment by his psychologist as helpful, and this should continue as long as your client is obtaining benefit. Other than this, I would not recommend any further treatment. There may be a gradual tendency to improvement in you client's PTSD with the passage of time." 406 Psychiatrist, Dr Jonathon Phillips took a slightly different view when he examined Mr Kouri on 1 December 2005. He had previously examined and reported on Mrs Cohen. Dr Phillips expressed this opinion: "Mr S Kouri is a 59 year old man, currently unemployed, who is involved with the day to day care of Mr Omar Baghdadi (his son). It should be noted that Mr Baghdadi suffered extremely serious injuries (particularly brain trauma) on 7 August 2002 when he fell through a ceiling into a curing room one floor below. I provided closer detail of this matter in my report about Mrs Cohen. There should be little doubt regarding the psychological shock faced by Mr Kouri at the time when he learned about his son's accident and as he came to understand his son's various medical problems. As is often the case, the psychological shock occurred in several parts over a period of time. It is important to consider the psychological shock in its totality (the sum of its parts) rather than as a series of isolated incidents. Nevertheless, and for the sake of the record, Mr Kouri was alerted to his son's accident by a nephew, this becoming the initial shock. He next learned from his brother before he personally reached the hospital that his son's accident was serious and that his son had suffered head injury. This was the second shock. He witnessed his son in a coma and covered in blood. This was the third and probably sentinel shock. He learned in a series of steps that his son would remain a chronic invalid. This was the fourth shock. Mr Kouri's psychological reaction to the series of shocks was fairly typical. He identified being initially shaken by what had happened, with this converting to panic and to uncontrollable weeping. He subsequently had more specific symptoms, including perceptual abnormalities (where he felt he could "taste" his son's flesh, and also "smell" his son's body). He was preoccupied by his sense of loss, he ruminated about what might happen to his son in his absence, he was less motivated in general and did not wish to communicate with others. His productivity became impaired. He lacked concentration. He had sleeping difficulties (multiple awakenings, disturbed dreams). The symptoms pattern (as above) evolved during the long period when Mr Kouri's son was hospitalized. Almost certainly the plaintiff developed an adjustment disorder with depressed mood DSM IV TR 309.0 during this period. The disorder became chronic and interfered in the various domains of his life. Whilst the plaintiff was treated with counselling and antidepressant and benzodiazepine agents, there is little evidence of improvement. Mr Kouri's life is now dominated by the presence of his son in the household, and his son's totally dependent state. The plaintiff continues to have a group of symptoms broadly in keeping with his early symptoms. He identified additionally feeling "stressed out", his lack of stamina, his inability to contemplate the future, a sense of resentment about having no time to himself, a feeling of profound loss and a desire for closure. Again, Mr Kouri's symptoms are best understood as representing an adjustment disorder with depressed mood, which is now chronic in type. Adjustment disorder with depressed mood is an identifiable and definable depression spectrum disorder. It is a lower order depressive state, but is often chronic and will cause the person problems in numerous domains of life. This is the case with Mr Kouri. It is possible, however, that when the plaintiff's son is established in independent accommodation and is ensured of ongoing care in the future, the plaintiff's psychological burden will be less and he will then become less troubled by his symptoms. I note that Dr Robertson believes Mr Kouri to suffer from post-traumatic stress disorder, this being a severe anxiety spectrum disorder. My colleague appears to have obtained a slightly different history from the plaintiff and his diagnosis is reasonable in the circumstances. However, I cannot confirm the diagnosis of post traumatic stress disorder. The distinction between adjustment disorder with depressed mood and post traumatic stress disorder is important. As stated already, Mr Kouri is likely to make some useful recovery from adjustment disorder with depressed mood, particularly when his son's future is ensured. However, he is less likely to make a useful recovery from a chronic post traumatic stress disorder, a point highlighted by my colleague. Mr Kouri is having psychological treatment currently. However, he would probably benefit from a course of approximately 10 closely spaced consultations, with focus on grief work and cognitive restructuring. The combination of brief psychotherapy and resolution of legal issues would improve the plaintiff's prognosis considerably. Anti depressant medication should be continued minimally for a further year. Third monthly follow up would be wise, at least in the 2 years following the closely spaced psychotherapy, and at least to the time when litigation if finalized. Whilst Mr Kouri probably could not return to his trade as a stair builder currently, there is a reasonable chance of his return to the workforce once his son's future is ensured. I urge that every attempt be made to rehabilitate the plaintiff to the workforce. This will allow him to focus on a productive life, rather than ruminate about his son's medical problems." 407 Dr Phillips re-examined Mr Kouri on 20 June 2007. In his subsequent report he noted: "Unfortunately, Mr Kouri continues to have a number of psychological symptoms linked with his son's problems. Whilst better than he was, the plaintiff identified his struggle to accept the reality of his son's condition, he continues to hope for a miracle cure for his son, his mood is dysphoric and labile. (with periodic suicidal thoughts) and he sometimes struggles to get up in the morning. He suffers insomnia, he episodically has dreams in which he sees his son in a well condition, he has episodic feelings of panic (particularly when his mood is low), he has lost capacity for enjoyment in life and he is without libido." 408 Dr Phillips adhered to his previous diagnosis of adjustment disorder with depressed mood and recommended treatment of at least 20 consultations, adding that "it is now late in the cycle of illness and (Mr Kouri) will be increasingly resistant to intervention". 409 Dr Helen Clarke was first consulted by Mr Kouri on 28 September 2005. He had previously consulted Dr Sue Adams since November 2002 but she retired in September 2005. Dr Clarke diagnosed post traumatic stress disorder. Mr Kouri continued to consult her regularly. On 27 August 2007, she reported: "Despite the fact that Mr Kouri's mood and motivation have improved slightly in the past few months his overall outlook for recovering from PTSD is poor. Mr Kouri has heeded my advice to pay more attention to his own health needs and has reduced his drinking and he has improved his diet and increased his exercise in recent months. However, Mr Kouri's general medical health has deteriorated over the past five years in excess of what would have been expected if his son Omar had not sustained the severe injuries that he did. I have found that although antidepressants are limited in their benefit for Mr Kouri, he becomes very depressed and functions poorly if antidepressants are withdrawn. There is a real risk that Mr Kouri could suicide in this state and Mr Kouri is unable to maintain his usual attentiveness to Omar when he is very depressed. In addition, Omar's mood is very reactive to Mr Kouri's mood and it would seem very beneficial for Omar's psychological well being that every effort is made to support Mr Kouri. It seems that Mr Kouri has an extremely strong bond with Omar, which probably existed long before Omar's injury. Mr Kouri speaks lovingly of Omar and has detailed knowledge of Omar's likes and dislikes prior to the injury. Mr Kouri describes the food Omar liked to eat, the television show he loves, his hobbies and his taste in music and movies. Mr Kouri constantly tries to think of ways to increase Omar's enjoyment of life and improve Omar's communication so that Omar can have as much input as possible into what happens in his life. Mr Kouri loves to encourage Omar's sense of humour. Mr Kouri is extremely well attuned to Omar's facial expressions and his moods. Mr Kouri longs for the time when he can have more privacy with his son. Mr Kouri finds it very frustrating having to justify every decision or purchase that needs to be made on behalf of his son. It seems unlikely that any type of counselling could be possible for Omar because Omar has such limited ability to communicate. However, it would seem that it would benefit both Omar and his father if Mr Kouri could be given whatever assistance was possible to maintain Mr Kouri's optimism and enthusiasm for connecting with his son. Given Mr Kouri's age and his physical limitations due to wear and tear, arthritis in his back and hips, Mr Kouri's efforts would be best utilised in providing the social and psychological support for Omar, while others provide the physical lifting and day to day nursing of Omar. Although Mr Kouri is at constant risk of re-traumatisation if Omar's medical condition deteriorates at any time, I believe Mr Kouri's hyper vigilance would relax somewhat if Mr Kouri could be supported as much as possible in his role of closely monitoring Omar. Mr Kouri has always been alert to identify any potential risk to Omar's health and well being and his good judgment should be encouraged and validated as much as possible. Mr Kouri would be likely to benefit from being seen to be the pivotal member of Omar's management team. At times, Mr Kouri has found it difficult not to have his opinion heard and this has increased his frustration, anger and distress. When Mr Kouri is in this highly agitated state there is a danger that his opinions will be discounted. The subsequent helplessness and powerlessness that this induces in Mr Kouri reminds him of the many time Mr Kouri has felt hopeless, and powerless since Omar's injury. Efforts to limit this would hopefully go some way towards reducing the chronicity of Mr Kouri's symptoms of post traumatic stress disorder and depression." 410 Dr Clarke updated her previous report in a report dated17 November 2007 in which she emphasised the extent to which his attention to Omar following the accident has been "all consuming". 411 In the report, she expressed the opinion: "At the time of writing my first Treating Doctor's report dated 8 March 2006, I concluded that Mr Kouri was suffering from post traumatic stress disorder with consequent depression. Having treated Mr Kouri for a further 20 months, my opinion remains unchanged. Despite the fact that Mr Kouri's mood and motivation have improved slightly in the past few months his overall outlook for recovering from PTSD is poor. Mr Kouri's general medical health has deteriorated over the past five years. This deterioration can be partly attributed to the normal ageing process. However, I believe that this deterioration in Mr Kouri's health is in excess of what would have been expected if his son Omar had not sustained the severe injuries that he did." 412 She proceeded to state a number of conclusions, one of which being: "Not return to work as this would be likely to exacerbate his hyper vigilance and may cause a worsening of PTSD and depression symptoms." MEDICAL REPORTS – MRS COHEN: 413 Medical reports in respect of Mrs Cohen were tendered as exhibit G. She also was examined at the behest of her solicitors by Dr Robertson and Dr Phillips. She had previously sought medical intervention in Savannah. 414 Dr Robertson who examined her on 9 November 2004 diagnosed "Pathological Bereavement Reaction", which he pointed out is not within DSM IV. He said the DSM IV diagnosis is probably of a chronic adjustment disorder with depressed mood. 415 Dr Phillips assessed Mrs Cohen nearly a year later in September 2005. The history taken by him included: "She was in the United States when she received a telephone call from Omar's father at approximately 5.30am 7 August 2002. She was told at the time that Omar had been in a serious accident and that she should travel to Australia as soon as possible. On her recollection she obtained no further information, other than her son had been hurt in his workplace. She said that she had always been "very close to Omar" but her son had requested to live with his father some time after the marital separation. She used to talk with Omar every week. She added that Omar was enjoying life in Australia and that he had begun studies in sound engineering, as well as continuing to work in a meat factory (loading/unloading produce). Mrs Cohen said that it took approximately two days to reach Australia. She had been told by that time that Omar was in "bad shape" and she was afraid he would die. She tried to prepare herself for bad news. Specifically: Members of the family collected her on arrival in Australia. She was told by Omar's father at the time that her son remained in 'bad shape". She travelled to Liverpool Hospital and went to her son's beside in the intensive care unit (ICU). She has recollection of a "gloomy smell" in that place. She thought it might have come from her son. She noticed in particular that her son was surrounded by machines and that his head was bandaged but appeared to be swollen. He was deeply unconscious. She felt a sense of "complete sorrow" for her son, recognising that his condition was very serious indeed. She was convinced at the time that he would die. She described this as her "first nightmare". Hospital personnel met with her and she was instructed that her son had suffered "major damage" in a fall at his workplace, and that it was a "miracle" that he remained alive. She became aware in the course of his early treatment that her son would remain permanently quadriplegic (but with some sparing of his arms). Mrs Cohen said that Omar was treated subsequently at the Brain Injuries Rehabilitation Unit Liverpool Hospital. On her recollection her son remained seriously ill at the time and had no capacity for vocal communication. Further, her son remains a dependent invalid and now requires 2 nurses in each 12 hour shifts, 7 days a week to maintain his basic needs. He has no prospect for recovery. The plaintiff said that she remained in Australia for six weeks after the time of Omar's accident. She has an incomplete recollection for the period but was able to recall the following: She identified additionally recurrent feelings of helplessness and hopelessness, particularly when she is in the United States. She has lost interest in life in general, and in the way she looks and the way she dressed. She is aware that her "focus" is entirely on her son, and this has led to a loss of desire to socialise, to see friends and to be involved in community activities. She has recurrent dreams linked to her son (often of wish fulfilment type). She tends to startle and wake if there is any noise during the night and she will routinely wake early in the morning. She fears that she will die before her son and this adds to her desire to be with him and to care for him." 416 Under the heading Mental State Examination, Dr Phillips said: "Mrs Cohen presented as a slightly overweight rather distressed woman in early middle age. Her intelligence is at least within the average range but she was not particularly psychologically orientated. She understood the purpose of consultation and was cooperative. The following points can be made. She was moderately repressed, somewhat anxious but not irritable at the time of the interview. Her affect was labile, down-turned and reactive. Her affect was not incongruent in the circumstances of interview. She was focused in thought on matters linked with her son's permanent injuries. She had no disturbance to the rate or form of her thought processes. She was not paranoid in attitude. She was not suffering delusions, hallucinations or other symptoms to suggest a psychotic illness. Her cognition was unimpaired. She had reasonable insight into both the problems of her son and her own ongoing psychological status." 417 After referring, in his opinion, to Mrs Cohen's many trips to Australia, Dr Phillips said: "Mrs Cohen has identified a number of psychological symptoms which developed during her initial trip to Australia. She struggled to believe the reality of Omar's injuries initially, she had a powerful need to be with her son as much as possible yet at the same time felt alone and isolated. She wished she could have suffered the injuries herself in order to spare her son. She was angered about the lack of responsibility taken by the employer in relation to her son. More likely than not, the plaintiff was experiencing an acute stress disorder DSM 4TR at the time. This was hardly unexpected in the circumstances. Ms Cohen has numerous ongoing symptoms which are of considerably greater importance. The plaintiff struggles to maintain her sense of identity (no longer perceiving herself as a person) she is troubled by a psychological ache at all times, she believes herself to be existing rather than living and she struggles to get through the day. She no longer is fastidious about her appearance. She is despondent in mood most of the time and has nihilistic thoughts (but no active suicidal actions). She sometimes feels helpless and hopeless (particularly when she is in the United State), she is focused on the needs of Omar to the exclusion of other matters in her life. She has dreams about her son (mainly of wish fulfilment type) and she tends to wake early and to over react to any noise at night. She has a powerful fear that she will die before her son, thus leaving him in an unsupported state. The plaintiff continues to have these symptoms chronically, despite treatment by a psychiatrist and a psychologist. On my evaluation Ms Cohen has symptoms across the spectrum of depression and anxiety. Depressive symptoms currently dominate her presentation, but her anxiety cannot be set aside. From a technical point of view, she has an adjustment disorder with mixed anxiety and depressed mood DSM4 TR 309.28 but with depressive symptoms being of greater importance. The alternative diagnosis is a dysthymic disorder DSM4 TR 300.4, both disorders are recognisable and definable psychological disorders, adjustment disorder being a lower intensity disorder, spanning depression and anxiety in the case of the plaintiff, and dysthymic disorder being a chronic middle grade depression spectrum disorder. Ms Cohen's symptoms can also be addressed in the content of grief. Grief is a necessary process following any major loss in life. Grief can broadly be divided into three phases, which to some extent overlap. The first phase is shock and disbelief. It is usually complete within minutes to hours. It is likely that this phase was somewhat delayed in the plaintiff's case. The second phase is pining and is usually complete within six months. The plaintiff has failed to successfully negotiate this phase. The third phase is reintegration with life and is usually complete within two years. The plaintiff has not reached this point Taking the above into consideration, it can be said that Mrs Cohen has not experienced normal grief (as medicine might call it) or mere grief (as the law might call it). The plaintiff is experiencing pathological grief (as medicine might call it) which is taking the form of an adjustment disorder with mixed anxiety and depressed mood or alternatively a dysthymic disorder. Her problems are not resolving in a satisfactory manner. She can be said to be suffering nervous shock (as the law might call it)." 418 Dr Phillips went on to say that he is unconvinced as to the adequacy of Ms Cohen's current treatment. He suggested weekly psychotherapy for at least 6 months and a review of medication. 419 He concluded with these paragraphs: "Ms Cohen's current symptoms are a direct consequence of the series of psychological shock which she experienced at/following the time of Omar's accident. Her current symptoms are reinforced by her son's ongoing extreme handicap. It is hard to know whether Ms Cohen's current psychological symptoms are temporary (albeit relatively chronic in type), or whether they will continue in the future. Whilst I do not doubt the plaintiff's underlying psychological resilience, she will have to contend with Omar's ongoing extreme handicap, this militating against her full recovery. More likely than not, the plaintiff should make some useful progress with treatment but I do not foresee her making a full recovery." 420 Dr Phillips reassessed Mrs Cohen in July 2007 at a time when she was making her 13th trip to Australia. He took a history of continuing symptoms: "She is fearful that she might die and she questions herself how her son might cope if this were to occur. She noted that she could not think who might take care of her son in the long-term. In her words, "it worries me a lot". She is "aggravated" by the attitude of her former husband. She noted that he makes comments which she finds to be hurtful. He has told her, amongst other matters, that he does not wish her to stay in his household. She feels a powerful need to take care of her son on an ongoing basis. She wishes that she might live in Australia and then become available on a daily basis to assist with her son's care. She sleeps poorly, particularly when in Savannah. She thought this was the outcome of being "too far" from her son. She has recurrent dreams about her son (with some dreams going back to her childhood, and other dreams of not being able to reach her son). She sleeps for no more than six hours and described herself as "unrefreshed" in the morning. She feels "nervous" at all times. She tends to bite her fingernails in this state. She is concerned by strains within her marriage. She noted her first allegiance is to her son. She has lost confidence generally. She is self-critical about her role in her son's care. She added that she is not able to make major decisions about her son, as she is the alternative guardian. She is unhappy about her appearance, particularly that she has put on a significant amount of weight. She now weighs 197 pounds. She is troubled by a sombre mood just about at all times. She notes her mood is worse when she is separated from her son. She believes that she has undergone a change in personality. She described herself as previously having been a quiet and easygoing person. She added that she now notes herself to be constantly "on edge" and to be ruminating about the unknown. She is troubled by a general loss of motivation. She experiences ongoing fatigue." 421 Finally, Dr Phillips concluded that Mrs Cohen's prognosis "remains uncertain". THE DEFENDANTS' MEDICAL EVIDENCE: 422 Several medical specialists and medical professionals were called by the defendants. I will commence a review of their evidence with that of Associate Professor Richard Jones, a specialist in rehabilitation medicine. 423 Professor Jones first assessed Omar at his home on 6 December 2005. He provided a substantive report of that date and, also bearing the same date, a number of supplementary reports dealing individually with particular issues. The substantive report included: "Mr Baghdadi suffered catastrophic brain damage in a reported incident on 7.8.2002. He is now dependent on others for all personal care and all activities of daily living including those of a domestic nature. His condition is stable and there will be no recovery that might improve his level of independence in personal care and activities of daily living. . Understanding the delicate nature of the personal involvement of Sam with his son Omar, I did not question him extensively on the needs for such an intensive continuing personal care and rehabilitation program. My comments therefore would be directed towards a reasonable program of support and maintenance care for a person with Omar's impairments. The installation of an intrathecal Baclofen pump would seem to have been successful in the control of the difficult hypertonicity and spasm associated with his brain damage. He requires a carer to feed him orally with pureed foods and to access his PEG tube for the installation of fluid and medications. That personal care would require one carer. He has a sling and electric hoist that I believe could be used by one carer, although 2 carers would make the performance of transfers quicker. Such dual carer provision would require I believe approximately 1.5 hours each morning and 15 to 30 minutes in the evening. His other maintenance hands-on therapies could be provided on instruction by his carers who would not need to be trained in nursing but would have empathy for the care of person with severe impairments. His bladder management would be by pads during the day and a collecting system in the evening. That may be a bottle, although one would consider the possibility of a uridome which was reportedly unsuccessful in the past. During the evenings I believe that he would require an attendant carer who could be on sleep-over. It is possible that every 2 to 4 hours he could be turned in bed although the alternating pressure mattress should be sufficient to prevent recurrence of decubitus ulceration." 424 Professor Jones said that Omar requires a wheel chair accessible home and suggested that it be air-conditioned. He also said that he requires a suitable vehicle for transportation outside the home. In his opinion, Omar would not be capable of operating any ambulatory equipment. 425 He then said: "His condition will not improve to any extent that would alter the prescriptions for personal care and he has no vocational potential. He will have recurrent episodes of the complications of his severe impairments including occasional aspiration of fluid or food and saliva, and there is the ever-present risk of upper respiratory infection and ultimately pneumonia. There will develop with the progression of time gastrointestinal problems and there is a probability that urinary tract infections will supervene. Of great importance will be his epilepsy which would appear to recur from time to time despite the exhibition of anti-epileptic drugs. Uncontrollable epilepsy is a possibility and may impact upon his life expectancy. Attritional changes will occur because of his recumbency and may include pressure necrosis and vascular disease that might result in cardio vascular disease. Whilst his carers will provide passive movements, no treatment of a physical nature will prevent the development and permanence of various joint contractures." 426 Professor Jones opined that Omar will require review at least 3 to 4 times a year by his family physician and review by a neurologist or other appropriately qualified person to manage his multiple impairments. He noted that the Baclofen pump may require reprogramming from time to time, as Omar becomes resistant to the doses of Baclofen released by it. 427 Accepting that Omar will be vulnerable to pressure sores, Professor Jones said: "They would have occurred during his difficult acute management and can be reduced in incidence by the use of an alternating pressure bed, a water bed, and appropriate cushions." 428 Supplementary report B. dealt with the subject of carers: "As a medico-legal referee and in experience of managing person such as Mr Baghdadi and the way he presented on 6 December 2005, I am of the opinion that he would require 2 carers at various times of the day and on other days he could be in the attendance of one carer. Those provisions have been outlined in my report. He will need somebody to be in his near vicinity for 24 hours a day, 7 days a week, and the person during the evening may be on sleepover, although it may be appropriate as a matter of comfort that Mr Baghdadi be turned at 3 to 4 hourly intervals. The use of an appropriate reciprocating mattress would obviate those needs for greater turning and indeed may be sufficiently functional to remove the risk of decubitus ulceration. I can make no comment as to Omar's level of comfort during the evening that might require occasional turns. Clearly he would be unable to turn himself." 429 In supplementary report D, he said that there was no medical indication for a pool and spa, which he said could be potentially dangerous. 430 In supplementary report K, Professor Jones addressed Omar's need for further therapy: "Omar's therapy will be provided by his carer/carers and these treatments may be reviewed from time to time and modified by the physiotherapist or occupational therapist, perhaps at 1 to 2 times per year, the occasional visit of a therapist to provide hands-on treatment would be of little value bearing in mind the constant attention of his carers who will provide various passive movements which may to some extent maintain his mobility, although would not be in any way curative." 431 He added, however, that Omar will need a podiatrist to attend to his hands and feet, which may consume about 1 hour per month. 432 Professor Jones said in supplementary report M that he was not of the opinion that Omar would benefit from vacations, although he thought he would benefit from occasional excursions outside his home. 433 A later report dated 30 March 2006 addressed life expectancy. After recording that Omar is at risk of aspiration of fluid or food and saliva, upper respiratory infection, gastro intestinal problems, urinary tract infections, recurrence of epilepsy, pressure necrosis, vascular disease, and joint contractures, Professor Jones said: "My experience in the management of such severely impaired persons would suggest that he is unlikely to live beyond his 5th decade and it is probable that by the age of 45 he will succumb. This prognosis is made on the basis of experience and bearing in mind the multiple problems that Mr Baghdad exhibits and which are not infrequent in persons having suffered the catastrophic injuries that he has suffered." 434 In his oral evidence Professor Jones told Mr Perry that his expressed opinion as to Omar's life expectancy was not affected by any of the articles and papers earlier referred to in evidence. 435 In relation to his mention of the occasional aspiration of fluids and saliva as a factor in reducing Omar's life expectancy, there was this exchange with Mr Perry: "Q. Now, one of the factors which tends against, in your opinion, an expectation of life beyond a certain age in Mr Baghdadi is recurrent episodes of the severe impairments, including occasional aspiration of fluid and saliva. Doctor, evidence that has been led in this case is that Mr Baghdadi has retained a strong cough reflex. Accepting he has a strong cough reflex and I think you heard him cough when you were at his place in December 2005, did you not? A. Yes. Q. Accepting that reflex is strong will that, and if so to what degree, protect him from what you describe as aspiration of fluid or food and saliva? A. It may protect him against sudden choking although only partially because his mechanism of function in the pharynx is poor. But there will also inevitably be small quantities of mucous and saliva which will track in to his lungs. This is well recognised as happening in people with his disability and eventually that leads to damage of the lining of the respiratory system, pneumonia and it's a cause of deterioration. Q. Does not the remaining reflex, is it not activated when secretions of the type of materials you are talking about pass the oesophagus and thus protect them, or what is happening? A. Unfortunately the cough reflex is not always activated, particularly in people with his impairment and we know that the fluid gets in to the lung and they don't cough, frequently do not have the mechanism to get that up. Q. What is the mechanism that a healthy person has that Mr Baghdadi does not have in this regard? A. I don't know the exact physiological mechanism. I think partially it's because we are not recumbent all the time. I think if you are recumbent all the time this inevitably happens because of the fluids getting in to the oesophagus and not being swallowed from the pharynx. I believe it's probably partially neuromuscular function but I don't know for sure. " 436 Later in his examination, Mr Perry sought to have Professor Jones expand upon the reasons he expressed for Omar's reduced life expectancy: "Q. Doctor, the second of the matters that you have identified as bearing on this issue - before I go there I will just ask you a further question concerning upper respiratory tract infection. We are now 5 years post injury. That has not to date been a regular feature of his presentation, that is, we haven't heard of at least many serious upper respiratory infections. Is that a more favourable diagnosis or neutral? A. It is early days still. As time progresses these things will happen. They inevitably do so. An upper respiratory tract infection is not so bad. They will get viral infections, but the lower tract problems are eventually what causes deterioration to his respiratory. Pneumonia is regularly a cause of death in people like Mr Baghdadi. Q. Is the phenomena you refer to cumulative or is it something that can correct itself in a patient? A. Eventually it is progressive. You can treat it with antibiotics, but ultimately the attritional changes happen and it is one of a whole series of issues that cause deterioration of health and ultimately death. Q. Doctor, it is necessary that I dwell on the area which I have opened up in examination of you. You say that there will develop with the progression of time gastrointestinal problems. That's, I take it, a separate issue from the one you have just discussed? A. Partially - partially separate. Gradually you get stasis. The bowel slows down and you get a cumulation of contents in the stomach and in the bowel and eventually that is just part of system failure that occurs. It also can be part of the reflux problem which can lead to pneumonia as well because gastric distation occurs. Q. Urinary tract infections again doctor have not been a feature of his presentation to date. Is that some cause for optimism in terms of prognosis? A. In a person like Mr Baghdadi, it is often very difficult to diagnose acute infection or even low grade infection. It happens and you don't know it has happened. If it is an acute infection, they are violently unwell. Regularly they get urinary tract infections. You treat them, but that is not always good because they can then get a super infection, a bacteria that becomes resistant. Eventually it will happen. We don't do investigations every week to find out, but eventually it happens more seriously as time goes on. We are looking at a long way down the track. He is in his 20s now. We are looking at another 20 years until he is in his fifth decade." 437 Mr Webb, in cross-examination, pressed Professor Jones upon his opinion that statistics in relation to the life expectancy of persons with spinal injury are largely irrelevant when considering the life expectancy of people with traumatic brain damage: "Q. Professor, you were asked in the life expectancy area of the usefulness of relying as an initial point on the statistics relating to the life expectancy of paralysed people and if you might excuse me with some asperity, it is not very useful because it is entirely different conditions. Could you just enlarge to some extent, please in the life expectancy area upon the difference between somebody who is, who suffered a spinal injury and someone who has suffered, like Mr Baghdadi, a brain injury which has effected a paralysis? A. Well, they are not compatible. You cannot compare them. If you want me to go through all the injuries of spinal injury; it depends on the level, the brain stem region; if they are on a respirator they are going to die fairly quickly. You come to quadriplegia; people may live many many years. Many of my patients were committing suicide. They are going to be dead in a year or two. There may be some of my patients who have been living - I have been around some of my patients 40 years down the track. I have lost a lot very quickly. If you put 40 years and 2 years, statistically the life expectancy is 21 years, but that is a furphy, that doesn't happen. That's why I say to people you have to assess prognosis on the information you have about an individual person. Statistics are fine, that is good to have. Some of the problems with spinal injury are the recumbency problems, the vascular problems are not dissimilar but they are not identical. The bladder problems are quite different. The spinal bladder is not the same. Q. Why is that? A. Their physiologies are different. You have lost the nerves that control the bladder in a spinal injury. In a brain damage they are all intact except for the brain. So it's a high level lack of control. It's what happens in dementia in older people and babies, it's the same system, the nerves are there but you don't have the cognition to control it. Do you want me to go on? Q. Yes, please Professor, I am looking for enlightenment? A. The skin problems are different. The spinal injury has a sensibility of the injury, if they develop pressure sores, as we would, everybody is shuffling around, we are stopping ourselves getting pressure sores. A spinal patient doesn't have that. A brain damage has the sensation, but it depends upon whether they appreciate it or not. If they are really knocked off mentally they don't appreciate the pain. Q. No perception? A. No cognition of it. Q. How does that effect the question of the formation of pressure areas and then pressure sores, is there a distinction there? A. Well, a person with spinal injury knows, we teach them how to prevent them getting pressure necrosis, we provide special cushions and mattresses and so forth. They have the knowledge to prevent themselves getting pressure sores for one reason or another. Some of them don't do that. You can work out why; maybe they don't want to live, who knows. The brain damaged person, if they become uncomfortable because of the pressure - the pressure, it causes pain - these brain damage patients can feel the pain, they just don't know what it means. Sometimes it will distress them so they will actually move around. Q. And make it worse? A. It can often improve it. That's why in a spinal patient you know that you really have to get pressure relief every two hours. In a brain damage you are not sure if you have to give pressure relief. That's another big difference. The respiratory problems; a paraplegic person, for instance, is unlikely to have pulmonary problems, unless they are venous thrombosis. A severely brain damaged person often gets it, sometimes very early in the piece. Q. Why is that? A. Because they vomit and aspirate. Heaps of causes. Infection they can't control. Without boring you, I mean, there are lots and lots of differences. I don't think you can compare them. It's like saying you compare it with a person with a stroke. What is the mortality of a person having had a stroke? You can't say that is the traumatic brain damage or spinal patient. You have to judge them separately. Q. Essentially you say you come down to doing your best to make a clinical judgment arising from your experience about an individual patient? A. Yes." 438 Professor Jones said, in effect, that he was unimpressed as to the long term benefits of Botox injections: "Q. And even at five years post-traumatic brain injury, there is still a potential for some plasticity going on in his brain, isn't there? A. Well, that's a pious hope, I think, Mr Hull. Truly. I mean, the Botox - I have used Botox so many times. We all get excited about it. It is very limited in its - it only works for a few months, then you have got to do it all over again, over again, over again and eventually we have abandoned it for most. HIS HONOUR Q. Sorry? A. We've abandoned it in a long-term programme because it is very invasive and unless you are looking for one specific improvement, which Mr Hull may be doing, it - it - it's not overall long-term beneficial. What you say, you know, I am sure the Court has seen this happen but then a person with brain damage, if that improves, you have got to then work out what the cognition is that you can use the improvement - the reduced spasticity. Undoubtedly Botox - it's a poison. I mean, it stops the - the conduction of the nerve impulse and it will reduce spasticity. Causes weakness too. How you can use that long-term is arguable." 439 As to the part excellent care may play in countering the hazards that, according to Professor Jones, Omar faces: "Q. Yes, but you see, doctor, what I am talking about is providing the best care for Omar? A. I think what I have suggested, I think, is the best care. You are telling me that the people who are treating him know best. Well, no, I can't say they don't know a lot about him, but I have been asked for an opinion and I have given an honest opinion. Q. I am not suggesting otherwise. What I am suggesting to you is that as a result of the care that he has had, he hasn't had any upper respiratory tract infections? A. It doesn't matter how much care you give them, they will develop it. That is inevitable. It doesn't matter what care you give. They get contractures. It doesn't matter, you can do physiotherapy all day, they get contractures. They get respiratory infections. They get urinary tract infections. The spectrum of care makes in the longer term no assessable difference. " 440 Professor James Lance AO, neurologist, was also called as a witness in P& M's case. He examined Omar on 27 January 2006 at his home in the presence of Mrs Cohen and 2 carers. In a report dated 31 January 2006, after reviewing Omar's personal background, the circumstances of the accident; the injuries suffered, and the care regime in place, he made these finding on examination" "Mr Baghdadi was lying back in bed, supported by a back rest. His upper limbs were flexed and his lower limbs abducted with plantar flexion at the ankles. He was aware of my presence, fixated with his eyes although with a divergent strabismus (crossed eyes) and indicated to me that he could understand what I was saying as he endeavoured to comply with my requests. He was unable to speak but I could hear him exhale forcibly when he tried to do so. He had a gastric feeding tube in place, which is being used for the administration of fluids. He is fed pureed food by mouth but this sometimes causes aspiration. Fortunately he has a good cough reflex. When he yawned, I observed a reflex flexion movement of his upper limbs. As far as could be ascertained by hand movements, his fields of vision were intact. His eyes were looking down and out and he did not appear to be able to elevate his eyes above the horizontal. Adduction was poor on both sides, more on the left than the right. I interpreted this as partial bilateral third cranial nerve palsies. His pupils were small and reacted to light. There was no ptosis. Sensation of his face appeared to be normal, but I did not test his corneal responses. He appeared incapable of any voluntary movement of his face. I observed a marked pouting response and a brisk jaw jerk. He could open his mouth and protrude his tongue. I did not test his gag reflex. Muscle tone was markedly increased in his right upper limb which was held in the semi-flexed position. He could lift up his right arm to touch his nose and could partially extend the arm. The fingers of his right hand were firmly flexed in contracture but his right thumb was mobile and he used it to signify "yes" by abducting the thumb. He was able to squeeze my fingers with his right hand on request. Muscle tone was greatly increased in the left upper limb which was held in a semi flexed position. No voluntary movement of the left arm was apparent. Muscle tone was not increased in the lower limbs but there was no voluntary movement. I observed that he was wearing an incontinence pad. I was told that he had an ulcer approximately 2cm in diameter in his natal cleft but did not examine this. I was told that he had a methicillin resistant staphylococcus grown from his gastric feeding tube. He has occasionally had chest infections in winter. I was told that his blood pressure was usually recorded at 95/60mmHg. 441 Professor Lance provided this prognosis: "There are few studies of long term survival in adults with severe brain injury. A study by Strauss et al. (1998) of 946 patients aged 5-21 years suffering from traumatic brain injury found that life expectancy for those patient who did not regain mobility within six months averaged fifteen years but, in view of the excellent care that Mr Baghdadi is receiving, he could survive to fifty years or more." 442 Professor Lance, in a separate report, answered some specific questions asked of him by P & M's solicitors including the following with the Professor's answers appended: "Whether Mr Baghdadi's claim for two carers to assist him 24 hours a day, 7 days a week is reasonable? If so why? Mr Baghdadi's claim for two carers to assist him 24 hours a day, 7 days a week is reasonable, because he is completely unable to attend to any of his requirements but has retained awareness of his surroundings. He requires constant attention to positioning to avoid pressure sores and chest infections. Whether in your opinion, Mr Baghdadi requires the use of a hydrotherapy pool? I can see no indication for the use of a hydrotherapy pool." 443 Like Professor Jones before him, Professor Lance would not concede the relevance to brain injury cases of mortality studies focussed on spinal injury. He explained his reasoning: "Q. Amongst the materials that you were sent to consider more recently, were you also provided with a copy of Professor Yeo et al's paper concerning mortality following spinal cord injury? A. Yes, I have. I was. Q. Did you read and consider that paper? A. I did. Q. In your opinion, professor, do the findings there recorded by the authors provide any guidance on the question of life expectancy in the case of those suffering from severe traumatic brain injury? A. No, there is no way you can extrapolate the effect of spinal injury to explain the effects of traumatic brain injury. May I elaborate a little bit? Q. Yes, my next question was why not? A. A spinal injury will cause a loss of motor power and sensation below the level of the spinal cord that has been traumatised, that has been damaged, but the normal cognitive function, the normal mental function, brain function remains intact so that if a person who has a quadriplegia, or sometimes called tetraplegia, referred to by Dr Yeo, then it is possible for them by using whatever they have got left, it may be some little bit of muscle power in the upper limbs or even some cases only - only the face, they can be taught to communicate in various ways, if they haven't got a completely normal speech function. In the case of traumatic brain injury, the paralysis is the result of damage to the opposite side of the brain. This particular person has evidence of damage to one side causing weakness of the left side of the body and of the left side of the brain causing weakness of the right side of the body, which means their cognitive effects as well to be taken into consideration. It is not simply a question of the physical inability to move the limbs." 444 Following brain trauma, Professor Lance said, "There may be some improvement over a period of one or two years. Even some minor improvement up to five years but not beyond that". In terms of what he meant by "minor improvement", he said: Q. When you say minor improvement up to five years, what magnitude of improvement do you contemplate in that period of five years? A. It depends on the - on the extent of the injury. If the person has very little weakness, for example, there may be progressive improvement in power. There may be improvement in cognitive function. In all the various disabilities that people with traumatic brain injury have. I don't think that applies in this particular unfortunate individual who is very severely disabled. Q. In regard to your last observation, do you think that there is the capability or capacity for any improvement after two years in Mr Baghdadi's case? A. Well, it is already, I think - if I can see how-- HIS HONOUR Q. Five years. A. About five years. So I don't know what happened at the - after two years. I guess I assessed it as I saw him at the time. CAMPBELL Q. I think when you saw him in January 2006, that was something like two and a half years after the injury. In fact, I withdraw that. Three and a half years after the injury? A. Yes. Q. From what you found at that time, would you have any expectation of any material improvement after January 2006? A. No, I wouldn't. Q. Would that apply both to physical function and also to cognition? A. Yes, it would. " 445 Professor Lance provided testimony regarding the use of Botox injections: Q. We have heard evidence in the case that in the year 2007, Mr Baghdadi has commenced on a course of Botox injections into his right arm. Are you familiar with that type of treatment, professor? A. Yes, I am. Q. And what is the purpose of it? A. If the problem is one of spasticity of the limb and that is a position - an abnormal position of the limb that resists any attempt at movement, a condition which we call increased muscle tone, then the injection of Botox into the muscle will partially paralyse the muscle and make it possible to manipulate the limb. Q. Five years after the event, do you expect that there could be a permanent improvement in Mr Baghdadi's use of his limb by reason of that treatment? A. At best it is never permanent. It has to be repeated every three months or so. In his particular case, the limb appeared to be fixed in this position and the fingers flexed in contracture making a fist in this fashion. By the time of five years has elapsed, this is usually consolidated as not just a spasticity but as a contracture with fibrosis of the muscles concerned, occasionally even calcification of the muscles concerned, which means one could not expect any benefit from Botox." 446 In light of Professor Reid's cognitive findings, Professor Lance said that, in his opinion, it is extremely unlikely that Omar could acquire the skills to use sophisticated communication and computer technology to stimulate his cognitive ability. There was then this exchange with Mr Campbell: "Q. Do you think he would be able to acquire the ability to use such equipment and technical knowledge to improve his communication skills? A. I don't think he would have the planning ability to do it. He has - on examination, he has signs of gross frontal lobe involvement which impairs judgment and extrapolation for facts into the future and so on. Apart from the difficulty he has in formulating concepts to carry out, he has the mechanical difficulty of not being able to use individual fingers, digits. He has only a movement of his thumb. So he would have to have some sort of technique whereby he could use his thumb only, and that would have to be a supported limb, to communicate and I think that would be possible but I have in mind a simple communication device where he could answer yes or no, rather than just using his thumb in that fashion. I cannot see that somebody with these results of cognitive impairment could use any form of computer or sophisticated equipment. Q. If you assume that he had been brought to the stage through the involvement of a speech pathologist where he was able to give a reliable yes/no response, either with his thumb or gazing or looking at gaze cards, and that his difficulties with swallowing had been brought to the position where he could, under supervision, take pureed food by mouth, can you from this point in time onwards see any justification from the point of view of your specialty of further intensive involvement by a speech pathologist? A. That's a rather complex question. I - I do think that the limited movement he has could be used, as I say, to activate some sort of communicating device to answer simple questions. I do not think he would be capable of any rational assessment and ability to use a computer, first because of the apraxia that he has, the difficulty in formulating the movement in his mind, and, secondly, the fact that he has - he is limited virtually to the use of his thumb. Q. Do you think he would ever be in a position to initiate use of a more sophisticated communication device? A. No. 447 He conceded to Mr Campbell that although he had examined many patients in a similar situation to Omar at various points of their illness, he had never been responsible for continuing care. 448 He had this exchange with Mr Donaldson: "Q. So that with someone such as Mr Baghdadi, while Botox injections might appear to free up a limb and make it capable of being stretched in a way that couldn't have occurred before, does it do anything to address the neurological problem which is preventing voluntary use of the limb? A. No." 449 The next witness to whose testimony I shall make reference is Ms Barbara Merram, the Public Affairs Director of Southern Cross Community Healthcare, an organisation which provides healthcare and services throughout Australia. She is a registered nurse by training with over 35 years experience and has held her present position since 1984. Her duties include: "Public relations (liaison with politicians, senior government bureaucrats, government departments, non-government agencies, insurance companies and law firms) Case management (assisting with the establishment of care programs for high dependency new service users) Medico-legal services (medico-legal assessments and reports, court attendance as an expert witness and attendance at case conferences)." 450 In November 2007, Mrs Merram, for P & M, made an assessment of Omar's care and support needs by reviewing relevant documentation and a DVD. In her report dated 30 November 2007, she noted: "Current Equipment – Non Disposable · Equipment includes: · Electric adjustable bed with rails · Electric ripple mattress · Commode chair (Unused) · Shower bed/trolley · Hoist · Hand held shower nozzle · Recliner lounge chair · Powered attendant wheelchair (with tilt function) · Ripple cushion for chair · Tilt table · Ramps for house access · Portable suction device. 451 She recorded that Omar is incontinent and fully dependent in all activities of daily living. Her conclusions seem to be summarised in the following paragraphs of her report: "All the reports provided appear to address Mr Baghdadi from a medico–legal perspective only, with little consideration given to community care needs. It was observed in the DVD and during the review of documents that the care and support regime is clinically and hospital orientated, laborious and, in my opinion, inefficient and excessive. The care completely lacked the intent of the basic premise of community care, which is to improve the quality of life of the individual as per the Home and Community Care National Standards and to "See the ability, not the disability". In my opinion, it is important for Mr Baghdadi's personnel to recognise that he is disabled, but he is not unwell. There appears to me to be an excessive focus on therapies and insufficient focus on providing a routine, which enhances as far as possible his enjoyment of life. His routine should be re-organized so that he is finished his therapies by 11.am each morning and given more time to relax or participate in outings. Activities focused on entertaining stimulation seem to be lacking. Music therapy in relation to activities provides a calming environment with music selected to match the task. In my opinion, Mr Baghdadi would greatly benefit from community integration and socialisation suitable to his level of disability. In regards to Mr Baghdadi's skin integrity and history of broken areas, it is my opinion that continued and constant physical handling of a person can be detrimental to their skin integrity. Further, in my opinion, he should not be woken at frequent intervals during the night. Mr Baghdadi requires a care regime which provides for the presence of two personnel for showering and transfers, and which provides sufficient resources to attend to all of Mr Baghdadi's care requirements and domestic tasks. Those requirements would be quite easily satisfied by a roster which provided three personnel on over lapping shifts of 8.5 or 9 hours, together with additional assistance for short periods twice a day. We currently have about 40 service users with care requirements very similar to Mr Baghdadi, and they are all adequately cared for in arrangements of that kind. It is not uncommon for people with a brain injury to become irritable, particularly with multiple people present. There is no necessity or need to have in excess of 2 people present at any time. The fewer people present the more likely Mr Baghdadi will be able to focus on the tasks at hand. An appropriate roster would be as follows: 0700 to 1530 – involves all activities of daily living 0800 to 1100 – second person to assist transfers with bowel regime, personal care, making bed, passive exercises and tilt table. 1400 to 2300 – overlap with am shift for reporting and transfers for rest period. 2000 to 2100 – second person to assist with transfers, evening hygiene. 2230 to 0730 – overlaps with evening and morning shifts for reporting and safe transfers. The hours recommended by Southern Cross for this program are 30.5 hours per day (this exceeds our general regime for a program like this which would be 27.5 hours daily). In my opinion, it is appropriate for Mr Baghdadi to have "inactive " night care. Given the information provided in Progress notes written by the current team, it would seem likely that within this night shift, eight (8) hours could be considered inactive. An inactive sleepover is an eight hour period where the service personnel are allowed to sleep on duty. If the service personnel is required to attend the service user for more than 1 hour in total during the night or attends the service user more than twice, then the whole 8 hour shift is paid at the full standard hourly rate as per the day of the week." 452 Ms Merram costed her program at $407,926 per annum ($7,845 per week) with an active night shift or $341,819 per annum ($6,573 per week) with an inactive night shift She identified further costs for shopping and home maintenance of $5,682 per annum ($109 per week). 453 In cross-examination by Ms Lonergan, Ms Merram agreed that she had not met Omar, nor had any employee of Southern Cross carried out a care assessment of him. She had, however, watched the DVD, exhibit J, in evidence. 454 Ms Lonergan questioned Ms Merram concerning Omar's night time urine management: "Q. What was your plan within the context of your report for the night-time urine management of Mr Baghdadi? A. My plan would be to revise it. I suggest to you that for any gentleman lying in bed at night with a plastic or metal thing stuck between his legs is a less than adequate way of urinary management. There are a number of alternatives. One could be supra pubic catheterisation but that is the decision of the treating team. I specialise in care. I am not a doctor. So, the alternative to that is in fact incontinent pads which are now designed to remove the moisture away from the body." 455 And later: Q. Do you find that with management of issues such as night-time urine management it is a bit of trial and error process? A. I find that in the long term care of anyone with a profound disability or ill health that requires that they receive a lot of care, that it is extremely important that you normalise their life and make them comfortable. …………………………… Q. In any event Ms Merram you still didn't have any particular plan put in place for night-time urine management for Mr Baghdadi? A. No. Q. That is because it is important to review the patient and review what works for that patient in the setting that he is in? A. Yes. Q. You didn't recommended a uridome? A. No because I believe he had a retracted penis. Q. That creates a problem? A. You can't keep a uridome on. The bed would be wet. Q. If one of the options to explore was to use a supra pubic catheter, that would introduce a potential infection risk? A. There is no doubt that supra pubic catheter does have a potential risk. In my experience the risk is less than the benefit. Nevertheless, I am not the treating doctor." 456 In relation to the established practice of turning Omar at frequent intervals, there was this exchange between Ms Lonergan and Ms Merram: Q. While we are on the turning issue, you are aware that Mr Baghdadi is 6 foot 5 inches tall? A. Yes. Q. He weighs 85 kilos? A. Yes. Q. That creates some difficulty in terms of a single person managing the dead weight of his body? A. When are you talking about? All the time? Q. Turning in bed? A. Turning in bed? Q. Yes. A. There's a lot of evidence to suggest that the frequent moving and fiddling of people particularly if they have the right equipment is designed to eliminate the interference and much of the whole process of care is to make a person comfortable and to minimise being fiddled with as though there is something wrong with them. Q. You would not agree that someone who is 6-foot five and 85 kilos presents some turning difficulty? A. I would not agree that he needed turning at night. Q. That's not the question I asked you? A. It's the relevant answer to where you were leading me. You said that it's when he's in bed. I'm saying how can I comment if I don't agree he should be turned?" ………………………………….. Q. If the reasons for turning included the sacral pressure area as breakdown as well as to prevent secretions pooling in his chest, that would be a matter about which you would defer to his treating rehabilitation doctor? A. No, I would not. I specialise in community cases. I see treating doctors and rehabilitation experts and specialists in that field that specialise in medicine. They are not skilled to describe a person's care needs. Q. But a medical practitioner would be more skilled than yourself in relation to preventing respiratory illness from a medical point of view, would they not? A. No, sorry. We look at and have done for many years hundreds of people who are ventilated-dependent whose respiratory function and their ability to be compromised, where we actually train the local doctors with our own personnel. " 457 In re-examination of Ms Merram, Mr Campbell returned to the matter of skin breakdown: "Q. You were asked a number of questions by my learned friend, Ms Lonergan, about whether the skin issue, if I can put it that way, contributed to any difficulty in handling Mr Baghdadi. Do you remember those questions? A. Yes, I do remember those questions. Q. You gave evidence, as I recall your evidence, that it didn't make any difference to you? A. That's correct. Q. Why? A. A number of reasons. Firstly, the principles of maintaining good skin integrity with someone with his level of disability and the restrictions he has by his contractures and his incontinence are clearly clinically researched and handled in certain methods. Those methods do not interfere too much with this person, especially if they have got the right equipment, which he has. And 2, I have to say that if he was under our care he would not have pressure sores. They should not happen. Q. You have said that you would beg to differ from a doctor about the issue for the need to turn the patient? A. Absolutely. Q. Why do you say you're entitled to differ from a doctor? A. As I have said to many doctors, Southern Cross specialises in providing care. We don't just do assessments. We look after thousands of people under all programs, funded by government, funded by insurers and funded privately - sorry, I have forgotten the question. Q. Why can you say you can express an opinion for the need to turn Mr Baghdadi which might be different than the doctor? A. I think the doctor's role is to prescribe treatment and advice to the provider delivering the care. It is the care provider's responsibility to provide the doctor with information in delivering care in the community." 458 I found the philosophy underlying Ms Merram's recommendations alluring, in so far as it emphasises that Omar's care should be focussed on enhancing, as far as possible his enjoyment of life. My impression from watching the DVD, exhibit J, is that his life is very bleak indeed, and involves almost constant demeaning and undignified interferences with his bodily integrity. In saying this, I mean not the slightest criticism of his dedicated and very professional carers. Moreover, I am not unaware that much of what I have referred to as interference with his bodily integrity has been established as clinically necessary for his continued good health. As Ms Merram pointed out, Omar is disabled but not unwell and for this I do not doubt that credit must be given to his carers. 459 Another witness called in P & M's case on the issue of Omar's care and other requirements was occupational therapist, Ms Joanne Oates. After evaluating Omar at his home in a report dated 3 September 2007, she opined that while he is currently well cared for, in her opinion he does not need 2 carers 24 hours a day "providing that a suitable environment and access to necessary equipment is established for Omar". 460 She took the view that his current dwelling is inappropriate and should be replaced with a house more suitable to his needs. She recommended domestic assistance, personal care and property maintenance regimes which she costed from the current price list of Calvary Silver Circle at respectively $65 per week, $4,233 per week (subject to increase on shower/enema days) and $28 per week. 461 She also recommended that Omar be provided with equipment etc. which she costed at $373 per week, and occupational therapy costed at $87 per week. A substantial part of Ms Oates recommendations for equipment etc. related to the provision of a "KCI Therapulse ATP Pulsating Air Suspension turning Bed" at a unit cost of $158,000. 462 She said that such a bed "will allow the carer to safely reposition Omar. The prescribed bed delivers pressure, shear and friction relief, improves blood and lymph flow, and the automated turning and positioning reduces nursing workload and minimises risk of musculoskeletal injuries". 463 She elaborated upon this in evidence in chief: "Q. You've told us under comments why it is that you have recommended that bed? A. Yes. Q. And does that bed have an impact upon the need for there to be two carers overnight? A. It does. Q. How? A. It basically is an automated system of pressure control. So it negates the need to reposition Omar overnight and so therefore he's not disturbed, for one, and there is also not the risk associated with repositioning with two people handling him. The bed is designed for pressure management and skin integrity issues. " 464 Although medical exigencies must ultimately prevail, consideration needs to be given, in my view, to whether, for Omar's own benefit as well as in the interests of establishing a care regime which is reasonable in all the circumstances, something less that the present level of care might be implemented. OMAR'S ACTION – ISSUES IN CONTENTION: 465 As is apparent from my review of the evidence, after finding liability on the part of all defendants, there is much common ground between the parties but there are also matters, wholly or partly unresolved, which include: · Omar's life expectancy. · Whether Omar should be compensated on the basis that he continues to live in the community or on the basis that he is placed in a group home or nursing facility. · Whether damages should include an allowance for appropriate home renovations. · The extent of Omar's care needs. · The extent to which Omar requires provision for further medical treatment and therapy. · Whether there should be an allowance for Omar to take vacations including visits to his mother in the United States. · Whether it is reasonable to allow for the provision of a motor vehicle suitable for Omar's transportation. · Whether Omar should be allowed a sum for the provision of a swimming pool. · Whether provision should be made for a case manager. LIFE EXPECTANCY: 466 A deal of evidence was given as to Omar's life expectancy, a matter about which there was substantial conflict. Although I will need to express a view, obviously it can be little more than speculation about an event unlikely to occur, on any view of the evidence, for at least 20 years and in an era where the state of medical knowledge may be vastly superior to that which pertains today. 467 Omar was 27 at trial. An Australian male of that age had a further life expectancy of about 58 years. All the medical evidence was to the effect that a person injured, as Omar was, is unlikely to have a normal life span for the reasons given. Views differed as to the likely diminution, although I think there was general agreement, with the possible exception of Professor Jones, that to some extent, at least, high quality medical treatment and care is a relevant factor. Dr Lowy suggested a reduction of between 10% and 20%, to between 68 and 76.5. Dr Adler suggested he would live between 75% and 80% of a normal life span (63.75 – 68). Professor Yeo determined a total life expectancy of approximately 66 years. 468 On the other hand Professor Lance suggested he "could survive to 50 years or more", and Professor Jones opined that he is unlikely to survive beyond his fifth decade and "will probably succumb at age 45". 469 Additionally, the defendants placed reliance upon learned papers, including the chapter "Life Expectancy" authored by Robert Shavell and others, contained in a book "Brain Injury Medicine: Principles and Practice" upon which witnesses were cross-examined and which eventually found its way into evidence as exhibit 1D-25. It included in its list of references a publication in 1998 by Professor Yeo and others, "Mortality following spinal cord injury". The chapter dealt with the life expectancy of persons with severe traumatic brain injury. It identified mobility as the most powerful predictor of long term survival and inability to self feed as another significant factor. As I understand the relevant table in the chapter, Omar, if aged 30, would have a life expectancy of another 22 years on the basis that he is immobile and fed by others. However, the cogency of the chapter is perhaps somewhat diminished by the fact that it is an American publication. It seems that life expectancies in America generally are significantly less than those in Australia, although the statistics quoted in the chapter were "years remaining" rather than total life expectancy. Moreover, some significance should, in my view, be given to the high quality of care known to be provided to Omar, against the unknown quality of care given to those in the samples upon which the chapter is based. 470 There are other known positive factors in Omar's case, namely, that to date he has had no chest infection and no urinary tract infection; that he has a strong cough reflex; that he is free from trophic skin ulceration; that he has the dedicated love and care of his parents; and that before the accident he was in good health and did not smoke. 471 Obviously an assessment of Omar's life expectancy in this case is a very important matter, the consequences of a significant over estimate or under estimate being spelled out by Handley JA in G T Pettersen v Bacha (1995) 21 MVR 71. 472 I was particularly impressed with the evidence of Professor Jones on the subject of life expectancy. He seemed to me to have ample qualifications to express the opinion which he did express and he gave, what to me, were cogent reasons for that opinion. He derived some support from Professor Lance but otherwise his estimate of life expectancy was considerably lower than others, including the highly distinguished Professor Yeo, who regarded (contrary to the evidence of Professor Jones and Professor Lance) traumatically brain injured persons as comparable with spinal injury victims with whom he has greater experience. Doing the best I can, relying largely on Professor Jones, but adjusting his opinion upwards to meet what I regard as relevant positive factors, I will make calculations where appropriate on the assumption that Omar has another 27 years of life ahead of him. OMAR'S DAMAGES: 473 Omar's damages are governed by the Civil Liability Act (CLA). Hereunder I deal with damages claimed under their various headings, and in doing so, I shall endeavour to apply the principles regarding the assessment of damages for very badly injured plaintiffs enunciated in Sharman v Evans (1976-1977) 138 CLR 563. I will examine each head of damage claimed and attempt to evaluate it, seeking to ensure that there is no double counting. I will consider the final aggregate for proportionality to the nature of the claim. Non Economic Loss 474 All parties agreed that Omar's claim constitutes "a most extreme case" within section 16 (2) of the CLA. Accordingly he is entitled to an award of $442,000 for non economic loss, an award which recognises that he has, it appears, considerable awareness of his environment (Compare Skelton v Collins (1965-66) 39 ALJR 480) Past Loss of Earnings (Past Diminished Earning Capacity): 475 It was not disputed that Omar has been unable to engage in any employment since the accident and that this situation will remain for the balance of his life. This assumption I make for the purposes of section 13 (1) of the CLA. 476 The chartered accountants, GCA Gower & Co, in a report, exhibit AAN, calculated loss up to 30 June 2005 at $74,750, predicated on the assumption that up to that date he would continue working at P& M as a labourer. This seems to me a reasonable assumption and I would allow $74,750 for the period from the date of the accident to 30 June 2005. 477 Counsel for Omar submitted that post 30 June 2005, I should find that Omar would have received average male earnings up to 31 December 2007. There was evidence from his father that he was a hard worker, well motivated towards work, and that he had enrolled in a sound engineering course seeking to improve his employment qualifications. 478 Although I do not think it possible on the evidence to predict how Omar would have fared in the sound engineering course and whether and, if so, to what extent it would have improved his employment prospects, I think it reasonable to compensate him beyond 30 June 2005, when he would have been approaching his 25th birthday, on the basis that by then he would have been in receipt of average male weekly earnings. The net average earnings during the period were $835 per week and his loss for the period from 30 June 2005 to 31 December 2007, which I extrapolate to the date of this judgment was thus $118,570. 479 Compensation for past diminished earning capacity should therefore be allowed at $193,320. "Fox v Wood": 480 Omar is entitled to claim the income tax paid on workers compensation payments made to him in accordance with what the High Court decided in Fox v Wood 55 ALJR 562. The amount claimed is $12,494 . I will allow this sum, although there seems no direct evidence to support it. However, it appears to represent an appropriate proportion of the workers compensation benefits paid, namely about $93,000. Future Diminished Earning Capacity: 481 By January 2008, Omar would have been 3 months past his 27th birthday. As indicated, I think it reasonable to assume that by then he would have been in receipt of male average weekly earnings. There seems no reason to doubt the continuance of his motivation for work, which seems to have come upon him when he commenced with P& M, and which was so noticeable to Mr Kouri. 482 The defendants submitted that, having regard to his work record up to the accident, it is unlikely Omar would have earned an income at the level of average weekly wages and that his future loss, in effect, should be measured by his earnings at P& M, or by reference to the award which may have been applicable if he had successfully completed the sound engineering course he was about to undertake. I think, having regard to Omar's youth at the date of the accident and his newfound motivation, this would be an unfairly restrictive approach. Presently average male weekly wages, are $911.12 net of income tax. 483 In addition to the finding or assumption already made that Omar is 100% permanently incapacitated from rejoining the workforce, my further assumption for the purposes of section 13 (1) of the CLA is that Omar's most likely future circumstances, but for the accident, would have been that he earned average weekly male wages up to notional retirement at age 65. On that basis, the multiplier is 902 and the loss without discount is therefore quantified at $821,830. 484 However, the question remains as to whether, and if so, what discount should be applied. Mr Hull submitted that the discount should be the conventional 15%. However, in this case, I must take into account when assessing compensation for future diminished earning capacity that, on my findings as to Omar's life expectancy, there will be a period referred to in the cases as "lost years" beyond his life span, during which, but for the accident, he would have an earning capacity. The period in this case is approximately 10 years. 485 The principles which bind me are summarised by Sheller JA (with whom Spigelman CJ, Meagher JA, Stein JA and Giles JA agreed) in James Hardie & Co Pty Ltd v Roberts & Anor [1999] NSWCA 314 at para 87: "In arriving at the economic value to the plaintiff of the faculty or skill there must be deducted from probable future earnings the expenditure required to enable the future earnings to be earned. This is so whether the plaintiff's life expectancy is reduced or not: see Sharman v Evans (at 577). Even if the life expectancy is not reduced expenditure such as fares and work clothing will be deducted. If the life expectancy is reduced the range of expenditure deducted will be greater and extend to expenditure no longer incurred in maintaining the plaintiff so that his or her earning capacity can be exploited. For that reason living expenses which would have enabled the plaintiff to earn are deducted in a claim for the lost years but not where life expectancy is unaffected. But the deduction goes no further." 486 The defendants submitted, as I understand it, that there should be the usual discount of 15% for vicissitudes together with a discount of 50% in respect of the period beyond Omar's life expectancy. That seems to me to be appropriate given that there was no evidence as to Omar's expenditure or likely expenditure in enabling himself to earn future income or to maintain himself. Accordingly, I will discount one third of $821,830 by 50% and two thirds by 15%. The two amounts so produced namely $136,972 and $465,704 total $602,676 which I will allow as compensation for future diminished earning capacity. Past Loss of Employer Funded Superannuation: 487 There seems to be agreement between the parties that Omar is entitled to 9% of his gross past wages loss as compensation for his loss of employer funded superannuation. Such loss totals $193,320. 9% of that sum represents $17,399, which I will allow. Interest on Past Wage Loss: 488 Section 18 (2) of the CLA applies to this part of Omar's claim. The relevant interest rate is 5% per annum which should be applied to the net loss, that is the total of wages and superannuation lost, less workers compensation receipts which totalled $93,274. That sum is to be deducted from the sum of $ 193,320 (wage loss) and $17,399 (superannuation). The difference is $ 117,445. The period involved is 5.5 years and it is appropriate that interest at 5% per annum should be applied to one half, viz $ 58,722.50 for 5.5 years. The sum so produced is $16,149 and that should be allowed. Future Loss of Employer Funded Superannuation: 489 Counsel for Omar submitted that this loss should be calculated by applying 9% to the damages awarded for future diminished earning capacity, in this case $602,676. That seems a reasonable approach and seems broadly to accord with the approach taken by Mr Gower in exhibit AAN. I will adopt it. The sum of $ 54,240 should be allowed. Loss of Opportunity to Acquire Long Service Leave Entitlement: 490 Omar claims under this head the modest sum of $4,000, which was not disputed by the defendants. Whealy J's decision to make such an allowance in Diamond v Simpson [2003] NSWCA 67 was approved on appeal. I will allow the sum of $4,000 claimed. Past Gratuitous Care: 491 Omar claims $210,320 under this head in respect of gratuitous care provided by his parents Mr Kouri and Mrs Cohen. Section 15 of the CLA is relevant to the claim. Sub sections (2) and (3) are in the following terms: (2) No damages may be awarded to a claimant for gratuitous attendant care services unless the court is satisfied that: (a) there is (or was) a reasonable need for the services to be provided, and (b) the need has arisen (or arose) solely because of the injury to which the damages relate, and (c) the services would not be (or would not have been) provided to the claimant but for the injury. (3) Further, no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided: (a) for less than 6 hours per week, and (b) for less than 6 months. 492 The claim is predicated upon Omar's parents providing between them at least 40 hours per week of gratuitous care for the whole of the period since the accident. The claim is disputed by the defendants. It may be stated at once that Mr Kouri has virtually devoted his life to Omar's welfare since the accident. Mrs Cohen has also devoted virtually all of her time and attention to Omar during her frequent visits to Australia. 493 However, the issue is not whether Mr Kouri and Mrs Cohen spent 40 hours per week in attending to Omar but whether there was a reasonable need for their services. The claim in respect of past gratuitous services has its foundation in several pieces of evidence, commencing with the letter by Dr Adeline Hodgkinson to Omar's solicitors dated 12 March 2004, part of exhibit E: "This letter is written to support Judith Cohen's continued involvement in caring for her son, Omar Baghdadi throughout his long stay in the Brain Injury Rehabilitation Unit at Liverpool Hospital. Judith visited from the United States regularly and was closely involved in his rehabilitation program. Omar has severe physical limitations as a result of his injury and although he also has cognitive impairments he is very aware of people around him. His face would light up as he spoke with his mother by phone and when she was with him, especially after a long break, his eyes constantly followed her. She was able to supplement the rehabilitation exercises from the therapist with extra practice and was involved in his nursing care. Since discharge from hospital his care has been transferred to the Ryde area but I have had phone contact with Omar's father and seen Judith when she visited the Unit with Omar on her last stay. Omar continues to progress and benefit from the care system established for him in his home. However, the intensity of his care requirements means that his father, Sami has a major and exhausting commitment to his care, even with the assistance of the therapy and attendant care team. Both he and Omar will benefit from the assistance that Judith can offer either on a regular basis, at least 3 monthly, or more continuously if she moves to Australia." 494 In a subsequent letter to the solicitors dated 23 March 2004, she said, inter alia: "I would like to confirm that the ability of Omar Baghdadi's father, Sami Kouri, and his mother Judith Cohen to spend long periods of time with Omar was particularly beneficial to Omar. They each supplemented the therapy with additional practice, spoke to him and involved themselves in his day to day care. When his parents were present he was able to tolerate the tilt-table well and responded to the interaction positively. It is generally accepted in the Brain Injury Rehabilitation Service that patients who have family visiting regularly providing normal social interaction and providing individual care and attention of the patient are much better off than the patient in a deprived environment receiving only essential nursing care needs and the occasional interaction provided by busy nursing staff. At the point of discharge home, both Mrs Cohen and Mr Kouri had benefited from significant exposure to the rehabilitation needs of Omar and his care requirements. They were able to achieve the transition home smoothly. Both Mrs Cohen and Mr Kouri have each advocated very strongly for their son and Omar has benefited from this. I would anticipate that this close involvement will be required for the foreseeable future." 495 There are many references in the written and oral evidence to the dedication and attention to Omar, given and provided by both his parents. There is evidence that Mr Kouri and Mrs Cohen, when she is in Australia, prepare his meals and generally assist the carers in carrying out their duties, no doubt to Omar's benefit. However, at least up to the present, since his discharge from hospital, Omar has had 2 carers, 24 hours a day and the evidence satisfies me that they provide adequately for Omar's needs, particularly as a third carer assists with showering. Although, presumably in deference to Mr Kouri, Global does not include food preparation in the duties of carers, there is nothing in the evidence to suggest that the carers would not, if required, involve themselves in food preparation. 496 The defendants, on the subject of gratuitous care, submit that the claim must fail. In effect, they submit that while in hospital Omar was appropriately treated and cared for by trained medical staff and that after discharge from hospital he has been cared for 24 hours a day by carers appropriately trained by Global. Neither Mr Kouri, nor Mrs Cohen make complaint about the quality or adequacy of the care provided, all of which has to date been paid for by Kaybron or its workers compensation insurer. 497 I was referred by the defendants to the decision of Hoeben J in Manning v State of NSW [2005] NSWSC 958 and to the cases there referred to , including the passage from the judgment of Kirby P in Nicholson v Nicholson (1994) 35 NSWLR 308 at 323: "Section 72 (of the Motor Accidents Act) itself refers exclusively to services of a domestic and nursing nature. The services performed by the appellant's sister, which certainly helped improve his level of comfort, could not be classified as fulfilling a relevant "need" in view of the fact that the appellant was already enjoying fulltime hospitalisation. Although it may not be realistic to expect the nursing staff at all times to apply the creams to the appellant, the respondent already bears the burden of providing compensation for the costs of hospitalisation. I do not believe that it should be required to compensate the appellant's sister as well for her minor activities. Her Honour was entitled to find that the appellant's sister's services did not represent services within Griffith v Kerkemeyer." 498 Although I do not doubt that the activities of Mr Kouri and Mrs Cohen have improved the level of Omar's comfort, having regard to the quantity and quality of medical and other care provided continuously, 24 hours a day, to Omar since the accident, I am not satisfied that a "reasonable need" within section 15 of the CLA has been proved. Accordingly, I reject the claim for past gratuitous attendant care services. Future Gratuitous Attendant Care Services: 499 As I intend to provide for continuing 24 hour care for Omar at what I regard as a reasonable level, for reasons previously advanced, I do not think that a need for future gratuitous care within section 15 of the CLA has been proved. I also reject that claim. Omar's Housing: 500 The case mounted on Omar's behalf is that he will continue to live in his own home, either alone or, as now, shared with his father. Although there were one or two passing references in medical reports and oral evidence to the possibility of Omar living in a group or nursing home, no submissions were addressed by the defendants upon that subject. 501 I am satisfied that it is reasonable for Omar's present living arrangements to continue, that is that he continue to live in the community and not in group or nursing homes. This gives rise to a number of difficulties. The house where he presently lives is rented and while reasonably adequate, is far from ideal. Omar seeks an award, based upon Mr Hardiman's report, sufficient to establish himself in an appropriately designed house of his own. A similar question was considered by the Court of Appeal in Weideck v Williams [1999] NSWCA 346. The plaintiff, Mr Williams, suffered L1 paraplegia when struck by a forklift truck, which fell on him from the back of a vehicle. He had special accommodation requirements for the rest of his life, estimated at 28 years. At the time of the accident he was living in a caravan where, but for the accident, he would have been content to remain. 502 The learned trial judge, Adams J, allowed the plaintiff the cost of suitable land, the cost of a basic house, and the cost of converting the home to accommodate Mr Williams' needs. He deducted a sum for future notional rent. 503 In the course of his judgment on appeal, Davis AJA (with whom Stein JA and Wood CJ at CL agreed) said: "[6] Mr Bartlett submitted that the approach adopted by his Honour was wrong and that his Honour should have approached the matter on what Mr Bartlett described as the traditional basis. Mr Bartlett referred to the approach taken by Orr LJ, with whom Buckley and Sachs LJJ agreed, in George v Pinnock [1973] 1 WLR 118, where his Lordship said at p124-p125: "For the plain tiff it has been contended, in the first place, that she should receive as additional damages either the whole or some part of the capital cost of acquiring the bungalow, since it was acquired to meet the particular needs arising from the accident. But this argument, in my judgment, has no foundation. The plaintiff still has the capital in question in the form of the bungalow." Similarly, in Moriarty v McCarthy [1978] 2 All ER 213 at 219, O'Connor J said: "The next matter which has to be dealt with is the alteration and provision of a bungalow. As I have said, the accommodation in which the plaintiff is living at the moment is wholly unsuitable. The cases show that the capital cost of a new house cannot be awarded by way of damages. There have been various methods of trying to calculate the diminution in income if part of the award of general damages is in fact put into a house, and the various calculations have been done in the cases. I do not propose to do them here. I prefer to deal with the matter in the way in which it is regularly dealt with, namely to consider the additional cost of providing a suitable bungalow, either to convert an existing one or the extra cost if one builds a new one." A similar approach was taken in this Court in Marsland v Andjelic (1993) 31 NSWLR 162 where Kirby P and Meagher JA held at p177 that they would allow, "the marginal cost of securing suitable accommodation". In Nicholson v Nicholson (1994) 35 NSWLR 308, Kirby P, with whom Mahoney and Meagher JJA agreed, held at p328 that, "the appellant should be allowed the full amount of the marginal cost of securing the suitable accommodation claimed." Likewise, in Burford v Allan (1993) 17 MVR 119 at 131-2, a decision of a Full Court of the Supreme Court of South Australia, Perry J, with whom King CJ and Duggan J agreed, approved the approach of the trial Judge in allowing the cost of "adapting the sort of house that the plaintiff would live in if she was not disabled, to meet her special requirements." [7] The approach taken in those cases is well established and is the normal approach to be adopted unless the facts of the case justify something different. The fact that the acquisition of a house and land would provide, not only accommodation for the injured plaintiff during his or her lifetime but also the capital value thereof, is a factor which must be taken into account and, ordinarily, it is taken into account in a rough and ready way by not including in the award the capital cost of the land and of the home but allowing in full for modification costs. It would be an error not to have regard to that factor. I agree with Mr Bartlett that, in the present case, the trial Judge did not make allowance for that factor and that his assessment erred to that extent. [8] However, I accept the point made by Mr P Neil SC, with him Mr D Hooke of counsel for the respondent, that the facts of each particular case must be taken into account. The general principle to be applied is that stated by Gibbs CJ and Wilson J in Todorovic v Waller (1981) 150 CLR 402, where their Honours said at p412: "Certain fundamental principles are so well established that it is unnecessary to cite authorities in support of them. In the first place, a plaintiff who has been injured by the negligence of the defendant should be awarded such a sum of money as will, as nearly as possible, put him in the same position as if he had not sustained the injuries. Secondly, damages for one cause of action must be recovered once and forever, and (in the absence of any statutory exception) must be awarded as a lump sum; the court cannot order a defendant to make periodic payments to the plaintiff. Thirdly, the court has no concern with the manner in which the plaintiff uses the sum awarded to him; the plaintiff is free to do what he likes with it. Fourthly, the burden lies on the plaintiff to prove the injury or loss for which he seeks damages." [9] In applying those precepts, it is necessary to have regard to the particular facts of each case so that the assessment reflects, so far as money can do so, the loss which the injured plaintiff has suffered. It is fundamental that the circumstances of the plaintiff prior to the injury and the future which the plaintiff would most likely have achieved, but for the injury, must be taken into account in order to assess the loss which resulted from the injury. [10] I therefore reject the contention of Mr Bartlett that there is a principle that the cost of a notional basic home is necessarily to be excluded from an award of damages. The award must take into account the facts of the particular case. In some cases, it will be anticipated that the injured plaintiff will live in an institution. In those cases, the cost of the purchase of a home is irrelevant. In some cases, it will be anticipated that the injured plaintiff will continue to live in his or her existing home. In such a case, only the cost of modifying the home will be taken into account. In other cases, it will be anticipated that the injured plaintiff must move from an existing home to another home more suitable to the plaintiff in his or her injured state. In those cases, the standard of the accommodation in which the plaintiff was accustomed to live will be a relevant factor. In other cases, if the plaintiff has lived prior to the injury, not in his or her own home, but in a boarding house or a caravan or in rented accommodation, the award of damages must take this into account. [11] In the present case, Mr Williams, prior to the accident, was living in a caravan and it was likely that he would have continued to do so. This fact gave rise to two relevant factors. The first was that an award which included the cost of purchasing land and a home would confer upon Mr Williams the benefit of a capital asset which, apart from the accident, he would not have acquired. The second was that, as Mr Williams would not have devoted any part of his income to the acquisition of such a capital asset, and, as he would now necessarily have to devote funds out of the damages to that use rather than to income earning purposes, it was proper to make allowance for the reduction in his income earning ability which would result from the diversion of money to that use." 504 Omar has lived in his present rented home despite its limitations for more than 4 years. Before the accident, albeit as a very young man, he shared a small upstairs flat with his father. It may be that ultimately he will look for or need to look for other more suitable or more secure accommodation but there seems to be no urgency. 505 Although counsel for Omar submitted that in Weideck, the Court of Appeal allowed the plaintiff the capital cost of a house, that is not my understanding of what the court did. Rather it allowed the plaintiff a sum representing the income he would forgo by applying his own funds towards the acquisition of a property. That, as Davies AJA pointed out, was the approach taken by the English Court of Appeal in Roberts v Johnstone & Anor [1998] 3WLR 1247 and by Mildren J in Rosecrance v Rosecrance (1995) 105 NTR 1. 506 In this case, as I have indicated, Mr Hardiman costed at between $630,000 and $966,000 the purchase of a suitable 3 bedroom house in Ryde and $430,205 to convert such house into suitable accommodation for Omar. It would, I think be reasonable to allow Omar a sum for such conversion costs. However, the sum suggested by Mr Hardiman should be discounted to meet the possibility that he will spend the rest of his life in his present home and the possibility that, in any event, not all the modifications suggested will be found necessary or desirable. I would allow $300,000 for house modifications. In respect of the acquisition of a suitable house, I would again discount the figure suggested by Mr Hardiman to meet the circumstance that Omar remains indefinitely where he is and also to take account of rent forgone. Adopting the approach suggested in Weideck, I would allow Omar a sum equivalent to a net return of 3% per annum on $400,000 for a period of 20 years, using 5% tables. The amount so calculated is $142,154. 507 Thus I would allow $442,154 under this head of damages. Provision of a Spa Pool: 508 There is, so far as one can tell from the evidence, very little pleasure in Omar's life. There is reason to accept from witnesses and his hand movements that he found enjoyable being placed on a float in the swimming pool at the house where he resides. I accept that there is no medical reason for him to be provided with a pool but, nevertheless, I think it reasonable that there be provision for a small heated spa pool in any new residence which he acquires. It may, in some small part, replace some of the pleasures of life of which he has been deprived by the tort of the defendants. The provision of such a pool, ancillary equipment, structures and works was costed by Mr Hardiman at $67,273. That sum should be discounted to meet the circumstance that for whatever reason no such pool is constructed. I would allow $40,000. Air Conditioning and Ceiling Hoist: 509 The defendant conceded that it is reasonable for Omar to be provided with a ceiling hoist and ducted air conditioning. The items were costed by Mr Hardiman at $13,527 and that sum should be allowed. Provision of Motor Vehicle: 510 It is plain that due to his disabilities it is necessary for Omar to be transported in an appropriately modified, air-conditioned, wheel chair accessible, van. He presently uses a Mercedes Sprinter which has been modified and found suitable. Presumably it will continue to be available to him as it was purchased and modified on his behalf by his employer's insurer. Ultimately it may require replacement but given the small distance travelled to date and the quality of the vehicle, it is likely to last very many years. There was evidence, especially in the reports of occupational therapist, Ms Karen Henry, that taxi services for disabled people in Sydney are limited and unreliable. Ms Oates suggested that a Kia Carnivale might be a cheaper option but conceded that it may be inappropriate for Omar due to his height. Ms French regarded the Kia Carnivale as inappropriate because Omar would find it difficult to get in. On the evidence, I think it was reasonable to provide Omar with a modified Mercedes Sprinter. 511 This claim gives rise to difficulties of quantification and was the subject of a report by Mr Ron Pallone, Consultant Motoring Information Service, National Roads and Motorists Association Ltd. It is put on behalf of Omar that he is entitled to the differential cost of an adapted van as opposed to a standard sedan, together with additional running costs. This contention seems to me to be reasonable in principle and the defendants do not appear to contest it, although they point to the low distance (about 6000ks) travelled in the 2 years since Omar has had the Sprinter. 512 According to Mr Pallone, the difference in cost between an ordinary sedan and a suitable van is about $66,000 and the difference in running costs is about $20 per week depending of course on distance travelled. If the distance Omar travels continues to be very low, the running costs will be much less than those predicated by Mr Pallone and the vehicle presumably will last much longer. 513 Omar's claim was quantified at $360,918 but that assumed a life expectancy greater than I am willing to accept. The defendants proposed a total allowance of $56,736. It is impossible to be precise. I would allow $100,000 under this head. Home Maintenance and Running Costs: 514 Omar claims the costs of a home handyman service and the extra costs associated with maintaining an air-conditioned home. The claim made is $164,884 based upon Mr Hardiman's report. However, there seem to me too many imponderables to justify giving effect to Mr Hardiman's report, according to its terms. I prefer the defendant's approach of awarding a global sum, although I think the amount of $30,000 suggest is too low. I would award $70,000. Future Pharmaceutical Expenses and Expenses for Therapeutic Aids: 515 Ms French costed the therapeutic aids, appliances and equipment component of this claim and Omar relies on her report, recognising that some components are dealt with separately elsewhere. 516 The approximately 50 items listed by Ms French designed to deal with Omar's physical disabilities in all their manifestations range from the small to the quite large. The evidence did not deal individually with all of the items and disappointingly, the parties could not agree upon them. After excluding components in Ms French's schedule dealt with elsewhere, Mr Hull submitted I should allow $483.91 per week in respect of the Therapeutic Aids, identified by her. In respect of medication and food delivery systems, bandages and dressings, incontinence and hygiene needs, oral care, skin protection, infection control, foods and supplements, ancillary requirements, and hand held battery equipment, stationary and energy and power usage, the sum of $1,661.59 per week was claimed in accordance with schedules contained in exhibit E. The further sum of $207.64 per week was claimed for medication in accordance with Omar's actual usage, most or all of which is prescribed. 517 Under this heading there was thus claimed the sum of $2,353.14 per week, or $1,842,508 over my assessment of Omar's life expectancy. The defendants disputed the size of the claim, suggesting that on its face it was excessive and pointing to the fact that a number of items on the list were commonly found in households. Mr Hull conceded that some of the equipment listed by Ms French is already owned by Omar, although it may need future replacement. The defendants proposed that I allow in all $325.73 per week but this seems too low, given that the starting point must be close to the cost of the prescribed medication. I agree, however, that the list, on its face, appears excessive and suggests that there has been some wastage in the past. A broad brush approach, I think, is required bearing in mind that reasonable need is the touchstone of Omar's entitlement. I will allow $1,000,000 in all for all the matters encompassed by this section of the judgment. Computer and Communicative Assistance Devices: 518 It is submitted on behalf of Omar that he requires a personal computer with necessary hardware and software specially adopted for his use in communication, further therapy and recreation. Reliance was placed on the opinion of Professor Reid that without ongoing stimulation of his cognitive and physical functions, he will lose the gains he has made. 519 An assessment of Omar's computer needs was made by occupation therapist, Ms Lynda Hutchinson and such assessment was set out in her report dated 24 August 2007. She had made an earlier assessment in June 2007. 520 Ms Hutchinson's report contains the following passages: "Cognitive Abilities The cognitive abilities experienced by Omar are becoming more apparent through the use of technology. The following was observed: Omar is able to concentrate for 45 to 60 minutes at a time. Omar is able to indicate yes and no to answer to closed questions. While Omar is able to use his computerised communication system to answer some questions, he has difficulty initiating communication. Omar requires repetition to learn new tasks. During the computer activities Omar was able to follow directions. Physical Abilities Since the original assessment Omar has gained some increases in his ability to flex his right elbow, and flex and extend his right index finger and thumb. Current Living Situation Omar currently lives with his father, Sam, in the family home in Ryde. His mother, Judith, lives in the United States of America, however is a frequent visitor staying for several months at a time. Assessment Details Omar's current ability to access and use a computer and related technology was assessed on the 18 August 2007. Margie Logan (speech pathologist) and Judith Cohen (Omar's mother) were present during the assessment. Omar was observed accessing the communication program Dynavox Series 4 Speaking Software for Windows. This software enables the development of customised communication pages and an onscreen keyboard. The page setup used by Omar was developed by Ms Logan and Omar has been using the system since November 2006. Current Computer Technology Omar currently has a Toshiba laptop computer, purchased in November of 2006. Two main programs were purchased for Omar: Dynavox Series 4 speaking Software for communication and Music Factory for recreation. Omar accesses the software through either switch scanning or direct mouse control using the laptop touchpad. Since having access to the computer Omar trialled several access options including: switch scanning, 3M Ergonomic mouse, touchpad, Cherry Compact Keyboard. While he has shown promise with each of these items a clear access method is yet to be determined. Computer Access Mouse Omar can access some of his computer programs via a switch scanning method – items are presented or highlighted sequentially over time and the user makes a selection by pressing a switch. While Omar is able to use this system he has indicated that he finds it slow. Switch scanning however provides a relatively low effort system of accessing computer programs and therefore is an option Omar can use when fatigued or unwell. However, it does not provide him access to all computer functions and programs; therefore a suitable direct mouse control alternative is needed as an adjunct to the switch scanning. Since November alternative mouse options have been trialled, as Omar's ability to isolate and use the thumb and index finger on his right hand has improved. At the time of this review assessment Omar was controlling the mouse movement using the touchpad on the front of the laptop. While this method worked for the majority of movements, due to the design of the touchpad and the movement of Omar's index finger, moving the mouse to the left proved difficult – touchpads respond to movement from the pad of the finger not the fingernail; when moving right (flexing his finger) Omar's finger "curled", to move the cursor left he had to extend his finger, however this caused his fingernail to drag on the touchpad. It was observed that Omar did not have sufficient ability to move his hand, wrist and arm to access the standard mouse alternative, however his laptop computer gave an additional option through the Accupoint. The Accupoint works like a mini joystick. With his wrist resting on the front of the laptop, Omar was able to extend his wrist and index finger to reach the Accupoint. He then demonstrated the ability to effectively operate the mouse control and move the cursor around the screen. Ms Logan, Omar and Judith reported that this method gave the greatest and quickest control of the mouse movement. This assessment has confirmed that: Omar is interested in and motivated to use computer technology; With appropriate access methods, software and support Omar is able to access a computer; and The activities he is likely to undertake with a computer will benefit him in those areas where he has been disadvantaged by his disabilities. The task now is to nominate a reasonable computer system that will enable him to achieve these benefits." 521 In reliance upon Ms Hutchinson's report, a claim of $326,751 was made on Omar's behalf. The defendants' response was that "having regard to his mental capacity", Omar's current computer equipment is sufficient and that any allowance should be limited to renewing the equipment at 5 yearly intervals. A lump sum of $18,780 was suggested. I agree that on the evidence it would not be reasonable to allow such a large sum as is claimed on Omar's behalf. While he should be encouraged to persevere with the computer, his progress to date, coupled with what I regard as the balance of medical opinion, does not lead me to be optimistic about future progress and thus justify a large award against the defendants. I think, however, that a global sum should be awarded, which I will allow at $50,000. Additional Vacation Costs: 522 It was asserted on Omar's behalf, entirely accurately, that he "will incur additional expense for local and overseas holidays, consequent upon his disabilities". A claim quantified at the global sum of $400,000 was made to encompass a biannual 3 week holiday to visit his mother in the USA and one annual 2 week holiday in Queensland. 523 The defendants submitted that no allowance should be made under this head. I was referred to the decision of the Court of Appeal in Diamond v Simpson (No 1) [2003] NSWCA 67. 524 There was little evidence in the case that the holidays contemplated would have therapeutic benefit, nor do I think there was evidence that the one holiday Omar seems to have had since the accident was found enjoyable by him. 525 Taking Omar away, even within Australia, let alone overseas, involves very significant disruption to his life, which is difficult enough in any event, and huge expense entirely disproportionate, in my view, to any benefit he is likely to receive. I believe it would be unreasonable to impose upon the defendants the cost of such holidays. The benefit which Omar may well derive from changes of scenery can, I think, be accommodated by day trips involving little or no disruption to his ordinary regime. I would disallow the claim. Case Manager: 526 Counsel for Omar submitted that there should be an allowance for a case manager, which was quantified at $436,752. It was contemplated that such a person would have a relevant professional qualification and appropriate experience. References were made to the evidence of Ms Van Groningen, Dr Lowy and Ms French and the report of Mr Kennedy-Gould, part of exhibit D. It was envisaged that the role of a case manager would be, independent of the carers, to provide supervision and coordination of the carers and the providers of medical services. This role presently seems to be performed partly by Mr Kouri and Mrs Cohen and partly by Ms Goldthorpe, although she, of course, is not independent of the carers. 527 The defendants oppose a separate allowance for a case manager, submitting that the role is encompassed by the services Global provides. Having regard to the way Omar has been satisfactorily managed to date and the material from Global in evidence, I would doubt that a case manager is presently required and I would not allow, as a separate item, for the provision of a case manager. However, I would emphasis that it is not my role to dictate Omar's care needs. What I am required to do in relation to Omar's future care is fix a lump sum of compensation, fair, both to Omar and the Defendants, which is derived from a consideration of the evidence. How that sum will actually be allocated once awarded is not for me to say. Obviously, over Omar's lifetime, it is likely that circumstances will alter unpredictably and decisions will need to be taken to meet those exigencies. Future Medical Treatment: 528 There was evidence, not challenged by the defendants, that Omar will require ongoing medical supervision and/or treatment for life. It was envisaged that this will or may involve a general practitioner, an ophthalmologist, a neurologist, a rehabilitation consultant and a neurosurgeon. It was also contemplated that he may require periods of hospitalisation. 529 The claim made was for the total sum of $442,146 as itemised in the submission made on Omar's behalf. This necessarily involved a degree of speculation. The defendants proposed an allowance of $137.08 per week plus a global sum of $100,000 to cover hospitalisation. 530 I would allow this part of the claim by increasing the weekly sum proposed by the defendants slightly to $150.00 and apply it to my assessment of Omar's life expectancy. The multiplier being 783, the sum calculated is $117,450, to which I would add the sum of $100,000 proposed by the defendants for hospitalisation making a total of $217,450. Future Paramedical Costs: 531 Under this head, Omar claims $930,000 for future physiotherapy, occupational therapy, speech therapy, podiatry and massage therapy and for the involvement in his care of a registered nurse 40 hours per week. 532 In fact, Omar's carers provide daily physiotherapy in accordance with a program established by Mr Wheen and they also spend time in giving Omar exercises prescribed by Ms Logan. 533 The defendants accepted Mr Wheen's recommendation as to future treatment, which involved a short term intensive regime costing $5,142 plus an allowance for a 2 hour quarterly review at a cost of $135 per hour. The cost of this review represents $20.77 per week or using the tables with a multiplier of 783, the sum of $16,262 over Omar's life expectancy. Adding $5142, I would allow $21,404 for future physiotherapy. 534 In respect of speech pathology $508,843 is claimed for the future, predicated on Ms Logan continuing to see Omar for 3 hours each week. The defendants submit that an allowance of 1 hour per week would be reasonable. 535 There is no doubt, in my mind that Ms Logan's professional services have been of considerable assistance in establishing methods of communication with Omar, in maximising his swallowing capability, and in training his carers to perform exercises on an ongoing basis. Despite her optimism, however, progress has been very slow and, on the balance of medical opinion, it seems to me that little further improvement can be expected. 536 In the circumstances, I do not think the very large expense of her continuing involvement with Omar as proposed can be justified against the defendants. I think it appropriate to fix a global sum, which I assess at $75,000 for future speech pathology services. 537 A claim for $22,747 is made in respect of podiatry calculated on the basis of a cost of $25 per week. This claim is contested by the defendants as excessive but having regard to the report of Ms French that toe nail cutting is outside the scope of attendant care support, I think an allowance should be made as claimed. I will apply to $25 the multiplier of 783 and allow $19,575. 538 In respect of occupational therapy, the sum of $150,133 is sought in accordance with the recommendation of Ms French. She identified the following purposes of such therapy: "Work with Omar and his family to identify goals. Plan annual holiday for Omar Plan Omar's visits to his mother's home in United States. Develop Omar's upper limb program. Develop Omar's personal care routines Train and educate Omar's care workers. Review, address and monitor Omar's seating and positioning needs. Consult with architect. Explore a range of recreational and leisure pursuits. Monitoring of splinting needs and manufacture of specialised splints. Input into the establishment of Omar's technology systems and environmental control systems. Provision of written program manuals. Provision of specialised and customised equipment. 539 On the other hand, the defendants relied on the report and evidence of Ms Joanne Oates, who recommended, in effect, the services of an occupational therapist for 35 hours per year at a cost of $87.25 per week. Given that I have excluded from an occupational therapist's consideration at the expense of the defendants such substantial items as planning holidays and overseas visits, and given the constant presence of professional carers, I think the sum sought for occupational therapy far exceeds the bounds of reasonableness. I would accept the defendant's contention but apply my estimate of life expectancy. On that basis, I would allow $68,316. 540 Finally under this head Omar seeks allowances for therapeutic massages and for consultations with a dietician. I would allow the latter claim at $2,710. 541 The defendants dispute any entitlement for therapeutic massage. Ms French recommended that Omar receive a weekly massage subject to prior medical approval, but conceded in oral evidence the he could have a reasonable level of care without it. 542 Ms Groningen mentioned the subject in a section of her supplementary report dated 15 October 2007, dealing with the suggested need for Omar to have the benefit of a professional sex industry worker (PSIW). She concluded the section: "I have not viewed any documentation that indicates that Omar has an interest in pursuing other intimate relationships. Staff available on the day of my visit were unable to comment on whether Omar showed an interest in sexual issues. Whilst I cannot justify PSIW services in this case, human touch is certainly an essential part of a feeling of well-being and I would certainly support the provision of regular massage therapy for Omar." 543 It is, I think, reasonable to allow for an occasional therapeutic massage, although I pause to suggest that if Omar were able to have his way, he may prefer less interference with his body rather than more. I allow $5,000. 544 Generally, I should say that I reject counsel for Omar's submission that in accordance with G T Pettersen v Bacha, in the absence of properly considered assessments and reports from competing paramedical personnel, the court should accept the opinions and costings relied upon on Omar's behalf. It does not seem to me that the Court of Appeal was suggesting that in respect of each element of damage claimed, I should do other than consider it in light of the whole of the evidence and the overriding criteria of reasonableness, both to Omar and the defendants. 545 In all, under the heading Future Paramedical costs, I allow $ 192,005. Past Out of Pocket Expenses: 546 This section raises contentious issues. In large measure, Omar's out of pocket expenses comprise sums paid by Kaybron or its workers compensation insurer. I will need to consider those payments in relation to Kaybron's action. 547 In addition, however, some items were paid by Omar or his parents in respect of which reimbursement is claimed in Omar's action. To the extent of $11,319.34 there was agreement and this sum should be allowed. 548 The sum of $2,872.14 was claimed in respect of telephone calls by Mrs Cohen in the USA to Omar in Australia. That sum does not seem unreasonable, nor do I think it unreasonable to burden the defendant with the cost of the telephone calls, given the relevant circumstances. The calls would fall, in my opinion, within the principles stated by Taylor J in Wilson v McLeahy (1961-62) 35 ALJR 256. 549 In further reliance upon Wilson v McLeahy, Omar claims expenses incurred by his mother in visiting him in Australia. The total claimed is $29,406.55 as itemised in exhibits AAP and AAQ. In all, Mrs Cohen had 12 trips to Australia by November 2007 of which 3 were paid for by Kaybron's insurer. The average cost of each trip was stated as $2,017. 550 I think it would be unreasonable to expect the defendants to pay for all Mrs Cohen's trips to Australia. No doubt her visits had some therapeutic benefit for Omar but the extent of such benefit is impossible to quantify. I think it would be reasonable to allow, in Omar's action, the sum of $8,000. 551 In Kaybron's action there is disputation as to the recoverability of all the items claimed by it. As indicated earlier, the defendants assert that to a significant extent, Kaybron made "ex gratia" payments, which are not recoverable under section 151 Z of the WCA. However, I agree with Mr Parker's submission that the circumstance that a payment made by Kaybron is irrecoverable because it does not fall within section 151 Z (1)(d) does not necessarily mean that Omar cannot claim it as part of his out of pocket expenses. 552 The test, apart from causation, seems to be that set out in Blundell v Musgrave (1956-7) 96 CLR 73. In that case at page 79, Dixon CJ expressed the relevant principle: "It may be safely stated as a general proposition of law that, before a plaintiff can recover in an action of negligence for personal injuries an item of damages consisting of expenses which he has not yet paid, it must appear that it is an expenditure which he must meet so that at the time the action is brought, though he has not paid it, he is in truth worse off by that amount. Generally speaking the question whether he must meet the expense is to be decided as a matter depending upon his legal liability to pay it.". 553 There is a disputed sum of $349,059 paid by Kaybron, ostensibly for the benefit of Omar and causally related to his accident, which Kaybron concedes is not recoverable in its action against P & M, Austec, and Vidual. The sum comprises the rent and rent bond paid for Omar's home; water rates; pest control expenses; car insurance and registration; charges for gas and electricity; telephone charges; the cost of office furniture; travel expenses for Mrs Cohen; transportation and other expenses incurred in connection with the holiday at Nelson Bay; freight delivery costs; bed sheets and other linen; and miscellaneous medical expenses; and expenses for non pharmaceutical items purchase for Omar's perceived benefit. 554 Without further evidence it is, I think, impossible to adjudicate properly in respect of the disputed items. Although Omar himself was unable to give authority for the incurring of liabilities, it seems likely that his father had ostensible authority, and, on that basis, incurred an implied obligation on Omar's behalf to repay Kaybron. On that basis, Omar would be entitled to recover as out of pocket expenses the sums which he is obliged to repay Kaybron and which can be shown to be causally connected to the accident. To mention just one item namely rent, there was evidence that Mr Kouri was, at the time of the accident, paying about $200 per week for the small flat he and Omar were occupying. This flat was wholly unsuitable for Omar and a causal connection, in my view, was established between the accident and the need to move Omar into suitable premises, which were acquired for a rent of about $600 per week. 555 As a very broad brush approach, it may be reasonable to allow Omar one half of the disputed sum of $349, 059.85, namely $174,530. I will provisionally allow that sum, but give the parties leave to reopen the question if they are so advised. 556 Accordingly, I will proceed on the basis that past out of pocket expenses claimable in Omar's action are the sums earlier allowed, or provisionally allowed, in this section, viz $196,721 together with the total of the amounts paid by Kaybron under sections 59, 60 and 60AA of the WCA which are recoverable by it under section 151Z (1) (d). Future General Out of Pocket Expenses: 557 The basis of this claim is set out in submissions made on Omar's behalf: "1.The first plaintiff claims an allowance for his mother to be able to travel to Australia and visit him twice a year at the cost of AUD $4,300 per trip = $8,600 per year for 20 years. (=$110,209). 2. The first plaintiff also claims the expenses relating to telephone contact with his mother in the sum of $140 per week for 8 months of the year (excluding the period she will be in Australia) = $81,722. 3. The first plaintiff submits it appropriate to consider this head of damages as a "global allowance" in the sum of $150,000." 558 The defendants disputed Omar's entitlement to any part of this claim. Given that it is going on for 6 years since Omar's accident and that before it Ms Cohen was telephoning him on a regular basis, I am of the opinion that it would not be reasonable to allow against the defendants any further sum for Mrs Cohen, either to travel to Australia or to telephone him. I do not, of course, mean that it would be unreasonable for Ms Cohen to act in that way, only that the defendants should not be liable for the cost. 559 I make no award under this head. Future Attendant Care: 560 There remains, in Omar's claim, only this outstanding element, although it is by far the largest item. $14,558,400 is sought, based upon the attendance of 2 carers 24 hours a day, 7 days a week, together with some additional items. It represents broadly Omar's present care regime with the additional provision that one of the carers be a registered nurse, 40 hours per week. 561 The tax invoices in evidence suggest that the weekly cost of care now provided varies slightly from week to week but is about $17,000. Additional costs are presently incurred when the services of a registered nurse are required, this being particularly to attend to skin breakdowns. 562 The evidence to which I have referred indicates a very large disparity between the cost of future care as now sought by Omar and the cost contended for by the defendants. I do not suggest any lack of honesty or bona fides on the part of any witness who has given evidence on the subject, all of whom were shown to be highly qualified and experienced, but I must remind myself that Omar is entitled at the expense of the defendants to reasonable care not optimal care. 563 In the first place, I should say that in my opinion, Omar has not established a need for care at a higher level than that now being provided. In particular, although there is some indications in the evidence that the involvement of a full time registered nurse may be desirable, I am not persuaded that a reasonable need has been proved. As Gibbs J and Stephen J said in Sharman v Evans at 573: "The appropriate criterion must be that such expenses as the plaintiff may reasonably incur should be recoverable from the defendant; as Barwick C.J. put it in Arthur Robinson (Grafton) Pty. Ltd. v. Carter [1968] HCA 9; (1968) 122 CLR 649, at p 661 "The question here is not what are the ideal requirements but what are the reasonable requirements of the respondent", and see Chulcough v. Holley, per Windeyer J. (1968) 41 ALJR 336, at p 338. The touchstone of reasonableness in the case of the cost of providing nursing and medical care for the plaintiff in the future is, no doubt, cost matched against health benefits to the plaintiff. If cost is very great and benefits to health slight or speculative the cost-involving treatment will clearly be unreasonable, the more so if there is available an alternative and relatively inexpensive mode of treatment, affording equal or only slightly lesser benefits" 564 In respect of Omar, the care system in place has, for more than four years, worked exceedingly well. I see no reason to find that it should go to a higher level. 565 The defendants, in fact, submit that only the regime set out earlier in these reasons suggested by Ms Merram should be allowed. According to her, the care roster with an active night shift should cost approximately $7,868 per week or less with an inactive night shift. She is undoubtedly well qualified to give the opinions she expresses and I have already commented favourably on the philosophy which seems to underly them. 566 Obviously a significant factor is the extent to which Omar needs care at night. It may be accepted that because of his size, he needs 2 people, probably including a strong male, to turn him, and accordingly, if he needs turning at night 2 carers must be present. A related problem seems to be the somewhat unsatisfactory arrangement in place for nocturnal urine collection. I am of the opinion that a better solution for urine retention is likely to be found and that it will also be found unnecessary to turn him regularly at night, as this disturbs his sleep. Perhaps, as was suggested, the solution lies with the provision of a more technologically advanced bed. 567 For the above reasons I propose to allow for future care the sum of $8,000,000 which lies between Ms Merram's costing and the cost of the present regime. Of course, how that sum is actually spent is not for me to say, and I repeat my earlier observation that it is not appropriate for me to lay down a care regime for Omar. THE ACTION BY KAYBRON: 568 It is appropriate to deal next with this action as it will permit determination of the sum for out of pocket expenses claimable by Omar. Kaybron, as I have said, seeks indemnity under Section 151 Z (1)(d) of the WCA which is in the following terms: "151Z Recovery against both employer and stranger (1) If the injury for which compensation is payable under this Act was caused under circumstances creating a liability in some person other than the worker's employer to pay damages in respect of the injury, the following provisions have effect: (a) …………………………………. (b) …………………………………… (c) ……………………………………. (d) if the worker has recovered compensation under this Act, the person by whom the compensation was paid is entitled to be indemnified by the person so liable to pay those damages (being an indemnity limited to the amount of those damages)." 569 It was common ground that Kaybron, prior to the trial, had paid compensation to Omar, at least purporting to be in accordance with its obligations under the WCA. This gave rise to two issues namely, to what extent, if any, is Kaybron entitled to indemnity under section 151 Z (1)(d) and to what extent, if any, is any such entitlement to be reduced by Kaybron's negligence in accordance with section 151 Z (2) of the WCA. 570 As to the latter question, in spite of the somewhat opaque drafting of section 151 Z, it is clear from the authority of the Court of Appeal in I & J Foods Pty Ltd v Bergzam Pty Ltd (1997) 14 NSWCCR 486 that the negligence of Kaybron does not disentitle it from the right of indemnity given by section 151Z (1) (d) but that its entitlement should be proportional to is responsibility as a tortfeasor. 571 The evidence indicated that Kaybron does not carry on business otherwise than as an employer of about 50 workers engaged in P & M's business. Its sole director, according to exhibit 1D-6, was Mr Andrew Lederer who was also a director of all the companies in the P & M Group. 572 According to exhibit 1D-1 Kaybron pleaded guilty before Marks J in the Industrial Relations Commission to a breach of section 8 (1) of the Occupational Health and Safety Act in relation to Omar's accident. The statement of agreed facts put before His Honour included: "The Defendant failed to properly supervise Austec Panel Systems Australia Pty Limited, the principal contractor and Vidual Pty Ltd, the sub-contractor in ensuring that the alcove and the alcove floor located off an access corridor on the first floor of the premises were adequately sealed off or barricaded from the said access corridor." 573 Kaybron, as Omar's employer, had a non delegable duty to provide him with a safe place and system of work. This, in my opinion, it failed to do in breach of its common law duty of care. This was not a case such as Atkinson v Gameco (NSW) Pty Ltd [2005] NSWCA 338 where the employer had no connection with the premises where its employee was to work. Although Kaybron did not actually conduct a business at the factory, its director was common to all companies in the group, including the operating entity P & M. 574 In accordance with section 151 Z (2), it thus becomes necessary to determine the degree of responsibility of Kaybron for what befell Omar. Mr Parker submitted that it should be nil, or close to nil, on the basis that there was no evidence that it was in a position to prevent Omar's accident. 575 Mr Parker also pointed out that the breach of the Occupational Health and Safety Act to which Kaybron pleaded guilty was an offence of absolute liability. 576 Relative to the three parties against whom direct negligence was established and whose employees were involved in the works, I think Kaybron's actual responsibility should be regarded as small. I would assess it at 10%. It follows that any indemnity to which Kaybron would be otherwise entitled under the WCA should be reduced by 10%. 577 As to the ambit of the indemnity in this case, it is necessary to have regard to other provisions of the WCA. Sections 59, 60 and 60AA relevantly provide: "59 "hospital treatment" means treatment (including treatment by way of rehabilitation) at any hospital or at any rehabilitation centre conducted by a hospital and includes: (a) the maintenance of the worker as a patient at the hospital or rehabilitation centre, (b) the provision or supply by the hospital, at the hospital or rehabilitation centre, of nursing attendance, medicines, medical or surgical supplies, or other curative apparatus, and (c) any other ancillary service, but does not include ambulance service. "medical or related treatment" includes: (a) treatment by a medical practitioner, a registered dentist, a dental prosthetist, a registered physiotherapist, a registered chiropractor or osteopath, a masseur, a remedial medical gymnast or a speech therapist, (b) therapeutic treatment given by direction of a medical practitioner, (d) the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles, (e) any nursing, medicines, medical or surgical supplies or curative apparatus, supplied or provided for the worker otherwise than as hospital treatment, (f) care (other than nursing care) of a worker in the worker's home directed by a medical practitioner having regard to the nature of the worker's incapacity, (f1) domestic assistance services, (g) the modification of a worker's home or vehicle directed by a medical practitioner having regard to the nature of the worker's incapacity, and (h) treatment or other thing prescribed by the regulations as medical or related treatment, but does not include ambulance service , hospital treatment or occupational rehabilitation service . "medical practitioner" means a duly registered medical practitioner under the Medical Practitioners Act 1938 or under any law of another State or a Territory of the Commonwealth. "occupational rehabilitation service" means any of the following services provided by or on behalf of a provider accredited under section 52 of the 1998 Act or by a person, or a person of a class, prescribed by the regulations: (a) initial rehabilitation assessment, (b) functional assessment, (c) workplace assessment, (d) job analysis, (e) advice concerning job modification, (f) rehabilitation counselling, (g) vocational assessment, (h) advice or assistance concerning job-seeking, (i) advice or assistance in arranging vocational re-education or training, (j) preparation of a rehabilitation plan, (k) any other service prescribed by the regulations, but does not include hospital treatment. "public hospital" means: (a) a public hospital within the meaning of the Health Services Act 1997 controlled by an area health service or the Crown, (b) a statutory health corporation or affiliated health organisation within the meaning of the Health Services Act 1997, (d) a hospital or other institution (whether in this State or in another State or a Territory of the Commonwealth) that: (i) is prescribed by the regulations, or (ii) belongs to a class of hospitals or institutions prescribed by the regulations, , for the purposes of this definition." "60 Compensation for cost of medical or hospital treatment and rehabilitation etc (1) If, as a result of an injury received by a worker, it is reasonably necessary that: (a) any medical or related treatment (other than domestic assistance) be given, or (b) any hospital treatment be given, or (c) any ambulance service be provided, or (d) any occupational rehabilitation service be provided, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2). (2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations), the related travel expenses the employer is liable to pay are: (a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and (b) if the worker is not reasonably able to travel unescorted-the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service. (3) Payments under this section are to be made as the costs are incurred, but only if properly verified. " 60 Compensation for cost of medical or hospital treatment and rehabilitation etc (1) If, as a result of an injury received by a worker, it is reasonably necessary that: (a) any medical or related treatment (other than domestic assistance) be given, or (b) any hospital treatment be given, or (c) any ambulance service be provided, or (d) any occupational rehabilitation service be provided, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that treatment or service and the related travel expenses specified in subsection (2). (2) If it is necessary for a worker to travel in order to receive any such treatment or service (except any treatment or service excluded from this subsection by the regulations ), the related travel expenses the employer is liable to pay are: (a) the cost to the worker of any fares, travelling expenses and maintenance necessarily and reasonably incurred by the worker in obtaining the treatment or being provided with the service, and (b) if the worker is not reasonably able to travel unescorted-the amount of the fares, travelling expenses and maintenance necessarily and reasonably incurred by an escort provided to enable the worker to be given the treatment or provided with the service. (3) Payments under this section are to be made as the costs are incurred, but only if properly verified. (4) The fact that a worker is a contributor to a medical, hospital or other benefit fund, and is therefore entitled to any treatment or service either at some special rate or free or entitled to a refund, does not affect the liability of an employer under this section. 60AA Compensation for domestic assistance (1) If, as a result of an injury received by a worker, it is reasonably necessary that any domestic assistance is provided for an injured worker, the worker's employer is liable to pay, in addition to any other compensation under this Act, the cost of that assistance if: (a) a medical practitioner has certified, on the basis of a functional assessment of the worker, that it is reasonably necessary that the assistance be provided and that the necessity for the assistance to be provided arises as a direct result of the injury , and (b) the assistance would not be provided for the worker but for the injury (because the worker provided the domestic assistance before the injury ), and (c) the injury to the worker has resulted in a degree of permanent impairment of the worker of at least 15% or the assistance is to be provided on a temporary basis as provided by subsection (2), and (d) the assistance is provided in accordance with a care plan established by the insurer in accordance with the WorkCover Guidelines. (2) Assistance is provided on a temporary basis if it is provided in accordance with each of the following requirements: (a) it is provided for not more than 6 hours per week, (b) it is provided during a period that is not longer than, or during periods that together are not longer than, 3 months, (c) it is provided pursuant to the requirements of the relevant injury management plan. (3) Compensation is not payable under this section for gratuitous domestic assistance unless the person who provides the assistance has lost income or forgone employment as a result of providing the assistance. (4) Compensation payable under this section for gratuitous domestic assistance is payable as if the cost of that assistance were such sum as may be applicable under section 61 (2) in respect of the assistance concerned. (5) The following requirements apply in respect of payments under this section: (a) payments are to be made as the costs are incurred or, in the case of gratuitous domestic assistance , as the services are provided, (b) payments are only to be made if those costs and the provision of the assistance is properly verified (and the WorkCover Guidelines may make provision for how the performance of those services is to be verified), (c) payments for gratuitous domestic assistance are to be made to the provider of the assistance. (6) In this section: "gratuitous domestic assistance" means domestic assistance provided to an injured worker for which the injured worker has not paid and is not liable to pay. 578 Sections 66 and 67, respectively provide for additional compensation to be paid in some circumstances to an injured worker in respect of permanent impairment and for pain and suffering. 579 It follows from my earlier findings that Kaybron has established that the injuries suffered by Omar for which he received compensation under the WCA were caused "under circumstances creating a liability in some person other than the employer to pay damages in respect of the injury" within section 151 Z (1). 580 Kaybron accepts, as is undoubtedly the case, that "compensation" within section 151 Z (1) (d) means compensation paid under the WCA. Kaybron submitted that once established that a particular sum was paid under the WCA, the only other relevant consideration, in order to trigger the indemnity, is whether the particular service was reasonably necessary. 581 The defendants submitted that the question of reasonable necessity should be determined by reference to Sharman v Evans. However, I was referred by Kaybron, to State Rail Authority of NSW v Brown [2006] NSWCA 220, a decision of the Court of Appeal given on 7 August, 2006. That decision is reported at 66 NSWLR 540 although as Mr Campbell pointed out the paragraph relied upon by Kaybron in the judgment of Basten JA is not part of the report. His Honour said at paragraph 85: "85 Questions of the reasonableness of a plaintiff's conduct usually arise in circumstances where treatment recommended by an appropriate professional has been refused: see, eg, Fazlic v Milingimbi Community Inc (1982) 150 CLR 345, applied in State of New South Wales v Fahy [2006] NSWCA 64 at [140]. Where services have been used, the cost of particular services has occasionally been disallowed as not reasonably incurred: see generally Luntz, Assessment of Damages for Personal Injury and Death (4th ed, 2002) at [4.2.1] . In some cases it may be necessary to assess the benefits obtained by a particular form of treatment, against the costs incurred: see Sharman v Evans (1977) 138 CLR 563 at 573 (Gibbs and Stephen JJ). However, the "touchstone of reasonableness" to which their Honours refer will readily be resolved in favour of the plaintiff in circumstances where the treatment has been undertaken at the behest of his employer and the employer's insurer, and pursuant to a statutory scheme which requires such steps to be taken for the ostensible purpose, as noted above, of "the timely, safe and durable return" of workers to the workplace. This was not the choice of some speculative or unproven remedy by an idiosyncratic plaintiff: it was treatment undertaken in compliance with a scheme mandated by the Parliament." 582 In my opinion, the quoted observations of Basten JA (with whom Giles JA and Santow JA agreed) if not binding upon me, are extremely persuasive, notwithstanding their omission from the authorised report of the case. I will attempt to approach the matter in the light of what His Honour said. 583 There seems no dispute that Kaybron has actually paid $5,857,913.33 as a consequence of Omar's accident, purportedly pursuant to its obligations under the WCA. Of that sum it accepts that $396,477 is not recoverable from the defendants to its action for the reasons that the sum represents the costs of legal investigation, or the invoices are missing, or the payments are of a personal nature. The sum of $396,477 includes the sum of $349,059.85, referred to earlier. 584 Kaybron, accordingly, claims $5, 461,435 plus interest in its action. 585 In respect of the sum claimed by Kaybron, $250,000 represents lump sum compensation under sections 66 and 67, and $93,275 represents weekly compensation. There can be no argument as to Kaybron's entitlement to indemnity in respect of those amounts. 586 In relation to the balance of the claim, a number of components were disputed, which I will deal with seriatim. Nursing Care: The total claimed is $3,617,789.40. The defendants submitted that, according to Ms Oates, appropriate care could have been provided for no more than $1,509,323 and according to Ms Merram for no more than $1,762,501. As a consequence, it was submitted that reasonable necessity did not require expenditure to the level claimed. Mr Parker countered this submission by pointing out that both Ms Oates and Ms Merram were giving evidence about future care rather than past care. In my opinion this issue should be resolved in favour of Kaybron in the manner suggested by Basten JA in State Rail Authority v Brown. The care was provided by Omar's employer or his insurer and it was endorsed by very experienced practitioners who gave evidence in the case. To disallow or reduce it would, in my opinion, be tantamount to a finding that the level of care provided was unreasonable. This I am unwilling to do. I would allow the sum claimed. Rehabilitation: The sum claimed was $277,483.84. Mr Campbell's submission was that, in truth, it represents case management, which does not fall within section 59 of the WCA. The definition of occupational rehabilitation service contained in that section is very wide and could in my view encompass what may be regarded as case management. It was not disputed that the sum was paid by Kaybron for Omar's benefit. Given the nature of his incapacity and the length of time which has passed since the accident, I am unable to find that the expense was either unreasonable or outside section 59. Accordingly, I allow it. Speech Pathology: It was submitted that there was a very considerable degree of over servicing in respect of the sum claimed for speech pathology provided by Ms Margie Logan. Perhaps there was some over servicing, with the benefit of hindsight, and perhaps, as submitted, any attainable goals have already been reached. On the other hand, it is not disputed that the sum claimed was paid to Ms Logan. Moreover, there was considerable medical evidence, including from Dr Lowy, as to its beneficial therapeutic value. Again, in the circumstances, I am unable to find that the past expenditure was unreasonable and I would allow the amount claimed. Bed Linen: $15,833 was claimed which included 98 towels, face washers etc and 56 hospital gowns. I agree that it is difficult to regard this as reasonable expenditure and it is also difficult to bring the expenditure wholly within section 59, except as surgical supplies. I would reduce the sum claimed by $10,000 to $5,833.. Chair Stool: I agree with the submission that this item costed at $328 does not fall within section 58. Dr Lowy: I agree with the submission that Dr Lowy was not a treating doctor but rather a "go between", an advocate for Omar. He admitted in evidence that he became involved at the request of Omar's solicitor and although he has been closely involved in his care and treatment, it does not appear that he himself treated Omar. I would disallow the sum of $16,240 claimed. Podiatry: Although it was submitted that this service i.e. the cutting of toenails could have been provided by carers, the fact is that it was not, and there was evidence that this is not part of the carer's responsibilities I would allow the claim of $2,610. Wheelchair: The sum of $25,159.40 was claimed in respect of a second wheelchair. I agree that no reasonable justification for a second wheel chair was established and I would disallow the claim. Taxis: $32,056 was claimed in respect of taxi fares for the period before a vehicle was acquired and modified for Omar, which seems to have occurred about September 2005. However, invoices totalling only $11,706 were presented. Moreover, on their face most of the invoices seem unrelated to a transportation referred to in section 59. I would allow $5,000 in respect of the sum claimed for taxis. Sam Kouri: A sum of $13,801.38 was claimed to reimburse Mr Kouri. Mr Campbell submitted that invoices produced totalled only $2,772.92 and that only that sum should be allowed. I agree with that submission as it is impossible otherwise to verify whether the claim comes within section 59. 587 In the result, I reduce the amount of Kaybron's claim by $ 89,811.86 to $5, 371,624.05. In accordance with my earlier finding, it is entitled to a verdict for 90% of that sum, namely $4,834,461 against all three defendants who between themselves should share the liability equally. 588 Kaybron is also entitled to some interest upon the amount recoverable by it. Mr Campbell, however, referred to what Basten JA said in Teuma & Anor v C P and P Kaybron Judd Pty Ltd [2007] NSWCA 166. That was a case where an employer sought indemnity under section 151 Z (1)(d) and the trial judge allowed interest at 6%, describing it as "the current ten year bond rate". It appeared that the judge, because of delay in bringing proceedings, intended to order interest at a lower rate than otherwise. At paragraph 111 and following, Basten JA said: "[111] Although the matter may properly have been put to the trial judge on the basis that delay justified non-payment of interest, the question of prejudice to the defendant in preparing for trial would appear to be a factor of limited relevance. Once it has been accepted that a fair trial is possible and questions of liability and damage have been resolved, the discretionary power to award interest on the debts for which the defendant was found to be liable should be considered according to the conventional factors, including the fact that the plaintiff has been kept out of its money and that the defendant has had the benefit of money which it should not have retained. Interest may also serve a purpose in counteracting the effects of inflation on the value of the debt. [112] In my view these factors, which favour a grant of interest, should have been discounted in the present case because of the nature of the debt. The debt arose by way of statutory indemnity in circumstances where there was no prior relationship between the parties, as there would be in the usual case of a contractual or other commercial arrangement. So far as the evidence reveals, the defendant knew nothing about the claim for indemnity until served with proceedings on or about 27 October 2005, some eight years after the accident occurred. Thus, if the plaintiff was kept out of its money, it was because it never asked for it. Similarly, if the defendant had the use of it, it was in circumstances where it did not know of the claim and did not have a reasonable opportunity to provide for its contingent liability. In relation to inflation, some allowance must be made for the fact that by obtaining a late assessment of the damages suffered by the worker, the employer had the benefit of a built-in allowance for inflation in the amount of the cap on its liability. [113] There is doubt as to whether the trial judge took any of these factors into account. However, it would appear that some discount was intended to apply to a commercial interest rate which might otherwise have been adopted. Thus, it might have been thought, although there was no evidence in this regard, that the defendant may have been able to obtain a better return than the 6% which was allowed and that the cost of funds to the plaintiff may well have exceeded 6%. In any event, the complaint made by the Appellant is that any amount of interest was allowed. Once it is accepted that some payment of interest was appropriate, and in the absence of any alternative rate being proposed, it cannot be said that error has been demonstrated in the order made by the trial judge. Accordingly, this ground of challenge should be rejected also." 589 In this case, the Statement of Claim in the later action was not filed until 3 August 2007 and P & M was not joined until 26 October 2007. 590 During the relevant period i.e. since August 2002, the interest rate prescribed for the purposes of section 101 of the Civil Procedure Act has fluctuated between 9% and 10%. That rate would ordinarily be allowed but in this case, having regard to Kaybron's delay in bringing action and for the reasons identified by Basten JA, I think it would be unjust to order interest at such a high rate. It would, I think be appropriate to allow interest on the sums recoverable under the indemnity at 5% per annum. For convenience, I will make the calculation from 7 August 2002 to the date of this judgment, a period of 5 years and 251 days and halve the result. The calculation produces $687,421. SUMMARY OF OMAR'S DAMAGES: 591 My conclusions in respect of Kaybron's claim lead to the provisional quantification of Omar's allowable out of pocket expenses. They comprise the amount referred to in paragraph 556 viz $196,721, together with the sum of $4,834,461 referred to in paragraph 587, less the total of the compensation referred to in paragraph 585, namely $343,275. On that basis I will, provisionally, allow Omar $4,491,186 by way of out of pocket expenses. 592 In summary, therefore, I provisionally calculate Omar's damages (subject to the impact of section 151 Z) as follows: Non Economic Loss $ 442,000 Past Loss of Income (Diminished Earning Capacity) $ 193,320 Future Diminished Earning Capacity $ 602,676 "Fox v Wood" $ 12,494 Past Employer Funded Superannuation $ 17,399 Interest on Past Wage Loss $ 16,149 Future Employer Funded Superannuation $ 54,240 Long Service Leave $ 4,000 Special Housing Costs $ 442,154 Spa Pool $ 40,000 Air Conditioning and Ceiling Hoist $ 13,527 Provision of Special Motor Vehicle etc. $ 100,000 Home Maintenance and Running Costs $ 70,000 Pharmaceutical etc. Expenses $1,000,000 Computer Equipment $ 50,000 Future Medical Treatment $ 217,450 Future Paramedical Costs $ 192,005 Past Out of Pocket Expenses (provisional) $4,491,186 Future Attendant Care $8,000,000 TOTAL: $15,958,600 THE OPERATION OF SECTION 151 Z OF THE WCA 593 Section 151 Z (2) applies to this case in that as I have held Omar was entitled to take proceedings independently of the WCA against Kaybron. For the purposes of the adjustment which the subsection requires, I assess damages against Kaybron in accordance with section 151 G of the WCA as follows: Past Loss of Income $193.320 Future Diminished Earning Capacity $602,676 "Fox v Wood" $ 12,494 Past Loss of Superannuation $ 17,399 Interest on Past Wage Loss $ 16,149 Future Lost Superannuation $ 54,240 Long Service Leave $ 4,000 TOTAL: $900,278 594 Omar would have been entitled to a verdict against Kaybron if he had taken proceedings against it for $ 900,278. 595 By virtue of section 151 Z (2)(c), the damages provisionally assessed in favour of Omar against P & M, Austec and Vidual namely, $15,958,600 are to be reduced by the amount by which the contribution which those defendants would, but for Part 5 of the WCA, be entitled to recover from Kaybron, namely $1,595,860, exceeds the amount actually recoverable, namely $90,027. The difference between those two sums is $1,505,833 and, accordingly, Omar's entitlement to a verdict against P & M, Austec and Vidual is reduced to $14,452,767. 596 I would not regard a verdict of either $15,958,600 or $14,452,767 as strikingly disproportionate to the nature of Omar's claim. It would broadly accord with the verdict of $14,202,042 found by Whealy J in Diamond v Simpson albeit for specific reasons it was reduced on appeal to $10,998,692. The plaintiff in Diamond v Simpson seemed to need less care than Omar and had a longer life expectancy. ASSESSMENT OF DAMAGES – MR KOURI: 597 Mr Kouri's action is also governed by the Civil Liability Act (the CLA). As father of Omar he constitutes "a close member of the family" within section 30. 598 In my opinion, within section 32 (1) of the CLA, each of the three defendants ought to have foreseen that a person of normal fortitude might, in the circumstances, suffer a recognised psychiatric illness if reasonable care were not taken. The defendant therefore owed a duty, not only to Omar but also to his parents, a duty which they breached. There was no contributory negligence by Omar. 599 I am satisfied on the evidence to which I have referred that Mr Kouri, resulting from the defendants' negligence, suffers a recognised psychiatric illness, namely an adjustment disorder with depressed mood which has become chronic and pervasive, as diagnosed by Dr Phillips, post traumatic stress disorder with poor prognosis as diagnosed by Dr Robertson, or post traumatic stress disorder and consequent depression as diagnosed by Dr Clarke. None of those doctors was required for cross-examination and no contrary medical evidence was tendered by any of the defendants. 600 I accept Dr Phillip's evidence that Mr Kouri suffered psychological shock in several parts over a period of time and I accept Mr Kouri's evidence as to his feelings initially, and as time has passed, in relation to his son. 601 The accident had a major impact upon Mr Kouri's life, he commenced to drink alcohol to excess; he seemingly lost interest in his employment; he became socially withdrawn; and, as it appears, has devoted himself almost to the point of obsession with Omar's welfare. At one point he was suicidal. He required and still requires medication. 602 Mr Kouri's entitlement to damages for non economic loss is governed by section 16 of the CLA. Mr Hull submitted that he should be regarded as 60% of a most extreme case for the purposes of the section. The defendants, whilst conceding that Mr Kouri "falls into the class of person entitled to compensation for "mental harm"", submitted that the appropriate range was between 27% and 29% of a most extreme case. 603 Counsel pointed to references in the medical evidence to the possibility of improvement in Mr Kouri's condition following further psychotherapy and to Dr Philip's inability positively to validate a diagnosis of post traumatic stress disorder. 604 It is by no means easy to make comparisons between mental harm suffered by plaintiff's such as Mr Kouri and what normally comes to mind when considering "a most extreme case" ;namely such events as quadriplegia, serious brain damage and extremely severe scarring and disfigurement Kurrie v Azouri (1998) 28 MVR 406 per Sheppard AJA. Of course Omar himself presents as a tragic example. 605 Mr Kouri remains physically intact. His cognitive capacity is unimpaired and he has apparently been able to overcome his alcohol problem. Whilst handicapped by mental disorder, he is able otherwise to lead a normal life, or would be if not restricted by his personal, albeit perfectly understandable, choice to devote such a large proportion of his time and energies to the care of Omar. 606 In all the circumstances, I think 60% of a most extreme case is much too high. I would fix the percentage at 35% resulting in an award for non economic loss of $ 154,700. 607 Past out of pocket expenses were agreed at $5,240. Future out of pocket expenses were claimed at $35,226, largely based on the recommendations for future medication and treatment by Dr Phillips and Dr Clarke. 608 Counsel conceded the need for Mr Kouri to have counselling as recommended by Dr Phillips at a cost of $3,000. It was submitted that I would not accept Dr Clarke's opinion that he needs counselling for the rest of his life. 609 I agree that it is unlikely that Mr Kouri will, in fact, seek regular counselling for the rest of his life. I would allow $10,000 altogether for future out of pocket expenses. 610 In relation to economic loss, it was submitted on behalf of Mr Kouri that he has lost income since Omar's accident, casually connected to the defendants' tort. 611 At the time of the accident, he remained in employment with A W Tod on light duties following a shoulder injury some time previously. That employment was terminated in November 2005 when Mr Kouri was made redundant following a letter to him in the following terms (omitting formal parts): "RE: Position at A W Tod Stair & Joinery You have worked with A W Tod Stairs as a stair builder since November 1998. Until 2 years ago your standards of workmanship and reliability were very good and you were recognized as the leading tradesman. Your knowledge and trade skills were a valuable asset to this company. However, recently your regularity of attendance and quality of work have become unacceptable. Your concentration levels have been noticeably declining as is you inability to work a full day or a 5 day week. Since May1 you have been only able to work a 3 day week. From the 27th October you have been unable to work at all. We are experiencing problems with clients as we are unable to rely on you and are forced to send other tradesmen to finish your jobs. This situation is unacceptable and we are no longer able to use your services as a staircase contractor." 612 Mr Hull conceded that no claim for lost income was appropriate up to November 2005. Loss of income since then is claimed except for the period Mr Kouri worked for Global as a carer for Omar. 613 The defendants submitted that in truth Mr Kouri was made redundant because of his choice to spend about 12 hours per day assisting the professional carers to look after Omar. While I doubt the evidence supports the contention that Mr Kouri was actually spending 12 hours a day with Omar before he was made redundant, I am satisfied that his attention to Omar caused him to neglect his employment and led to its termination. 614 However, in the period between October 2005 and June 2006 when he became employed by Global, he did, according to his evidence given to Mr Webb devote 12 hours per day to Omar: "Q. And in that period between October 2005 and June 2006, you were spending all your available time with your son, weren't you? A. Yes. Q. You were helping him in many, many different ways? A. I was his chauffeur; I was working with him 12 hours a day; doing the grocery, cooking. Probably that year his mother was there for two to three months, whatever it is, I don't know the time or date, but, yes, all the work. I used to get up every morning at 6.30, whether I am working with him or not. I used to work with him two or - two days at the most. I couldn't work any more than that, because it's very demanding work. Q. I am just trying to ask you questions about the period before you started working for Global Advantage? A. Yes. Q. Do you understand that? A. Yes. Q. So when I ask you questions, just keep in mind that's the period that I am referring to? A. Okay. Q. In that period, you weren't working any longer; correct? You weren't working for Tod anymore? A. No. No. Q. So all of your energies were going into helping your son; is that right? A. Correct. Q. And were you getting up very early in the morning, 6 o'clock, 6.30? A. Correct." 615 Mr Kouri worked for Global for about 12 months performing what was undoubtedly, to a significant degree, quite hard physical work. He resigned because in essence the work became too much for him physically and mentally "Not just my back, my whole physical was shot, including my back'. 616 It was submitted that Mr Kouri left Global's employment because of the injury to his back and physical demands of the work rather than any mental disability. 617 There seems to be a degree of conflict between Dr Phillips opinion as to Mr Kouri's work capacity and that of Dr Clarke, although Dr Clarke's views are more recent and should be respected as those of his treating doctor. On the other hand, Mr Kouri, a man with what I would regard as a strong work ethic did not in his evidence reject the possibility of a return to the work force. I do not accept Dr Clarke's opinion that Mr Kouri is wholly incapable of engaging in employment. Apart from anything else, in my view, the competence and dedication with which he has appeared to supervise Omar's care seems to demonstrate a considerable degree of organisational capacity and tenacity. 618 The defendants submitted that no allowance should be made either for the past or the future in respect of diminished earning capacity. However, I think that a global sum should be awarded as a buffer or cushion to meet the situation that when Mr Kouri is minded to seek employment on the open market, he may, with his mental disorder, find it more difficult than someone without that disorder to secure a suitable position. I would allow in all $50,000 for diminished earning capacity. 619 In the result, therefore I would award Mr Kouri $219,940 made up as follows: Non Economic Loss $154,700 Past out of Pocket Expenses $ 5,240 Future Out of Pocket Expenses $ 10,000 Diminished Earning Capacity $ 50,000 TOTAL: $219,940 ASSESSMENT OF DAMAGES – MRS COHEN: 620 It seems clear that Mrs Cohen has established an entitlement to damages for mental harm similar to that of her former husband. Her claim for non economic loss must be approached on the same basis as Mr Kouri's claim. It was submitted on her behalf that she too should be regarded as 60% of a most extreme case. 621 Again the defendants contended that when compared to what comes to mind when contemplating "a most extreme case", she should receive damages which represent only a modest percentage. 622 Although, of course, as between themselves, the claims of Mr Kouri and Mrs Cohen are not entirely comparable, I think they are sufficiently so to warrant being awarded the same percentage of "a most extreme case". 623 Accordingly, it being conceded by the defendants that Mrs Cohen brings herself within the relevant provisions of the CLA, I would award her $154,700 damages for non economic loss. 624 Out of pocket expenses were agreed at $4,925.40 and that sum should be allowed. 625 Mrs Cohen seeks a substantial sum as compensation for past lost earnings. Earlier, I have indicated that she lost her permanent employment at the end of 2003. She has, according to her tax records earned very little income since. 626 On behalf of the defendants, it was submitted that her economic loss has arisen, according to the evidence, not because of mental illness affecting her capacity to earn income, but rather because of her frequent absences, understandable as they have been, in visiting Omar in Australia. In the defendants' submission no allowance should be made for past loss of income as the evidence does not support such an allowance. 627 On the other hand, Mr Hull pointed out, in effect, that directly and by inference, Dr Phillips provides support for a claim of diminished earning capacity. 628 There is, I think, no doubt that Mrs Cohen has been, and is, a woman agonisingly torn between her feelings of love and responsibility to her husband, family, and employment in America, and those she feels towards Omar in Australia. It is impossible not to have great sympathy for her but, as it seems to me, the conflict does not necessarily mean that her capacity to earn income has been diminished in a way recognised as compensable, either at common law or, so far as the future is concerned, in accordance with the somewhat stricter regime provided for by section 13 of the CLA. 629 In relation to her past income loss, I am satisfied that there has been some diminution of her earning capacity due to mental illness. It is impossible to separate that diminution from the barrier to her continuation in permanent employment presented by her personal decision to make frequent trips to Australia which, indeed, as Mr Hull submitted, may have operated to minimise her general damages. 630 For the purposes of section 13 of the CLA, given Mrs Cohen's past employment, it is likely, in my view, that she will return to the workforce but, as has been the case since the accident, her capacity to earn income will be diminished, both by her non compensable wish to spend as much time as possible with Omar and her compensable mental illness. 631 In the above circumstances, it is appropriate, as with Mr Kouri, to award a lump sum by way of buffer or cushion, which I fix at $75,000 to cover both the past and the future. The question of interest upon that sum does not arise. 632 It seems probable that Mrs Cohen will continue to live in the USA and will continue to have counselling. On the basis that such counselling will be for the rest of her life the "gap" sum of $16,837.78 is sought, namely the difference between cost and insurance entitlement. Although the sum claimed is relatively modest, there should be some discount to meet the circumstance that she will not continue the counselling for life. I would allow $13,000. 633 In summary, therefore, I would award Mrs Cohen $247,625 calculated as follows: Non Economic Loss $154,700 Agreed Out of Pocket Expenses $ 4,925 Diminished Earning Capacity $ 75,000 Future Out of Pocket Expenses $ 13,000 TOTAL: $247,625 ORDERS AND DECLARATIONS: 634 In the light of the above findings, I recognise that there are likely to be matters upon which the parties will seek to make further submissions and possibly call evidence. Those matters will, at least, relate to the management of Omar's verdict. There may also be matters of arithmetical calculation and costs. Accordingly, I defer making formal orders and stand the matter over for mention tomorrow 8 May at 9.30am. At that time I would hope to make such orders as can be made without further debate and to give directions regarding outstanding matters. 635 Subject to any further argument, it seems to me that in accordance with my reasons and finding there should be: A. In action 20105 of 2005. 1. Verdict for Omar Baghdadi against all three defendants in the sum of $14,452,767. 2. Verdict for Sami Kouri against all three defendants in the sum of $219,940. 3. Verdict for Judith Cohen against all three defendants in the sum of $247,625. 4. Order that the defendants pay the plaintiff's costs. 5. Declaration that as between themselves the defendants are liable to contribute equally to the verdicts and costs. B. In action 13906 of 2007 6. Verdict for Kaybron (No 5) Pty Ltd against all three defendants in the sum of $4,834,461 plus interest of $687,421, a total of $5,521,882. 7. Declaration that any satisfaction by a defendant of the verdict ordered in 6 above shall pro tanto satisfy the verdict ordered in 1 above. 8. Order the defendants pay the plaintiff's costs. 9. Declaration as between themselves that the defendants are liable to contribute equally to the verdict and costs. NOTE : For amendments and final orders see judgment and orders given and made on 5 June 2008 oOo 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.